author: King, J.

text:
    (Sixth Circuit — Huron Co., O., Circuit Court,
    April Term, 1897.)
    Before King, Haynes and Parker, JJ,
    THE NORWALK SAVINGS BANK COMPANY v. THE NORWALK METAL SPINNING & STAMPING COMPANY.

      Manufacturing corporations may become members of Building Associations to borrow money for their legitimate business — Where the statute under which a corporation is incorporated provides that “it shall not be lawful for such company to use its funds in the purchase of any stock in any other corporation, ” the funds spoken of are the money of the company, and that statute is not intended to limit the power of the corporation to become a member of a building association organized under our laws to borrow money from the same to carry out its legitimate business. But if it had not such power, still, having borrowed the money, and received its benefits, and having contracted and agreedto pay it back, and also agreed that it should be a lien upon its property, that contract a court of equity will execute, and will not listen to the plea of the manufacturing corporation after it had used the money, much less to that of another general creditor, that the corporation originally had no power to borrow.
   King, J.

This case was tried in this court on appeal from the court of common pleas. It is an action brought by the plaintiff for the purpose of marshaling liens upon certain real estate of the Norwalk Metal Spinning and Stamping Company, the debtor in the case.

Among other liens is a mortgage securing a loan to the Home Savings and Loan Association, who are defendants here.

Another lien is a judgment in favor of the plaintiff, the Norwalk Savings Bank Company, and I think a judgment in favor of some other bank.

This is a case between the plaintiff, The Norwalk Savings Bank Company.and the Home Savings and Loan Association as to priority, the plaintiff having a judgment which it recovered upon a debt owing to it by the defendant, The Metal Spinning and Stamping Company, The Home Savings and Loan Association having a mortgage which was executed to it under the laws of the state of Ohio, on the 7th day of May, 1892, and the judgment of the plaintiff having been recovered sometime later. The plaintiff has no other security than that which arose from the judgment lien, with possibly a levy of execution issued thereafter.

On the 7th day of May, 1892, this Metal Spinning and Stamping Company made application to become a member of the Home Savings and Loan Association, and was thereupon assigned thirty shares of stock, upon which, concurrently with this application for membership, there was a loan to it of three thousand dollars, and upon which it agreed to pay a certain sum per month as a premium which it had offered to pay for this loan, a certain sum per month for the interest which would accrue upon it, and another certain sum which would be credited upon the principal,

The note which was executed by the Norwalk Metal Spinning and Stamping Company, reads as follows:

“Norwalk, Ohio, May 2, 1892.
“Received of the Home Savings and Loan Company, of Norwalk, Ohio, three thousand dollars as a loan on thirty shares of stock, No. 1276, owned by The Norwalk Metal Spinning and Stamping Company in said Company, We agree to pay said Company, monthly, not less than $30, which shall be applied as follows:
“First- — -To the payment of any fees or other assessments made against us, in pursuance of the constitution or by-laws of said Company.
“Second — To the payment of the premium for precedence due on said loan, amounting to $4.50 per month.
“Third — To the payment of the interest due on said loan, amounting to fifteen dollars per month.
“Fourth — The balance of said payments shall be credited as dues on said stock. Said payments shall be continued until the dues so credited on said stock, together with the dividends declared thereon, shall equal the amount loaned.
“Should we fail for three months to pay said monthly dues, then the whole amount of said loan shall at once become due and payable. The Norwalk Metal Spinning and Stamping Company, by D. W. Vail, Pres.”

As I have said, a mortgage was given securing the execution of that contract. The Home Savings and Loan Company is an institution organized under the laws of the state of Ohio, having a capital stock of a million and a half, and for the purpose of transacting its business, has adopted certain by-laws which, so far as this question is concerned, follow the statute. They provide, among other things, that there may be depositing members; that there may be members simply owning stock — paid-up stock; that there may be borrowing members; and it provides that every member of the company shall be entitled to borrow from the company a sum equal to the face value of his stock; that such right, however, shall be subject to the restrictions hereinafter provided, which may apply to the payment of premiums.

It provides, also, that the interest upon loans shall be substantially 6 per cent, per annum; in other words, 50 cents per month on each $100.00.

It provides in section 4, of article 14, that “each borrowing member shall pay to the company, monthly, not less than one dollar on each one hundred dollars of loan made to him, which shall be applied as follows:

“First — To thejpayment of any fines or other assessments made against him'in pursuance of the by-laws,”

That is the obligation which is included in the contract here.

“Second' — To the payment of the premium due on such loan ”

That is included here, fixed at. the sum of $4.50 per month on this loan.

“Third — To the payment of the interest due on such loan.”
And that is also fixed in the contract at $15.00 per month.
“Fourth — The balance of such payment shall be credited as dues on the stock on which such loan is taken. Such payments shall be continued until the dues so credited on the stock, together with the dividends declared thereon, shall equal the amount loaned. The loan and stock upon which it was taken shall then both be cancelled, and the borrower’s mortgage released.
“Borrowers may also, at any time, pay up in full one or more shares of stock on which a loan has been taken, and have such shares and a proportionate amount of the loan cancelled. And the Board of Directors may provide bylaws for the annual cancellation of so many shares of stock on which a loan has been taken, as may be warranted by the credits on the books of the company to said stock, and for a proportionate reduction of the monthly dues, interest and premium; but no dividend already earned shall be forfeited by applying such credit on the loan.”

It is contended here by the judgment creditor, the bank, that The Metal Spinning and Stamping Company had no power in law to become either a member of this association, or to make a loan from it; that the essential feature of making this loan was membership in the Loan Company, and that being the essential feature, a corporation in Ohio, it is argued, cannot hold stock, nor become a member of another corporation.

I do not intend to discuss this very extensively; but in the first place it may be noted that there is no statute in Ohio prohibiting one corporation from holding stock in another. The entire basis for that claim is made in the case decided in the 36 Ohio St., —. There is no doubt that that case fully supports that claim; it is broad and complete on that subject, But in our judgment, this case in the 36 Ohio St., can have no application to the facts in this case for the reason that it is not like this case. There is no attempt in fact or in law, on the part of the Metal Spinning and Stamping Company to become a member of another corporation, to buy its stock and control its business, for the reason that the statute has absolutely limited the power of any person, natural or artificial, to own and control stock in building and loan associations.

The statute provides that however much stock a person may own, he can cast but twenty votes in such institution.

Preceding that statute, there was one which only allowed a person to own twenty shares of stock, but that has been amended, and there is now no limitation upon the number of shares of stock that may be owned by a person in a building and loan association. But the power to vote is controlled and limited.

Now, if there were no statute upon that subject in Ohio, limiting and controlling the power cf one corporation to take stock in another, I take it that the law is, that it would be permitted to do so. Upon that subject .1 quote from a very recent and able work upon Corporations, paragraph 5697, in 4th Thompson on Corporations:

“It is believed to be in conformity .with all judicial holdings, to say that every corporation, except those organized for public or governmental purposes, which may require the use of money for carrying out the purposes of its organization, has an implied or incidental power to borrow money for such purposes, although no such power is expressly granted in its charter, and to give the customary evidences of debt therefor; and to add to this the customary security. ”

Again, the same authority says, in the 5th volume, paragraph 6131:

“With this important exception,” (to-wit, public corporations — having said that public corporations must have express power), “it may therefore be laid down that every private corporation, in the absence of any prohibition in its charter or governing statute, may borrow money for the purpose of carrying out the lawful objects of its incorporation, and may mortgage its real and personal property to secure the loan. ”

And to the same effect is the case of Burt et al. v. Rattle, 31 Ohio St., 116.

Again, Thompson says, in paragraph 6050:

“If it be a sound principle that a corporation may, in order to carry out the legitimate objects of its creation, deal precisely as an individual may, except in so far as it is restrained by its charter or governing statute — then the conclusion follows that it may borrow money and issue negotiable bonds as secuirty therefor, the same as an individual may do.”

So much for he general rule1 This is not entirely without authority in this state. In the 37 Ohio St., 208, in the case of Bank against Bank, in the opinion delivered by Okey, J., this language is used, on page 215:

“Nothing is better settled than that shares in the capital stock of a corporation are the subject of a pledge. A national bank may hold such shares in the capital stock of another national bank, as collateral security for a loan or loans made or to be made. National Bank v. Case,99 U. S., 628. Moreover, an objection to such transaction could not be made in this action. Where, as in this case, the pledgor executes an irrevocable power of attorney, authorizing a transfer of such shares on tbe books of the bank issuing the same, the pledgee has the right to demand that such transfer be made.”

