author: GIFFEN, J. SWING, J., JELKE, J.

text:
    ERROR — STATUTES—EMINENT DOMAIN — COSTS AND FEES— JURY.
    [Hamilton (1st) Circuit Court,
    November 30, 1904.]
    Giffen, Jelke and Swing, JJ.
    Alice Hosbrook et al. v. Loveland & C. Traction Co.
    1. Party not Affected by Order Taxing Costs Under Lan. R. L. 8698 (R. S. 5182) May Prosecute Error to Protect Person not a Party, When.
    The original defendant in an action, may prosecute error to protect the officers of the county, who, although not parties to the action, will be affected by an order taxing costs under Lan. R. L. 8698 (R. S. 5182),
    2. Laning R. L. 10015 (R. S. 6438) Construed.
    The provision of Lan. R. L. 10015 (R. S. 6438) relating to error proceedings in appropriation. proceedings, that the common pleas court “shall ■ retain the cause for trial and final judgment, as in other cases,” does not authorize a judgment for costs other or different from that prescribed by Lan. R. L. 9990 to 10030 (R. S. 6414 to 6453). Hence, the fees of jurors, in appropriation proceedings, should be taxed as part of the costs under Lan. R. L. 9990 (R. S. 6414) et seq., and not under Lan. R. L. 8698 (R. S. 5182).
    3. Order After Judgment in Appropriation Proceedings Directing Payment of Jury Fees a Final Order Under Lan. R. L. 10297 (R. S. 6707).
    An order of the trial court made upon a summary application after judgment, directing that the jury fees in an appropriation proceeding be paid as provided by Lan. R. L. 8698 (R. S. 5182), is a final order within the meaning of Lan. R. L. 10297 (R. S. 6707).
    4. Irregularity in Selecting Jury in Appropriation Case not Open to Objection, When.
    The action of the court, in an appropriation proceeding, in filling the jury panel by selecting jurors from fifty names drawn from the jury wheel by the clerk, is not open to objection on the part of the corporation plaintiff, when the jurors so selected were accepted and sworn Without objection, and the corporation accepted the benefits of the trial without any prejudice to its rights appearing.'
    5. payment to Part of Property Owners Pending Error Proceedings Will not Relieve Corporation From Paying Costs, When.
    Where the corporation plaintiff in appropriation proceedings settles with part of the property owners pending error proceedings, and without a judgment being entered, it cannot thereby avoid the payment of costs after receiving the benefits of the trial.
    Error to Hamilton common pleas court.
    F. C. Ampt, L. A. Ireton, W. R. Collins and W. M. Schoenle, for plaintiffs in error:
    The entry directing the payment of jury fees is a final order as defined by Lan. R. L. 10297 (R. S. 6707).
    A condemnation case under Chap. 8 of the probate code is a special proceeding. Dayton & W. By. v. Marshall, 11 Ohio St. 497.

      It is the substantial right- of a party to see that the costs of the case are properly taxed Abbey v. Fish, 23 Ohio St. 403, 413.
    A petition in error must be prosecuted by a part to the record. Hanover v. Sperry, 35 Ohio St. 245; Fiedeldey v. Diserens, 26 Ohio St. 312; Lan. ft. L. 10300 (R. S. 6709) and Lan. R. L. 10305 (R. S. 6713).
    Wallace Burch, for defendant in error.
   GIFFEN, J.

This action originated in the court of insolvency and was commenced to appropriate.property by the traction company, a corporation. The court sustained a motion to make the petition more definite and certain, and the-plaintiff not desiring to amend, the action was dismissed. Error was prosecuted, the' judgment reversed, and the cause retained in the court of common pleas for trial and final judgment. That court having first determined the right of the corporation to make the appropriation of the property described in the petition, ordered that the names of sixteen jurors be drawn from the box to assess compensation, and that a venire issue for their appearance. Upon return of the writ, and it appearing that the panel was incomplete, the clerk was directed to draw forthwith from the jury box the names of fifty persons to serve as jurors in this ease and a venire ordered accordingly. The panel being thus filled, each juror selected was interrogated as to whether he was in any way interested either as owner or agent or otherwise in the property sought to be condemned and appropriated, and each answering in the negative, and neither party excepting thereto, said jurors were duly sworn.

