author: RICHARDS, J.

text:
    EMPLOYMENT AGENCIES.
    [Lucas Court of Appeals,
    March 19, 1917.]
    Chittenden, Richards and Kinkade, JJ.
    Frank Raabe v. State of Ohio.
    1. Person Receiving Fee for Securing Employment Subject to Statute Regulating Private Employment Agencies.
    A person who, claiming to have influence with a business company, furnishes and agrees to furnish to sundry persons employment, with said company and for this service receives a fee from the persons for whom he agreed to furnish employment, and is not acting as agent for a charitable organization, is subject to the provisions of Sec. 886 G. C. et seq., regulating private employment agencies, even though he maintains no office and displays no sign or bulletin and transacts the business at his residence.
    2. Statute Regulating Private Employment Agencies Constitutional.
    Section 886 G. C. et seq., providing for the licensing and regulating of private employment agencies, is a constitutional exercise of the police power by the general assembly.

      3. Failure to Provide Judicial Review of Refusal by Commissioner of Labor Statistics to Grant License Does not Invalidate Statute.
    The failure to provide in tbe act for a review by the courts of a refusal of the commissioner of labor statistics to issue a license on bis conclusion that the applicant has violated the law relating to private employment agencies, or is 'not of good moral character, does not invalidate the statute, since there is a presumption against wanton action by the commissioner, and if there should be such disregard of duty a remedy in the courts would be implied.
    4. Failure to Define “Good Moral Character” Does not Invalidate Statute.
    The failure of the act to define what constitutes “good moral character” or to furnish a standard for determining it, does not render the statute invalid for indefiniteness or uncertainty.
    [Syllabus by the court.]
    Error.

      Friedman, Foster & Dixon, for plaintiff in error.

      Joseph McGhee, Atty.-Gen., J. C. D’Alton, Pros. Atty., and W. 8. Connors, for defendant in error.
   RICHARDS, J.

The plaintiff in error was arrested, tried, convicted and sentenced in the police court of the city of Toledo on a charge that he unlawfully operated and maintained a private employment agency for hire in violation of the provisions of Sec. 886 G. C., and succeeding sections. He prosecuted error to the Court of Common Pleas where the judgment and sentence were affirmed, and he brings this proceeding in error to procure a reversal of these judgments.

It is earnestly contended that, the affidavit on which he was arrested is insufficient; that the court erred in the admission of evidence; and that the judgment of conviction is not sustained by sufficient evidence. And it is also insisted that the section of the General Code already cited is in violation of various provisions of the constitution of Ohio and the constitution of the United States.

A careful examination of the affidavit fails to disclose any defect therein. Neither have we found any prejudicial error in the admission or rejection of evidence on the trial of the case.

The act of the general assembly under which the defendant was prosecuted prohibits any person from operating or maintaining a private employment agency for hire, or in which a fee is charged an applicant for employment, without obtaining a license from the commissioner of labor statistics. The phrase “private employment agency” is clearly defined in See. 893 of the General Code. That section provides in substance that, except an employment agency of a charitable organization, a person furnishing or agreeing to furnish employment or help shall be deemed a private employment agency.

The bill of exceptions contains all of the evidence which was introduced on the trial in the police court and the evidence disclosed therein is of such a character as would justify that court in finding that the defendant, pretending to have influence with a certain company, had on various occasions furnished and agreed to furnish employment to sundry persons with said company, and that for this service he received compensation from the persons for whom he agreed to furnish employment, and that he was not acting as agent of any charitable organization. It is true tfiat the defendant maintained no office and displayed no sign or bulletin indicating that he was operating or maintaining a private employment agency, but various men seeking employment met him at his residence and the business was there ordinarily conducted, and this clearly brings him within the purview of the statute. We are of opinion that the judgment of conviction is not so manifestly against the weight of the evidence contained in the record as to justify a reversal of the judgment.

The most important question in this case is the claimed unconstitutionality of the act providing for- the regulation of private employment agencies. The first section of the act, being Sec. 886 G. C., prohibits any person, firm or corporation from opening, operating or maintaining a private employment agency for hire, or in which a fee is charged an applicant for employment or an applicant for help, without obtaining a license from the commissioner of labor statistics. The section also requires the payment of a fee by the applicant for license, which fee is graded according to the population of the municipality in which the licensee is to conduct business, the fee ranging from $25.00 in villages to $100.00 in cities having a population of 50,000. The section also provides that the commissioner may refuse to issue or renew a license to an applicant, if in his judgment, such applicant has violated the law relating to private employment agencies or is not of good moral character. The statute does not contain any provision for a review by the courts of the action of the commissioner of labor statistics in refusing to issue or renew a license to an applicant.

It is said that this statute is invalid because it bestows arbitrary power on the commissioner of labor statistics and contains no definitions or directions for the determination of what constitutes good moral character or what constitutes a violation of the law relating to private employment agencies, by an applicant for a license; that the classification of municipalities in fixing the price of the license is arbitrary and unjustified; and because no provision is made in the statute for a review by the courts of the decisions reached by the commissioner of labor statistics.

We have no doubt that the general assembly has ample authority to regulate the general subject of employment agencies under the police power possessed by the state. This subject has been many times discussed in the courts and with very few exceptions the conclusion reached has been in favor of the existence of this power by the state legislatures. I need refer only to the following authorities:

Wessell v. Timberlake, 95 Ohio St. 21 [116 N. E. 43]; Moore v. Minneapolis, 43 Minn. 418 [45 N. W. 719]; Price v. People, 193 El. 114 [61 N. E. 844; 55 L. R. A. 588; 86 Am. St. 306]; People v. Warden, 183 N. Y. 223 [76 N. E. 11; 2 L. R. A. (N. S.) 859]; People v. Brazee, 183 Mich. 259 [149 N. W. 1053], This latter case is one of very great importance in determining the questions involved in the case at bar and was affirmed by the Supreme Court of the United States in People v. Brazee, 241 U. S. 340. In the case last cited the statute limited the license fee of $100.00 to cities of over 200,000 inhabitants and there was but one city in the state that came within that classification, and yet the act was held not to be thereby rendered unconstitutional.

In the case of Gundling v. Chicago, 177 U. S. 163 [44 L. Ed. 725; 20 S. Ct. 535], an ordinance of the city oi Chicago authorizing the issuance of a license to persons to sell cigarettes upon the payment of $100.00 was held valid although it delegated to the mayor the entire subject of granting and revoking licenses to persons engaged in the business. The contention was made in that ease that this ordinance vested arbitrary power in the mayor and that it was for this reason invalid.

The most recent utterance of the Supreme Court of the United States on the questions now under consideration may be found in a group of cases decided by that court on January 22, 1917, and entitled Hall v. Geiger-Jones Co. 242 U. S. 536 (62 Bull. 177); the other cases are Caldwell v. Sioux Falls Stock Yards Co.; Merrick v. Halsey & Co.

Many of the cases which have been cited were based on statutes which contained provisions for a review by the courts of the decision made by the commissioner or board having charge of the issuing and revocation of licenses. Indeed it is probable that most of the statutes on this subject have a provision of that character; but all of the statutes do not have this provision. In the group of cases last cited such provision was found to exist in the statutes under review, and in some of those cases comment was made on that provision; but in the case last cited the court held that the absence of such provision did not render the statute invalid since there is a presumption against wanton action by any commissioner, and if there should be such disregard of duty a remedy in the courts would necessarily be implied.

I call attention to Reetz v. Michigan, 188 U. S. 505 [47 L. Ed. 563; 23 S. Ct. 390], which was an action arising under a statute of that state for the appointment of a “board of registration in medicine, ’ ’ and required a license from any person seeking such registration. I quote one proposition of the syllabus in that case:

“There is no provision in the federal constitution forbidding the state from granting to a tribunal, whether called a court or a board of registration, the final determination of a legal question. Due process of law is not necessarily judicial process, nor is the right of appeal essential to due process of law. ”

In the course of the opinion Mr. Justice Brewer uses the following language:

“But while the statute makes in terms no provision for a review of the proceedings of the board, yet it is not true that such proceedings are beyond the investigation of the courts. In Metcalfe v. State Board of Registration, 123 Mich. 661 [82 N. W. 512], an application for mandamus to compel this board to register the petitioner was entertained, and although the application was denied yet the denial was based not upon a want of jurisdiction in the court but upon the merits. ’ ’

It is said that the statute is unconstitutional because it furnishes no standard for determining what constitutes good moral character as used in See. 886 G. C. The same objection was urged against the validity of a statute of Ohio providing for the creation of a board of censors of motion picture films (103 O. L. 399), which act was under investigation in Mutual Film Co. v. Industrial Commission, 236 U. S. 230 [35 S. Ct. 387]. Section 4 of that act provided that only such films as are in the judgment and discretion of the board of censors, of a moral, educational or amusing and harmless character shall be passed and approved by such board. Mr. Justice McKenna, speaking for the court, uses this language on page 245:

“The objection to the statute is that it furnishes no standard of what is educational, moral, amusing or harmless, and hence leaves decision to arbitrary judgment, whim and caprice; or, aside from those extremes, leaving it to the different views which might be entertained of the effect.of the pictures, permitting the ‘personal equation’ to enter, resulting ‘in unjust discrimination against some propagandist film,’ while others might be approved without question. But the statute by its provisions guards against such variant judgments, and its terms, like other general terms, get precision from the sense and experience of men and become certain and useful guides in reasoning and conduct. The exact specification of the instances of their application would be as impossible as the attempt would be futile. Upon such sense and experience, therefore, the law properly relies.”