I need not dwell longer upon that point. The judge delivering that opinion, disposes of tüat question very briefly. There are numerous authorities supporting that holding. In Thompson on Corporations, paragraph 5719, the same doctrine is stated in the text. In the 35 Federal Reporter, 161, is a case in point, and also 127 New York, 252, to whielr I wish to refer. On page 257 the court say, in the opinion delivered by Judge Haight:

“It is doubtless true that a corporation cannot purchase or deal in stocks of other corporations unless expressly authorized by law soto do.”
“It is equally true,however,that it may do whatever may be necessary in the exercise of its corporate franchises.
“The selling of property and collection of debts is among the powers given; and hence, it may take title to all kinds of property, even the stock of another company in the payment of a debt. Talmage v. Pell, 7 New York, 328.”

The statute under which the plaintiff was incorporated provides that:

“It shall not be lawful for such company to use any of its funds in the purchase of any stock in any other corporation. ”

The funds here spoken of evidently mean the money of the company, and the statute was not intended to limit the powers of the corporation beyond that already indicated.

“The plaintiff is a private manufacturing corporation. It exercises no powers of a public nature, and has attempted no combination by which the public may, in any manner, be prejudiced. There are, consequently, no questions affecting public policy to be considered The purpose of the company is expressed in a preamble to the resolutions adopted authorizing the sale of its plant and stock of materials on hand to the defendant company. It was, in short, to increase the business of the stockholders, by adding to the manufature of brass, that of German silver and nickel alloys. The scheme adopted was the organization of a new corporation bringing in some other persons with additional capital. The stock in the new company was subscribed for by Holmes and Edwards, individually, and the stock, when finally issued, was issued to Edwards.”

As stated in 78 New York, 159, in the opinion delivered by Folger, Justice:

“A corporation may not do acts which affect the public to its harm, inasmuch as they are, per se, illegal, or are malum prohibitum. Then no assent of stockholders can validate them. It may do acts not thus illegal, though there is want of power to do them- which affect only the interest of the stockholders. They may be made good by the assent of the stockholders, so that strangers to the stockholders, dealing in good faith with the corporation, will be protected in a reliance upon those acts.”

Referring to 7 Gray, 393, it was held that the directors of a manufacturing corporation may sell the whole property of the corporation to a new corporation, taking payment therefor in shares of the new corporation, to be distributed among those of the old stockholders who are willing to take them.

In 16 Gray, 493, it was held:

“One manufacturing corporation may take shares of another in payment of a debt.”

Justice Chapman says, (citing Treadwell v. Salisbury Manuf. Co., 7 Gray, 393):

“In that case it is said that while corporations quasi public may be restrained and directed in the management of their affairs, yet the corporations established for trading and manufacturing purposes may wind up their affairs whenever they think proper to do so, and in the manner adopted in that case.”

In the case in the 127 New York, the company had sold all its property to another company and taken payment therefor in shares of the other company. The court add this, (127 New York, 260), which is pertinent.

“But assuming the transaction to have been ultra vires, the defenses interposed would still be unavailable. The plaintiff has the stock,and has paid for it. It cannot be recovered back by the defendant, for the transaction is completed and closed. Whilst the contract remained executory, if it was unauthorized, a stockholder or person interested might have interfered by injunction, and prevented the transfer of the property of the plaintiff to the defendant. But the contract having become exhausted, the title of the stock now vests in the plaintiff, and it has the power to sell and dispose of the same.”

The contract under which the note in suit was given was made in December, 1884, nearly four years after the plaintiff became the owner of the stock. No claim is made that that contract is for any reason illegal or void. Numerous cases are found in which the courts have refused to execute contracts that were ultra vires, but this action is not based upon such a contract. The courts will not permit the plea of ultra vires to prevail whether interposed for or against a corporation, where it would not advance justice, but would accomplish a legal wrong.

I do not care to stop to read it, but in support of the doctrine which I have been announcing, and in line with the authorities which have been named, I will say that the case which was cited in the 38 Northeastern Reporter, which may be found in 151 Illinois, 237, is not only in line with these authoritise, but it is also an authority absolutely applicable to the case at bar,and holds distinctly that a manufacturing corporation may subscribe for and receive shares of stock in a building and loan association, and a loan based upon such shares is legal, and will not be held void. It is also an authority for a second proposition: that the debtor is estopped from making this defense.

I do not care to rest the opinion entirely upon the authority of that case. I say this with reference to it: There is no case that I know of anywhere, that denies the soundness of the doctrine stated in 151 Illinois.

It is in line with the authorities which I have just read; and every book I have been able to lay my hands on in the discussion of this question, is an authority in the same line, to-wit: That a debtor, and no one holding or claiming under him or through him, or holding or claiming an interest in his property, will be heard to deny the right of the debtor to borrow money where the debtor has received the full value of his loan and has expended it — I don’t care what the debtor is — what his organization is, unless there is a statute prohibiting him from borrowing money, that would be notice to all the world; but, in the absence of express law prohibiting the debtor from borrowing money, any person engaged in the business of loaning money, may loan him money,and he may borrow, and having borrowed, even though it is in excess of the statutory power, in excess of the power of its charter, if a corporation, it will not be heard to deny that power; having received the money, it must repay the loan accredited by the contract, and it will be enforced by all the courts and by all the authorities.

An authority to that effect is in the 42 Ohio St., 655 to 671, That was a case in which money was borrowed of a building and loan association when the law authorized loans to depositing members. The court say:

“A person who applies to a building and loan association for a loan of money, and deposits therewith a sum of money however small, for the purpose of making himself eligible as a borrower, and thereby receives a loan, is es-topped, when sued for the money by the association, from, denying that he was, in fact, a depositor of the association. ”

The first question made in the case was, that the statute required them to be members or depositors, and the proof showed that they deposited two dollars with the loan company,and took out a loan of several thousand dollars, and it was claimed that they were not existing depositors.

A case which is more in point is the case reported in the 6th Western Law Bulletin, at page 823. It was the case of the Victoria Building Association against the Arbeiter Bund, decided by the Hamilton county District Court, December 2, 1881. The Arbeiter Bund was a corporation, but the question of its right to borrow and mortgage, was not raised in the case. It became a member of the Loan Company, and no question was made in the case about its authority to do so.

The court found that it was the owner of twenty five shares of stock and that that loan had been made to it upon that basis. In an action to foreclose the mortgage, the company set up that it had no power to make the loan. The court,by Judge Burnett, say:

“Now, 'the Arbeiter Bund has received the money loaned. It has given its mortgage. It never proposed,” (it had gone into the hands of a receiver), “and now it is not in its power, to refund the money received and to cancel the transaction. It is estopped, therefore, to deny that The Victoria Building Association might make the loan which it received, and third parties who would make the defense in the interest of the Arbeiter Bund, in order that their claims may come in and have precedence, are equally estopped, unless they fulfill the equitable obligation which rests upon the Bund to re-instate the Building Association in its former rights, its former position.”

The court say that question was recently decided by the supreme court of the state, in the case of Samuel W. Elliott v. The Greenfield Building and Savings Association, and the supreme court held that the mortgage that Elliott gave was good as against a subsequent mortgagee who had advanced his money upon the faith of a mortgage.

So that, according to this authority, the supreme court has held that a debtor who had no power to borrow from such an association on more than twenty shares of stock, would not be heard to claim that he had not that power, when'he had borrowed upon a larger number ef shares, to-wit, thirty-seven.

The statutes of Ohio, and the general law of manufacturing corporations authorize loans to be made; authorize corporations to borrow money. The statute authorizes building and loan companies to loan to its members only, or to depositors,

•In the 42 Ohio St., however, we find that a debtor will not be heard to deny that he is eligible to receive the loan which he has made, and if he is a member and receives a loan on account of such membership on which he still pays dues, he will not be heard to deny his membership.

Take this case: This manufacturing company was never a stockholder in this loan company; never subscribed nor received any stock. But it became nominally a subscriber for stock when its necessity to borrow money arose. I subscribed for stock; it made a formal application for the issue of stock. It did nothing else; it paid no money for any stock. I am not sure whether a certificate was issued, or not; it makes no difference whether there was, or not. It became upon the books of the company a stockholder entitled to vo.te, according to the statute of the state, twenty votes on account of this loan; but the money paid by it went into the treasury of the loan company, and this loan being satisfied and extinguished, the moment that the loan is extinguished, the stock is extinguished,and the borrower’s rights in the company immediately cease.

In a case where it was provided in the mortgage that it should be a security for fines as well as the loan, the court, in the 25 Ohio St., page 204, say

“Before the loan is auvanced, the stock of the member is a security in the hands of the company for the payment of fines. By making the loan, that security is lost; and we see no reason why the taking of mortgage security in such case, for the payment of future fines, should not be regarded as a transaction in due course of its business. The power to assess and collect a fine, reasonably implies a power to take security for its payment.’’

