author: Haynes, J. \

text:
    (Sixth Cjrcuit — Lucas Co., O. Circuit Court
    Jan’y. Term, 1895.)
    Before Haynes, Scribner and King,JJ.
    THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY v. WILLIAM J. CORCORAN.

      Railroad — Foreman of "gang” employed in unloading ears represents company — Duty to furnish safe utensils—
    A foreman who is placed over a body of men — “a gang” — and who controls them and directs them in their business, and whose orders they are bound to obey, represents the company, and the duty rests upon him as it would on the company itself to use all or. dinary means to see that the men are protected in the performance of their work, so that they may not be injured while obeying his orders. It is therefore the duty of such foreman to see that the utensils he uses are at least ordinarily fit for the purpose for which they are used.

      fame — Knowledge of insufficiency of utensil by employe — When discharges employer of liability—
    Where an employe, a member of a “gang” of men employed under a foreman in unloading heavy stone, is aware,that a sticu furnished by the foreman for the purpose, is insufficient, and he continues to work with the same without calling the foreman’s attention to the insufficiency of the stick, he can not recover for any injury sustained by the breaking of the stick. But where such employe comes in while the stick is being used the first time, and takes hold in assisting to unload the stone as it was his duty to do, and he is injured by the breaking of the stick, this rule does not apply- _
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J. \

This case came into this court on a petition in error to reverse a judgment that was recovered in favor of Corcoran against the Railway Company on the ground, first, that the verdict is not sustained by sufficient evidence; and, second, that the court erred in failing to give certain charges.

The general facts of the case are these: That Corcoran, who was about eighteen years of age, belonged to a gang, as they call it, of men who were engaged in unloading cars at' the depot of the Lake Shore R.R. in this city. At the time in question they were about unloading from a freight car, certain grindstones. There were among the grindstones some ■small ones and some very heavy ones, one weighing about 1400 pounds, lying near the door of the car. There were two cars, as I understand, that had stones in them, and the door of the car in question was open, and the men had ■gathered around it for the purpose of- taking out these stones. Before proceeding to work with the gang, which consisted of some four or five men, who were in charge of a foreman, the foreman directed Corcoran to go and get some bills of lading. He performed that duty, and then it seems the foreman directed him to go and get a truck, which he did. Of the men that were with the foreman, or under him, and around him, some were working in other cars, and some were engaged in taking off these small stones, and one or two of them were standing about the large stone, which they were about to remove. The manner of doing the work would be to raise the stone up on edge in some form, . and then take the truck, which was the ordinary long, large truck used by the men, each man having a truck of his own, and raise the stone up and put the lower end of the iron, or rear end, I should call it, under the stone, and tip the stone over onto the truck, then let the truck down and remove the stone. Corcoran was sent for the other truck for the reason that they didn’t want to use any of the trucks that were being used by. the men permanently; but they wanted to get a truck that they could use to place the stone upon and allow it to remain over night. There was an extra truck which could be used for that purpose, and Corcoran was sent for it. As soon as that came the foreman laid aside this truck, took the one Corcoran had bróugnt, and started for the stone, and proceeded fo lay the stone on to the truck. There were four men at work on the stone, and a man who was taking off the stone, that were immediately about this place. Other men were working around there with other gangs. In removing this large stone, I think the testimony will show that customarily they would place the edge of the truck under the stone and lower the truck, and thereby bring the stone over on to the truck and let it down, and take a strong stick and thrust it through the hole in the center of the grindstone, resting it upon the slats of the truck underneath, That was done for the purpose, as the stone came over towards the truck, of preventing the stone from sliding back off the iron rim or edge of the truck; the stone as it went down, pressing against the back end of the truck, throwing the truck out against the men in front of it, and allowing the stone to fall vertically on the floor. Of course,a stone of the size of this one — 1400 pounds — -would be a pretty large weight upon that stick. In this particular ease, the moment that the foreman had got the edge of the truck in der it, and they were about to turn the stone down, a stick was thrust through the center hole of the stone and rested upon the truck. As the-stone came over, the stick broke, and the truck shot forward. At or about the time the truck was put under, these four men, including Corcoran, took hold to let the stone down — -steady it down, and hold it, and handle it in placing it on the truck. As the stone fell and the truck shot out, the truck went to the end of the car, and the stone itself fell, catching the leg of Mr. Corcoran, breaking it so that the bones produced through the flesh.

The controversy in the case arises in one or two aspects, and one of them is, as to the knowledge that -Corcoran had hold of the stick that was being used; secondly, as to whether the foreman knew of the character of the stick, and saw it, or directed it to be used. Incidentally the question is raised as to the duty of the foreman in regard to using a stick. It is claimed, with more or less force, that it is customary often to place that kind of a stone on a truck without having a stick in it. The testimony of these parties, who were actively at work in unloading stone — loading them, lifting them, each one seeming to be doing something, and each seemed to be active — is, of course, and necessarily so, somewhat different. Each one gives his view of it as he saw it. There is a considerable contrariety in the testimony, but I am inclined to think that the general current of it is that while Corcoran was absent, one of the men obtained the stick that was used and brought it to the stone, and that when Corcoran returned it was there, and there was some conversation passed, as was testified to by one or two men, between the foreman and the man who had got the stick, about its quality or its strength, which Corcoran testifies he heard; but it would seem, as was suggested by counsel for the Railway Company, that he probably got that at second hand. I am inclined to think myself that he returned to the stone about the time it was placed on the truck. He brought the truck to the stone, and stepped around to his place, took hold with the other men, and at the same time the stick was thrust in and the stone commenced to be moved down. All that occurred about as fast as it could consecutively in the ordinary method of doing business. I am of the opinion that Corcoran was not present when the early part of the coversation occurred. I think that at the time the stick was thrust in, he was, as was shown by some of the witnesses, bending over or holding the stone, or performing his part of the duty, which would be taking hold of the stone, and either lifting or steadying it, and endeavoring to hold it in its proper position on the truck, and to keep it there, as the truck descended. I think the testimony also shows that the foreman saw the stick and knew that the stick was to be put in; and it is quite possible that some words passed between him and a man by the name of Westerman, y/ho picked up the stick, as to the quality of the stick. I think there can be no real dispute but that he knew a stick was being used, and the kind of stick that was being used, and the manner in which it was being used, although it is possible there is some mistake about the conversation between him and Westerman, or between him and Foster; in regard to the stick, With that state of facts, we are of the opinion that the jury were authorized to find a verdict against-the defendant, the plaintiff in error here; or at least, that under that state of facts, that any verdict that they might return against the company, holding the company liable, ought not to be set aside by this court.

We differ somewhat from the views laid down by counsel in regard to the responsibility of the foreman in the matter. We understand the rule to be, that where the foreman is placed over a body of men, call them a gang, or a greater or less number, and he controls them and directs them in their business — 'they are bound to obey his orders and do his bidding in the performance of their duties, be represents the company, and that the duty would rest upon him as it would rest upon the company itself, if it could be present, to see, or to use all ordinary means to see, that the men are protected in the performance of their work, so that they may not be injured while obeying the orders of their principal. We think it was clearly the duty of this foreman to* see that the utensils that he was using were at least ordinarily fit for the purpose for which they were used. He knew the’ weight of the stone. In fact, the testimony shows that the stick broke the moment it felt the force and power of the-stone; and it was essential that there should be a stick used of sufficient strength to hold the stone in place on the truck. The stick that was used was clearly insufficient, and broke’ when the weight of the stone came upon it. It was a stick that had been picked up and used in the car for the purpose-of holding the stone in place in the car, about 2x4, or something of that kind — a pine stick — and broke across the grain. The testimony shows that the foreman said something about the stick, and he said that he hadn’t much knowledge about the character of woods; but clearly we think it was his duty not only to use a stick, but to know, or to use all fair means’ of knowing that the stick was sufficient for the purpose; he should have examined it, should have seen it, and should’ have had a knowledge of the strength of a stick of that kind. ■ It is true that no stick was specially furnished for that purpose. They had a good many sticks used as rollers, pretty good sized pieces of wood, very strong and stout, and they often used those. So that we think the jury might-fairly find that this foreman was guilty of failing in his duty toward this man in not protecting him in loading that stone. In regard to contributory negligence on the part of the man himself, I think the testimony pretty fairly shows that he-came to the stone when this stick was in use; that he was-not paying any attention especially to the stick, and that he-was engaged in letting the stone down, and was in a position where his mind would be occupied with the business that he was bent upon, rather than with the stick that was being-thrust through ¿t that place. It seems to me that the jury might fairly find that he was not guilty of contributory negligence.

The court was requeted to give to the juiy quite a number of requests which it did give, and rejected two or three, on behalf of the defendant. We have read the charge as given and the requests that were given, and also the requests that' were not given, and we are of the opinion that the jury was charged quite as favorably for the defendant as it ought to ask, in regard to the method and manner in which these-sticks were obtained and used, and the custom in regard to’ their use, <fcc, The court was requested to charge the jury—

4. “The jury should not render a verdict for the plaintiff' in this case because of any injury resulting from the breaking of the stick in question, unless the jury finds from all the evidence that the plaintiff at the time of the injury did not know that such stick was insufficient in strength for the1 purpose for which it was used.”