The act under which Raabe is prosecuted authorizes the commissioner to refuse to issue or renew a license to an applicant if, in hig judgment, such applicant has violated the law relating to private employment agencies, or is not of good moral character. If this, language should be construed to vest arbitrary and absolute power in the official named, the statute must needs be held violative of the constitution; but we do not so read the statute in the light of the cases to which reference has been made. Discretion and judgment must be reposed somewhere in order to make effective a statute regulating employment agencies, and the general assembly has placed the duty of exercising that judgment and discretion on the commissioner of labor statistics. It does not follow, however, that any conclusion which he may reach is beyond review in the courts. The phrase in the statute, “in his judgment,” must be held to mean a reasonable judgment. Even without those words the conclusion which he reached would naturally have to be his judgment. He can not under this statute act from caprice or whim, nor arbitrarily. If, for instance, the official named should refuse to issue or renew a license on the ground that the applicant was not of good moral character when in truth and in fact there was no foundation for such conclusion by the commissioner, manifestly the applicant who was refused a license would have a remedy in the courts, and the same may be said of that portion of the statute which gives the right of refusing to issue or renew a license if the applicant has, in the judgment of the commissioner, violated the law relating to -private employment agencies, and it appears that the conclusion is merely an arbitrary or capricious one. The legislature will not be held to have intended to confer arbitrary power unless the language of the statute is such as to admit of no other construction.

The statute under review by the court in People v. Brazee, supra, authorized the revocation of the license by the commissioner of labor whenever, in his judgment, after full hearing, the licensed agency shall have violated any of the provisions of this act, and yet it was held that notwithstanding this language the courts have authority to review the conclusion of the commissioner if exercised arbitrarily.

Similar language is found in the statute under review in Mutual Film Co. v. Industrial Commission, supra.

In the case of Harmon v. State, 66 Ohio St. 249 [63 N. E. 117; 58 L. R. A. 618], the act of the general assembly of Ohio providing for the licensing of steam engineers was held invalid because it was held to grant legislative power and contained no criterion for determining when an applicant was “trustworthy and competent. ’ ’ The decision just cited is not in conflict with those heretofore cited in this opinion. Indeed, the case was cited in Mutual Film Co. v. Industrial Commission, supra, and held to be distinguishable from the statute establishing a board of censorship of motion picture films. We think it is also distinguishable from the case at bar.

The liquor license code, 103 O. L. 222, provides that a license shall not be granted to a person who is not a citizen of the United States or who is not of good moral character. This phrase “good moral character” has been used so many times in statutes and decisions of the courts that it would seem to be unnecessary to attempt any definition. Indeed the term defines itself as accurately as the legislature could define it by any other terms that it might employ along that line.

In Rose v. Baxter, 18 Dec. 658 (7 N. S. 132), Judge Dillon had under consideration a statute authorizing the revocation of a physician's certicate for gross immorality, and reached the conclusion that the expression “gross immorality” was not so indefinite as to render the act invalid. We think the reasoning of the court in that case is sustained by the authorities already cited.

We are unanimously of the opinion that the statute under review is not in violation of any provision in either the state or federal constitution, and the judgment will be affirmed.

Chittenden and Kinkade, JJ., concur.


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    MECHANICS’ LIENS.
    [Hardin (3rd) Court of Appeals,
    November 17, 1917.]
    Hughes, Kinder and Crow, JJ.
    Albert Ropp v. Hardin Co. (Comrs.)
    Mechanic Lien of Sub-Contractor on Fund when his Principal Contractor Discontinues Work.
    A laborer who contracts to do and does perform certain of the labor required in the construction of an improvement under a sub-contract with the principal contractor is entitled to a lien upon the building fund in the hands of the owner notwithstanding the principal contractor has sub-let to a third party, without notice to said laborer who continues his labor, that portion of his contract including such labor or has suffered the owner to contract directly with said third party for such portion of the improvement, even though a portion of such labor is performed after such third party has begun the discharge of his contract, he having received the benefit of such labor.
    [Syllabus by the court.]

      Price & Price, for plaintiff.

      Donald F. Melhorn, Stickle & Cessna, for defendants.
   HUGHES, J.

The board of county commissioners entered into a contract with Anstine & Connor for the improvement of the Eiegel Free Turnpike in Jackson township, Hardin county, Ohio. In August, 1915, Anstine & Connor entered into a verbal contract with Albert Eopp the plaintiff, to do certain hauling for this improvement at an agreed price of four dollars per day. Plaintiff in the execution of this contract, hauled on dated running from August 10, 1915, to September 1, 1916, which by the terms of his contract, amounted in value to $158.95. $32.35 of this amount is claimed to have accrued on work done after an alleged subcontract had been entered into between Anstine & Connor and Dalton Hord for the subcontracting of this same improvement.

The plaintiff filed proper notices and perfected a lien within the statutory time from the date of the last hauling, but it is contended by the defendant Hord that this perfected a lien only for the $32.35 upon the theory that labor in the value of this amount was done while Hord was executing his contract, and that the balance was done under an independent contract between Anstine & Connor and the plaintiff Ropp.

This theory of Hord is presented as an issue by the averments of his answer, which are denied by the plaintiff.

Whether Hord be considered as a subcontractor undertaking to complete the work covered by the original contract between the commissioners and Anstine & Connor, or whether he be considered as an independent contractor with the commissioners, it may be said that in any event what he undertook to do was to complete work that was originally contracted to be done by Anstine and Connor.

It is clear that the plaintiff began the execution of his contract for hauling, and from all that appears in the evidence, he had no reason to believe that when he began his work in the spring of 1916 he was but completing the undertaking that he had originally contracted to do, no evidence being offered tending to show that he had any reason to believe that the work which he had already done in the execution of this contract should be considered as a past transaction, nor that the work he was finishing was to be paid for in any other manner than for the work which he had already done.

As was said by Judge Spear in the case of Vernon v. Harper, 79 Ohio St. 181 [86 N. E. 882; 20 L. R. A. (N. S.) 44].

“The policy of the state with respect to the claims of laborers and material men to be compensated for their work and material out of the structure to which their work and ma-1 erial have contributed is indicated by the statute as to liens and has been clearly defined in a number of decisions in this and other courts. The statute should be liberally construed in order to carry out the purpose of the General Assembly in its enactment, the legislation being highly remedial in character.”

Following the thought expressed by this same jurist, at page 188, it may well be said that Hord finished the work that was to have been done by Anstine & Connor with the aid of this plaintiff who finished his labor, acting in good faith in compliance with his contract originally entered into with the principal contractor and his contribution to tbe work thus accepted by Hord, enabled him to complete tbe work contemplated by tbe original agreement.

To deny plaintiff tbe advantage of bis outlay would be to permit tbe mere letter to override and defeat tbe plain spirit and purpose of the statute.'

Entertaining these views, we bold that tbe plaintiff is entitled to a lien on tbe fund for tbe full amount of bis claim. A decree may be drawn accordingly.


author: GORMAN, J.

text:
    AWARDS—CORPORATIONS—SALES.
    [Hamilton (1st) Court of Appeals,
    February, 1916.]
    Jones, Jones and Gorman, JJ.

      Williams Shoe Co. v. Frank Hoffard, Anna Hoffard and John Keoler.
    1. Sale of Entire Assets of Corporation Requires no Confirmation.
    In an action to restrain the directors of a corporation from selling and disposing of all the assets of the corporation contrary to the provisions of Secs. 8710 to 8718 G. C., inclusive, and for an accounting against one of the directors who claims to be a purchaser of the corporation assets, there is no power or authority in the court to order a sale of the assets, and to confirm a sale made by the corporation under the provisions of Secs. 8710 to 8718 G. C., inclusive. A sale made in conformity to the provisions of said sections requires no court proceedings.
    2. Equitable Action not Engrafted Upon by Action at Law Except by Supplemental Petition.
    In such an action for an injunction and an accounting, an action at law for the recovery of money only can not be engrafted on such bill in equity either by supplemental petition or by an intervening petition whereby the nature of the action is sought to be changed from an action in equity to one at law.
    3. Award of Two Arbitrators is Common Law not Statutory Award.
    An award by two disinterested arbitrators under Sec. 8713 G. C., which provides for an award by three arbitrators,, is not a statutory award under Sees. 12149 to 12160 G. C. inclusive; but the award provided for in said Sec. 8713 G. C. is a common law award and requires the concurrence of the three arbitrators.
    [Syllabus by the court.]
    Error.

      Dempsey <& Nieberding, W. J. Creed and E. A. Hafner, for plaintiff in error.

      Bentley & Mente, for defendants in error.

       Affirmed, Hoffard v. Shoe Co. 95 Ohio St. 376.

   GORMAN, J.

The plaintiff in error asks this court to reverse a judgment rendered by the superior court of Cincinnati in favor of the defendants in error upon a motion for a judgment upon the pleadings.