G. H. Stewart, S. G. Bentley, G. T. Stewart and A. E. Rowley, for Plaintiff.

A. M. Beattie and G. P. Wiclcham, for Defendant Loan Company.

I only read that because of the expression of the court, that the moment a loan is made,the security which the company had previously, to enforce the payment of its fines, ceases. So that, all the money paid in is to apply upon the loan. The contract in this case provides that all the money, save and except that amount which they agree to pay for the privilege of getting this money, shall be credited upon the interest and upon the principal, as well as all dividends which moneys so paid may earn. So that the borrowing member has two sources of income to pay upon his debt; the money which he pays is not only credited upon the loan, but it becomes a source of earning power, and that which it earns is also credited upon the loan,

We think this corporation might lawfully become a member of the loan company for the purpose of borrowing money for any use that it had; but, if it did not have that power expressly or by law, still, having borrowed the money, and received its benefits, and having contracted and agreed to pay it back, and also agreed that it should be a lien upon its property, that contract a court of equity will execute, and they will not listen to the plea of the manufacturing corporation after it had used the money- — -much less that of another general creditor — that the corporation originally had no power to borrow.

We say, as in the language quoted.in the 127 New York, that to hold otherwise would not advance justice, but it would accomplish a legal wrong, and that a court of equity does hot sit to do. Therefore the decree may be drawn giving the Loan Company the first lien, and the Bank the second.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    Jan’y Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    DAVID W. MILLER et al. v. HOWARD DOUGLASS, EXECUTOR OF WILLIAM YOUNG.

      Exceptions to conclusions of law — Motion for new trial not necessary.

    When there has been a finding of facts separately from the conclusions of law under the provisions of Sec. 5205, Rev. Stat., a motion for a new trial is not necessary in order to entitle the reviewing court to determine whether the conclusions of law on the facts found are correct. 34 Ohio St., 1. All that is necessary in such cases is to except to such judgment.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The defendant in error has filed his motion to strike the petition in error from the files on the ground that the court has no jurisdiction of the subject-matter or of the parties, and that no motion for a new trial was made and no bill of exceptions was allowed.

The case in the court of common pleas was one involving the right of the parties to the distribution of a fund of which the court clearly had jurisdiction, and all of the parties were before the court. By the final decree the court found the facts in the case and its conclusions of law on such facts, and decreed the fund to some of the parties to the exclusion of the others. The losing parties excepted to the conclusions of law and the judgment rendered, but, being satisfied with the findings of fact, made no motion for anew trial, but filed their petition in error, alleging that the court erred in its conclusions of law on the facts found.

There is no reason whatever for striking the petition in error from the files. The plaintiffs in error were authorized to file it, alleging error in the record as it stands, and it was filed in due time. When there has been a finding of facts, separately from the conclusions of law under the provisions of section 5205. Revised Statutes, a motion for a new trial is not necessary in order to entitle the reviewing court tb determine whether the conclusions of law on the facts found are correct. 34 Ohio St., 1. All that is necessary in such cases is to except to such judgment, But if it desired to have the reviewing court decide whether the facts so found by the court are supported by the evidence, it is essential to properly present this question that a motion for a new tiral on this ground be filed and overruled, and a bill of exceptions containing all of the eivdence be allowed.

Reuben Tyler, Willis M. Kemper, Frank H. Kemper, David Davis and Burch & Johnson, for Plaintiffs in Error,

Howard Douglass and George W. Harding, contra.

In this case the judgment does not show that the court, at the request of either of the parties, stated in writing the conclusions of fact found separately from the conclusions of law. But the entry shows that the findings of fact and conclusions of law were therein stated separately. But it is held in 35 Ohio St., 113, that a judgment rendered on a special finding of facts made by the court may be reviewed on error, although no such finding was not made at the request of either party.

The motion will be overruled.


author: Ejng, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court,
    Jan. Term, 1897.)
    Before King, Haynes and Parker. JJ.
    THE STATE OF OHIO EX REL. THE BRYCE FURNACE COMPANY v. THE BOARD OF EDUCATION OF TOLEDO, O.

      Mandamus against school board to award contract for furnishing heating apparatus — What plaintiff must show. — A bidder for a public contract, to be entitled to a writ of mandamus to have the contract awarded to himself,must show that according to the law he is the party with whom the contract should be made, regardless of the rights of anybody else; and he can not rely on the weak- , ness, informality or irregularity of the bids of others, or on the proposed irregular action of the respective public body with reference to anybody else.

      Alleged proposed wrongful action of sehool board no ground for mandamus— The fact that the school board is about to let a contract to a party who has not complied with the law, is no ground for the claim of another bidder who has coihplied with the law, that the contract must be awarded to himself.

      Offer of patented heating system — Separate offer for material and labor. — Where aboard of education advertises for bids for heating and ventilating a school house, bids which offer systems of heating and ventilating covered by patents and proprietary rights, need not separately state the costs of material and labor, but may be given in a lump sum, under section 794, Revised Statutes.

      Discretion of board in selecting system can not be controlled — The discretion of the board of education in such case can not be controlled either by a writ of mandaums, or by an injunction, in selecting any apparatus that is in the control of a single individual or firm. Such bids are not competitive.
    Mandamus.
   Ejng, J.

The petition in this case was filed January 30, 1897, and application made for the allowance of an alternative writ of mandamus, and the writ allowed. The defendant appeared in court and demurred to the petition, which raises the question whether the petition sets forth a cause of action, and whether the plaintiff is entitled to the relief asked for.

The petition, in substance, shows that the relator is a corporation, having its place of business in Tolédo, engaged in the business of contracting, manufacturing and putting in place heating and ventilating apparatus for public and other buildings; that the defendant is the Board of Education of the City of Toledo, which is a city of the third grade of the first class, and a city school district of the first class. That in 1895 the Board of Education determined to erect a public school building in this city, and thereupon directed certain architects to prepare plans and specifications for the building, which were so prepared and.adopted by the defendant; that the estimated cost of the building exceeded $10,000, and the estimated cost of the heating and ventilating apparatus exceeded $1,500. That thereupon notices were published for a period of four weeks, beginning on December 19, 1896, in newspapers of the city and county, soliciting bids in pursuance of said plans and specifications for two •distinct parts of said building, viz: the heating and ventilating apparatus, and for a closet system to be placed therein, ■and published that said bids would be received up to 12 -o’clock noon of the 11 day of January, 1896; that the notice .provided that the bids must be in accordance with the statutes, and a copy of the notice is attached. The relator sets ■forth that he filed in due form, within the time named in fhe notice, a sealed bid, with a sufficient guaranty, in all respects as required by the notice published and by the statutes, and therein proposed that it would do the work and ■furnish the material and apparatus for heating and ventilating the building, according to the plans and specifications, for the sum of $8,200, of which $6,100 was for material, and •$2,100 for labor; and that it would do the work and furnish the mateiral and apparatus for the closet system for $1,200, ■divided into $1,050 for material and $190 for labor. The prices of labor and of material in both respects were sepa•rately stated. A copy of that bid, together with the proposed contract, 'is attached to the potition, and made a part, thereof.

The relator avers that it was the lowest and best bid submitted, as required by the statute and said notice; that it has in all respects complied svittUthe conditions of the notice ¡and the provisions of the law regulating the matter of making bids. It avers that at the next meeting of the board .after he bids were received, which was held on the 11th day •of January, 1897, the day on which the bids were to be filed with the clerk of the board, they were laid over until the next regular meeting, when they were to be opened and acted upon; and that at the next regular meeting, on January 27, 1897, the board opened and read the bids, and thereupon announced that it did not intend to award the contract for the closet system in connection with the heating and ventilating, as a different arrangement had been decided upon, and that the bids for the closets would not be considered; that it, however, proceeded to consider the bids for heating and ventilating, and upon motion accepted the bid of the Smead Furnace and Foundry Company, and awarded the contract therefor, for the sum of $8,030.

It is further alleged in the petition that the defendant has not yet, but is about to, award the contract to the Smead Furnace and Foundry Company; that it is not the lowest and best bidder for said work; that it did not submit any sealed or written proposition in pursuance of said notice before 12 o’clock at noon of said day, but filed a. pretended bid and guaranty therefor, being the same bid filed by it under a former notice, but rejected by said qoard on or about August 18, 1896, for the heating and ventilating apparatus and for the closet system, and that it did not in said bid state the price for labor and material separately as to either heating and ventilating apparatus and closet system, but put in a^lump bid therefor, and made no bid therefor according to the plans and specifications, nor according to law. And^it sets^forth a copy of the Smead bid and guaranty, and'makes them a part of its petition, and claims that they are not lower than the relator’s bid, nor as low. It further alleges that because the labor and material is not so separately stated for the heating and ventilating apparatus, the exact price thereof cannot be ascertained from the bid.