This is taken in substance from the Norman case; and with the application made by the supreme court of that rule-to- the Norman case, we have, of course, no right to find any fault: we are bound to take it as the law of the state. That' was a case in which a person was working in a chamber in a mine. They were mining for coal, and as they worked along, they were in the habit of shoring up the roof. The rooms, opened one into another, and there was a succession of them. The man who was injured was at work there a good while,, and had made no complaint to his superior that there was any difference in the shoring up or that there was any danger in .working there. He was, in fact, injured because of the' falling of the wall. While he was working, he had used due care. The supreme court said that the petition should further show that he had no knowledge of the insecure condition of the riof, because if he had such knowledge, and continued to work there without informing hie principal, the principal would not be liable. The court further said that he might be using great care at work at that time, not to do anything that would cause the roof to fall, or to precipitate any accident, yet he would be failing in his duty, and such failure would prevent his recovery, if, knowing that it was in a dangerous condition,-be continued to work without notifying his principal. That rule, of course, might be given if it w^s shown that this stick had been used a great deal at that time; that this man had been accustomed to see it, and knew about it, and knew that it was being used; but in a case of this kind, where the man came in at this point, and took hold and began his work as this man did, we do not think that it is applicable, or that the court erred in refusing to give the jury the request. We think the court charged the jury as fully and as fairly as it ought at that time.

The sixth request was not given:

“If it had not been before that time customary, in the handling of stone such as that in question, for the foreman in- charge of the work to provide a stick for such use, and plaintiff knew, or by the exercise of ordinary care and diligence might have known that it was not customary for. the foreman to furnish such stick, then he cannot recover by reason of any failure of the foreman to furnish such stick at the time of this injury.”

We do not think, as the case stood at that time, that the court was required to submit this request to the jury. It had charged,in the use of sticks,very fully before,and it was as favorable to the defendant as could be. The seventh request reads:

“This stick not having been a car, locomotive, machinery, or attachment thereto, nor a piece of machinery of any kind requiring special knowledge or skill to understand or appreciate the danger from its use, the foreman will, not be presumed to have better means of judging of its sufficiency than the plaintiff, or any of plaintiff’s co-laborers, and plaintiff would not be entitled to a verdict against the defendant by reason of any insufficiency in the stick, unless it is shown by a fair preponderance of the evidence that the foreman had special means of knowledge as to its sufficiency. ’ ’

That charge is founded upon a case in 101 N. Y., which is a case where a lamplighter, or a person who was engaged, perhaps, in fixing electric lights, who was using a ladder which he had used before, and which had often been used, for the purpose of enabling him to ascend to the lights, by ■setting it up against the lamp post, and going up it and adjusting the light. On this particular occasion he started to go up, and the ladder slipped and fell to the ground, and he was injured. He had been up it a good many times that morning before, safely, and had been accustomed to its use. The court held on that state of facts, that in the matter of a ladder of which he knew the character and the use as well ¡as any foreman could have known, and the mannerin which it was used, and the danger from it, if there were any, there would be no liability on the part of the defendant in that ¡action; but in that case it will be seen the employe had full knowledge of the working of the ladder and its dangers. 'That court holds that the employer was fully bound to use ordinary care and prudence in furnishing means for the employe to work with. And we think in this case, the foreman was bound to use ordinary care in selecting the stick, and fo have ordinary knowledge, at least, of the strength of the wood. The employe was bound to obey the foreman, and be active and diligent in performing his work, .and is not ■supposed to stop and examine the means employed, though if he have actual knowledge, he is chargeable with ordinary ■care in going on with the work.

We think, under the facts of this case as they stand, that the court was not bound to give that charge, and that it was not error for him to refuse to give it. We think, on the whole, the case was fairly submitted to the jury, and on the facts of the case, that the jury was justified, under the rules applicable to this kind of a case, in rendering the verdict.

Chas. Pratt, for Plaintiff in Error.

Scribner & Hurd, for Defendants in Error.

The judgment will be affirmed, but in this case as in the Knobloch case, reasonable cause for filing the petition in error will be certified.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O. Circuit Court
    Nov. Term, 1897.)
    Before Cox, Smith Swing and JJ.
    JAMES S. SNIDER ADM’R. v. LOUSIA GRAHAM ET AL.

      Administrator — Allowance of his commissions after final account accepted, without opening up account and notice, unauthorized—

    Where an administrator with the will a'nnexed flies his final account for settlement of the estate, showing a large amount of money distributed according to the provisions of the will after all debts were paid, which final account is accepted by the probate court, that court can not, several months later, without opening the account after due notice to parties interested, make an allowance-in favor of the administrator for his commission in administering the estate. Such allowance would not be in the nature of a judgment, and such claim would be barred in six years.
    Error to the Court of Common Pleas of Hamilton county,.
   Smith, J.

It is claimed that the court of common pleas erred in sustaining a demurrer to the petition filed in that court by Snider, against the defendants in error.

His petition, filed Sept. 14, 1883, alleges that he is the administrator de bonis non with the will annexed, of D. S. Meeker, deceased, late of this county. That said will was probated in the probate court of this county,July 28, 1864, and his widow, Louisa Meeker, now Louisa Graham, was named as executrix thereof,and qualified as such,and elected to take the provision made for her by said will. That said will directed the debts and the costs of administering his ■estate to be first paid; that his widow should have all the personal estate, she to pay his debts out of the same. She was also +o receive one-third of his real estate, and John Meeker the residue thereof. That at his death the testator owned certain real estate which is described.

On June 22, 1867, Louisa, his widow, married, and then ceased to be the legal executrix, and plaintiff was appointed administrator, as aforesaid,and still continues as such. On February 25, 1869, be filed his final account for settlement. He accounted for the sum of $7,063.97, as such administrator, and paid over and distributed the same. That all debts of said estate have been paid except that due plaintiff, and on April 5, 1869, the said probate court allowed and confirmed said final account of plaintiff.

Afterwards,on June 26, 1869, said court “did duly allow” plaintiff his commission as such administrator on said sum so accounted for by him, the sum allowed being $261.26. That is has never been paid, and he claims that there is now due him from the estate said sum, with interest from June 26, 1867.

He further says that the personal property of said D. S. Meeker has all been administered, and that it is now necessary to sell real estate to pay plaintiff’s claim against the estate.

To this petition a general demurrer was filed and sustained by the court, and the plaintiff not wishing to amend, his action was dismissed. Was this action of the court right?

The claim on the face of it presents some singular features. No reason is shown in the petition, why the administrator of this estate, when he made what he says was his final account with the estate, and accounted for over $7,000.00 of personal property which he said he paid over and distributed (presumably to the widow, who, under the will, took the same), did not have the probate court fix his compensation, and retain it out of the personal estate. Nor is it shown how, or why, nearly three months after the final settlement, the probate court “duly allowed” him his commission now claimed,or why he waited more than thirteen years thereafter without attempting to collect it. Has the administrator, at this time, the right to sell real estate that belonged to his intestate, to pay this claim of his?

. The statute provides “that as soon as the executor or administrator shall ascertain'that the personal estate in his hands will be insufficient to pay the debts of the deceased, * * and the charges of administering the estate,” he shall apply for power to sell the real estate of the deceased. Saying nothing as to the delay of this administrator for thirteen years, we see no averment in the petition that the personal estate of his intestate, was not amply sufficient to pay all his debts and costs of administration. The strong implication is that it was, and that he had paid and distributed the same to the legatee thereof, under his will, the word “distributed” importing that the debts of the deceased having, in all probability, been paid under the administration -of the widow herself, which lasted three years. If then there was personal estate of the testator amply sufficient to pay all charges against it, on what principle is it that the administrator can pay that over to a legatee or distributee, and ask for, and have land devised to other persons, sold for the payment of claims which were a charge on the personal estate? It cannot be done.

Again, how could the probate court, after the final settlement of the estate, “duly allow” a claim of the administrator for his compensation? It may be conceded that the finding of the court making such allowance to an administrator on the settlement of his account, make a debt of record, and that it is binding until set aside, and can not be collaterally impeached. But to hold that after the final settlement of the estate of a decedent, the probate court can, without opening up the former settlement on notice of the parties interested, by an entry on the journal made at the request of the administrator, and without a hearing, render a “judgment” in favor of the administrator for his commission, which would be binding, would be going very far. As the court is one of special and limited jurisdiction, the manner in which that allowance was made should be set-out, and the allegation that it was “duly” made, when the petition itself shows that it was done after the final settlement of the estate,we think is not sufficient,

S. T. Crawford, for Plaintiff in Error.

Paxton & Warrington, for Defendant in Error.

If the allowance was not in the nature of a judgment or finding which the court was authorized to then make, it is clear that the right of the plaintiff to recover thereon would be barred in six years.

On the facts alleged, we think the court of common pleas properly sustained the demurrer, and the judgmont will be affirmed,with costs.


author: Haynes, J.

text:
    (Sixth Circuit — Lucas Co., O. Circuit Court
    Jan’y. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    ELIZABETH FUHER v. CHARLES VILLWOCK, ET AL.