After a verdict by the jury a motion was made to retax costs, and it was ordered that the fees of the jury be not taxed as, an item of costs against .plaintiff but that the same be paid as provided by Lan. R. L. 8698 (R. S. 5182). To this order the defendants below prosecute error.

It is claimed by the defendants in error that no prejudicial error is stated in the petition in error, and that the plaintiffs in error are not the proper parties. ,The question concerns the traction company and the county, which is in no way represented in this proceeding, except as the plaintiffs in error may be said to represent all persons interested in the costs of suit.

In the case of Fiedeldey v. Diserens, 26 Ohio St. 312, a master commissioner sold certain real estate under foreclosure proceedings, but before the sale was confirmed the defendant paid to the plaintiff the amqunt of the judgment. The^court thereupon set the sale aside and ordered the defendant to pay the costs. On motion of the defendant, the court ordered a retaxation of the costs by striking out an item of $70 as poundage. To this order the master excepted and filed his petition in error in the district court. Welch, C. J., says on page 314:

“But there is another ground on which it seems to us the judgment of the district court must be held erroneous, and that is that the proper parties in error were not before that court. The petition in error should have been prosecuted by a party in the action, and not by the master. To hold otherwise would be to hold that every officer, and every witness entitled to costs in a case, might prosecute a proceeding in error to reverse the court’s order disallowing his claim for costs.”

In that case, the order was in favor of the defendant, who was therefore not complaining. The plaintiff could not be affected by the order in any event. None of the parties were interested in prosecuting error, the master alone being concerned.

So in this case, no substantial right of the plaintiffs in error is affected by the order; but being the original defendants in the action, they file a petition in error to protect the officers of the county, who, although not parties to the action, will be affected by the order made.

The policy of avoiding a multiplicity of suits is a sufficient reason for allowing the original parties to file a petition in error for the protection of persons interested in the costs of a cause.

Did the court err in making the order?

As a basis for the order the court found that “the jury impaneled in this cause over the objections of' the plaintiff was the regular jury provided for by Lan. R. L. 8680 (R. S. 5165), and not the jury provided for by Lan. R. L. 9998 (R. S. 6421).”

In the first place, there is no substantial difference in the proceedings under these two sections, except as to the time when the jurors shall attend.

Laning R. L. 9998 (R. S. 6421) provides that sixteen names shall be drawn by the clerk and sheriff from the jury box, and the writ served and returned as in other cases.

Second. The record shows that the names of the jurors were drawn from the jury box to assess the compensation and not to serve as regular jurors.

Third. The jury fees which shall be taxed as costs against the corporation, under Lan. R. L. 10028 (R. S. 6451), are those of “jurors summoned, and attending, or serving, in accordance with the provisions” of Chap. 8, Title II, Bev. Stat.; and it is not claimed that the jurors were not summoned or did not serve in accordance with the provisions of that chapter.

Nor is any prejudice to the defendant in error shown, by reason of the selection of the twelve jurors that tried the case, but it is claimed only that by reason of the omission of some form in impaneling the jury the fees of the jurors should not be taxed as a part of the costs against the corporation. Laning R. L. 10013 (R. S. 6436), contemplates a first and second jury trial in the common pleas court, and provides that if the verdict be more than first rendered, the costs of the second trial shall be paid by the corporation.

Laning R. L. 10017 (R. S. 6440) provides that, in case the probate judge is disqualified, the case may be commenced in the court of common pleas, and the proceedings shall conform in all respects, so far as applicable, to the provisions of Chap. 8, Title II, Rev. Stat.

It seems clear, therefore, that the provision in Lan. R. L. 10015 (R. S. 6438), that the court of common pleas “shall retain the cause for trial and final judgment, as in other cases,” does not authorize a judgment for costs other or different from that prescribed in that chapter; but directs that the case be retained and tried as other cases so far as the proceedings are applicable and not inconsistent with the provisions of the statute for the appropriation of property.