It avers that it is ready and willing to enter into a contract and perform it, according to law, according to its bid, and according to the plans and specifications which have been adopted by tbe school board; and also that it has demanded of the board that it should award the'contract to the relator. It avers that unless restrained by the order of this court, said Board of Education will award the contract to the Smead Furnace and Foundry Company, and plaintiff will be without any remedy. It therefore asks that a writ of mandamus may issue against the Board of Education, commanding it to award said contract to the relator, and to duly execute the same; and also asks for an injunction, etc.

Of course, the real relief asked for in this petition is the awarding of a writ of mandamus to compel the Board of Education to let the contract to the relator; and in order to avail it to occupy that position, it must show that it is the one under tbe law with whom the board should enter into the contract; and that regardless of anybody else’s rights. It cannot, as has been before held, rely upon the weakness, or informality, or irregularity of the bids or of the proposed action of the school board with reference to anybody else. The Smead Furnace and Foundry Company is not a party to this action, and its rights cannot be adjudicated nor determined, except in so far as it is found that the plaintiff has the only right to have this contract awarded to it. That, in substance, is the way in which the law stands with reference to writs of mandamus.

According to the allegations of this petition the Board of Education was about to construct a school building, and as one of the incidents of the building, it saw fit, independent of any action upon its part, as to the letting of the contract for the building, to advertise separately for bids for heating and ventilating apparatus. So far as the closet system is concerned, as included in their notice, it is not material in this controversy at all, since it is averred in the petition that fhe Board of Education decided that it would not accept any bids upon that, but would let that go over and advertise that separately, which it had an undoubted right to do. This proceeding, therefore, has to do only with the advertising of bids for heating and ventilating apparatus. The notice sets forth that the bids must be in accordance with, plans and specifications on file at various points in the city, where they may be examined by those desiring to bid.

The construction which I think it is fair to place on that from the allegations of the petition, is that there are the-plans and specifications of the building, including the size and extent of it, the number of rooms that are to be heated, but does not undertake to set forth that the Board of Education has agreed upon plans and specifications for a heating: and ventilating apparatus. They simply left that question open, so that anybody that had a heating and ventilating' apparatus, from a gas stove up to the most complex and complicated system that might be or is devised, would have' the right, under that advertisement, to bid.

It is averred — and a good deal of stress is placed uponjpt ■ — that the Board of Education is about to let a contract to' somebody who has not complied with the law. That would not be a reason why the plaintiff should have this contract. That would not furnish any reason whatever why the court should issue an order to make a contract with the plaintiff. It must be found that the plaintiff is the only one, under this notice, who is entitled to it; that he is able, ready and willing and clearly entitled to this contract, before the writ can issue. But it was argued that the bid of the person-with whom the Board of Education was about to make a¡ contract, was informal, and irregular, and the irregulartiy upon which the most stress is placed is that the bid of the Smead Company does not separately state the work and labor. And as we áre told that the statute, section 3988, which most explicitely defines the duties of a Board ofjEducation in this respect, requires that to be done. The language-is as follows:

“When both labor and materials are embraced in the-work bid for, each must be separately stated in the bid, with the price thereof. None but the lowest responsible bid shall be accepted; but the board may, in its discretion, reject all the bids, or accept any bid for both labor and material which is the lowest in the aggregate for .such improvement or repairs. Any part of a bid which is lower than the same part of any other bid shall be accepted, whether the residue of the bid is higher or not; and if it is higher, such residue shall be rejected. ”•

In connection with that statute, there is another which we think has some application, and that is section 794, which provides:

“When any board of commissioners, board of trustees, officers, or board of directors of the state, or of any county, township, city, town, village, school or road district of the state, or of any public institution belonging to the same, * * repair, alteration, of any * * school house or any other public building or improvement, and who are now or hereafter may be required by law to advertise for and receive proposals for the furnishing of materials and doing the work necessary for the erection of the same, such officer, board, or other authority, shall require separate and distinct proposals to be made for furnishing the materials or doing the work, or both, in their or his discretion, for each separate and distinct trade or kind of mechanical labor, employment or business necessary to be used in making such public improvement; and in no such case where more than one such trade or kind of mechanical labor, employment or business is required to furnish the materials for, and do any such work, shall any contract for the whole of the job, or any greater portion thereof than is embraced in one trade or kind of mechanical labor, employment or business, be awarded by any such officer, board or authority, unless the separate bids do not cover all the work and materials required.”

There is a considerable more in this section which it is not material to read.

The advertisement as alleged in the petition which calls for these bids,calls simply for heating and ventilating apparatus and closet system for school-house. The bids which the petition alleges were put in by the plaintiff, which it alleges the plaintiff is entitled to have accepted,show that it proposd “to furnish all of the material and perform all of the labor necessary, for properly installing the heating and ventilating apparatus, (as provided in the duplicate contracts herewith submitted), for the new central or high school building, according to plans and specifications prepared by the architect for the following amounts;” and also”to furnish all of the material and perform all of the labor necessary for properly installing a dry or flushing closet system ror the following amounts. ’ ’ It then furnishes a bond that it will enter into a contract and give proper security for its performance; also, it sets forth duplicate contracts which it has prepared for the board of education to execute or sign with it in which is set forth more particularly the kind of material and apparatus that it proposes to furnish. Those are described at considerable length. The apparatus is known in these contracts and in the exhibits as “The Bryce Heating and Ventilating Apparatus. ’ 'And it says that the heating and ventilating system provided in the contract is the fan-blast system, which provides for “heating the following rooms by warm air;” and described all the rooms in the building, including the basement. A perusal of that' is sufficient to indicate that this is a system of which this corporation owns the right,although nothing is said about patents. It is a system which it proposes to put into the building for heating and ventilating those various rooms. And from the description given in the bid of the Smead Co., and from the allegations of the petition, it is plain enough that it is also a system which it devises and of which it is the proprietor.

It is clear to the most casual observer that this is an altogether different form of apparatus from articles like furniture or any other loose articles, as the old-fashioned methods of warming by stoves, where one would go into any factory, or shop, or store engaged in that class of business, and pick out, and then buy it at a given price; but that it is to be put into the building by the contractor, and put in working order, and agents of the school board instructed in its management and use. All those elements enter into the particular system which they have bid to put into the school building. To say that you can separate the labor and material, in our judgment, is idle. You might exactly as well say that, in order to conform to the laws of Ohio, it was necessary to separate the cost of the raw material contained in the pieces in the furnace which they propose to supply,from the labor used in its construction, as to say that you must separate the completed article from the the labor and cost of setting it up. One is as much a part of the furnace as the other is. It is not a furnace until it is in operation; it is not a ventilating apparatus until it is in the building in operation. So we are clearly of the opinion that no necessity could exist for separately stating the labor and material in any of these bids. They bid for a heating and ventilating apparatus, and that could just as well be in a lump as in any other way to comply with this statute, since that comes within the clear statement of sec. 79á, that it isa part of a mechanical trade necessary to be used in a public improvement. It is a part of a system which all goes together. You cannot put in the furnace without putting in the heating and ventilating apparatus. One is a part of the other. They propose to do the whole thing, and put it in operation, for so much money. According to its petition, plaintiff proposes to do it for $8200; it alleges that the other company prop oses to do it for $8030. That certainly would not allow this relator a writ of mandamus upon the single ground that it is the lowest bidder.

But in addition to that, it is alleged that the other party was not a bidder at all. It appears from the petition that the bid was put in at some time, but that it was not acted upon, or was rejected. Enough appears in the petition to show that it remained there. While that argument would have some force under certain circumstances, we do not believe that in an action for mandamus it can enter into a consideration of the right of the plaintiff to have its writ; for the plaintiff must rely upon the strength of its own right and not on the weakness of its adversary. A case in 42 Ohio St. is undoubted authority that a good many things may be waived by the board or officer that enter into a contract of this kind. That would not be entirely true in an action for injunction, but it is true in an action for a writ of mandamus. They cannot claim to have the right to have this contract awarded to them because some bid has been irregular or informal.

But it does not occur to us that there is any serious informality in this bid. It is not alleged that this bid was an open bid,and that other people could see it. Had it been so alleged; it could not have been prejudicial to the plaintiff.

It would have been information to it as to exactly what bid had been made,upon which it might have acted in making its own bid, and thereby have given it an advantage. It does not occur to us that the plaintiff has a right to complain if it had been in their office two months or six months, or if it was put in at the end of the notice published in December. We have had occasion before to say in matters of this kind, and further reflection only strengthens our opinion upon it, that this suit has not yet been so framed as that the discretion which the law has given to those boards can be controlled, either by a writ of mandamus or by an injunction, when it comes to the question of selecting any apparatus that is in the control of a single individual or a single company or firm. The board, it seems to us, acted exactly right in advertising as they did advertise for bids, without any mention in the notice as to the kind of system they were going finally to adopt. They gave those interested in that question an oppotrunity to bid on any kind of an apparatus the individual or company owned,and to name a price to the board. The natural tendency of that kind of a notice would be to make the prices so given, as low in amount as possible.