      Variance of facts as proven, from, facts averred in petition— Leave to file amended petition — Discretion of court—
    Where in the trial of a case there appears a variance of the facts as proven from the facts as averred in the petition, the better practice would be to grant to the plaintiff leave to file an amended petition, on such, terms as the court thinks reasonable and proper. But where the court refuses such leave, and no abuse of the discretion on the part of the trial court appears in such action, the judgment below will not be reversed on error.

      Dismissal of suit on such petition no bar to new suit on a petition averring facts correctly—
    The dismissal of such suit on such petition will not be a bar to the commencement of another suit on a petition stating the facts correctly.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

This action was brought in the court of common pleas by the plaintiff in error against the defendant in error, upon a • cause of action set forth in the petition that was substantially as follows “Plaintiff claims judgment against defendants in the sum of $219.65 upon account of rent of 16-|- acres of pasture land, for five years and four months, at $2.00 per month, no part of which has been paid, although requested. ”

The case came on for trial before a jury, and thereupon the plaintiff testified, or rather the husband of the plaintiff testified, that Elizabeth Fuher, the plaintiff, was the owner of this land; that it had been purchased with her moneys, and was her property. I should bay here, perhaps, that an answer was filed, denying the matters set up in the petition, and setting up that this property was partnership property, and was owned and held by the plaintiff and defendant for partnership purposes; or at least it was used for prosecuting a search for oil wells, and the sinking of oil wells— pumping oil; the premises were being developed for oil purposes by the plaintiff and the defendant in partnership, or by the husband of the plaintiff and defendant in partnership; and further, by way of defense, it is set up that there had been a suit in Wood county common pleas court, wherein all the matters between them had been adjusted.

As I have said, to maintain her action, the plaintiff’s husband being upon the stand, testified to the ownership, and proceeded to testify as follows:

“Q. Tell the jury what, if anything, was said between you and the defendant with respect to the use of this land by the defendant for pasturing stock? A. Mr. Villwock came to me, I guess the next morning after this land was purchased, and asked me if he could pasture his stock on that place; it was handy, about right in the corporation —only about eight rods or ten rods from his place of residence, He says, ‘I will pay you as much as anybody is ■paying for the land — that is, for pasture land.’ So I says, ‘Mr. Villwock, I guess there will be no objections to it. There is more pasture there than I need, and you can turn yours in.’ He says, ‘All right, I will pay you whatever is right — whatever the price is for pasture land.’ ’’

That is, in substance, all the testimony there was offered, although there were offers to prove. It was shown, however, that the defendant’s cattle ran upon this land for some time, sometimes one or two, sometimes three or four, with the cattle of the plaintiff; that they were salted by the defendant, and looked after to some extent by the defendant; and that Mrs. Villwock herself owned one cow that went in there. It does not appear that she had any conversation about the matter, or said anything about her cow running on the premises. This witness was cross-examined at some length by counsel for the defendant in regard to the matters in question, and the use that was made of the land for the joint use of the parties. It was shown that several wells had been sunk on the premises; that the property had been used, and was now being used by the parties jointly for the purpose of developing oil; and that the cattle of the plaintiff and defendant ran in there, and other cattle ran in there, &c, At the conclusion of the plaintiff’s testimony, this being substantially all that was offered, the court directed the jury to return a verdict for the defendant, and that upon the ground that the allegations of the plaintiff’s amended petition had not been sustained.

During the colloquy that preceded that, or at the close or about the time of the close of the plaintiff’s testimony, the plaintiff asked leave to file a second amended petition, in the following language:

“Now comes the plaintiff, and by way of a second amended petition herein, and for cause of action against defendants, says that the defendants are indebted to plaintiff in the sum of $219.65, for the pasturing of certain animals owned by defendants, in the pasture field of plaintiff, at the instance and request of defendants; said animals being pastured therein, during the period from the--- day of June, 1887, to the--day of August, 1892. Plaintiff further says that the value of said pasturage furnished by plaintiff to defendants was fairly worth the said sum of $219.65, no part of which has been paid to plaintiff, although requested.”

The court refused to allow that to be filed on any terms. Thereupon some testimony was offered by the defendant, and after the close of this testimony, and some rebutting testimony, the jury was directed by the court to return a verdict in favor of the defendants, on the ground that the testimony offered by the plaintiff upon the allegations of the amended petition, disclosed the fact that whatever there was of this transaction, was an agreement on the part of the plaintiff, that the defendant might turn his cattle in her pasture and crop the herbage, and for that the defendant had agreed to pay such price as was fair, just, and reasonable. We think the court was justified in finding that there was a divergence between the testimony that was offered and the allegations of the petition. There is pretty strong ground for saying also, that there was a total failure to prove; but placing the matter in the most favorable aspect to the plaintiff, it would amount to a variance. Treating it in that aspect, we think it would have been proper for the court to have allowed them to amend the petition, upon such terms as it should deem reasonable and just. The court declined to do that, and the question that arises, is, whether that would be, upon the assumption of the variance, such an abuse of discretion by the court as would call for the reversal of the judgment. We are all of the opinion that it would not, and that no issue was made here that shows an abuse of discretion, and that the court did not err in refusing to allow the second amended petition to be filed, nor did it err in directing the jury to return a verdict for the defendants.

Hurd, Brumback & Thatcher, for Plaintiff in Error.

O. W. Everett, for Defendant in Error.

The question arises as to whether the judgment in this case would be a bar to a future action for pasturing the cattle — that is to say, a bar to the action that is set up in the second amended petition that was offered to the court» for which the plaintiff was refused leave to file. We see no reason to suppose that this judgment would be a bar to a prosecution of the action in that petition.

Upon the consideration of the whole case, therefore, the judgment of the court of common pleas will be affirmed.


author: Price, J.

text:
    (Third Circuit — Paulding Co., O. Circuit Court
    March Term, 1897.)
    Before Day, Price and Norris, JJ.
    EPHRAIM RIDENOUR et al. v. THE STATE OF OHIO.

      Auditor’s compensation — Allowances by commissioners—
    1. The claim of a county auditor for compensation for recording ditch and road proceedings, as well as for other services required by law, must be presented for allowance to the county commissioners, and be allowed by them, before he is authorized to draw his warrant for the same on the county treasury.

      Action to recover alleged overcharges not proper — Appeal from commissioners finding proper remedy—
    2. If the claim is disallowed in whole or in part, his only remedy is by appeal to the court of common pleas. But where’such claims have been allowed by the commissioners, and their allowance spread upon the minutes of the board, an action upon the official bond of the auditor to recover back as illegal and excessive, parts of the bills so allowed, will not lie, so long as the record of such allowance is not impeached for fraud or collusion — such allowance being in the nature of a judicial act.
    Error to the Court of Common Pleas of Paulding county.
   Price, J.

Suit was brought in the name of the state of Ohio,1 on the official bond of Ephraim Ridenour,’as auditor of Paulding county, and he and the sureties on his bond were joined as defendants.

The petition contains five causes of action, in each of which, misfeasance in office is charged, in that, while in office, the auditor presented to the Board of Commissioners, acounts or bills for services rendered by him, as auditor, part of which was illegal, and that he drew his warrants for the amounts he so represented to be due him, and was paid therefor out of the county funds.

It is alleged in each cause of action, that the accounts presented were for recording ditch entries made in various county ditches named — for writing notices, ditch orders and warrants; and in the third cause of action, it is further averred, that in the account therein described the auditor included charges for recording plat and profiles, and a large number of words and columns of figures, pertaining to the proceedings in the Fleck road improvement, and that parts of such charges were illegal and excessive. In each and all of the causes of action, it is alleged that a certain named amount of the account presented was legal, and a ceratin stated amount of each illegal, and that in presenting these bills and drawing his warrants for the same, he received fees in excess of the rate allowed by law, in violation of his bond, and damages are claimed to the extent of the several sums so unlawfully received.

The petition is silent as to what, if any, action was taken by the commissioners on these several bills —whether they were allowed or dis-allowed. This may be the reason why the court below overruled a demurrer to the petition, for as it stands, it, in substance, alleges that the auditor certified and presented the illegal with the legal charges, and drew his warrants for the same, and thus received the money, without stating that the bills were in any way acted upon by the Commissioners.

The law does not permit the auditor to obtain his compensation in that manner, as we shall see hereafter. Cricket et al. v. The State, 18 Ohio St. p. 10-24.

The defendants answered and denied that any parts of the accounts embraced in the petition were excessive or illegal; and they set up as a substantive defense, that the bills or accounts were in good faith presented to the board of commissioners at either a regular or called session — were duly examined and allowed by them as valid claims in favor of the auditor, and that orders allowing each of them were spread upon the journal as required by law, and that when the record was thus made up, he drew his warrants for the money, and thereby obtained it from the treasury.

As to'recording plats, profiles and large columns of figures pertaining to the Fleck road improvement, the answer says this service was done under special employment by the commissioners,in making an assessment on lots in the village of Antwerp, and on other real estate, and is part of the account referred to in third cause of action.

The court below sustained a demurrer to the] defense — or rather the several similar defenses to the different causes of action, and gave judgment for the State on the bond for the amounts claimed to have been collected as illegal and excessive fees. This ruling is assigned as error here, and we have the question: Do the facts pbad in the answer make a defense to the petition? We have stated the nature of the issue at some length, in order that our conclusions may be readily understood.