The only exception taken was to the order directing the clerk to draw fifty names from the jury wheel to fill up the panel — some of those originally drawn being not found or for good cause excused. From this venire a sufficient number to fill up the panel were accepted and sworn without any objection to the jurors so selected, and defendant in error accepted the benefits of a jury trial without any prejudice to its rights appearing. It did not request the court to order the sheriff to fill up the panel with talesmen or in any other manner, but was content with reserving an exception to the order of the court, without showing in what way it would be prejudiced. The primary object of drawing the names from the wheel is to insure a better class of jurors, and the original venire being made up from names so drawn, no good reason appears why vacancies may not be filled in the same way, except the delay in the trial of the cause, which was evidently the reason why the legislature provided in this one instance, that the panel might be filled up with talesmen. The purpose of the legislature was therefore more completely effected, without prejudice to the rights of the defendant in error, by selecting all the jurors from names drawn from the wheel, and none from the bystanders.

The order complained of is a final one within the meaning of Lan. R. L. 10297 (R. S. 6707), as it was a summary application in an action after judgment.

The defendant in error by answer admits that judgment was rendered on the verdict in favor of certain plaintiffs in error, and if it elected to settle with other plaintiffs in error without a judgment being entered, it cannot thereby avoid the payment of costs after receiving the benefits of a trial.

We áre of opinion therefore that the eourt erred in ordering that the fees of the jury be not taxed as an item of costs.

SWING, J.,

dissenting.

This was an action by a corporation for the appropriation of private property. Laning R. L. 9990 (R. S. 6414) provides as follows:

“Appropriations of private property by corporations must be made according to the provisions of this chapter.”

The first proposition of the syllabus, in the case of Dayton & W. Ry. v. Marshall, 11 Ohio St. 497, is as follows:

‘ ‘ The probate court, under the act of April 30, 1852, to provide for compensation to owners of property taken for use of corporations, has a special and limited jurisdiction, to be exercised in the eases, and in the mode prescribed in the act; and that eourt cannot, under an order of the court of common pleas, and to carry into effect that order, take jurisdiction of a case, or proceed in a mode not authorized by the act. ” •

Laning R. L. 9998 (R. S. 6421) provides as follows:

“If the judge determine these ■ questions for the corporation, as to any or all of the property, and persons interested therein, he shall issue an order to the clerk and sheriff to draw sixteen names from the jury box, as in other cases, and within two days after the receipt of the same, they shall execute the order, and the clerk shall forthwith return it to the probate judge, with a list of the names drawn indorsed thereon; and the judge shall issue to the sheriff a venire for the jurors so drawn to attend at his office, at a time to be fixed by him, and named in the writ, not exceeding ten days from the date thereof, which shall be served and returned as in other cases. ’ ’

Laning R. L. 10002 (R. S. 6425) provides:-

“When, by reason of nonattendanee, sickness, or other cause, any of the sixteen persons are not present and in condition to serve as jurors, the judge shall order the sheriff to fill the vacancies with talesmen.”

Laning R. L. 10028 (R. S. 6451) provides:

■ “The jurors summoned, and attending or serving, in accordance with the provisions of this chapter, shall.each receive the same fees per day as are provided by law for jurors in the court of common pleas, and also five cents per mile for each mile of the distance they are compelled to travel in the discharge of their duties; the witnesses shall be allowed the same fees and mileage as are allowed for attendance at the court of common pleas; the sheriff shall be entitled to such fees as he is allowed by law for similar services in other cases, but he shall not be allowed anything in the way of poundage, except on money made on execution; the clerk shall be entitled to a fee of one dollar and fifty cents for drawing, and certifying to the probate judge, the list of jurors; the probate judge shall be allowed to enter a charge of five dollars in the cost bill for each day occupied in the trial of a cause, in addition to his other fees provided by law; and the whole cost so taxed shall be adjudged against and paid by the corporation, except as provided in the next section.”

The record in this case shows conclusively that the court did not in any way attempt to comply with Lan. R. L. 10002 (R. S. 6425). But the record clearly shows that the court under the general provision of the statutes applicable thereto summoned a jury to serve- as a regular jury for the term of its court.

The only provision of the statute which authorizes the taxing of the ■ costs of a jury against the prevailing party is where a jury has been summoned in accordance with the provisions of the chapter for the appropriation of private property. Against the objection of the corporation the judge did not order the sheriff to fill up the vacancies with tales-men as the statute plainly directs, but on the contrary under the general provision of the statute had a venire issued for fifty jurors, and from the venire all of the jurors but two were selected which tried the case.