The original action was brought in the superior court of Cincinnati on August 13, 1913, by Frank Hoffard and Annie Hoffard, two of the defendants in error, against the plaintiff in error, the "Williams Shoe Company, a corporation, Richard G-. Bray, William W. Williams, Fred. Weber, Charles Weber, Henry 0. Johnson, Asa Lashlorn, Charles Sohngen, Edgar Cummings, Walter L. Thorne and T. Newton Jones. The petition set out in substance that the individuals above named were directors and stockholders of the Williams Shoe Company and that the Williams Shoe Company was an organization organized under the laws of the state of Ohio; and the plaintiffs set out that the stockholders were seeking to sell and dispose of all the property and assets of the company in a manner not authorized by the statute of Ohio regulating such sales by corporations. They also set out that the intended purchaser of the property was a stockholder of the company, and that he intended to pay for the assets by a cancellation of the indebtedness of the company held by him and which they aver he procured with money and other assets of the company, and that the company was therefore entitled to all discounts, rebates and other profits that might be made on the purchase of said indebtedness, by said stockholder, against the company. The prayer of the pétition was for a perpetual injunction restraining the corporation, directors and stockholders, from disposing of the entire assets of said company in any manner save as provided in Secs. 8710 to 8717 G. C., and further prayed for an accounting between the company and the contemplated purchaser of the assets of the company. And, further, that an order be made upon a determination of the amount paid by the prospective purchaser, to transfer and turn over to said company said claims, upon payment to them of the amount paid by them for said bills and accounts. . And they prayed for such other and further relief as the nature of the case may require.

Summons was issued on this petition; no answer was ever filed by any of the defendants, but on September 12, following the filing of the petition, the court made an order enjoining the Williams Shoe Company, the stockholders and directors “from proceeding further with the sale of said property except as hereinafter directed. The injunction hereby granted against each and every of said defendants, as above, does not apply to and cover a sale of the entire property, such as may lawfully be made, as provided in Sec. 8710 G-. C. et seq.” The court further finds in said entry “that the present board of directors of the Williams Shoe Company has been legally constituted and that it has legal authority to act on behalf of said company, and that Richard C. Bray and Frederick Weber are the legal holders of the claims against said company heretofore acquired by them. And as to all other matters not expressly adjudicated herein, including the amounts for which said claims so held by said Bray and Weber may be enforced against said company, this cause of action is hereby continued for further hearing.”

Two days before the making of this entry there appears an anomalous proceeding in the way of a “Report” and “Motion for confirmation of report and sale. ’ ’ This report was filed without any order having been made so to do by the court, and, so far as the record discloses, without any warrant or authority of law. This report purported to be filed by Charles Weber, secretary of the Williams Shoe Company, in which he sets out that on August 22, 1913, a duly and lawfully called meeting of the board of directors of the said Williams Shoe Company was held. A report and a true and correct copy of the minutes of said meetings are hereto attached and made part hereof marked “Exhibit A.”

The purported copy of the minutes of the directors’ meeting of the Williams Shoe Company, held August 22, 1913, sets out those who were present as being all of the directors; and that action was taken to sell and dispose of the entire assets of the corportion in the manner provided in Sec. 8710 to 8718 G. C., and that “the directors considering that the order of court heretofore made in said case has enjoined the manner of a previous effort to dispose of said assets by and through certain trustees appointed for that purpose, ’ ’ the minutes further set out that the directors fully complied with the order of said court; and a resolution was offered and carried unanimously by the directors that the proposition of Frederick Weber to purchase the assets of the Williams Shoe Company, except the stockholders’ liability, amounting to $91,760.72, be accepted. There is also attached what purports to be a notice Of a stockholders’ meeting for September 6, 1913, for the purpose of ratifying and approving the action of the directors in selling the assets to Frederick Weber in accordance with his proposition. And at this meeting on a vote being taken it appeared that there were 4044 shares voting, of which 4009 voted yes and 35 no. There also appears as an exhibit attached to the report a copy of the deed of conveyance of all the assets of the Williams Shoe Company to Frederick Weber for the .sum of $91,760.72, etc., and a purported copy of an agreement made between Frederick Weber and the Williams Shoe Company to purchase said assets for said sum. The report thereupon proceeds to move the court to approve and confirm all of the proceedings had by the stockholders and directors of said company, and to confirm the sale made by the said the Williams Shoe Company to Frederick Weber.

On the same day that the report was filed, the judge of the superior court made an entry confirming the report, setting out in said entry that the requirements of Secs. 8710 to 8718 G. C., had been fully complied with “in accordance with the order of the court heretofore made herein.”

This would appear to be as far as the court could have gone in this proceeding, if indeed it could have gone as far as it did. It is a question whether or not the court had any power or authority to receive the report of the sale of the assets and to confirm the same, inasmuch as there was no prayer in the petition for the sale of the assets, nor was there any order made by the court to sell the assets. The action brought was purely an equitable one for an injunction and an accounting. Furthermore, Sees. 8710 G. C., et seq., do not contemplate any court proeeedings being taken enabling a corporation to sell its entire assets. Those sections contemplate that a corporation itself, without any court proceedings, may proceed to sell the assets of the corporation in the manner therein provided.

On June 27,1914, nine months after the last entry was made, a purported supplemental petition was filed by the plaintiffs, Frank Hoffard and Annie Hoffard, in which they set up that the assets of the Williams Shoe Company had been sold in pursuance of the action of the stockholders and directors at the meeting held August 22,1913, and that the defendant, Frederick Weber, had purchased said assets. They set out the terms of the purchase, and further set out that on October 3, 1913, they notified the Williams Shoe Company and its board of directors in writing that they were dissatisfied with said sale and the nature of their objection, and demanded payment for their stock in said company; that another of the stockholders of record, John Eeoler, the holder of twenty-eight shares of preferi’ed stock and seven shares of common stock, also at the same time served a similar notice in writing; and that said notice was strictly in compliance with the remedy created by the laws of Ohio in Secs. 8710 to 8718 G. C. It further alleges that the Williams Shoe Company failed to pay. And that the Williams Shoe Company selected as arbitrator Joseph A. Sahlfeld to act for them and the plaintiffs selected I. M. Freiberg, and these two selected-John F. Ankenbauer; and that the three arbitrators gave due and proper notice to the interested parties of their meetings; that the first meeting was held March 27, 1914, and that the plaintiffs and the defendant were represented by their counsel, William Creed and Ed. A. Hafner, appearing for the Williams Shoe Company, and W. B. Mente and Henry Bentley appearing for Frank and Annie Hoffard; evidence was taken and the arbitrators made an award finding the value of the stock of plaintiffs to be $1,900, and a copy of the award is attached to the supplemental petition. They further allege that the Williams Shoe Company was furnished with a copy of said award and neglected for more than sixty days to take any action thereon, and failed to pay the amount of the award; and they therefore pray for judgment against the defendant in the sum of $1,900, with interest at six per cent, from September 6,1913. The purported copy of the award attached to the supplemental petition appears to be signed by two of the arbitrators only, John F. Ankenbauer and I. M. Freiberg.

It thus appears that there was engrafted on this bill of equity an action at law pure and simple, to recover a money judgment. •

Thereafter, on December 16, 1914, John Keoler filed an intervening petition, by leave of court, in which he set up substantially the same state of facts as was set up in the supplemental petition by Frank and Annie Hoffard with this difference, that he claimed to be the owner of twenty-eight shares of the preferred stock of the Williams Shoe Company and of seven shares of the common stock of said company, and he asked for a personal judgment against the defendant, the Williams Shoe Company, in the sum of $2,100, with interest from September 6, 1913. And there is attached to the intervening petition what purports to be a copy of an award made by the same arbitrators, signed by two only, as in the Hoffard ease. Summonses were issued upon the supplemental petition and upon the intervening petition, and service was duly made upon the Williams Shoe Company and the defendants, Frederick Weber and Charles Weber.

Thereupon the Williams Shoe Company filed answers to the supplemental petition and the intervening petition, which answers are substantially the same, in which they admit most of the allegations of the supplemental petition and the intervening petition, but deny that there was any award made in favor of Frank Hoffard and wife or in favor of John Keoler. They deny that the arbitrators made an award finding the value of the stock of Hoffard and wife to be $1,900, and they deny that the copy of said award attached to the supplemental petition as Exhibit A and made part thereof is the award. The same denial appears in the answer to the intervening petition of Keoler.

Whereupon Hoffard and wife, and Keoler filed motions for judgment upon the pleadings, and the court granted said motions, and entered judgment in favor of Hoffard and wife for the amount of their claim with interest; and for Keoler for the amount of his claim with interest.

There were two separate judgments entered — one in favor of Hoffard and wife on their supplemental petition, and one in favor of Keoler on his intervening petition. We have, therefore, the anomalous situation in this case of three final judgments in one case: the decree on the bill in equity, and two separate judgments — one on the supplemental petition and another on the intervening-petition — in favor of different parties; and these judgments were rendered in the face of the fact that the defendants denied in their answers to the supplemental petition and to the intervening petition that the arbitrators made an award in finding the value of'the stock of plaintiffs as alleged in the petitions, and in the face of the denial that copies of the awards were attached to the petitions in the case.

Sections 8710, 8711 and 8712 provide that a corporation may sell its entire assets by taking certain steps therein set out, upon the vote of three-fourths of the directore and upon the action of the board of directors being ratified by three-fourths of the stockholders at a meeting called for that purpose. These sections, as above stated, do not contemplate any court proceedings, but the entire proceeding is to be taken by the stockholders and directors of the corporation.