But after all, the board is not required to finally adopt a system whose owner has bid a sum lower for putting it into a public building than the owner of some other system. It can leave the question of determining finally, what system it will adopt, for consideration after all the bids are in. The question of price, manifestly, might have some influence with the board of education in determining which one it would accept, if all of them, or two, or three of them are substantially equal in merit; but it would not be binding on the board to accept one because it was the lowest bid, although they might consider it. It still has the right which the law has given it, to reserve the determination of the particular system it will adopt, until after the bids are opened, especially where these systems are largely covered with patents; and we fail to see any'way in which the law controls that discretion in the board of education.

It is clear that these bids are not competitive bids in any sense of the word. To make them competitive, it must be averred that these systems are exactly alike and equally good. No averment of that kind is contained in the petition. They must have been so similar that when a party bid upon them he was bidding upon exactly the same basis as his competitor, as in ordering structures made of brick and stone and wood, where all contractors have an even chance to determine whether they will bid, and estimating the cost in the market of the things to be bid upon. But for these things controlled by patents,the market is not free and open. It is controlled by a single owner. We know of no way in which the law can regulate that. We do not believe that you can control the discretion of the board of education to adopt the system after the bids are in, nor do we think it would he wise to do it. So long as it is the privilege of the inventor to secure from the United States government the right to his own inventions, and so long as the law protects him in that right, we see no object in saying, that because some other person has a different patent the owner of which bids a lower sum than the owner of this one, that the discretion of the board to adopt one or the other should be controlled, nor do we think it can be.

For these reasons, either of which would be sufficient, we think this petition must be dismissed and the writ disallowed.


author: Sibley, J.

text:
    (Fourth Circuit — Meigs Co., O., Circuit Court,
    Feb. Term, 1897.)
    Before C erringfcon, Bussell and Sibley, JJ.
    THE STATE EX REL. THE BOARD OF COMMISSIONERS OF GALLIA COUNTY v. THE BOARD OF COMMISSIONERS OF MEIGS COUNTY.

      Change of venue in criminal case — “Costs” to be repaid — Cost of impaneling Jury — The “costs” of the case, which the county wh indictment was found has to re-pay to the county to w ich the case has been removed for trial, as provided by section 7264, Revised Statutes, do not - include the expenses incurred for securing a jury to try the case— Section 7264, Revised Statutes, construed.
   Sibley, J.

This is a suit in mandamus,begun in the court of common pleas of Meigs county. The petition duly sets^out a change of venue from Meigs to Gallia county, in the case of the State against one Lindsay, indicted for murder in the first degree, and that said cause was assigned to be tried in the Gallia common pleas, November 9, 1896. It then alleges the due issuance and service of a venire consisting of thirty-six names for a special jury in said case; also, of a special venire consisting of fifteen names; the trial of said^Lindsay by a jury impaneled from the jurors thus summoned, and his conviction oí the offense of manslaughter. The payment under protest by Gallia county of the fees of the jurors so called, amounting to $380 is duly averred, as is its proper demand upon the Commissioners of Meigs county for reimbursement, and their refusal to grant it, A mandamus to compel the issuance of a voucher for the amount paid as aforesaid, with interest, also is prayed

To this petition a general demurrer was interposed and sustained, and leave to amend not being asked, the defendant had judgment thereon for its costs. To this action of the court below exceptions were taken, and upon the record so made the case is brought here by a petition in error.

As thus presented, there is but a single feature of controversy. On the facts alleged, was the defendant legally obligated to re-pay the plaintiff for the expenditures necessarily incurred in getting a jury to try the case which, by a change of venue, was sent to its county for trial? The determination of this question finally will be found to turn upon the construction to be given the last clause of section 7264, Revised Statutes, which is as follows:

“The prosecuting attorney of the county in which the indictment was found shall take charge of and try the case; and the court, on application, may appoint one or more attorneys to assist him in the trial, and allow such compensation as it deems reasonable; and the costs accruing from a change of venue, including the compensation of the attorneys appointed to assist the prosecuting attorney, and the reasonable expenses of the prosecuting attorney incurred in consequence of such change of venue, shall be allowed and paid by the commissioners of the county in which such indictment is found. ’ ’
It is manifest that if a recovery can be had under this statute, it must be by a reading which will make the term “costs” therein include the fees of jurors, such as are in dispute. Hence, on the import of this word, as there used, and the law respecting the taxation of costs in criminal cases, the decision of this case evidently hinges.

Claim is not made that the fees of jurors herein question can be taxed as costs against one convicted of a crime. The law at this point is embodied in section 6799, Revised Statutes, which provides that in all convictions the “court shall render judgment against the defendant for the costs of prosecution, including a jury fee of six dollars.” That this excludes any other charge growing out of the expense necessary in getting a jury for criminal trials, as costs of a case, is too clear for debate. The one question left, therefore, is as to what the word “costs,” in section 7264, includes, as there used.

“By the common law, no costs were awarded to either party, eo nomine. If the plaintiff failed to recover, be was amerced pro falso clamare. If be recovered judgment, the defendant was in misericordia for his unjust detention of the plaintiff’s debt, and was not, therefore, punished with the eaypensa litis under that title, But this being considered a great hardship, the statute of Gloucester, 6 Ed. I., c. 1, was passed, which gave costs in all cases when the plaintiff recovered damages. This was the origin of costs de incremento.” (Day v. Woodworth, 13 How., U. S., 372; Bell v. Bates, 3 Ohio, 380.) The latter case declares that, “in this state, costs, as a general rule, have been allowed to the party recovering judgment. The amount to be taxed, however, has been varied from time to time, the whole being regulated by statute.” (P. 381; Farrier v. Cairns, 5 Ohio, 47.)

The doctrine thus stated,respecting civil cases 'is equally well established with regard to criminal prosecutions. As-stated in a note of Noyes v. State, (32 Am. Rep., 715), the United States Supreme Court, at its October term, 1879, held that “costs in criminal proceedings are a creature of statute, and a court has no power to award them unless some statute has conferred it. By the common law the public pays no costs. In England the King does not, and the State stands in place of the King. ” (U. S. ex rel. Phillips v. Gaines; Gim v. W. S. Dist., 57 Pa. St., 433, 98 Am. D., 242; Bennet v. Kroth, 37 Kas., 235, 1 Am. St., 248.)

So early as 1832 it was held by the supreme court on the circuit that the “word “costs” has a legal signification, and also that “it includes only those expenditures which are by law, taxable, and to be included in the judgment'.” (McDonald v. Page, Wright’s R., 121; Ela v. Knox, 46 N. H., 16, 88 Am. D., 179; Bennet v. Kroth, 37 Kas., 235. 1 Am. St., 248.)

We are not aware that, since their first enunciation, the principles thus stated have been questioned by any court of our state. When - this statute was enacted, therefore, the term “costs” had a settled legal meaning which, by force of a familiar rule of interpretation, will here be given to it, unless the context contains something requiring a different reading. Examination of that, however, only serves to make clear the intention of the legislature to use the word, in this instance, in its usual legal sense. Expenditures that would not be covered by it, thus understood, áre specially provided for, as, for example, the expenses of the prosecuting attorney. Consequently the maxim, expressio unius est cxcltisio alierius, applies, and excludes jury fees, not taxable as costs.

Consideration, also, of the consequences of a different interpretation conducts to the same conclusion. If the “costs” to which this statute refers are construed to include the fees of jurors that are not taxable against the defendant, what expense of the trial, paid by the county in which it was had, would be excluded? How, in that view, could reimbursement for the hire of a janitor, the pay of bailiffs, and the like, be denied? Yet ifcannot be and is not claimed that such expenditures are within the scope of this legislation. No -more, as we think, after full consideration, are those for which a recovery is sought in this action. Any hardship or seeming injustice in the operation of the statute under consideration, is for the legislature to remedy, as in other states has been done. Courts are empowered to declare and apply the law as it is, in cases before them, not to make or change it.

R. M. Switzer, Prosecuting Attorney, for Plaintiff.

S. E. Heeox, Prosecuting Attorney, for Defendant.

We find, then, no error apparent in this record, and the judgment of the common pleas is therefore affirmed,


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1897.
    Before Haynes, Scribner and King, JJ.
    THE C. K. OF HALL COMPANY v. THE LLOYD BROS. COMPANY, et al.

      Interpleader — Interest chargeable where money not paid into court. Where a party files an interpleader, but fails to pay the money into court, such party ought to be charged with interest up to the time of such payment.

      Sub-contractors and mechanics — Claim to fund in hands of owner —Orders thereon — Equitable assignment.