The substantial difference between, a jury made up from talesmen and those made up by a venire is shown in the case of Passenger Ry. v. Young, 21 Ohio St. 518 [8 Am. Rep. 78], In the opinion of the court, at page 525, Judge White says:

“That whenever in any civil suit or criminal prosecution hereafter tried in any court of this state, it shall become necessary to summon a talesman or talesmen, either party may make a summary application to the court to issue a venire, and the court, when so requested, shall, as a matter of course, immediately issue a venire containing the names of so many discreet and suitable persons having the qualifications of electors, as the court shall deem expedient. But if no such application be made, the sheriff shall summon talesmen as heretofore.
“When the struck jury was reduced by excusing seven of them, the plaintiff in error requested the court to issue a venire under this statute; and the court selected seven names, and issued the venire. Upon its return the jury was again reduced by excuses and challenges, so that it became necessary to summon talesmen, and the court ordered the sheriff to fill up the panel by talesmen; but the counsel for the company objected thereto, and moved the court to issue another venire; but the court overruled the motion and directed the sheriff to proceed as already directed; to which the company excepted.
“Several reasons are urged by the defendant in error against the validity of this objection: (1) that the issuing of a second venire is not required by the statute; (2) that the application came too late; and (3) that the disregard of the statute constitutes no ground of error.
“It seems to us neither of these reasons can be allowed to prevail. The statute is imperative, and its meaning plain. Whenever there arises a necessity for summoning a talesman or talesmen, and there is the proper application, it is made the duty of the court, as a matter of course, to issue the venire. * * *
“We cannot assent to the position that the denial to a party of his right under this statute, is no ground of error. The sole object of the act is to secure to a party jurors selected by the court, when, for any reason, he is unwilling to submit to a selection by the sheriff. To refuse his application, when properly made, is to subject him to the very evil from which it was the design of the statute to relieve him. The effect of such refusal is to compel a party to submit the trial of his case to jurors selected by the sheriff, when the law required the selection to be made by the court. The right is as important to the party, as the right of peremptory challenge, the refusal. to allow which, as well as its unauthorized allowance, has been held, in this state, to be good grounds of error. ’ ’

The statute governing that ease was the converse of Lan. R. L. 10002 (R. S. 6425), but the principal must remain, not having proceeded in accordance with the provisions of this chapter, I cannot understand how the costs of a jury can be assessed against a corporation, when the statute provides that in order to tax the costs of the jury against the corporation, it must be summoned in accordance with the provisions of that chapter. For this reason, I cannot concur with the foregoing conclusion of this court.

JELKE, J.

I- concur in the conclusion reached by Giffen, J., for the following reasons: I am of opinion that every doubt should be resolved in favor of drawing juries from the wheel, and every statute on the subject should if possible he interpreted in favor of that course.

The case of Passenger Ry. v. Young, 21 Ohio St. 518 [8 Am. Rep. 78], was decided in 1871 and the legislation which has culminated in the present statute law on the subject of drawing juries was not begun until 1873 (70 O. L. 167).

The case at bar does not present to my mind a true converse of Passenger Ry. v. Young, supra. The proposition there decided is that jurors summoned by the sheriff are not talesmen of a venire issued by the court under the act of March 22, 1849 (S. & C. 757).

The question here is: Are jurors drawn from the wheel “tales-men” within Lan. R. L. 10002 (R. S. 6425) ? That talesmen are not bystanders in contemplation of the law of Ohio is shown by Lan. R. L. 8688 (R. S. 5173), which provides:

“When it is necessary to summon talesmen, the court, on motion of either party, shall select them, and cause to be issued immediately a venire for as many persons having the qualifications of a juror as, in the opinion of the court, may be necessary, which jurors shall be required to appear forthwith, or at such time as may be fixed by the court; but no person known to be in or about the courthouse shall be selected without the consent of both parties.”

Why, then, are not jurors drawn from the wheel talesmen in a sense to satisfy every requirement of the law? Why should the judge in making his selection not have recourse to the wheel as well as to the city directory or his own recollection.

The word “tales” from the Latin “tails” means such, like; in this connection signifies such men or men of like qualifications with those of the original panel, and there is no suggestion that the men here used were not such.