Section 8713 provides that if a stockholder be dissatisfied with such sale and refuses to participate in the proceeds thereof, within thirty days after the adoption of such an agreement to sell he shall state his objections in writing and file them with the corporation, and in writing he shall demand from it payment for his stock. Within sixty days thereafter such corporation shall pay to him the value of his stock. In case of a disagreement as to the value of the stock it shall be ascertained by three disinterested persons, one of whom is to be chosen by the stockholder who is dissatisfied, one by the directors of the corporation, and the other by the two so selected, who shall conduct an arbitration as provided by the law regulating arbitrations.

Section 8714* provides that if the award is not paid within sixty days from its making, and notice thereof given to the «stockholder and the corporation, its amount shall be evidence of the amount due from the corporation, and may be collected as other debts against it.

It would appeal”, therefore, that if an award be made by three disinterested persons, as provided by Sec. 8713, and the company fails to pay the award, the amount so found shall be evidence of the amount due from the corporation and shall be collected as other debts against it. There is no mode of collecting debts from a corporation except by voluntary payment by the corporation or by resort to the court for a judgment for the amount of the claim.

We can see no warrant or authority of law for the filing of the supplemental petition or the intervening petition in this case by two separate stockholders of the corporation upon the claim that an award had been made to them. Each of these parties has a right of action in separate suits against the corporation, for failure to pay an award; but from the record in this case the court was not authorized to enter a judgment against the plaintiff, even if there had been separate suits brought, upon a motion for a judgment on the pleadings, there being a denial, in the answers, of an award and of other material facts. . The question of the right to recover should have been submitted to a jury.

The record further discloses that the alleged award was not made by three disinterested persons, but by two only, and there is no provision for making an award by two disinterested persons. The statute authorizes them to proceed according to the methods of arbitration which will be found in Sec. 12148 to 12160 inclusive. These provisions apply to a statutory arbitration, but the arbitration provided for under Sec. 8713 is manifestly not a statutory arbitration. If anything, it is a common law arbitration. See Columbus & H. V. & T. Ry. v. Burke, 54 Ohio St. 98 [43 N. E. 282; 32 L. R. A. 329]; Mock v. Bowman, 24 O. C. C. 27 (2 N. S. 574).

We have been somewhat puzzled to determine what judgment shall be entered in this proceeding in error. We are satisfied that the court erred in entering a judgment against the Williams Shoe Company upon the supplemental petition, and upon the intervening petition, and the judgments should be reversed. We are further of the opinion that the court below should not have permitted the supplemental petition or the intervening petitipn to have been filed in the action brought by the plaintiffs. The court could not engraft upon a bill in equity two causes of action at law for money judgments against the defendants. ■ If the Williams Shoe Company had objected to the filing of the supplemental petition and the intervening petition, it would have been the duty of the court to refuse to permit them to be filed; or, if an objection had been made after they were filed it would have been the duty of the court to strike them from the files.

Upon the whole, we think that the proper course to pursue in this case is to reverse these judgments upon the supplemental petition and the intervening petition, and remand the case to the superior court, with directions to dismiss the supplemental and intervening petitions, and to proceed to try any question remaining undisposed of under the original bill filed in the cause.

Judgment accordingly.

Jones (B, H.), and Jones (Oliver B.)» JJ.» concur.


author: JONES (O. B.), J.

text:
    WILLS.
    [Hamilton (1st) Court of Appeals,
    May 12, 1916.]
    Jones, Jones and Gorman, JJ.
    Charles W. H. Kammann et al. v. Albert August Kammann, Widower, et al.
    Trfal Judge in Will Contest May Not Weigh Evidence After Presumption of Probate has been Overcome.
    When, in a will contest, there is evidence offered by tbe contestants which overcomes the presumption arising from the probate of the will, the case must be referred to the jury for determination as to the weight of the evidence, and the granting, under such circumstances, of a motion to arrest the case from the jury and give judgment for the defendants is error.
    Error.

      Einlead <& liogers and Wm. Jerome Euerts, for plaintiffs in error.

      Herrlinger efr Dixon and Lorbach & Garver, for defendants in error.
   JONES (O. B.), J.

Plaintiffs in error in this proceeding seek to reverse the .judgment of the court of common pleas sustaining the will of Anna M. Kammann, deceased. They are the children of the deceased brother of the testatrix, and by the terms of her will they were excluded from participation in her estate which with the exception of two small legacies was left to her surviving brother and his children.

The action below was brought under tbe statute to contest the validity of this will. At the trial of the cause an issue was made up as to whether or not the writing produced was the last will of said testatrix, and proponents introduced in evidence said will and the order of the probate court admitting same to probate, and then rested. Tbe contestants, then offered evidence tending to show that the testatrix was without capacity to make a rational disposition of her property. At the conclusion of the evidence offered by contestants, the trial judge on motion of the proponents directed the jury to return a verdict finding that the will presented to them was the last will and testament of the testatrix. To this ruling exception was duly taken, a motion to set aside the verdict and for new trial filed, which was overruled, and judgment was entered on the verdict, to all of which said contestants duly excepted.

The question to be here determined is whether the trial court erred in so directing a verdict.

The laws of Ohio provide for the probate of a will in the probate court. The proceedings there are ex parte, Bradford v. Andrews, 20 Ohio St. 208, 222 [5 Am. Rep. 645]. The only testimony heard there is that of the witnesses to the will and such other witnesses as may be desired by any person interested in having the will admitted to probate, Sec. 10516 G. C. No provision is made for. hearing evidence at the instance of a person opposed to the probate of the will.

While an appeal can be taken to the common pleas court by a person aggrieved in case of the refusal to admit a will to probate, Sec. 10532 G. C., there is no such provision where the will is admitted to probate. But instead a special proceeding is provided to contest a will after it has been admitted to probate, by a civil action in the common pleas court of the county in which such probate was bad, Secs. 32079 to 12087. This action can be brought by any person interested in the will, and all the devisees, legatees and heirs of the testator and other interested persons .including the executor or administrator must be made parties.

When a petition to contest a will is filed the clerk of the common pleas court certifies that fact to the probate court where the will has been probated, and that court is required to forthwith transmit to the court of common pleas the will, testimony and all the papers relating thereto, together with a copy of the order of probate, all duly certified, Sec. 30534 G. C. Thereupon further proceedings for the settlement of the estate under the terms of the will are suspended until the final judgment is had in the will contest when a copy of such final judgment shall be certified to the probate court by the clerk of the common pleas court, who .shall also return to such probate court the will and other papers theretofore transmitted by it.

In the common pleas court in the action to contest a will an issue must be made up, either by the pleadings or by order of the court, whether or not the writing produced is the last will of the testator. This issue must be tried by a jury. And the law provides that the verdict shall be conclusive, unless a new trial be granted or the judgment is reversed or vacated, Sec. 12082. In this trial it is provided that the order of probate shall be prima facie evidence of the due attestation, execution and validity of the wall, Sec. 12083. It will be observed that Secs. 12082 and 12083 are in a measure inconsistent with each other.

Provision is made for the conduct of the trial, the proponent or party sustaining the will being entitled to ©pen and close both the evidence and the argument. But in opening the evidence he must merely offer the will and its probate and then rest. The contestant then offers his evidence, and then the rebutting evidence mav be offered as in other cases, See. 12085.

A consideration of all these provisions shows that while the statute makes its probate prima facie evidence, the real test of the due attestation, execution and validity of the will is determined in the action to contest it.

The order of probate in the probate court before an action to contest the will has been filed has the force and effect of a judgment, but it is practically suspended when such contest is filed, and is superseded by the final judgment in the contest case.

The contest is an original proceeding connected only with the probate in that it can not be commenced until the will has been probated, for the reason that until then there is in law no will to contest. It is however in the nature of an appeal from ’he order of probate, and in such contest all of the material facts as to the execution, attestation and validity of the will are placed in issue to be heard and determined de novo with full opportunity for both sides to offer evidence and argument and without reference to the order of the probate court in admitting the will to probate except that the burden of proof is thereby cast upon the contestant, to invalidate the will, Haynes v. Haynes, 33 Ohio St. 598 [31 Am. Rep. 579].

The action to contest a will is denominated in the statute (G. C. 12079) as a civil action, and it is tried in the same manner and subject to the same rules as other civil actions except as to any modifications required by the special statutes providing for it, found in Chapter 8, Division VII of Title IV, General Code. In such trial, while it has been held in Walker v. Walker, 14 Ohio St. 157 [82 Am. Dec. 474], that the provisions of G. C. 12082, requiring a jury trial are imperative, and in Holt v. Lamb, 17 Ohio St. 374, that a court can not proceed by mere decree, without the intervention of a jury, in Wagner v. Ziegler, 44 Ohio St. 65 [4 N. E. Rep. 705], it is determined that where the evidence does not tend to prove the issue on the part of plaintiff showing improper restraint or incapacity of the decedent to make a will, the court has power at the conclusion of plaintiff’s testimony to direct a verdict sustaining the will.