    Where sub-contractors and mechanics set up several claims against a fund in the hands of the owner of the building, for material furnished and work done thereon, some having orders and others not. while these orders, written or verbal, may not be of the force and effect of an equitable assignment of a part of the money, so as to authorize an action on the part of the holder of an order directly against the drawee for the payment of the money, yet the holders should be entitled to some rights superior to those of the other claim holders who have not such orders.
    Appeal from the Court of Common Pleas of Lucas County.
   King, J.

This action is brought by appeal from the court of common pleas. It-is in the nature of a bill of interpleader. The C. K. of A. Hall Company is a corporation who, two or three years ago, constructed a brick block in this city, and there arose some controversy about mechanics’ liens,and the plaintiff, in its petition, brought in all these claimants in order to have the matters adjudicated in one action,so as to determine the amount of their several bills, and also whether they had liens or not, and also (how much the plaintiff was liable to pay. The action was brought in the common pleas and the amounts determined, and they were allowed liens as subcontractors and laborers on this building for their several amounts, and the amounts to be paid, or which were to be divided among them, were also ascertained.

Since the decree was rendered in that case, the supreme court of Ohio, as is well known, has determined that the section of the act of the legislature of 1894, under which these men filed their claims or liens,-is unconstitutional; and some different questions now arise than in the court of common pleas. None of these parties could have liens under the act of 1894,and it was conceded,upon the hearing, that none of them would be entitled to liens under the old act — which the act of 1894 undertook to repeal, except possibly one by the name of Reynolds; and as to him, we think it is clear from the evidence, (and whether his lien is in proper form or not, is not material), that he did not file it with the owner until after the expiration of more than sixty days after the completion of the work. His bill for the work was dated January 15, 1895, and he testifies that he presented it to the secretary of the Hall Company, but was told that it was incorrect, as another person had presented a bill for the same item; that is, embracing the same labor and material. He says he went away and got the bill corrected, and then, on the 25th of March, for the first time, left it with the secretary of the company. That would make it more than sixty days after the date of his bill; and thus we are not called upon to pass upon the question incidentally referred to in the case — whether the unconstitutionality of the act of 1894 left the old act in force. We think there was not any lien here, and the contest then assumed an entirely different form.

Lloyd Brothers, the defendant here, claim, that in January, of the year when this contract for the erection of the building was made, they obtained from the contractor, Halter, two orders, amounting to about $1,600,00, and that they thereby received an equitable assignment of so much of the building fund still unpaid and in the hands of the company, as would pay their claims, provided there was that much in the treasury, and it is contended that at the time they received these orders there were over $4,000 unpaid, in the hands of the company.

It is also claimed that Mr. Reynolds had a bill of his claim, which he presented to the contractor, and, although he did not get any order, it was marked by the contractor upon the bill that it was “O. K.”, and that he understood' he was to present it to the C.- K. of Á. Hall Company and get his money therefor. There may have been enough in that to show a verbal order for the payment of his bill, but we are not prepared to hold that either of these parties have what is termed in law an equitable assignment of this fund, for the reason, as suggested by counsel in argument, that this corporation had a contract with the builder, which provided that the builder,before he received his pay, must pay all the claims for labor and material incurred upon this building.

In addition to that, there was a bond signed of the contractor and by one of these main lien holders, and by the president of another of the claimed lienholders, and by the Lloyd Brothers, whose relations to the Lloyd Brothers Company are not set forth in the proofs here; and that bond provided that before Halter, the contractor, could demand or receive his pay under it, all the claims and demands against him for labor and material entering into the building must be paid, and that all liens upon the building must be cleared off; so we think that at the time when Lloyd Brothers &. Company received these orders, or whatever they may have been, from Halter, though there was still $4,000 in the hands of the corporation, unexpended, the corporation had a right to hold that money until they knew that all the claims were paid. The proof shows that after the date of those orders there were sundry people, labor men and material men, presenting claims to the company; and they were sent to the signers of this bond, who gave orders, in connection with the contractor, upon this fund to the C. K, of A. Hall Company, which paid out about $3,000 of the money in their hands, and all of this went to pay actual material and labor that went into their building, for which they were holden on this bond, and for the payment of which they had the additional promise of the contractor in the contract itself, they should be relieved fronfpaying; and we think they were justified, under all the circumstances, in paying any of these subsequent claims, and that the C. K. of A. Hall Company should not be required now to account for more than the balance of the moneys which it is said is unexpended in their hands — $1,269 and some cents, which, we think, should bear interest, to be computed from thenffrsT'of'AiprTrfabout sixty days after the completion of TTEe work. We think they ought to be fairly charged with this interest, for, in filing this bill of interpleader, they did not bring the money into court, although they said they. would do so when it was determined to whonWit should be payable.

While we are not willing to say that these orders, written or verbal, are of the force and effect of an equitable assignment of a part of the money, so as to authorize an action on the part of the holder of an order directly against the drawee for the payment of the money, we are inclined to think that the holders are entitled to some rights superior to those of the other claim holders who have not such orders. In other words, we think they are entitled to this fund, and should have an order on this fund. This fund is all there is left fairly in the hands of the company, to be paid out, and we think they should receive it.

W. P. Tyler, for Plaintiff.

T. J. McDonnell, for McDonnough.

H. S. Bunker, for McMullen, Assignee.

King & Tracy, For Lloyd Brothers Co.

Kohn & Nor limp, for Reynolds.

We are also of the opinion that Mr, Reynolds, having received his approved bill in connection with a verbal order, before the Lloyd Brothers Company, should be paid first; and that there should be paid out of the funds in the hands of the C. K. of A. Hall Company, (to which interest should be added, as I have suggested), first, the costs in this court, and the costs of the plaintiff in the court of common pleas in bringing the parties into court, All other costs made in the court of common pleas, in the establishment of liens, should be paid by the defendant lienholders. That would leave, to be paid out of the fund, the costs of the plaintiff in the court of common pleas in getting service upon the defendants, and the costs in this court, including one-half day’s stenographer’s fees. In the second place the claim of Mr. Reynolds, for $350 only, should be paid. In the third place, so'much of the money as is left should be applied upon the orders of Lloyd Brothers Company, so far as it will go; and this is our decree.


text:
    (Sixth Circuit — Wood County, Ohio, Circuit Court
    April Term, 1897)
    Before King. Haynes and Adams, JJ.
    [Judge Adams of the Sixth Circuit, taking the place of Judge Parker. ]
    THOMAS C. JONES v. THE STATE OF OHIO.

      Indictment — Three indicted for murder — Charge that the three “discharged a pistol” not objectionable—

    A charge in an indictment that the defendant, with two other defendants, then and there held a pistol and “discharged and shot it off against and upon the deceased,” is not objectionable as in the very nature impossible; and not a ground for motion to quash.

      Same — Prosecuting attorney need not sign indictment—
    It is not necessary under our statutes that the prosecuting attorney should sign the indictment. But even if necessary, the omission would be cured by sec. 7215, Rev. St., and would not be a good ground for setting aside the verdict.

      Same — Indictment failing to charge that one of the three com« mitted the crime—

    A charge that the murder was committed by all three defendants, without an allegation that one of them committed the crime, is proper.

      On adjournment to court to• holiday, court may convene on that daT and adjourn to another day—

    Where the court, inadvertantly, adjourned to a certain day which happens to be a Sunday or other legal holiday, the court may convene on such day and adjourn to another day, and a special grand jury summoned for such holiday, and on such day being ordered to appear on another day to which the court adjourned, to be empanneled, such proceeding is not irregular.

      Jury — On objection to array sustained, court may malee new list of jurors.

    Where the objections by the defendant, to the array of jurors summoned,is sustained,the court may, under sec.7275,make out a special venire of twenty-four names upon his own motion, and give it to the clerk and have such jurors summoned to try the case.

      Juror having formed opinion from reading newspaper reports— Competency.

    Where it appears that a juror has an opinion or prejudice formed from reading newspaper articles, the court may, if satisfied from his statements that he can put opinion or prejudice aside and render an impartial verdict on the evidence, admit such juror as competent. It seems that the supreme court makes a distinction between an opinion formed from reading newspaper reports, and an opinion formed from reading reports of the evidence or formed from conversations with witnesses.

      Momentary separation, for short distance, of one from the two others while fleeing from crime committed by agreement — Murder on pursuer committed during separation — Quilt of all three—
    Where three agree to commit a burglary,and if compelled to flee, to run in a certain direction and they arm themselves with revolvers, and being detected they flee in that direction, and one is separated from the other two for a short distance while one of the other two, being pursued, shoots at and kills the pursuer, the three men being all in hailing distance of such other, such third person so separated momentarily for a small distance from the other two will be guilty of murder with the other two.
    Error to the Court of Common Pleas of Wood county.
   King, J.

- In this case the plaintiff in error seeks to reverse the judgment of the court of common pleas.