If it is urged that the selection of talesmen requires an exercise of judgment or discretion on the part of the trial judge, non constant, but that it was the exercise of such discretion and the deliberate judgment of the judge that he would select the names in this manner. The wheel is brought in by the sheriff and the clerk and in the presence of the judge the names are drawn, the judge thereby makes it his act, and it seems to me that the rights of the parties are in the highest sense safeguarded.


source: Caselaw Access Project

author: HULL, J.

license: Public Domain

text:
    INCEST — EVIDENCE—JURY—TRIAL—CRIMINAL LAW.
    [Wood (6th) Circuit Court,
    September, 1901.]
    Haynes, Parker and Hull, JJ.
    Conrad Straub v. State of Ohio.
    1. Proof of Rape Under Sec. 6816 Rev. Stat. no Bar to Conviction fob Incest Under Sec. 7019 Rev. Stat.
    A person indicted under Sec. 7019 Rev. Stat. for incest against his daughter, cannot escape conviction by showing that in committing the offense he also committed the crime of rape (Sec. 6816 Rev. Stat.), in that the daughter was under the age of consent, or was overcome by force and violence.
    2. Testimony of Witness That Her Father Had “Sexual Intercourse” With Her is not a Mere Conclusion.
    Testimony of a witness on her examination in chief, in a criminal prosecution against her father for incest, that the latter had “sexual intercourse” with her, is not incompetent as a mere conclusion, but is simply permitting witness to testify to an act by giving it the ordinary name, and its admission in evidence is not prejudicial; especially when witness was, on cross-examination, required to relato in full all the facts and circumstances of. the transaction.
    3. Asking Jury Wi-iat Prospect Was of an Agreement, in Defendant’s Absence, not an Irregularity, When.
    The trial court is not guilty of an irregularity, such as will warrant a reversal of a judgment of conviction in a felony prosecution, by instructing the deputy sheriff, in the absence of the defendant, to ask the jury while in the jury room, and after it had retired to deliberate upon the verdict, once at supper time, and again about 11 o’clock the same night, what the prospect was of an agreement — it not appearing that the jury was urged to agree.
    4. Statement of Counsel in Argument to Jury of His Belief That Defendant Had Committed Similar Crimes not Improper, When.
    Where the fair conclusion of the evidence admitted at the trial of defendant for incest, including that of physicians who examined the female, is that the latter had had sexual intercourse with some one on other occasions, a statement by the prosecuting attorney, in his argument to the jury, that “I believe the defendant is guilty of having sexual intercourse with his daughter on Feb. 2, 1901 (the date alleged in the indictment), and I am warranted from the evidence in saying that I believe he had intercourse with her on many other different occasions,” is not of such character as would constitute misconduct on his part.
    5. Girl Under Influence of Father not Accomplice in Crime, When.
    A girl fourteen years of age, with little conception of the enormity of the offense, who is overcome by her father who is occupying the same bed, and submits to incestuous intercourse upon his suggestion, and under his influence, is not such an accomplice in crime as will render her testimony incredible or unworthy' of belief unless corroborated by other witnesses.
    6. Jury May Convict Upon Uncorroborated Testimony of Accomplice.
    There is no rule of law in Ohio preventing a jury from convicting in a felony prosecution upon the uncorroborated testimony of an accomplice
    Error-to Wood common pleas court.