It is contended by counsel for the State, that the compensation of a county auditor is fixed by sec. 1078 of Rev, Statutes, and the preceding sections of the same chapter.

The section is:

“The fees and compensation provided for by the foregoing sections, shall be in full for all services lawfully required to be done by the auditors of such counties; and it shall be unlawful for any county auditor to charge or receive any other or further fees or compensation,either as clerk of any board or for any other services rendered by him.”

The chapter containing this section is the general statute prescribing the duties and services of county auditors, and provides for their compensation.

It is claimed by counsel for plaintiffs in error, that sec. 4506 of the county ditch law, governs as to fees in making most of the bills in question. That such are not the general services covered by sec. 1078; and to support this view, sec. 2775 and sec. 4064, are cited as other instances where special services therein contemplated shall have special compensation.

Now, from the character of the bills rendered and the facts of the answer admitted — that each had been, in good faith, presented to the board, and by it duly examined and allowed as a valid claim, and so recorded — what effect should such findings and orders have so long as they are not vacated by appeal, or impeached under proper averments, for fraud or collusion? Does such recorded action of the board count for anything in a suit like this?

In Sec. 894 Rev. St. it is provided that:

“No claims against the county shall be paid otherwise than upon allowance of the county commissioners, upon the warrant of the county auditor, except * * *. ”

Section 896 provides:

“If a person is aggrieved by the decision of the county commissioners in any case, such person may, within fifteen days thereafter, appeal to the next court of common pleas, notifying the commissioners of such appeal at least ten days before the time of trial * * *, and the court at their next session shall hear and determine the same, which decision shall be final. ”

This is an old statute, and has been frequently considered and construed by the courts of this state, to the effect that the board has, to some extent, a judicial function, and when the auditor desires compensation, according to Sec. 1077:

“He shall make out in detail, according to the rates named in the foregoing sections, and it (his account) shall be presented to the county commissioners, who, after being satisfied that the labor has been performed, shall allow said bill or claim, and cause the same to be spread upon the minutes of the board; and after being so allowed, the county auditoria authorized to draw his warrant upon the treasurer of the county for the amount of the claim so allowed.”

Here we have a tribunal to pass on all claims against the county, except those named in sec. 894, and the way its findings and orders shall be made of record. And we have in sec. 896 the right of appeal in favor of any aggrieved party, to the court of common pleas, where a speedy trial shall-be had, and the decision is final. The appeal is from one — the primary court — to another of final jurisdiction.

If there is no appeal taken, is not the finding of the commissioners final until impeached for fraud or collusion ? They may go beyond the face of the accounts presented. While they are presumed to know the law regulating auditor’s fees in ditch and road proceedings, they may carry their investigations so far as to hear evidence and fully test the accuracy of bills, and when satisfied that they are correct, shall allow them.

In all this they act in a judicial capacity, and their orders of allowance, when spread upon the minutes, are in the nature of judgments. At least, they are the final determination of this statutory tribunal over the subject matter from which appeal will lie. For the character of the record made by the commissioners in such cases, see sec. 850 Rev. Stat. This position is strengthened by the rule frequently recognized in Ohio, that where the commissioners refuse to allow a bill or claim, the only remedy is by appeal.

In the case of John H. Stewart v. Logan Co., decided by this court and reported in 2 O. O. Rep. 134,it was held that:

“Upon the refusal of the county commissioners to allow an auditor compensation for making out special road improvement duplicates, appeal to the court of common pleas is his only remedy.”

In the case of of Shepherd v. Commissioners of Darke Co., 8 Ohio St., p. 354, the supreme court of Ohio, held, that for statutory claims against a county, such as fees of officers, where the commissioners refuse to allow, the only remedy is by appeal.

The syllabus is:

“Where a claim against a county is created by statute, and to be paid by the county upon the allowance of the county commissioners, the remedy of the claimant, if not satisfied with the determination by the commissioners, is to appeal to the court of common pleas, and in such case, be cannot sue at common law. ’ ’

On page 358 the court say:

“What we hold in the present case is: Where a claim against a county is of such a nature, that but for the statute, no right of action at common law would exist on the claim against the county, the remedy prescribed by statute (appeal) must be pursued, and no cumulative remedy exists * ”

We need not stop to do more than suggest that the compensation of auditors is purely statutory.

In the case of State ex rel. Gerke v. Commissioners of Hamilton Co., 26 Ohio St., p. 64, the same doctrine is again laid down.

The principle to be deduced from these decisions is, that where the commissionners refuse to allow all or part of an auditor’s bill for compensation, such refusal is a final adjudication of his rights, unless he appeals to the court of common pleas.

If this is true when the ruling of the board is against him, it should have some legal value and force when it is in his favor.

This is not an action directly attacking the orders allowing the claims on the ground of fraud or collusion — or because of fraud practiced upon the commissioners. The petition contains no such averments; but it is an action to recover back from the officer and his sureties upon his bond, in the face of the statutory record of allowance by the tribunal to which alone such claims must be presented.

We have a very pertinent case on this subject in Commissioners of Scioto Co. v. Gherry, Wright’s Rep. 493.

It was a suit brought by the then Commissioners to recover back compensation allowed by their predecessors to the county auditor, and was tried to a jury.

Wright, J., charged the jury:

“If you believe the testimony of the former commissioners, that they settled their accounts upon full examination, and allowed what was paid because they thought itno more than a reasonable compensation, then we think the defendant is entitled to your verdict.”

In disposing of the motion for new trial, the same judge, on p. 495, briefly announced the whole law supporting the charge.

The case of Commissioners v. Noyes, 35 Ohio St., 201, may be cited to same effect.

What interest has the state of Ohio in this case? None as a state. If any money is recovered in this action, it will be paid into the county treasury, because it came from that source.

The statute authorizes the commissioners to bring suits to recover monies due the county, and we think, bringing this suit in the name of the State — a nomial party merely — does not change the character of the action or deprive the bondsmen of any valid defense. And if this suit had been commenced by the commissioners, it would seem strange indeed, that against and in the face of their own recorded judgment of allowance, they could recover back parts of the bills they had allowed.

Snook & Wilcox, for Plaintiff in Error,

W. F. Corbett, for the State.

If this action on such pleadings shall prevail, then in every instance, where there has been, by mistake of law or fact, however innocently or honestly made, an item of five dollars or less, allowed in the accounts of an auditor or other officer, for compensation during his term, suits upon their official bonds would be upheld to recover back.

We cannot believe such is the law.

In our judgment, the answer states a good defense to the petition, and that the demurrer thereto should have been overruled.

The judgment is reversed, the demurrer overruled, and cause remanded for further proceedings.


author: Day, J.

text:
    (Third Circuit — Allen County, O., Circuit Court
    April Term, 1897.)
    Before Day, Price and Norris, JJ.
    JERECKE MANUFACTURING CO. v. STRUTHER, WELLS & CO. et al.

      Mechanics’ Lien — For what obtainable — Ordinary sale of machinery—
    The provisions of the mechanics’ lien law, sec. 3181, R. S., and sections following, are not available to enable the seller of personal property to perfect a lien for the unpaid purchase price, on the property sold, where the sale was an ordinary one, and the property was not furnished for the purpose of entering into and becoming part of a completed oil or gas well, or other structure, named and described in the section ; and not upon a contract with the owner of such well or structure, his agent, or some one authorized to act for and bind him ; or, where the property sold was not intended, and does not in fact, become part of such well or structure.
    Same—
    The provisions of said lien law, have application and are available to _obtain a lien, in favor of the seller and furnisher of personal property, material or machinery, only, where the property is sold and furnished, by virtue of a contract with the owner, his agent, trustee, contractor or sub-contractor, for the purpose of entering into the construction, and becoming a constituent part of such oil well or structure, and does in fact become a part thereof, so that it is not susceptible of being separated therefrom and separately pursued and subjected, by due legal process, to the payment of the purchase price.
    Error to the Court of Common Pleas of Allen county.
   Day, J.

The subject matter of controversy, in this case, is a fund of $352, arising from a sale of personal property consisting of an engine, drilling tools, and appliances used in drilling oil and gas wells; taken as the property of one Michael Wall, and sold at the suit of his creditors to satisfy their claims. The sale was made by a receiver, appointed by the common pleas court, at the instance of Struther, Wells & Co. The proceeding was to marshal liens and determine the priority of the liens of the various claimants, who were contesting for precedence, the claim of precedences being based on liens alleged to have been acquired by the proper levy of attachments on the property sold by some of the creditors; and by perfecting mechanics’ or material-men’s liens,in accordance with the provisions of the statute, by others of the creditors. The court of common pleas disposed of the mechanics’ or material men’s liens, ordering these claims first paid in the order of precedence found by the court, and to the exclusion of the claimants of liens by the levy of attachments. The last named claimants were not content with the adjudication of the lower court, and prosecute error here to obtain a reversal of the order and judgment, and for a finding and judgment in favor of the plaintiffs in error.

The single question is presented, which of the claimants takes precedence in the distribution of the fund in hand, the holders of liens by virtue of the levies in attachment,or the claimants of liens by virtue of the statute providing a lien in favor of furnishers of labor, material, &c., for the construction of a building, structure, oil or gas well, mentioned in the statute.