Thomas C, Jones was indicted at the May term, 1896, of the court of common pleas of Wood county, together with one Charles Clark, (whose case has just been decided), and Harry Davis, who has not yet been tried, for the crime of murder in the first degree, it being the charge in the indictment against him that he, with the other two persons named, killed one Jesse Baker on or about the 20th of June, 1896, by shooting him with a pistol.

It was charged in the indictment that this was done purposely and maliciously and of deliberate and premeditated malice, and it was also charged in a second count that it was done while in the perpetration of a burglary.

The first objection in the record appears to have been made by a motion to quash, in which motion it was averred that the indictment was defective in that it charges that the defendant, with two other defendants, then and there held a pistol and discharged- and shot it off against and upon the deceased, which averment, it is claimed, is, in the very nature of the case, impossible. And also that the indictment was not returned and presented to the court, as required by law. That the.indictment was not found or presented at any regular term of the court or at a properly adjourned day thereof, and that the grand jury were not legally empanneled, summoned and sworn, and that the indictment is not signed by the prosecuting attorney, There was also, on the same date, a plea in abatement filed, in which substantially the same allegations were made, except as to the indictment itself.

Now, as to whether the prosecuting attorney is required to sign the indictment, we find no statute requiring that to be done, The code, with reference to the prosecution of criminal cases, defines the duties of the grand jury and the prosecuting attorney, and states what each shall do, and it requires the grand jury to make such presentment as it finds from the evidence should be made, and it shall indorse every bill of indictment “a true bill,” and it shall be signed by the foreman of the grand jury, and there are no other requirements as to the signing of the indictment. Even if jt were required, and omitted, we think that such omission would not be sufficient to authorize the setting aside of the judgment, and that it would be cured by section 7215,_ Revised Statutes, which provides that no indictment shall be deemed invalid for (and it recites many things) “any surplusage, or repugnant allegation, when there is a sufficient matter alleged to indicate the crime and person charged; nor for want of averment of any matter not necessary to be proved; nor for any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

It is alleged in this motion to quash, and also in the plea of abatement, that the act and crime was committed by all three defendants, and that there is no allegation that one of them committed it. They were simply indicted together and charged with the same offense, and we think that was proper. It is not necessary for the indictment to set out which one of these defendants fired the fatal shot. It was proper to allege that all three committed the unlawful act. If the proof showed that the three were, together, and that only one of them did the act and the others were aiding and abetting him, they ahould be charged as principals. Section 6804 reads: “Whoever aids, abets or procures another to commit any offense, may be prosecuted and punished as if he were the principal offender,” and we hold that the word “prosecuted” alludes to the finding of the indictment.

It is urgéd in this motion to quash, and which is more particularly set forth in the plea of abatement, that the indictment was not found at any regular term of court,and that the grandjury were not regularly empanneled, summoned, sworn and charged,and it is set forth that the court had,at a previous time, adjourned to Monday, the 7th of September, 1896, which day, it is alleged, was a legal holiday, and that no orders or decrees of the court could be legally made on that day, and yet- that on that day, the 7th of September, 1896, being a legal holiday, to-wit: Labor Day, the court convened and adjourned to another day, which was not authorized by law, and on such day, and the days following, the jury were empanneled and sworn and charged, and assumed to enter upon their duties, and presented the indictment therein without any legal authority so to do.

It seems that the court, when it adjourned at some previous time, adjourned to September 7th, and this offense having been committed, an order was issued before September 7th, for a special grand jury to be summoned and to appear on September 7th. The court met on September 7th, and the grand jury appeared, pursuant to their summons. The court adjourned at that stage until the next day, September 8th, and the jurors were instructed to report on that day. On September 8th they did report, and the grandjury was duly empanneled. One or more of them were discharged and others substituted in their places according to the statute in such cases provided, and the grand jury being duly charged, went out,on September 8th, to attend to their duties, and on the 9th of September returned this indictment.

We do not think that there was any irregularity in that. Nothing was done or attempted to be done on the 7th of September,except to adjourn court, and if the court had inadvertantly adjourned to Sunday, we know of no reason why it could not, on Sunday, the first day of the week, adjourn until Monday or any other day it saw fit to adjourn to. It was in the nature of an act of necessity. It would not be according to our idea of justice to hold that because the court, by mistake, or inadvertance, adjourned its term to a date on which it could do no business, that it must therefore lapse, and the term come to an end, and yet such would be the effect of declaring that it would have no right to adjourn on September 7th, to the following day.

We think the court could legally adjourn itself to the following day, and the following day it was in session and did empannel the jury. Thereafter a praecipe was filed for a venire of a petit jury under section 7267, which requires the clerk to draw from the jury box as in other cases thirty-six ballots and issue to the sheriff a venire for the persons whose names are so drawn for the day fixed for the trial, which shall be served and returned by the sheriff at least fifteen days before that day. It is claimed that the venire was not returned fifteen days before the day of trial. Whether it was or not, the record does not disclose, and in the absence of such disclosure, we will presume it was so returned; but after it was returned, and when the case was called for trial, the defendant objected to the venire or to the array of jurors whose names were contained therein, and his objection was sustained. The record does not show what the objection was, but as that was done upon the application of the defendant below, of course it was not to his prejudice, and he cannot complain that it was not returned within the statutory period. Thereupon the court made out a special venire upon its own motion for twenty-four more, and gave it to the clerk, and it was issued, and the sheriff took the venire and summoned the jurors, and that action is objected to, and it is claimed that the case should have been contintfe'd, and thirty-six more names drawn from the box.

We think that objection is not well taken. Section 7275 provides that if the whole array be set aside, twelve of such by-standers having the qualifications as aforesaid as may not be set aside on challenge, shall be a lawful jury for the trial of a prisoner charged with an offense the punishment of which is capital. We find no error in the proceedings of the court in its action on that subject.

The next error that is assigned in the order of the trial is the objection that is made to a juror called by the name of John Lundy. Mr. Lundy is called as a juror in the case, and he was inquired of if he had read an account of the homicide in the papers, and he said he had; then he was asked:

“Question: Did the papers which you read purport to give the evidence that was given in the case at the preliminary hearing? A. I think they did.
“Q. At that time you say you formed an opinion from that? A. Yes.
“Q. From the evidence that you read in the newspapers? A. Yes, it looked suspicious.
“Q. You formed an opinion that it looked suspicious; is that true? A. Yes, it looked suspicious that they were guilty.
“Q. Did that opinion go as to the parties then under arrest, of which one of them is now on trial here? A. Yes, I think it did.
“Q. You know that the man now on trial before you is one of the parties who was arrested about that time? A. Yes sir.
“Q. Has anything occurred to change your opinion? A. No, I don’t know as it has.
“Q. Have you that opinion now? A. I have had nothing to change it yet.
“Q. Then you have it yet? A. I probably have.
“Q. Would it take evidence to remove that opinion from your mind? A. Well, perhaps it would.”

Then he says he thinks perhaps it would take evidence to remove it from his mind. Further on he says, in the same examination, that he thinks he could go according to the evidence in the case, and he was challenged at that point by the defendant. The Court then asks him: ‘‘If notwithstanding any opinion you may have, do you feel that you could render a fair and impartial verdict according to the law and the evidence”? And he says, ‘‘I believe I could.”

Q. And could you give to the defendant the presumption of innocence which the law gives him in going into the trial of this case,and throughout the case?”. A. ‘‘Yes, I think I could.”

The challenge was thereupon overruled, and the defendant excepted, and the juror was challenged peremptorily.

The defendant saved that question in the record, and it is presented here for our consideration. The question, I will say, is a little bit troublesome. I would say this further that it would have been better if the court of common pleas had sustained that challenge, since the juror had said that he had formed that opinion from reading a report of what purported to be the evidence in the case,given at a preliminary hearing; but that opinion which I express as to the action of the common pleas court, does not dispose of the question. This is a question that has been very considerably discussed by the Supreme Court in many cases. The case of Palmer v. The State, in 42 Ohio St., page 596, is a case in which it appears that the opinion entertained by a juror was emphatically expressed, and seemed to have been more deeply entertained than in the case at bar, and the court in its opinion of that case seem to imply that there was a distinction between an opinion formed from reading a report of the evidence, and an opinion formed from reading newspaper reports, and the syllabus of the case is to this effect:

“A person called as a juror in a criminal case, who clearly shows himself on his voir dire, not to be impartial to the parties,is not rendered competent by saying that he believes himself able to render an impartial verdict notwithstanding his opinion although the court may be satisfied that he would render an impartial verdict on the evidence.”