      D. R. Jones and Baldwin & Harrington, for plaintiff in error:
    Proof of rape will not sustain a conviction for incest under Lan. R. L. 10731 (R. S. 7019). Laning R. L. 10414 and 10415 (R. S. 6816 and 6817); State v. Jarvis, 20 Ore. 437 [26 Pac. Rep. 302; 23 Am. St. Rep. 141]; Smith v. State, 12 Ohio St. 466 [80 Am. Dec. 355]; Noland v. State, 19 Ohio 131; Allen v. State, 10 Ohio St. 287; Burt v. State, 23 Ohio'St. 394; State v. Thomas, 53 Iowa 214 [4 N. W. Rep. 908]; State v. Ellis, 74 Mo. 385 [41 Am. Rep. 321]; Commonwealth v. Bakeman, 131 Mass. 577 [41 Am. Rep. 248]; State y.'Johnson, 58 Ohio St. 417 [51 N. E. Rep. 40]; Barber v. State, 39 Ohio St. 660; YanValkenburg v. State; 11 Ohio 404; Champer v. State, 14 Ohio St. 437. '
    Misconduct of prosecuting attorney in arguing case to jury. Snurr v. State, 2 Circ. Dec. 614 (4 R. 393) ; Warder v. Jacobs, 58 Ohio St. 77 [50 N. E. Rep. 97]; Bennett v. Slate, 4 Circ. Dec. 129 (10 R. 84); Gawn v. State, 7 Circ. Dec. 19 (13 R. 116) ; Jones v. State, 20 Ohio 34.
    It was the right of accused to be present at every stage of the case. Bose y. State, 20 Ohio 31; Kirk v. State, 14 Ohio 511; Jones v. State, 26 Ohio St. 208; Cantwell v. State, 18 Ohio St. 477; Williams v. State, 12 Ohio St. 622; Devere v. State, 3 Circ. Dec. 249 (5 R. 509).
    Weight of the evidence. Fuller v. State, 12 Ohio St. 433; Pratt v. State, 19 Ohio St. 277; Miller v. Stokely, 5 Ohio St. 194.
    E. G. McClelland, prosecuting attorney, for defendant in error.
   HULL, J.

The plaintiff in error, defendant below, was indicted for the crime of incest with his daughter, Lena Straub, was convicted, and the court overruling the motion for a new trial, entered judgment upon the verdict, sentencing the plaintiff in error to the penitentiary, for the period of five years, and it is to revérse that judgment that this proceeding in error was brought. There are several grounds of error alleged: It is claimed that the defendant below could not properly be convicted of incest for the reason that the evidence showed that his daughter was under the- age of sixteen years at the time of the alleged sexual intercourse, and that therefore, the crime that he was guilty of, if any, was rape and not incest.

It is contended that the court erred in the admission of testimony, and. that it was guilty of certain irregularities. Further that the argument of the prosecuting attorney was improper, that a new trial should have been awarded on the ground of such misconduct of the -prosecutor. It is claimed also that the verdict was against the weight of the evidenee and not sustained by sufficient evidence. The case was fully argued by counsel, both for the state and for the defendant. The plaintiff was indicted under Sec. 7019 Rev. Stat., which relates to the crime of incest and is as follows:

“Persons nearer of kin by consanguinity or affinity than cousins, having knowledge of their relationship, who commit adultery or fornication together, shall be imprisoned in the penitentiary not more than ten years nor less than one year. ’ ’

The undisputed evidence in the case shows that at the time of the commission of the alleged offense, to wit, February 2, 1901, the daughter was not more than fourteen years of age. She testified that she was only fourteen at the time of the trial, and it is claimed that under Sec. 6816 Rev. Stat., the offense of the plaintiff in error if anything, was rape, and that he should have been indicted and tried for that, and not for incest, of which it is said he should have been acquitted. Section 6816 Rev. Stat. is as follows:

“Whoever has carnal knowledge of a female person, forcibly and against her will, or, being eighteen years of age, carnally knows and abuses a female person under sixteen years of age, with her consent, is guilty of rape.”

It is contended by counsel for plaintiff in error that it was the duty of the court, under the testimony to direct a verdict of acquittal. The crime of incest can only be committed, it is argued, where both parties are of the age of consent and agree to the sexual intercourse; and that there must be the consent of both to constitute the crime. The statute defines incest to be where persons nearer of kin by consanguinity or affinity than cousins, having knowledge of their relationship, commit adultery or fornication together; and authorities are cited to the effect that the crimes of adultery and fornication are committed where both the man and the woman are willing parties to the offense, and that Sec. 6816 Rev. Stat. which I have read make the offense which the evidence discloses here, the crime of rape. It is argued, that the female being incapable of giving consent by virtue of the statute, and the offense itself being denominated rape in the statute, it cannot be fornication, and that therefore the offense cannot be incest, and can be nothing but the crime of rape, which, it is argued, is a separate and distinct offense from that of incest. The authorities On this question appear to be to some extent divided; they are somewhat in conflict, there is no question about that. A summary of them is found in 16 Am. & Eng. Enc. Law (2 ed.) 135, where the authorities on both sides of the question are collected.