The so-called “scintilla rule” does not apply to it in full force for the reason that the prima facie evidence furnished by the order of probate must be first met and neutralized by sufficient evidence. When this has been done and in addition to the quantum of evidence necessary for such purpose evidence however slight is produced tending to prove the facts essential to plaintiff’s case, then the motion for a directed verdict in favor of the defendants can not he properly granted, but the case must be submitted to the jury under proper instructions.

In other words, in the trial of a will contest case it is first necessary for the contestant to produce sufficient evidence as a minimum to balance that furnished by the order of probate of the will, and after that has been done and the evidence so adduced by him not only fully equalizes the prima facie case made for the contestee by the order of probate, but in addition to that minimum also tends to prove in all particulars the issues required to be sustained by plaintiff, then upon the filing of a motion by defendant for a directed verdict sustaining the will the court must apply the doctrine laid down in Ellis v. Insurance Co. 4 Ohio St. 628 [64 Am. Dec. 610], as to the excess evidence required beyond the minimum necessary to meet the order of probate, and treat as fully proved all that such evidence in any degree tends to prove, and take as fully established every fact that such evidence conduces to establish and all reasonable inferences from it. Tbe court is not permitted to weigh the evidence beyond the determination of the required minimum, because it is the right of the plaintiff to have its weight and sufficiency passed upon by tbe jury.

Applying these principles, upon which all the members of the court are in accord, to the ease here under consideration, it is the opinion of the majority of the court that the evidence was sufficient not only to rebut the presumption arising from the probate of the will, but that it also tended to prove that testatrix was so lacking in mental capacity and so controlled by delusions that she was unable to make a rational choice in determining the proper objects of her bounty in making her will, to the extent that she was not possessed of testamentary capacity at the time of its execution, Wadsworth v. Purdy, 31 O. C. C. 110 (12 N. S. 8), and that the trial court erred in granting the motion for a peremptory instruction, Wilder v. Taylor, 87 Ohio St. 520.

Judge Gorman, however, is of the opinion that the evidence is not sufficient to overcome the presumption arising from the probate of the will and to require a submission of the case to the jury, and therefore dissents from the reversal of the judgment.

Judgment reversed, and cause remanded for new trial.

Jones (E. H.), J., concurs.

Gorman, J., dissents.


author: METCALFE, J.

text:
    EXECUTORS AND ADMINISTRATORS — WILL».
    [Mahoning (7th) Court of Appeals,
    October 19, 1917.]
    Pollock, Metcalfe and Farr, JJ.
    Bessie Fuhr Patterson, Extrx. v. A. L. Atkinson, Exr.
    Acceptance of Benefits by Executor Bars Right to Contest Will.
    A party appointed and qualified as executor of a will, administering an estate in accordance with its terms and taking the benefit of the provisions therein in his favor, can not afterward maintain an action to contest the validity of the will.
    [Syllabus by the court.]
    Error.

      David G. Jenkins, V. L. Fishel and McCray & McCray, for plaintiff in error.

      Hart & Koehler, Harrington, DeFord, Heim, & Osborne, for defendant in error.
   METCALFE, J.

The plaintiff in error was plaintiff below and brought this action to contest the validity of the will of T. H. Patterson.

In the common pleas court John H. Humphrey, hs guardian of Catherine Humphrey, a minor defendant in the case, filed a motion to dismiss and abate the action. The court of common pleas sustained the motion and entered an order abating the action, which is the error now complained of.

It is first objected that the matters set out in the so-called motion properly constitute a plea in abatement, and should have been plead by answer. We think this objection would have been good if made in time, but the record shows that the parties went to hearing upon it without objection; hence, any objection to the form of the pleading was waived.

Briefly stated, the facts as they appear upon this record are, that the plaintiff was the wife of Delos Patterson and is the executrix of his will and his sole heir and devisee. Delos Patterson was the son and sole heir at law of Theodore Patterson whose will it is sought to contest. He was also named as one of the executors of the will which contained a substantial provision for his benefit; that the only interest which the plaintiff has in the will of Theodore Patterson she derives through her husband, Delos Patterson; that Delos Patterson, after the death of Theodore Patterson appeared in the probate court of Ma-honing County and presented his father’s will and made the usual application for its admission to probate; that with Á. L. Atkinson he was appointed one of the executors and duly qualified as such, and thereupon took upon himself the duties of an executor, collected the assets of the estate, paid debts and legacies in the due course of the administration to the amount of several thousand dollars; that he made an application to the probate court for the payment to him, in money, of a legacy and received full payment thereof, and afterwards made an application to the probate court for a certificate under the statute which would entitle him to a transfer of certain real estate devised to him, received the certificate and caused the real estate to be transferred to him.

The judgment of the trial court found the above matters to be true. We have no evidence before us upon which to review the finding.

The right of the plaintiff to maintain this action depends entirely upon the right of her husband, Delos Patterson. She succeeded to his right in the estate and is a party in interest, under Sec. 12079 G-. C., and would have the same right to make the contest that he had, but her right is no greater than his. If he lost the right to make a contest, then her right is also gone.

After having performed all the acts he performed as shown by the record, could Delos Patterson have maintained an action to contest the validity of his father’s will ? That is to say, could he take all of the provisions made for him in the will and have the right to say that the instrument under which he received them was invalid? Can he say, “I will take all I can get and after I get all I can, under the will, I will exercise my statutory right to contest it?”

To state" this proposition is sufficient to refute it. The law is clearly stated in the case of Utermehle v. Norment, 197 U. S. 40 [25 S. Ct. 291]:

' ‘ The rule of law is, that the party taking the benefit of a provision in his favor under a will is estopped from attacking the validity of the instrument.”

On page 57 the court says:

“As to what is the law relating to a party taking the benefit of a provision in his favor under a will, there is really no foundation to dispute the proposition that he thereby is precluded from at the same time attacking the validity of the very instrument under which he receives the benefit.” .

And, in commenting further upon the question the court cites the following authorities, Hyde v. Baldwin, 34 Mass. (17 Pick.) 303; Drake v. Wild, 70 Vt. 52 [39 Atl. 248]; Branson v. Watkins, 96 Ga. 54, 55 [23 S. E. 204]; Smith v. Smith, 80 Mass. (14 Gray) 532; Fry v. Morrison, 159 Ill. 244 [42 N. E. 774], and many other cases.

The only case cited to us from Ohio is Leedy v. Cockley, 32 O. C. C. 299 (14 N. S. 72), where it is held:

“A daughter who went into possession of land devised to her by the will of her father and leased the land and collected the rent under the lease from the date of the probate of the will, is estopped thereby from contesting the validity of the win.”

Counsel have cited us a large number of eases in which it was held that acts of acceptance of certain provisions in wills by parties interested did not preclude them from afterwards contesting the will, but these cases nearly or quite all went off on particular facts which the courts held in those cases did not estop the parties from making the contest. They do not conflict with the rule adopted in the case at bar.

Judgment affirmed.

Pollock and Farr, JJ., concur.


text:
    EXTRADITION — HABEAS CORPUS.
    [Hamilton (1st) Court of Appeals,
    December 3, 1917.]
    Jones, Gorman and Hamilton, JJ.
    Hamilton, J., not participating.
    Ex Parte James Maloney.
    Certified Authentic Affidavit Charging Crime in State Asking Extradition of Fugitive, not Probable Guilt of Accused, Essential for Governor to issue Process.
    It is the duty of the governor of this state to issue a warrant of arrest for one alleged to be a fugitive from justice in another state, upon demand of the governor of such other state accompanied by an affidavit, certified as authentic, which sets forth the charge made against the said alleged fugitive and the charge so set forth constitutes a crime or felony committed in such other state; and it is not the province of the governor to inquire whether the person sought to be extradited is guilty of the offense charged; and a court is without authority, upon application for release by habeas corpus, to hear the case on its merits for the purpose of determining whether or not the accused is probably guilty of the offense for which he is being extradited.
    Habeas Corpus.

      D. T. Hackett, for petitioner.

      J. V. Campbell, Pros. Atty., and W. M. Locke, Asst. Pros. Atty., for respondent.
   GORMAN, J.

Upon May 4,1917, James Maloney was arrested on a warrant issued by the governor of the state of Ohio in extradition charging him with being a fugitive from justice from the state of Pennsylvania, county of Lancaster. Maloney was taken into custody by the sheriff of Hamilton county under the warrant issued by 'the governor, and before he had an opportunity to be taken before one of the judges of the court of common pleas, as required by Sees. 113 and 114 G. C., a writ of habeas corpus was sued out on his behalf by Denis T. Hackett in which it was alleged that Maloney was illegally restrained and deprived of his liberty, without any legal authority, by George F. Schott, sheriff of Hamilton county, Ohio. The sheriff answered the writ, setting out that he held Maloney by virtue of the warrant issued by the governor of the state of Ohio, which warrant was issued at the request of the governor of Pennsylvania for the arrest of said James Maloney, and was directed to him as sheriff of Hamilton county, commanding him to arrest and detain the said Maloney.

Upon Maloney being brought into the court of common pleas, a hearing was held by one of the judges thereof, and Maloney was discharged from the custody of the sheriff. The entry discharging Maloney is as follows:

‘ ‘ This cause came on to be heard on the pleadings and the evidence, all the parties being in court, and upon due consideration thereof the court finds that the said prisoner is unlawfully restrained of his liberty, because the affidavit dated December 30, 1916, does not charge a crime under the laws of Pennsylvania, and that the proceedings before the governor of Ohio were not in accordance with the laws of Ohio.”