The essential facts in the case are undisputed. It is a fact that the Jerecke Manufacturing Company acquired a lien, by the levy of attachment, of date July 31, 1895; Stark-weather and Maffin by the same means, of August 2, 1895; and Huber, of August 6, 1895. The claimed liens by virtue of the mechanics’ lien law, if valid liens at all, are of the dates following: Struther, Wells & Co., May 22, 1895; Muller & Lego, June 4, and A. A. Scott & Co., May 29, 1895. The property sold by the receiver, from which the fund in question was derived, was the property of Michael Wall, was sold to him by Struther, Wells & Co., Muller & Lego, and A. A. Scott & Co., not for the purpose of entering into and becoming part of any oil or gas well or structure pertaining thereto for the operation thereof, but to be and remain Wall’s personal property,and constituting his outfit of tools and appliances for drilling wells for whomsoever might employ him; and these articles of property were only used by Wall in connection with the well in question as tools and appliances for the drilling of it, and did not become, in any sense, part of the well. Within the time limited and fixed by the provisions of the statute, each of the parties named as selling property to Wall, made out a claim in due form, verified it and filed it in the proper office for record, and did everything necessary, under the mechanics’ lien law, to perfect a lien. Did they succeed in perfecting a valid, lawful lien, is the problem. The liens of the attachments are all subsequent to the claimed liens by virtue of the statute, and if it shall be determined that the alleged mechanics’ liens are lawful and valid, it settles the question adversely to plaintiff in error and the other attachment lienholders, and postpones them, so they will not at all participate in the distribution. Therefore the whole question is settled and determined by determining the question of the validity of the claimed mechanics’ liens.

The Mechanics’ Lien Law, as amended in 1894, has, by this court, and the supreme court, in the Tingle — Crawford case, 9 C. C. Reports, 708, to an extent and in some of its aspects, been held invalid, and the vexed question, as to the extent of its invalidity, whether entire or only partial, is suggested by counsel on either side, as present interest would seem to require; but we do not find it necessary in the disposition of the question here presented, to decide, or even consider these suggestions. We think the question is easily disposed of on proper grounds without regard to the validity or invalidity of the statute,and, for all puipo&es of the case, the lien law may be held and regarded as constitutional and valid legislation. Then, regarding the law as valid, the question is presented: Did the parties, Struther, Wells & Co., Muller & Lego and A. A. Scott & Co., by their proceedings under the mechanics’ lien law, acquire a lien on the property by them sold to Michael Wall? No doubt but that each of the sellers could have retained a hold — a valid lien on the property sold, by virtue of the statute authoriz. ing chattel mortgages, or by retaining title to the thing sold in themselves until the purchase price was paid or otherwise secured, by complying with the provisions of the statute regulating conditional sales. There are ample statutory provisions by which sellers can retain a lien on the identical property disposed of,for the purchase price; but can the same result be accomplished, under the facts in the case, by virtue of the statute providing a lien in favor of mechanics and others — by virtue of the provisions of section 3184 of the Revised Statutes? We are of opinion that it cannot; that the provisions of that and following sections, under the facts we have here, cannot be made available for that purpose. It is not every sale of material or machinery, designed by the purchasers to be used in some form in connection with the construction of an oil or gas well, or some one of the structures named in the section, that its provisions will enable the seller to perfect a lien for the unpaid purchase price upon the finished well or structure, including the material or machinery so furnished. To enable the seller to accomplish that result, he must not only supply the material, machinery or labor on an express contract with the owner of the thing to be constructed,or his agent, trustee, contractor, or sub-contractor, for the express purpose of entering into the construction and becoming a part of the oil well or other structure; but the material or thing so furnished, must, in fact, enter into and become a constituent part of the completed structure. The material or machinery must be incorporated into the finished whole, so that it loses its identity and ceases to exist as a separate entity. In such case, the title or ownership of the thing furnished, passes to and vests in the owner of the well or structure, as an entirety. The various elements contituting the completed thing, including the material so furnished and the interest of the owner, whether of lease-hold or free-hold, have become fused and solidified, and are not susceptible of being divided and separately pursued and subjected, by legal process, to the payment of the price agreed to be paid: hence the law enables the seller, by following its provisions, to acquire^a lien on the entire completed thing, to secure payment for the portion contributed by the seller, towards the construction or repair of the entire structure or thing. Such law simply accomplishes natural justice between man and man, and its enactment was only the recognition and putting in;the form of statutory provision of rights and equities already, and always, existing between parties to such a transaction; and that such was undoubtedly the legislative purpose and intent in enacting the mechanics' lien law, it seems to us, is made manifestly obvious by a careful reading and^consideration of the provisions of the entire law. This is so with regard to the provisions and purposes of the law generally, and it is so when we consider its provisions specially, and only in so far as they relate to the supplying of material, machinery or labor, and the construction and operation of oil or gas wells. Divested of -all other matters, and read especially with reference to that one subject, section 3184 would be, in substance, as follows:

Sec. 3184: “A person who performs labor or furnishes machinery or material for * * * digging, drilling, plumbing, boring, operating, completing or repairing of any * * * oil or gas well * * * by virtue of a contract with, or at the instance of the owner thereof, or hie agent, trustee, contractor or sub-contractor, shall have a lien to secure the payment of the same upon such * * * oil or gas well * * *, and upon the material so furnished, and upon the interest, lease-hold, or otherwise of the owner in the lot . or land on which the same may stand. * *

The material or machinery must be furnished for the drilling, plumbing, completing, or operating the oil or gas well; by virtue of a contract with the owner of the well or some one authorized to act for and bind him. Clearly contemplating that the material or machinery must be furnished for the purpose and with the expectation of its entering into the construction and becoming part of the well, or, of the appliances for operating it, and the purchaser ■ must be, in substance and fact, the owner of the well. None of these statutory requirements are present in the-case before us. Wall was not authorized to act for and bind the owner of the well; he was only an employe to make the well — hired to perform the physical labor of erecting the well. The machinery and material sold to Wall was by virtue of a contract between the sellers and -Wall alone; was not even furnished with the expectation that title would pass to the owner of the well, or, that the property sold would, in any sense, become part of the well, or' of the appliance ‘ for operating it after it was constructed, but with full knowledge that it would remain the property of Wall, and constitute a part of his tools in carrying on his occupation of driller of oil and gas wells. It was a straight-out sale to Wall for his own use and behoof in pursuing his ordinary business, and differs in no way from any ordinary sale of personal property, and the sellers could only obtain a lien on the property sold in the usual way provided, in such case, by the statutes in force at the time.

W. H. Cunningham, for Plaintiff in Error.

Brotherton & Brotherton, for Starkweather & Maffin.

W. W. Chapman, for Struther, Wells & Co.

Cable & Parmenter, for Scott & Co., and McComb, Rec’r,

If the conclusion reached is correct, it follows that Struther, Wells & Co. ,■ Muller & Lego, and A. A. Scott & Co., misunderstood their right in the premises — mistook their remedy, and acquired no lien as against the liens of the attaching creditors, and the court below, in giving them preference, was in error for which the judgment must be reversed.

The judgment is reversed, with costs, for which execution is awarded. There being no dispute as to the facts — • the parties having agreed upon the facts, this court is authorized to render the proper judgment; and this court now rendering the judgment the common pleas should have rendered, finds the priorities in favor of the Jerecke Manufacturing Company, Starkweather, Maffin and Huber, in the order named, and against the claimants of mechanics’ liens. The fund is ordered paid out in the order above named. 1. The Jerecke Mf’g. Co. 2. Starkweather. 3. Maffin. 4. Huber. It is ordered that all costs, including any allowance to the receiver, be paid by Struther, Wells & Co., McComb, receiver of Muller & Lego, and A. A. Sco“ & Co. in the proportion of one-third each. Judgme may be entered, and in default of payment for thirty days, execution may issue:


author: Parker, J:

text:
    (Sixth Circuit, Lucas Co. O. Circuit Court
    January Term, 1897.)
    Before King, Haynes and Parker, JJ.
    STATE OF OHIO EX REL. SUMNER v. McFILLAN.

      An act to prevent corrupt practices at elections construed — Who entitled to present application to Attorney General—
    Under the act to prevent corrupt practices at elections, passed April 18, 1896, the authority for presenting the application to the Attorney General, asking for the institution of proceedings thereunder against a public officer, is limited to persons entitled to vote at the election at which the candidate whose office is to be affected by the proceeding, was elected.
   Parker, J:

This is an action instituted under an act entitled “An act to prevent corrupt practices at elections,” passed on April 8th, 1896, and appearing at page 123, vol. 95, of the Session Laws of Ohio. The case is submitted to us upon a general demurrer to the amended petition. The real question debated to us is as to whether the person who lodges the complaint against Martin B, McFillan, defendant, is one authorized under the statute to set in motion this proceeding ? The first section of the act provides the maximum amount that may be expended by candidates for different offices, to secure their nomination or election, or both. The third section of the act provides that candidates shall make out and verify itemized statements of the amounts that they shall have expended to secure their nomination to office, and section four contains a provision with reference to their securing their election to office. Section five provides:

“Any person failing to comply with the provisions of the third section or of the fourth section of this act, shall be liable to a fine not exceeding one thousand dollars, to be recovered, with costs, in an action brought in the name of the state by the attorney general or by the prosecuting attorney of the county of the candidate’s residence, the amount of said fine to be fixed within such limits by the jury, and to be paid into the school fund of said county.”