State v. Jarvis, 23 Am. St. Rep. 141 [20 Ore. 437; 26 Pac. Rep. 302], sustains the contention of the plaintiff in error. I read this from the syllabus in the case:

“On the trial of a charge of incest, evidence as to violence used in the commission of the crime charged is inadmissible. * * *
“Rape and incest are two distinct crimes, and while evidence of the violence used in the commission of the former is admissible, such evidence is not admissible under an indictment charging the latter crime alone.
“Rape by forcible ravishment, and incest, cannot be committed by the same act, as incest is accomplished by the concurring assent of two persons, while rape is committed through the impelling will of one.
“Evidence showing the commission of rape will not sustain a conviction under an indictment charging incest alone.
“One charged with incest cannot be convicted .on the uncorroborated evidence of the prosecutrix alone.
“Indictment charging incest must allege that the act charged waa the joint act of both parties.”

This was a case where actual force was used in the commission of the. offense.

The same doctrine is held in California, Michigan and some other-states. There are however cases on the other side of the question, and there has been no decision by our Supreme Court upon the question whether a man indicted for incest may be found guilty of that crime, although the evidence shows he is guilty under the statute, of rape.

In other states, however, this question has been answered in the affirmative. In State v. Hurd, 70 N. W. Rep. 613 [101 Iowa 391].

The court say in the syllabus:

“ (6) On a trial for incest it was not error to admit evidence of an act which constituted rape, since that crime includes incest. ’ ’

And on page 617 of the opinion the court say:

“It appears from the testimony of a son of the defendant, younger than Dora, as well as by her testimony, that the three were in Sioux City in the fall of 1893, and that the three occupied one bed, by compulsion from'the defendant as to Dora, for a part of the night, and that defendant, while the three were in bed together, had intercourse with Dora. It is said that, if this evidence proves anything, it proves rape, and that evidence of such a crime could not be used to render probable the act charged, as might evidence of an offense like the one charged. But we hold that, even if it were rape, if the relationship existed essential to the crime of incest, it would be incest, that is, incest would be included in the crime of rape; so that in no event was the rule violated. ’ ’

Another case Porath v. State, 63 N. W. Rep. 1061 [90 Wis. 527], is to the same effect. This is found in the syllabus:

“(6) A father who has sexual intercour.se with his daughter is guilty of incest, independent of the question .of force. ’ ’

The court say on page 1064 of the opinion:

“The fact that the defendant used a certain amount of force to overcome the resistance actually made will not enable him to escape the punishment for incest, the parties being within the prescribed degree of consanguinity, although the force used was not sufficient to constitute rape. It does not necessarily follow in all such cases that the female is to be regarded as an accomplice, and particularly in a case- like the present, in view of the relation between the parties, and the coercive authority of her father over her. Raiford v. State, 68 Ga. 672; Norton v. State, 106 Ind. 163 [6 N. E. Rep. 126]. If, in the commission of the incestuous act, the female was the victim of force, fraud, or undue influence, so that she did not act voluntarily, and join in the commission of the,act with the same intent that the accused did, then she ought not to be regarded as an accomplice. In all cases, where it is to be proved inferentially; the question of accompliceship is one of fact for the jury.”

In State v. Chambers, 43 Am. St. Rep. 349 [87 Iowa 1; 53 N. W Rep. 1090], the court say in the syllabus:

“One accused of incest cannot escape conviction on the ground that the female upon whom the crime was committed did not consent thereto, or was of such an age that she was not at the time capable of giving her consent. That the act so committed also constitutes the crime of rape does not prevent it from constituting the crime of incest. ’ ’

In Smith v. State, 54 Am. St. Rep. 140 [108 Ala. 1; 19 So. Rep. 306], the syllabus reads:

“The consent of both parties is not essential to the crime of incest, and the defendant may be convicted of that crime, though in committing it, he employed the force essential to the crime of rape. ’ ’

The court say in the opinion:

“This is an open question in Alabama. There is nothing in our statute defining the offense to prevent us from taking ground with what is said in the text quoted to be the weight of authority; but, to the contrary, every element of the crime as denounced in our law may well exist as against one party to the sexual act though the other did not consent thereto, and though the act was only accomplished by the man by such force or coercion brought to bear on the woman as would render the man guilty also of rape. ” . ' '

. In People v. Rouse, 43 Mass. (2 Metc.) 193, the syllabus is as follows:

“Under the Rev. Stat. c. 137, p. 11, a defendant indicted for a rape alleged to have been committed upon his daughter, may be convicted of incest, if the jury find the criminal connection, but that it was not by force and against the will of the daughter. ’ ’

If the accused is willing and consents to the sexual intercourse, he cannot escape by showing that the woman was overcome by force or was not of the age of consent, for so far as he is concerned, it is incest as well as rape. In the case at bar the testimony shows that the girl was of the age of fourteen years; that she did in fact consent; that no force was used upon the part of the defendant to accomplish his purpose.