Error was prosecuted to that judgment discharging the prisoner, and the cause is now in this court for our determination..

It appears that the judge who heard the cause in the common pleas court conceived it to be his duty to hear the case upon its merits as to whether or not Maloney was guilty of an offense in the state of Pennsylvania. Evidence was permitted to be introduced by counsel for Maloney tending to show that Maloney was not an employee of one Duncan, and that he was in business in Lancaster, Pa., on his own account. We think in permitting this evidence to be adduced at this hearing the court of common pleas misconceived the province of the writ of habeas corpus.

The sole question for the court was whether or not the Governor of Ohio was authorized in issuing a warrant for the arrest and extradition of Maloney upon the i*equest of the Governor of Pennsylvania. The record discloses that the Governor of Pennsylvania made a request to the Governor of Ohio for the surrender and designated as the agent of the state of Pennsylvania one H. R. Steigerwalt. The record also shows that there was an affidavit made before John F. Heinitsch, an alderman in and for the city of Lancaster and county of Lancaster and state of Pennsylvania, by one H. A. Duncan, charging that James Maloney did on or about the 19th to 23d of December, 1916, in the city of Lancaster, unlawfully and willfully commit embezzlement; that said James Maloney then and there being employed by H. A. Duncan as a salesman to sell fruit, etc., did by virtue of such employment receive and take into his possession $146.05, which is the subject of larceny for and on account of his said employer; and did then and there unlawfully, fraudulently and feloniously embezzle the said $146.05; contrary to the acts of the assembly of the commonwealth of Pennsylvania in such cases made and provided. This affidavit was dated December 30, 1916, and certified as being a true and correct copy by said aider-man.

There was also offered in evidence the warrant of the Governor of the state of Ohio, which recites, among other things, that—

“^Requisition has been made upon me (the governor of Ohio) by the governor of the state of Pennsylvania for the extradition of James Maloney, alleged fugitive from justice of said state of Pennsylvania, charged with the crime of felonious embezzlement, as appears by a copy of complaint duly authenticated and attached to the requisition aforesaid.”

There also is in evidence a copy of Sec. 107 of thé act of the assembly of the commonwealth of Pennsylvania, passed March 31, 1850, P. L. 408. This reads as follows:

“If any clerk, servant, or other person in the employ of another, shall by virtue of such employment receive and take into his possession any chattel, money or valuable security, which is or may be made the subject of larceny, for or in the name, or on account of his master, or employer, and shall fraudulently embezzle the same, or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master or employer, although such chattel, money or security was not received into the possession of such master or employer otherwise than by the actual possession of his clerk, servant or other person in his employ, and shall be punished as is provided in cases of larceny of like property. ’ ’

We do not know whether this was all the evidence adduced before the Governor of Ohio upon which he issued his warrant for the arrest of James Maloney.

The constitution of the United States, Art. IV, See. 2, Clause 2, provides that:

“A person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state, shall on demand of the executive authority of the state from which he has fled, be delivered up to be removed to the state having jurisdiction of the crime.”

Congress enacted Sec. 5278 U. S. Rev. Stat. for the purpose of carrying out this provision of the federal constitution.

The legislature of the state of Ohio has enacted See. 15341 G-. C., which is verbatim Sec. 5379 U. S. Rev. Stat. This section provides:

“Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. ’ ’

The warrant of the governor of the state of Ohio recites that “a copy of the complaint charging the crime against Maloney, duly authenticated and attached to the requisition aforesaid,” was presented to him. There is an absence of any evidence in this case that such complaint duly authenticated was not before the governor, and we are bound to presume that the governor acted upon the evidence duly presented and duly authenticated.

It is claimed by counsel for Maloney that under Sec. 110 G-. C. it was the duty of the person who made the demand or application for a warrant to the governor of the state of Ohio that he should present sworn evidence that Maloney was a fugitive from justice and that the demand was made in good faith for the punishment of a crime, and

“not for the purpose of the collection of debt or pecuniary mulct or of removing the alleged fugitive to a foreign jurisdiction to serve him with civil process, and by a duly attested copy of an indictment or information, or a duly attested copy of a complaint made before a court or magistrate authorized to take it and accompanied with an affidavit or affidavits to the facts constituting the offense charged by persons having actual knowledge thereof. ’ ’

Section 110 G. C. does not provide that the demand made upon the governor of this state shall be accompanied by such evidence. For all that appears in the record in this ease the demand made upon the governor of the state of Ohio was accompanied by this evidence. The record before us does not pretend to contain all the evidence' presented to the governor of the state of Ohio by the agent of the governor of the state of Pennsylvania for the requisition of Maloney. Whether or not such evidence was before the governor of the state of Ohio, we hold that it was his duty to issue his warrant, upon the demand of the governor of the state of Pennsylvania, if the demand were accompanied by an affidavit certified as authentic, setting forth the charge made against the person who had fled from the state, and said charge set forth a crime or felony committed in another state.

It is not within the province of the governor of the state of Ohio to inquire whether or not the person who was sought to be extradited was guilty of the offense charged. All that he was obliged to do, and all that he should do would be to ascertain whether or not there was evidence charging the commission of a crime or felony, against the person who was sought to be extradited, and that this evidence was duly authenticated.

It was not the province of the court of common pleas under Sees. 113, 114 G. C. to review the action of the Governor of the state of Ohio; nor could the court of common pleas in this case determine whether or not James Maloney was guilty of the commission of a crime in the state of Pennsylvania, if the crime were charged; and the affidavit submitted in this case appears to us to charge the commission of embezzlement under Sec. 107 of the assembly of the commonwealth of Pennsylvania above cited. It was not the province of the court of common pleas to hear testimony as to whether or not Maloney was engaged in business on his own account or as an employee of some other person in the state of Pennsylvania, city of Lancaster. These sections, 109 to 118, inclusive, were passed by the legislature of this state for the purpose of aiding and assisting the governor in extradition matters, and not for the purpose-of thwarting him in the administration of his functions as governor of the state.

If See. 110 G. C. should be construed as is claimed by counsel for Maloney, then we hold it would be in contravention of the provision of the federal constitution above cited, and in contravention of the statute, Sec. 5278 U. S. Rev. Stat. (See. 15341 G. C.), and to that extent it would be null and void. But as we read this section and construe it, we think it applies to the governor of the state, and not to a judge of the court of common pleas. It was passed for the purpose of guiding the governor in determining whether or not a warrant should be issued. It related to the evidence that must be adduced to the governor, and there is no provision in the statute which requires all the evidence adduced before the governor to be presented to a judge of the court of common pleas, the Supreme Court or the court of appeals when an extradited person is brought before any one of these courts.

Section 113 G. C. provides:

“If the governor decide to comply with the demand for the surrender of a person charged with an offense committed in another state or territory, he shall issue a warrant to the sheriff of the county in which the person so charged may be found, commanding him forthwith to arrest and bring such person before a judge of the Supreme Court, of the court of appeals or of the common pleas court, to be examined on the charge.”

Section 114 G. C. provides :

“Upon the return of the warrant by the sheriff with the person so charged in custody, the judge before whom the person so arrested is brought shall proceed to hear and examine the charge. Upon proof by him adjudged sufficient, he shall commit such person to the jail of the county for a time to be fixed by him in the order of commitment; thereupon such judge shall cause notice to be given to the executive authority making such demand, or to the agent duly appointed and authorized to receive the fugitive.”

As was said by Judge Longworth in the case of Van Vleck, Ex parte, 6 Dec. Re. 636 (7 Am. L. Rec. 636; 3 Bull. 763):

“The act of congress (Sec. 5278, U. S. E. S.).passed in pursuance of Sec. 2, Art. 4 of the constitution of the United States, gives to the governor of the state upon whom the requisition is made no discretion to inquire into any question further than the identity of the fugitive and the regularity of the requisition papers. Any attempt by state laws to clothe him with greater jurisdiction would be in conflict with the act of congress.”

In this case the identification of Maloney was undisputed. His own testimony and the testimony of others was to the effect that he was the person who was charged with the commission of the crime in Lancaster, Pennsylvania. The affidavit, in our opinion, sufficiently charged the crime under the law of Pennsylvania. The governor’s warrant appears to be regular and authentic, and the demand by the governor of Pennsylvania upon the governor of Ohio appears to be in all respects in accordance with the law. There was no necessity, in our opinion, for an additional affidavit before the court of common pleas such as described in See. 110 G. C. But if there were necessity for such an affidavit, for all that appears in this case such an affidavit was before the governor. The record fails to show the absence of such an affidavit.

The court of common pleas in undertaking to hear and determine the question of Maloney’s guilt greatly exceeded its jurisdiction and authority. No such power is vested in a court of common pleas under a habeas corpus ease to hear and determine a charge of felony committed in another state.

The prisoner, Maloney, should have been remanded to the sheriff, and the habeas corpus should have been dismissed; and because of the failure to take such action by the court of common pleas, the judgment is reversed.