And that holding of the court is what we supposed was always known to be the law. But this question has been considered since that in several cases, and, in my judgment, the supreme court has been a little more liberal than the language of that syllabus would seem to indicate. An interesting case is that of McCarty v. The State, in 5th C. C. Rep. page 627, in which that question is discussed. I cannot read all of the discussion, but the court say:

“If it were clear that this prejudice of which the juror speaks, was only the result of the reading of the newspaper article, and was only another mode for stating that he had an opinion in the case based on that, (and nothing to the contrary of this appears in the evidence), we suppose that the court might, if satisfied from the statements of the person that he could lay this opinion or bias or prejudice aside,and render an impartial verdict on the evidence, admit him as competent — for a prejudice or prejudgment as to the merits of the case, is in one sense only the formation of an opinion on any evidence or statements before him. If it goes beyond this, and has produced a hard feeling of hostility to the accused, such person should not be allowed to sit as a juror. But we cannot say that such feeling is in any way shown here,and while in our judgment it would have been better to have excused him, we do not feel clear that the court erred in refusing to do so.”

In the 38th Ohio St., page 153, in the case of McHugh v. The State, the court say that:

“A person summoned as a juror, who states upon his voir dire that he has formed or expressed an opinion touching the innocence of the accused, is prima facie incompetent, and such prima facie incompetency is not removed until it has been made to appear that such opinion was formed from reading mere newspaper statements, communications, comments or reports, or upon rumor or hearsay, and not upon conversations with witnesses of the transaction, or reading reports of their testimony,or hearing them testify, and that, notwithstanding such previously formed or expressed opinion the juror is able to render an impartial verdict upon the law and the evidence.”

And in Doll v. State, in 45 Ohio St., reading from the opinion on page 446, it is said that the opinion in that case was not formed from reading the testimony of witnesses, or conversations with them,but merely from reading newspaper reports of ihe testimony, and the juror testified on examination that he would, if selected,render a fair and impartial verdict and it appears that the court by accepting him was of that opinion, and he was therefore a competent juror.

But a later and rfiuch stronger case is found in the 46th Ohio St. Rep., page 457. In that case the juror conversed with the father of the deceased on the day of the tragedy, and with others who claimed to have been eye witnesses and described all about it with probably such coloring as their own fancy may have inspired, and the court having put the question which is required by the statute, whether notwithstanding his opinion,could he render a fair and impartial verdict according to the law and evidence, and the juror answering that.he could, on page 461 of the opinion the court say:

“The court did not expressly find that it was satisfied that the juror could render an impartial verdict in the case, but the fact of admitting him as a juror must be taken to include, by necessary implication, a finding by the court that it was satisfied of his impartiality. The trial court had before it the juror and his statements. We have these statements embodied in a bill of exceptions,from which it appears not only that the juror had read an account of the case in a newspaper, but had received from the father of the deceased, a narrative"of the circumstances of the homicide, and hád atone time formed an opinion respecting the guilt of the principal. Under that state of fact, to admit him as a juror was an extreme application of the discretion permitted by the statute; yet, standing by itself, it is not such an abuse of that discretion as to warrant a reversal of the judgment on that ground alone; but in view of the difficulty nearly all men experience in getting rid of opinions based upon hearing a detail of the circumstances of a transaction by one who professes to know them, it might well become an important factor in the case, were we reviewing the whole record to ascertain if a fair trial had been had and substantial justice done.”

Well now, as far as opinions go, we think the opinion in that case goes further then all the others that have been cited. To my mind it would have made a stronger impression on the mind of the juror to talk with the father of the one who was murdered than such as he would have formed by reading a newspaper report of the testimony, and I would regard an opinion formed under these circumstances as being more firmly fixed than in the case in the 42nd Ohio St, where it was formed from reading newspaper reports. And now in this case, this juror (Lundy) said he had read a newspaper report in June, and he was called in November as a juror, and he says that on reading that he formed an opinion. He formed it from reading the testimony at the preliminary hearing, and it was based on that, and that alone. It does not disclose that he was not otherwise a fair-minded man; nor does it disclose that he was a man who might not divest himself of the opinion formed under such circumstances and listen to the evidence and apply to it the evidence of the case as given by the court. The court seems to have come to that conclusion and allowed the juror to sit, and unless this case should be one in which the defendant had not had a fair trial, we should not deem that as being in and of itself a sufficient ground for reversal.

That brings me to the consideration of the question whether this verdict is against the weight of the evidence.

The defendant was found guilty of murder in the second degree as he stood charged in the first count in the indictment, and not guilty on the second count. The reason urged here why this is contrary to the evidence is that it is claimed that the case shows clearly that this defendant, though at one time engaged with his co-defendants in the commission of the crime of burglary; though it is said that they went to the place where they were for the purpose of the crime of burglary, and were actually engaged in its commission when they were alarmed, yet, on hearing the alarm, that this defendant quit the other two and ran away in an opposite direction, and did not join them until after the commission of this crime.

That claim is based upon the testimony of the defendant himself,and upon the testimony of the defendant Clark who was indicted with him, and subsequently tried. There are perhaps other circumstances which it is claimed corroborate their story. There is the circumstance testified to by other witnesses,that they saw two persons running away from the scene of the burglary,and that these two persons were pursued by a man. They saw two persons, and did not testify to seeing three persons running away from the scene of the burglary,nor at the time of the firing of the pistol shots, and that is claimed to be corroborative to the defendant’s story that he ran in another direction.

The place where Baker was shot was four or five feet away from the rear of the post-office which was being burglarized ; and the place where Baker was shot could be reached from the rear of the post-office by passing down an alley in a southerly direction and along the right of way of the B. & O. railroad easterly, or it could be reached by running down an alley going in an easterly direction until you reach it. The distance was about the same, or perhaps the distance by running down the easterly alley was fifty or sixty feet further. At all events, it was not more than four hundred feet by either route to the place where Baker was shot, and the testimony of the defendant is that he ran down the eastern alley along to Tarr street south, and at some time in his flight passed the place where Baker was shot; that he ran on he claims before his co-defendants had reached that point,and hid himself under a car, and his co-defendants, he claims,came the other way,and one of them, and he don’t know which is the one, shot Baker. He testified that he fired no shot.

It will be observed that this separation. was for an instant only, probably not more than two minutes elapsed, and the men were all in hailing distance of each other, and Jones did not separate from the others in his flight to such an extent that it might be said he had entirely quitted his co-defendants, and could not be held to be responsible for anything they did in his absence. But upon that point there is testimony in the record that positively identifies the man who went south, and east on the B. &. O. right of way. evidence uncontradicted — evidence, from anything that appears in the record,the jury might well have believed. Evidence that seems to have been given by aman who was there, who was competent to observe, and who did observe, and who was the first man upon the ground upon the second day following when these men were captured, He says at that time, and the next time he saw this defendant, he recognized him as the man who came down the alley, and was rnning away from the night watchman Baker when'he fired. If this testimony is to be believed, the jury might well have found that Jones fired the fatal shot, as he says there were two men , one larger than the other, and the smaller man fired this shot,and the larger man stood a few feet back.

There is also testimony that immediately after the shot was fired, these men were running down the B. &. O. track,and not one hundred feet away from the street crossing the three men were together in flight, and that testimony is wholly uncontradicted by anyone except the defendant himself, and I don't know that he contradicts it. In fact, it is not clear from his testimony to what point he did run. He says he ran to a car and got under it; whether that was further away than the witness McCurdy claims I don’t know,but McCurdy claims to have seen them running along the track, and they were all of them together, and talking about what they had done.

Now we think from all that evidence, either taking the defendant’s own story for it, excepting where he testifies to' his conclusions and intentions, taking what he states to be the facts, or the story of other witnesses, the jury were justified in finding that these three men were together all the time aiding and abetting .each other, The purpose of the escape was as much a part of the act they were engaged in that day as was the purpose of breaking into .the post-office.

They formed the intention — he testified to that — that if necessary for them to run away, they would come down this very path and along this railroad right of way, and escape in that direction, and the mere temporary absence of one from the others the distance of a block or a half block,is not such an absence as would authorize us to say upon the record that the defendant had absented himself from the originally form - ed purpose and intention of these parties to commit this burglary.

Three men agree that they will commit a burglary, and. they arm themselves with revolvers of an approved pattern, which they clean, prepare and fix the day before, and load, with the intent to do what? To commit a burglary with revolvers. They had a kit of burglar’s tools, but these revolvers were for other purposes. They had these revolvers; for the purpose that all burglars have revolvers; that if taken in their depredations, they would take human life if necessary in order to escape, and this man was a party to the job of the three men who committed this burglary, and they committed murder while escaping from the place of the first crime. And we think the jury were right in finding this man guilty, as they did Mr. Clark, of murder in the second degree.

Wade, Dunn & Jones, for Plaintiff in Error

JE. Gt, McClelland, Pros. Atty. and B. 8, Parker, for State.

We find no error in the record, and holding as we do that this defendant had a fair trial and was fairly and properly convicted, we affirm the judgment.