It is also provided in sections seven, eight and nine, that an action of the character of this before us may be instituted to effect the results provided by section eleven, which reads as follows:

“If it shall be determined in any such action that anyone or more of the charges set forth in the petition has been sustained, judgment shall be rendered declaring void the election of such defendant to such office, and ousting and excluding him from such office, and declaring the office vacant, and such vacancy shall thereupon be filled in the manner provided by law or by the constitution of this state with relation to filling vacancies occurring in such office, and judgment shall also be rendered against defendant for the costs of the action; but if no one of such charges be sustained, judgment shall be rendered against such applicant and his sureties on the bond or bonds for the costs of such action. ’ ’

There are other provisions in the statute relating to the duties of campaign committees, or the reports that they are required to make, prescribing what shall be unlawful upon their part, and providing penalties for such acts, and in section 23 is provided a penalty by fine and imprisonment for “unlawfully conniving at the paying,contributing,promising or offering, any money or thing of value for the purpose of procuring, facilitating, or defraying any fees or expenses in connection with the naturalization of any alien,” etc. It will be seen that the statute is penal in its character. I should have said that preliminary to the institution of an action of this character, something is required to be done by an elector; and the provisions on that subject are as follows — being contained in sec. 7:

“At any time during the term of office of any occupant of any office created by' the constitution or laws of this state to be filled by popular election, and hereafter filled by such election, pursuant to the constitution or laws of this state, (other than the office of member of either house of the general assembly or of the congress of the United States), any elector entitled to vote at such election may present an application in writing, verified by his affidavit, to the attorney general, setting forth one or more of the following charges against such public-officer, to-wit. ”

And then follows the several charges that may be preferred by this complaint, after which the statute proceeds:

“And such application shall be accompanied by a bond in favor of the state of Ohio in the penal sum of one thousand dollars, subscribed by two sureties, who shall justify as freeholders of the state and in do'uble the amount of such penalty exclusive of all their debts and liabilities and property exempt by law from levy and sale on execution, such bond to be conditioned for the payment of all the taxable costs for which the state, such applicant, or such occupant of such office may become liable on account of such action if none of such charges shall be sustained therein.

Sec. 8 provides that:

“It shall be the duty of the attorney general within ten days after the receipt of such application and bond,to begin an action against such public officer, or to instruct the prosecuting attorney of the county in which such public officer resides to bring such action within ten days, etc.”

Sec. 9 provides that if neither the attorney general, nor the prosecuting attorney institute the action, it may be filed by the person who made the complaint or application.

This proceeding, which is in the nature of a quo warranto, as provided by Sec. 8, is instituted by the prosecuting attorney of Lucas county and it sets forth with reference to these preliminary steps the following facts:

“Charles E. Sumner, prosecuting attorney, in and for the county of Lucas and state of Ohio, who sues for the state of Ohio in this behalf, comes here before the Judges of the Circuit Court of the state of Ohio, at the term of * * * A. D. 1897,and on the 11th day of May, A. D 1897, at the said term', and on the day aforesaid gives the court to understand and be informed, that an application in writing, duly verified by the affidavit of said applicant, and in accordance with the provisions of the statutes in such case made and provided, to have an action brought against the defendant Milton B. McFillan, the member of the Board of Education for the School District of the city of Toledo for the Fifteenth Ward, to declare the said office of member of the Board of Education for the said fifteenth ward vacant, has been duly made to the attorney general of the state of Ohio by an elector of the city of Toledo, a resident of the tenth ward of said city, entitled to vote at the popular election held on the fifth day of April A.D. 1897, in the school district of the city of Toledo, but not entitled to vote for said defendant. That the school district of the city of Toledo is divided into fifteen wards, and under the laws of the state of Ohio, in odd years, a member of the Board of Education is elected from the odd-numbered wards, and no election for member of the board of education of said school district-is held in the even numbered wards except in even years. That the tenth ward of the city of Toledo is an even numbered ward,and no primary for nominating a member of tbe Board of Education, and no election for electing a member of the Board of Education of the Tenth Ward of said city of Toledo was held in the spring of 1897.”

The petition then proceeds to state that “this application is accompanied by a good and sufficent bond, duly executed according to law.” It then sets forth that the prosecuting attorney in instituting this suit, is proceeding under the instructions of the attorney general, It recites what occurred at the caucus and at the election — that McFillan was nominated and was elected as a member of the Board of Education of the school district of the city of Toledo, and it charges, in the first count or cause of action, that:

“The defendant wilfully stated an untruth in said statement, duplicate and affidavits in this, that said defendant ■did,not set forth fully and completely in detail each and all sums of money and other things of value contributed, disbursed, expended and promised by him, and to the best of his knowledge and belief, and by any other person or persons by this procurement in his behalf, wholly or in part, in endeavoring to se< ure or in any way in connection with his nomination to such office, etc. ”

Following the lines of the statute very closely, as contained’ in section seven.

The second cause of the action, adopting the allegations of the first, charges a like untruthful statement of the amount expended and contributed to procure his election.’

The third cause of action, adopting these allegations, charges that he expended in securing his nomination more than the amount permitted to be thus expended by sec. 1 of the act.

As I have said, there are certain preliminary steps which we regard as essential and necessary prerequisites to the institution of this action on the part of the attorney general or of the prosecuting attorney, viz, the filing of this complaint or application, and the giving of this bond by a person authorized by the statute to thus set the action in motion. It becomes important, therefore, to consider the provisions of the first clause of sec. 7, which points out what persons are authorized to thus proceed, and I will read that again:

“At any time during the term of office of any occupant of an office created by the constitution or laws of this state filled by popular election and hereafter filled by such election, pursuant to the constitution or laws of this state (other than the office of member of either house of the general assembly or of the Congress of the United States), any elector entitled to vote at such election may present an application in writing, etc.”

The determination of the question turns upon the construction to be given to the words “such election.” The ap-,. plication must be filed by an elector entitled to vote at such-election. The authority is limited, and the extent of* this ■ limitation is the thing to be determined. Any citizen or any inhabitant of the state, may not file this application — -it may only be filed by an elector. And any elector may not file it: It must be an elector entitled to vote “at such election*-” Now what election? According to our view of the matter, after careful consideration, the statute means that the person authorized to file the application must be one entitled to vote at the election at which the candidate whose office is to be affected by the proceeding was elected — to take part in that proceeding — the casting 'of the ballots which determined whether or not he should be nominated or elected to the office. It will be observed that it does not read “such an election,” but “such election.” The word “such,” in this clause, and in many other places in the statute, according to our view, is used as a demonstrative or distinguishing term,to point out something that has gone before and been previously mentioned in the statute, and not as it is usually used, as a term of comparison. It must have been a favorite word with the author of this statute. I call attention to the sense in which it is used and the number of times which it is used in this same sec. 7. It will be observed that it is used frequently in the sense of “that,” or “said,” as applied to things that have been mentioned and gone before.

Taking up the] reading of the section where we just left off:

“ — verified by his affidavit, to the attorney general,setting forth one. or more of the following charges against such public officer, to-wit: That such officer in seeking nomination or election, or both, to such office violated one or more of the provisions of the foregoing sections of this act by expending, contributing or promising or offering, an amount in excess of the sum allowed by this act; or that such officer willfully stated an untruth in one or more of the statements and duplicates and affidavits filed by him pursuant to this act after such nomination or election; or that any other act or acts declared unlawful or made punishable by any law of this state were committed by such officer, or by his agent of agents, or with his or their consent or connivance by some committee, or organization, or political party of which party he was the nominee, or the agent or agents of any such committee, organization or party,- with intent to secure or promote his nomination or election; and further setting forth that the applicant desires said attorney general to bring an action to have such public office declared vacant on account of such violation or violations of law, and such application shall be accompanied by a bond in favor of the state of Ohio, in the penal sum of one thousanad dollars, subscribed by two sureties, who shall justify as freeholders of the state and in double the amount cf such penalty exclusive of all their debts and liabilities and property exempt by law from levy and sale on execution, such bond to be conditioned for the payment of all the taxable costs for which the state, such applicant, or-such occupant of such office may become liable on account of such action, if none of such charges shall be sustained therein.”