Jones, P. J., concurs.


text:
    RELEASES.
    [Hamilton (1st) Court of Appeals,
    February 14, 1916.]
    Richards, Chittenden and Kinkade, JJ., of the sixth district sitting by designation.
    John P. Jones v. Walter Pickle.
    1. Validity of Written Release impeached Only by. Clear and Convincing Evidence.
    The validity of a written release of a cause of action can only be impeached when the invalidity is established by evidence which is clear and convincing in character.
    2. Release Fraudulently Obtained Held Void and Tender of Money Advanced Need not be Alleged.
    A release of a cause of action obtained by fraudulently representing that the instrument is a receipt only, is void and not merely voidable, and the plaintiff may ignore the same in his petition and is not required in such case, to allege or prove that he tendered back the amount received before action brought.
    [Syllabus by the court.]
    Error.

      D. W. Rogers and M. Hinges, for plaintiff in error.

      J. G. O’Connell and Robert O’Connell, for defendant in error.
   RICHARDS, J.

The original action was brought in the court of common pleas by Walter Pickle to recover for personal injuries claimed to have been suffered by him. He was employed in the construction of a trench adjacent to Bethesda Hospital in. the city of Cincinnati, and was injured by the banks of the trench caving in. The case has been three times tried in the court of common pleas, the first two juries failing to agree on a verdict, and the last jury returning a verdict in favor of the plaintiff for $500.00, on which verdict judgment has been entered.

In the court of common pleas the defendant in his answer set up a release of the cause of action, claimed to have been given by the plaintiff to him before suit was brought, and under which release he had paid the plaintiff the sum of $45.00 and had paid the hospital bill amounting to $66.20. The plaintiff in his reply sets up facts which, if true, show that the alleged release was void because of the fraudulent representations of the defendant in inducing him to believe that the instrument which he signed was simply a receipt for some money which was being paid to him.

We have given careful consideration to all the assignments of error shown by the record, but it will not be necessary to discuss them all in detail.

Among other things, it is contended that the judgment should be reversed because of misconduct of plaintiff’s counsel in argument to the jury. The language used in the argument was not entirely justifiable, but was not so prejudicial as to require a reversal of the judgment. These remarks are undertaken to be introduced into the bill of exceptions by affidavit and, in view of what was said by the Supreme Court in State v. Young, 77 Ohio St. 529 [83 N. E. 898], some doubt may well exist as to whether these remarks are properly a part of the record.

Many exceptions are scattered through those portions of the bill of exceptions which contain the oral testimony of witnesses. These exceptions are too numerous to have separate mention. We are of opinion that the trial judge was in error in rulings made by him excluding evidence as to the opinions'of witnesses concerning the mental condition of Walter Pickle at the time he executed the alleged release. These witnesses detailed in their testimony the conversation they had with him on that occasion, and what he did and how he acted, and should have been permitted, after giving the details of what there occurred, to give their opinions as to his mental condition on that occasion when it is said that he executed the release.

The trial court charged the jury that the burden of proof rested on the plaintiff to prove by clear and convincing evidence that the release, as set forth in the amended answer, was void and of no effect in law as a release. If the contention of the plaintiff were true that the instrument was no more than a receipt, and thát hé was fraudulently induced to believe that he was signing a receipt and so misled into signing a release, then the instrument would be absolutely void. The quantum of evidence stated by the trial judge as necessary in order to invalidate a release claimed to have been obtained by fraud, is in accordance with the rule announced in the case of Edwards Mfg. Co. v. Perry, 37 O. C. C. 579 (22 N. S. 422; 4 App. 390); where it is said that such release can only be overcome by clear and convincing evidence. This rule appears to be laid down also in the following authorities: 11 Encyclopaedia of Evidence, 167; 2 Chamberlayne, Modem Law of Evidence, Sec. 1011; Steffen v. Supreme Assembly, 130 Wis. 485 [110 N. W. 401]; Demark v. Electric Ry. & L. Co. 142 Wis. 624 [126 N. W. 13].

All of the members of this court are not prepared to agree that this is the proper rule as to the amount of evidence required in such cases, but all are agreed, in view of the decision in Edwards Mfg. Co. v. Perry, supra, that the rule as announced should be followed.

It is claimed that the plaintiff could not maintain this action because of his failure to allege and prove a tender before beginning the action. The existence of the release and the fact that some money was paid to the plaintiff were not mentioned in the petition, but first appeared in the pleading filed by the defendant. The facts alleged in the reply would, if true, render the instrument void as a release, and not merely voidable. Under these circumstances, and in view of the holding of the Supreme Court in Perry v. O’Neil & Co. 78 Ohio St. 200 [85 N. E. 41], that such a release does not need to be set up in the petition, but that the issue can be made by filing a reply when the same shall have been pleaded in the answer, we hold that no tender was necessary. Surely, if the plaintiff was not required to plead or even mention the execution of the release, he should not be required to aver a tender back to the defendant of any amount received pursuant to such release. See Robinson v. Easton, 33 O. C. C. 451 (14 N. S. 87).

From an examination of the evidence contained in the bill of exceptions, we are satisfied that the verdict is not sustained by the evidence, in so far as it involves a finding that the release should be set aside for fraud.

In view of the fact that this action must be remanded to the court of common pleas for a new trial, we follow our usual practice and refrain from commenting on the evidence; and this we do for the reason that such comment might be unfairly used on a retrial of the action.

For the reasons given, the judgment will be reversed and the cause remanded for a new trial.

Chittenden and Kihkade, JJ., concur.


author: GORMAN, J. Hamilton, J., dissenting.

text:
    NEGLIGENCE.
    [Hamilton, (1st) Court of Appeals,
    November 12, 1917.]
    Jones, Gorman and Hamilton, JJ.
    Harold Rose v. Joseph Habenstreit.
    Negligence, Predicated on Attractive Nuisance Injuring Child Meddling, Denied.
    An action for negligence does not lie, predicated on the doctrine of attractive nuisance, for injury to a child while meddling with a part of a house moving apparatus rightfully left in a street, unguarded and unprotected, not in itself dangerous or an obstruction to the public.
    Error.

      W. H. Rucker and Thomas Usher, for plaintiff in error.

      Darby d? Benedict, for defendant in error.
   GORMAN, J.

This action was brought by George Rose, as the next friend of his infant son, Harold Rose. In the petition is claimed that the defendant is liable because of negligence in leaving unguarded and unprotected, at the corner of Ash street and Highland avenue, in the city of Norwood, an apparatus consisting of a pulley and a wire cable passing through the same. The pulley and the wire cable were used by defendant in the moving of a house on a public street of Norwood.

There was no question made of the right of defendant to be in the street and to have his apparatus therein.

Defendant is a contractor in the business of moving houses, and on August 9, 1915, and for some time prior thereto, was moving a two-story frame house eastward along Highland avenue between Marion avenue and Ash street. The house was being moved by horse power and a series of pulleys and a cable. The horse power was stationed in the center of Highland about 125 or 150 feet west of Ash, and at the time the injuries complained of were suffered by the boy, the house was about 125 feet west of Ash street. The defendant attached a large steel or iron pulley by means of a chain to an electric light pole which was stationed on the north side of Highland avenue directly opposite the curb line on the east side of Ash street and a few inches north of the eurb line on Highland avenue. Ash street terminates in Highland avenue. The pulley was attached to the pole about nine or twelve inches from the ground. The pulley was of iron, having a wheel about eleven inches in diameter revolving on a spindle which was attached at either end to a steel or iron stirrup, and the stirrup was fastened to a snatch block to which a large iron or steel hook was attached. The hook was inserted in a link of the chain which was wrapped around the electric light pole. The cable was steel about five-eighths of an inch in diameter. One end of the cable was attached to the drum of the horse power and the other was attached to a series of pulleys and attached to the house, and the horse in walking around caused the drum to revolve and the cable to wind upon the drum. When the pulley and cable were operated they made a squeaking noise. There were no guards or protection about the pulley or cable, and the apparatus was elevated a short distance above the street.

The nearest person to the pulley was the man who was driving the horse, at the horse-power, about 150 feet away from the pulley. The neighborhood in which the house was being moved was a strictly residential district and children were accustomed to play in the street at this point, and this fact was known to the contractor.

This boy Harold Eose was about four years of age, and in some manner not clearly shown by the record the fingers of his right hand were caught in the pulley and cut off. -

It is claimed in this case that the defendant is liable on the ground that the apparatus being operated was an attractive nuisance left in a public street unguarded and unprotected.

At the conclusion of the plaintiff’s evidence the trial court instructed a verdict for the defendant and the judgment was rendered upon that verdict. It is now sought to reverse that judgment in this court.

The only question involved in this case is whether or not defendant is liable for leaving in the street unguarded and unprotected an apparatus which is claimed to be an attractive nuisance and as a result thereof a young child, not having reached years of discretion, was meddling therewith and was injured.

We are of the opinion that the trial court did not err in instructing a verdict for the defendant in this case. The doctrine of attractive nuisance has been fully considered in the ease of Wheeling & L. E. Ry. v. Harvey, 77 Ohio St. 235 [83 N. E. 66; 19 L. R. A. (N. S.) 1136; 122 Am. St. 503; 11 Ann. Cas. 981], Practically every ease involving the doctrine of attractive nuisance has been collected and commented upon by the learned judge who announced the opinion of that court. That is what is known as “the turntable case,” and it was distinctly held in that case that the railroad company was

“not liable to an infant who comes upon its premises without invitation and is injured there while playing, without its knowledge, with a turntable. The doctrine of the turntable case is disapproved. Harriman v. Railway, 45 Ohio St. 11 [12 N. E. 451; 4 Am. St. 507], distinguished. ’ ’

Now in the ease at bar it is not questioned that the defendant had the right to maintain his apparatus in the street, and when the child Harold Rose, meddled with the apparatus, as he must have done if he was injured thereby, he was as much a trespasser on the apparatus of the defendant as if the apparatus had been on private property owned by the defendant.

If under the case just cited, Wheeling & L. E. Ry. v. Harvey, supra, there could be no recovery, there could be no recovery by the plaintiff in this case were he an adult or person who had reached years of discretion. We can see no difference between a ease where property is meddled with or interfered with in a public street where the owner of the property had a right to have the same or maintain the same, and its being meddled with on private property. It is as mueh a trespass for the child to meddle with an apparatus properly in a public street as if it were on private property. It is true the child had a right to be on the street, but it had no right to meddle with the apparatus of the defendant, and when -it did so it was a trespasser as much as though it had stepped out of the highway onto private property and meddled with an apparatus that might be there located.

Several cases are cited by plaintiff in error from other states in which it is held that the doctrine of attractive nuisance does apply where the injury occurs in a public street. But upon examination of these authorities it will be found that they are announced in states in which the doctrine of attractive nuisance on private property is still upheld.

While this doctrine of attractive nuisance is still the law in many states, there are other courts in other states of equal prominence that have discarded the doctrine as applied to property in a public highway. We think that upon reason and upon the weight of authority it must be held that the doctrine of attractive nuisance is exploded and discarded not only by the courts of many states entitled to great weight and consideration, but also in our own state.

In the case of Friedman v. Snare & Triest Co. 71 N. J. L. (42 Vroom) 605 [61 Atl. 401; 70 L. R. A. 147; 108 Am. St. 764; 2 Ann. Cas. 497], the court denied the liability for injuries to a little girl between four and five years of age who had been injured upon some iron girders that fell upon her while playing upon them in the street where they had been placed by an abutting property owner for use in the construction of a building.

In Ryan v. Towar, 128 Mich. 463 [87 N. W. 644; 55 L. R. A. 310; 92 Am. St. 481], a little girl twelve years of age was in the habit of passing a pumping house upon the way to school with her brothers and sisters going across lots through the field because it was nearer. For some time previous to the time of the accident a hole existed in the stone wall of the house enclosing the wheel, through which the children went to play on the wheel. On the day in question the brothers of the plaintiff! on the way from school crawled through this hole and mounting the wheel were able by their weight to turn the wheel partly around and back. A younger sister aged eight got caught between the wheel and the wheel pit, and the plaintiff heard her screams and went through the hole to her aid and was herself injured. It was held in that case that there was no liability on the part of the owner.

Many English and American cases are examined and commented upon in that case. Judge Hooker in deciding that case used this language:

“Here we have the doctrine of the turntable cases carried to its natural and logical result. We have only to add that every man who leaves a wheelbarrow of a lawnmower or a spade upon his lawn; a rake with its sharp teeth pointing upward, upon the. ground or leaning against a fence; a bed of mortar prepared for use in his new house; a wagon in his barnyard upon which children may climb and from which they may fall; or who turns in his lot a kicking horse or a cow with calf — does so at the risk of having the question of his negligence left to a sympathetic jury. How far does the rule go? Must his barn door and the usual appertures through which the accumulations of the stable are thrown be kept locked and fastened lest twelve-year-old boys get in and be hurt by the animals, or by climbing into the haymow and falling from beams? May a man keep a ladder, or a grindstone or a scythe, or a plow or a reaper without danger of being called upon to reward trespassing children whose parents owe and may be presumed to perform the duty of restraint? * * * Can a man nowadays safely own a small lake or fishpond? And must he guard ravines and precipices upon his land? Such is the evolution of the law less than thirty years after the decision of Railroad Co. v. Stout when, with due deference, we think some of the courts left the solid ground of the rule, that trespassers can not recover for injuries received, and due merely to negligence of the persons trespassed upon.”

If we are to apply the doctrine of attractive nuisance to property lawfully left in the street, although the same may not be a nuisance in itself, and be left there as a matter of right, it appears to ns that we are relieving the parents and natural guardian of children from the duty which they owe to care for them and watch over them, and we are placing the burden of watching over the welfare of the children and protecting them from danger upon strangers who owe no such natural duty 1° them.

We do not think it profitable or expedient to cite the numerous cases that have arisen in which the doctrine of attractive nuisance has been discussed. The case of Fitzgerald v. Rodgers, 68 N. Y. Supp. 946, seems to be strong enough to warrant this court in sustaining the ruling of the court below in arresting this case from the jury. The facts in that case are so similar to the facts in the case before us that we might very well affirm the judgment below upon the authority of this case. It was sought to recover damages in that case from the defendant, a contractor employed by the city of New York to construct a sewer in Longwood avenue. In excavating the trench in which the sewer was to be laid the defendant made use of a machine or apparatus known as a winch by which fragments of stone were lifted from the excavation to the surface of the land. This apparatus consisted of a framework in which was a drum. There was a cable attached to the drum, and a boom or sweep fastened to the upper end of the drum. In lifting stone from the trench a horse was hitched to the boom or sweep, and by the process of winding the cable around the drum the stone to which one end of the cable was fastened was brought to the surface. The infant son. of the plaintiff saw some boys playing with this apparatus. The boom or sweep was attached to the drum and in place, and boys were pushing the boom thus causing the drum to revolve and the cable to wind around it. The defendant’s workmen had been using the machine some time prior to the happening of the accident. The infant son of the plaintiff, about ten years of age, got upon the boom and sat upon it while it was being moved, his feet slipped and his leg was caught in the cable and he sustained injury. The complaint was dismissed upon the trial, and from the judgment entered upon such dismissal an appeal was taken to the appellate division of the supreme court of New York. In deciding the case, Patterson, J., for the court, uses this language:

‘ ‘ The contention of the plaintiff appears to be that when it was left in the street unguarded and unprotected and without a warning it became a nuisance, particularly to children playing in the highway, and who would be tempted or enticed to play-with it. The machine was'not in itself dangerous.” [And the same may be said of the apparatus used by the defendant in the case at bar.] “It did not in itself constitute an unlawful obstruction in the highway; nor was it of such a character that, even if left with the boom or sweep attached to the drum, it could be found by a jury, from that circumstance alone, that it was dangerous and a temptation or enticement to children of tender years to play with it, and that the natural and probable result of their so playing would be injury to them. Even where liability is sought to be imposed upon a defendant upon the ground of negligence under such circumstances as appear in this case, it must be shown not only that the apparatus with which the child was playing was dangerous, but that it was of such a character as would induce or allure children to play with it. The evidence in this case did not warrant the submission of the question to the jury. It could not be found that the machine was left in a dangerous condition, nor that it was of such a character as to lead the defendant or his servants to believe that it would be used by children in play. If the apparatus had-been-left upon private premises in the condition claimed by the plaintiff, it would no more have constituted a temptation to children than did the turntable in Walsh v. Fitchburg Ry. 145 N. Y. 301 [39 N. E. 1068; 27 L. R. A. 724; 45 Am. St. 615] ; and Daniels v. New York & N. E. Ry. 154 Mass. 349 [28 N. E. 283; 13 L. R. A. 248; 26 Am. St. 253]. The fact that the defendant’s trench was in a projected public street does not change the rule. In Gay v. Essex Elec. St. Ry. 159 Mass. 242 [34 N. E. 258], the car upon which the plaintiff’s intestate was playing when he received his death was, and for some days had been, standing in an open and exposed place, namely, in one of the streets or public highways of a city.
“The complaint was properly dismissed, and the judgment should be affirmed with costs.”

While it may be said that the Supreme Court of our state has not yet squarely decided that the doctrine of attractive nuisance does apply where property is left in a public highway, nevertheless, upon the weight of the authorities decided by this state we are convinced that there can be no distinction made between trespassing upon private property and upon property properly and lawfully left in a public highway.

We think it a wholesome rule to apply that the parents and guardians of children should not be permitted to relieve themselves of the duty which the law imposes upon them of looking after the safety of their children, not only on private property, but upon public streets; and the rule laid down in Wheeling & L. E. Ry. v. Harvey, supra, will be held to extend to property lawfully in public streets as well as to that upon private property.

Judgment affirmed.

Jones, J., concurs.

Hamilton, J.,

dissenting.

I can not concur in the opinion of the majority of the court, for the reason that the question as to whether or not the appliance was a dangerous instrument or an attractive nuisance was one which should have been first submitted to the jury.

Further, the accident having occurred on a public street where the child had a right to be and where it might be expected that small children would exercise their childish instincts, I can not concur in extending the doctrine of Wheeling & L. E. Ry. v. Harvey, 77 Ohio St. 235 [83 N. E. 66; 19 L. R. A. (N. S.) 1136; 122 Am. St. 503; 11 Ann. Cas. 981], as applicable to private premises, to be determinative of this case. Isaac Leisy Brewing Co. v. Kapl, 38 O. C. C. 476 (22 N. S. 309); Gibbs v. Girard, 88 Ohio St. 34 [102 N. E. 299; 1914C Ann. Cas. 1082].