The word “such” is used nineteen times, if I have not missed any in the count, in that one section, and it is used frequently all through the act. Any other construction of this act would require us to hold that a person not at all interested, or if interested, in a very remote degree — might set this action on foot For instance, women are electors entitled to vote for members of the Board of Education, and a woman elector in a remote portion of the state,if voting at a general popular election held in the spring when members of the Board of Education are voted for — -if the construction contended for here by the state were to be maintained — might file a complaint attacking the title of the mayor of this city, or of any other city — -to his office on account of a violation of the provisions of this statute. So, too, in the case of a special election. If, for instance, there were a vacancy in the office of a member of the Board of Education in one of the wards of this city, and an election were held to fill that vacancy, if one entitled to vote “at such an election” could institute those proceedings, then any one in the state of Ohio entitled to vote for an officer of that character — certainly any one in the city of Toledo entitled to vote for a member of the Board of Education of the city of Toledo at any election, would be authorized to file this applica. tion. We do not think that that was the purpose of the legislature, or that that is a fair construction of the provisions of this statute, and our conclusion, we think, is sustained by a consideration of sec. 13 of the act. It will be observed that sec. 7 omits in its mention of the officers against whom this proceeding may be instituted, members of either house of the general assembly or of the Congress of the United States. They are subject to all the other provisions of the statute, but procedings against them to deprive them of their office if they shall have violated the provisions of the statute are somewhat different; that is to say, they are to be proceeded against by a contest in the usual manner, the violation of the statute forming the basis of the charges. Sec. 13 reads as follows:

“The election of any person to either house of the general assembly of the state of Ohio may be contested by any elector entitled to vote at the election at which he was chosen, on any of the grounds for which elections to other offices are by the foregoing provisions of this act required to be avoided.”

We think that the same meaning is to be attached to the words “such election” contained iu section 7. The statute does not clearly mean that any person entitled to vote upon the day of that election may file this application, since in various places in the statute the legislature has distinguished between the election and the day of the election, and we think designedly. ■ For instance, in Bee. 1 of the act:

“That no candidate for representative in the Congress of the-United States, or for any public office created by the constitution or laws of this state to be filled by popular election, shall, by himself or by or through any agent or agents, committee or organization, or person or persons whatsoever, in the aggreate, pay out, give, contribute, or expend, or offer or agree to pay, give, contribute or expend, any money or other valuable thing in order to secure or aid in securing, his nomination or election, or to secure or to aid in securing to defeat or aid in'defeating the nomination or election, or both the nomination and election, of any other person or persons to any office to be voted for on the day of the same election;” etc.

Again, in sec. 19:

‘‘No claim against any candidate on account of any obligation incurred or promise made by him in furtherance of his nomination, or of the nomination or defeat of any other person or persons who may be candidates for nomination for any office at the same caucus, convention or primary election, shall be payable or be paid, unless presented for payment within eight days after the caucus, convention or primary election, etc

We think it would be a proper use of terms for one to say “I voted at the election for governor, but I did not vote at the election of member of the legislature, held on the same day.” We think the words‘‘such election” may be used in that sense, and are so used in this statute. One might vote at the general spring election of member of the Board of Education, and yet not be an elector entitled to vote and therefore might not vote at the election for mayor or other officer held on the same day.

I presume the same thing is true in the city of Toledo, as throughout the state and in the rural districts, that the election for members of the Board of Education is held somewhat independently of the election for other officers; that is to say, that they have different boards of election, different returns of election, and make their returns to different officers and tribunals', and in that case the election for members of the Board of Education is distinct from the election held of other officers, so that it might well be said that one voted at that election on that day of election and did not vote at another election, held upon the same day. It appearing therefore from the amended petition that while the person who lodged this complaint to the attorney general was entitled to vote in a district of the city of Toledo on the day on which this election was held, but that he was a resident of a ward of the city of Toledo, in which there was no election held for a member of the Board of Education, and that he was not entitled to vote at the election held in the Fifteenth Ward at which Martin B. McFillan was elected; we hold that he was not authorized under this statute to cause this proceding to be instituted by the filing of the complaint and bond, and that therefore the proceeding is without proper foundation or basis. The general demurrer to the petition will be sustained. Judgment will go against the state for the costs.

Chas. E. Sumner, for Plaintiff,

Hamilton & Kirby, C. F. Watts, for Defendant.


author: King, J. Parker, J.

text:
    (Sixth Circuit--Lucas Co., O. Circuit Court

    Jan’y. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    THOMAS J. GLADWELL v. ELIZABETH HOLCOMB AND ELIZABETH HUME.

      Common Law — Row far applicable in Ohio—

    The common law is recognized in Ohio as a rule of decision, in the absence of legislative enactments, so far as rules and principles appear to be based on sound reason, and applicable to our condition and circumstances.

      Tenant under lease for one year holding over for several years— Notice to quit within reasonable time—
    Where a tenant enters into possession of the premises under a lease for one year, and after the expiration of the year, without a new lease, holds over for several years more, on the same terms, his tenancy is one from year to year, and a notice to quit, given within a reasonable time, would be sufficient to terminate such tenancy. Held, a four months notice to be a reasonable time.

      When “reasonable time” is question for the court, and when for jury—

    If it becomes a question what is a reasonable time, and the time is fixed, and if the court could well say whether it was reasonable or not, then it is for the court tb say so; but if it is doubtful, so that the court might say under one view of the facts say it was reasonable, and under another view that it was unreasonable, the court would have to submit the ques - tion to the jury.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

This proceeding is to reserve the judgment of the court cf common pleas affirming a judgment of a justice of the peace. The action was begun before a justice of the peace by the defendants in error here, upon a complaint of forcible entry and detention, against the plaintiff in error here. A trial was had, which resulted in a verdict of the jury and a judgment for the plaintiffs in that action, which judgment was affirmed by the court of common pleas.

Several objections are taken to this judgment, and reasons alleged why the judgments of the court of common pleas and of the justice of the peace ought to be reserved. We do not find any of these allegations of error of* sufficent importance to discuss except one. The principal point which I desire to notice is the complaint which is made here, and which was urged in the court of common pleas — that the judgment and verdict are wrong because of the charge of the court to the jury, and because of the refusal of the court to give a request.

Mr. Gladwell entered into possession of the premises which he was in the occupation of at the time of this trial, under a written lease made to him of a certain store-room on Monroe street in the city of Toledo for the term beginning on the first day of January, 1889, and running to the first day of January,1890, for an annual rental of I860 per annum, payable monthly, in advance, on the first day of each month. Mr. Gladwell entered into possession of these premises, and occupied them during the continuation of this lease; and at its expiration, and afterwards, he held over and continued his occupation of the same premises, without any other lease having been made or executed between the parties, and continued his occupation up to the trial, and paid the rent —as far as appears here — in accordance with the terms of the lease under which he entered into possession.

On the 31 of August, 1896, the plaintiffs below notified Mr. Gladwell, or served upon him the following notice:

“Mr. T. J. Gladwell,
“Dear Sir:
“The lease executed between the late Horace Holcomb and yourself under date of the fifteenth day of December, 1888, and for one year from the first day of January, 1889, to the first day January, 1890, and under the continuation of which you have been in occupation of store No. 309 Monroe street, Toledo, Ohio, (old number 31 Monroe street), in Holcomb Block, will expire and terminate on the first day of January, 1897, on which date you will please surrender and give up possession of said store, as the owners have decided to make other use of it, and will not renew the lease.
“Yours very truly,
“Elizabeth H. Hume, and
“Elizabeth Holcomb, owners, by
“Wm, A. Hume, Agent.
“Served Aug. 81, 1896.

On January 2d, 1896, the owners, by William A. Hume, their agent, served upon Mr. Gladwell another notice, notifying him to leave the premises described in the notice, and describing the same as in the first notice, and-that his 'c'ompliance with that notice within three days after its service would prevent legal measures being taken against him. The'three days time having expired, complaint was filed before a justice of the peace against Mr. Gladwell in the usual form. Upon the trial, the justice instructed the jury reading the part which is excepted to ,as follows:

“This court would hold, however, aud - so instructs you, that if you shall find from the testimony that the plaintiff served upon defendant a four months’ notice, the notice of four months duration, under the circumstances, this court would instruct you that it was a reasonable notice.”

The defendant asked the court to give this to the jury:

“If Mr. Gladwell entered into the use and occupation of the premises at issue in this cause under a lease for one year, to terminate on the first day of January, 1890, and if he, Gladwell, thereafter remained in the use and occupation of said premises from year to year, "until the first day of January, 1897, paying rent therefor, as under the same written lease, and if such rents have been received by Mr. Holcomb during his life, and after his death they were received by the plaintiffs,his, Gladwell’s tenancy of said premises, is a tenancy from year to year from said 1st day of January, 1890, to said first day of January,1897, and if so, he, Gladwell, was and is entitled to a six months’ notice to quit said premises, for any current year. And if the jury shall find from the evidence in this cause that he (Gladwell) did thus enter upon and hold said premises, it was the duty of the plaintiffs if they desired to terminate said lease on the first day of January A. D. 1897, to give Mr. Gladwell notice to quit said premises six months prior to said first day of January, 1897. And if the jury under such circumstances shall find that the plaintiffs failed to so notify Mr. Gladwell, they must return a verdict in his favor.”

The notice which I have read indicates that it was given to Mr. Gladwell more than four months before the commencement of proceedings, and more than four months before the expiration of the year during which he was then holding these premises. The year would expire on the first day of January, 1897; and the notice was served on the thirty-first day of August, 1896, and it is claimed that the court should not have instructed the jury that four months was a reasonable time — or a reasonable notice — under the circumstances of the case, but that the court should have instructed the jury that a six months’ notice is required by law. Or,if the court refused to charge the jury that a six months’ notice is required by law, it should have then charged the jury that reasonable notice, or a reasonable time, should be given,and that the question of what is a reasonable time, should be left for the jury to determine under all the circumstances of the case, and this is the question which I desire to notice. First, as to whether six months’ notice is required by the law of Ohio to be given for a termination of a tenancy such as the one here — the holding over after the expiration of the lease and a holding over which has been held to be a holding over from year to year, or from term to term, depending upon its length of duration upon the term in the original lease. It is, I think, true, as claimed by counsel for the plaintiff in error — and substantially conceded — that the common law of England, as established by the decisions of its courts, requires that a notice for six months shall be given to terminate a tenancy from year to year. And it is also claimed, and it is true, that such is the law of some of the states of this Union — three or four — possibly more; and it is also true that in many states a different rule has been adopted by statute, and it is also true that in Ohio no rule has been adopted, either by statute or by the courts — so far as we are advised — at least we are referred to no decision and have been unable to find any establishing a rule upon that subject, in Ohio.

Mr.Walker, in his work on American Law, says with reference to this subject:

“The next improvement was to determine that, unless there was an express agreement to hold at will, all tenancies for no stipulated term, should be construed as periodical tenancies from year to year, or some shorter period, according to the facts of the case. The establishment of this wholesome doctrine, is a virtual abolition of estates at will; and it has been fully recognized in this state. But since the creation of this periodical tenancy, there has been much diversity of opinion in different places, in regard to the notice to quit. In England, it is half a year; in some of the states, the same; in others, a reasonable time; but here nothing is settled. We have two ways of dispossessing a refractory tenant, namely: by the action of ejectment, and of forcible detainer. In ejectment, our statute requires ten days’ notice before the commencement of the term to which the appearance is to be made; and in forcible detainer, three days’ notice before the commencement of the suit; bnt this is a different thing from notice to quit.” (Walker’s Am. Law, §183.)

And, as I have said, in many of the states they have adopted a statute upon that subject; and in most of the states where there is a Btatute, it has provided for a three months’ notice — some of th'em I think four months’ notice —but in a majority of them the time has been fixed at three months. The question then occurs: What is the rule in Ohio? It is argued that it must be the common law rule — . the rule most generally adopted by the states where there have been no statutes upon the subject. So far as the question whether we are required to adopt the common law rule is concerned, we think it has been decided by the supreme court in a number of cases, that it will depend on circumstances. In Bloom v. Richards, 2 Ohio St., 387, the court say,on page 391:

‘‘The English common law, so far as it is reasonable in itself, suitable to the condition and business of our people, and consistent with the letter and spirit of our federal and state constitutions and statutes, has been and is followed by our courts, and may. be said to constitute a part of the common law of Ohio. But wherever it has been found wanting in either of these requisites, our courts have not hesitated to modify it to suit our circumstances, or, if necessary, to wholly depart from it.” ,

And the same court, in 3 Ohio St., 172 and on page 178, in the opinion in the case of Kerwhacker v. C. C. & O. R. R. Co., say this:

“The common law, therefore, has no force in Ohio, except so for as it derives authority from judicial recognition in the practice and course of adjudication in our courts; and this extends no farther than it illustrates and explains the rules of right and justice as applicable to the circumstances and institutions of the people of the state.”

These cases were referred to and cited with approval in the case of Drake v. Rogers, 13 Ohio St. 36, in which the court quotes from the opinion in the 3d Ohio St.,and uses this language:

‘‘The common law has continued to be recognized as the rule of decision, in the absence of legislative enactments, so far as rules and principles appeared to be based on sound reason, and applicable to our condition and circumstances.”

We feel, then, that we are not bound to hold or to- say that the common law rule is the law of Ohio, but are left to determine this question according to our best judgment and best light; and in doing so it is fair to say that only a majority of the court think that the rule applicable to the termination of tenancies like the one in question — which is that of a store-room rented for what might be called mercantile purposes only — -that the common law rule requiring-a notice of six months, would be entirely inapplicable to the termination of that kind of a tenancy. If it were to be placed upon the ground of reason, we. can discover no reason why such a rule should obtain. The tenant in this case entered into possession of this property under a specific contract which limited the duration of his occupancy to one year,and he knew when it ended. The law of Ohio, as declared by the decisions of its courts, has established the doctrine that if the tenant hold over beyond that year,and continued in the occupation of the premises, paying rent, with the acquiescence and acceptance of the landlord, thát those facts would create a tenancy for an additional year, and he would be entitled to another full year; but that year would end exactly as the first would end — at the end of the calendar year after the expiration of the term named in the lease, so that, if he continued to hold for a second year, or a third year, his tenancy would be of the same nature, and it is a tenancy from year to year,and nothing more, and how it can be said that he should acquire by reason of that any new rights when there has been no change in the contract,is something that my mind- fails tc comprehend. We think, too, that it would interfere very materially with the transaction of ordinary business in the leasing and renting of property and the termination of'the occupancy of property at the expiration of the term of the lease, whether that term be implied from the action of the parties or an expressed one in the terms of their contract; and so we are unwilling to hold that the rule of the common law is applicable in the state of Ohio to a lease like this.

This brings me to the question as to whether or not four months is a reasonable time, and whether or not the court should have .so said to the jury in this case. Upon this point I will only refer to a single authority, as to whether that is a question of law or of fact. I should say,first, that we are entirely satisfied that four months is a reasonable time, without fixing any rule — we are satisfied that four months will certainly include “a reasonable time.” Now, as to whether it it is a question of law, or of fact, or both, to be determined by a jury, we refer to 19 American & Eng. Encyclopaedia of Law, as to the question of reasonable time* reading from page 641:

A. W. Eolcert, for the Plaintiff,

G: H. Beckv'-'th and U. G. Denman, for the Defendant.

“On principle it would appear that if a statute or any positive rule of law prescribes the doing of an act within a reasonable time, it is the province of the court, in construing such law, to declare whether a given time is, within the intent or meaning of the law, • a reasonable time. So in the interpretation of a written instrument specifying a reasonable time, the question what is such time, is one for the court to answer, after considering the terms of the instrument and the intent of the parties * * * It has, however, been said that the time in question may be so short or so long that the court will declare it, as a matter of law, to be reasonable or unreasonable.’’

And several cases are cited under that proposition. We think that is perhaps^ fair statement of what the law is upon that subject; for if it becomes a question of what is a reasonable time, and the time is fixed, and if it be so long that the court could well say it was reasonable, then it is for the court to say, or if it be so short that the court could well say it was unreasonable, the.court could say that; but if it is doubtful so that the court might say under one view of the facts it was reasonable, and under another view, that it was unreasonable, the court would have to submit the question to the jury. But, holding as we do, that under a tenancy of this kind, four months included a reasonable time, we are well satisfied that the court was correct in charging the jury to the effect that if they found this notice to have been given four months before the termination of this year, that, as a matter of law, was a reasonable notice to quit these premises. That we take to be the law, and we believe the court was correct in charging that proposition.

The judgment of the court of common pleas affirming the judgment of the justice of peace, will be affirmed.

Dissenting opinion of

Parker, J.

THOMAS J. GLADWELL v. ELIZABETH HOLCOMB.

I desire to indicate very briefly, the reasons why I am unable to agree with the majority of the members of this court, in their conclusions in this case. As stated by the presiding judge, it is unquestionably the common law of England, that in cases of .leases from year to year, a six months’ or half yearly notice to quit must be given in order to terminate the tenancy. I agree with the majority of the court, that if we are at liberty to hold that the rule as to the giving of notice for a reasonable time obtains, or may be adopted as the rule in Ohio, that a reasonable notice was given in this case. But I cannot bring my mind to the conclusion that the court is at liberty to adopt that rule. As stated in the authority read from the 2nd Ohio St., 891:

“The English common law, so far as it is reasonable in itself, suitable to the condition and business of our people, and consistent with the letter and spirit of our federal and state constitutions and statutes, has been, and is followed by our courts, and may be said to constitute a part of the common law of Ohio.”

I find that this rule of six months’ notice was a rule of the common law, applicable to not only agricultural leases, but to the leases of houses and store buildings. My attention has not been called to any fact or circumstance indicating to my mind that this rule is not as well suitable to the condition of the business of our people as to the condition or business of the people from whom we derive the common law. Counsel for the parties,and the court, have most diligently searched the authorities,and have been unable to find any case in which any court of any state in the Union, has departed from this common law rule. Wherever it has not obtained — wherever a different rule has been adopted, so far as^we have been able to find, the change has been effected by legislation, and my opinion is, that in this state, to change the rule,requires legislative action The reason of the rule, as I understand it, is founded in the fact that there is an uncertainty about the termination of the holding.

In the case of a holding for a year, of course no notice to quit is required; but where a tenant holds over, and is permitted to hold over from year to year, an uncertainty arises as to whether or not he will be required to quit the premises at the expiration of any current year. This rule obtains not only as to the right of the landlord, but as to the tenant. The tenant is required, in order to excuse himself from liability, to pay the rent for the succeeding year, to give notice of his intention to quit a half year before the expiration of the current year. It is within the power of the parties, of course, by their contract, to avoid this rule if they do not consider it consistent with their interest and purposes, by a provision in their contract. If I felt at liberty to concur in a judgment fixing a different rule, I would say that the holding that four months includes a reasonable^time, would meet my approbation.