The offense of having sexual intercourse with a female under sixteen years of age with her consent, the statute says is rapé, but that language is rather to be considered to mean that the legislature has enacted that one who has intercourse with a female under sixteen years of age, with her consent, shall be punished q,s for rape, or shall be deemed gfiilty of rape. That is the way the statute formerly read; it now reads that such person is guilty of rape, and he is punished accordingly. But the fact still remains that the other party is willing; she does in fact give her consent; she is not overcome by force.

The legislature fixed the age at sixteen years. It might have fixed it at eighteen or twenty years.

The weight of authority and the better reasoned cases sustain the contention of the state.

It would seem a' strange rule of law, that a man indicted for incest might escape conviction and secure an acquittal, by satisfying the jury that he overcame the woman by force and violence. That seems to be the view of the supreme court of Oregon. ¥e hold in favor of the state and against the plaintiff in error upon this proposition.

It is urged that the court erred in permitting the girl, Lena Straub, to testify on examination in chief by the prosecuting attorney that her father had sexual intercourse with her, and it is contended that this was permitting her to state a mere conclusion without stating any of the facts. We are of the opinion that it is permissible and proper to admit such a question and answer. It is a conclusion to be sure, as are many other things are that witnesses testify to, but it is simply permitting a witness to testify to an act by giving it the ordinary name. She is open to cross-examination, however, and in this case she was required on cross-examination to relate in full, in detail, all of the facts and circumstances of the transaction, so that if there were any doubt about the propriety of allowing such a question and answer, we would not hold that the defendant had been prejudiced by it in any respect, in view of her very full recital of the facts upon cross-examination.

It is said that the court was guilty of irregularity after the jury had retired. According to affidavits filed, after the jury had been out aboirt an hour, they going out late' in the afternoon, supper time having arrived, the court instructed the deputy sheriff to ask the jury what was the prospect of their agreeing, and the deputy did so, and reported that there was no prospect of an immediate agreement, and the jury were' thereupon given their supper. And again about fifteen minutes to eleven that night, the jury, not having agreed and the court presumably desir-' ing to know whether they were likely to agree that night, directed the deputy sheriff to ask a similar question, which he did, and in about half an hour after that time the jury did agree.

These questions were asked in the absence of the defendant, and this, it is urged, was improper. There is a statute permitting an inquiry to be made of the jury, through the sheriff, as to whether they have agreed. The question put to them was a little different, but not very different from the one laid down by the statute. It being about supper time, and it being proper to furnish the jury with their supper if they had not agreed, or were not likely to do so soon, it seems to us it was not improper for the court to direct the deputy sheriff to inquire of the jury what the prospect of their agreeing was. They were not urged to agree, or anything of the kind, and the same may be said of the question that was asked later at night. It is of course the rule, that the defendant has the right to be present at every stage in the trial of the case, and there has been cited in argument the ease of Bennett v. State, 4 Circ. Dec. 129 (10 R. 84), where the. judgment was reversed, but in that case the jury were brought out into the court room in the absence of the defendant and asked certain things, and statements made to them that are not in this case, which it was held by the circuit court should not have been done, and the judgment was reversed.

We do not think this case is like Bennett v. State, supra. In this case the jury were not brought out of their room; this question was put to them in their room by the deputy by order of the court, and in our jüdgment there was no irregularity on the part of the court in that act.

It is argued that the prosecuting attorney was guilty of misconduct in his argument to the jury, which was prejudicial to the defendant. According to the affidavits the prosecuting attorney said to the jury, “I believe the defendant is guilty of having sexual intercourse with his daughter on February 2, 1901 and I am warranted from the evidence in saying that I believe he had intercourse with her on many other different occasions.”

The prosecuting attorney was arguing the case to the jury from his point of view and stating to them what he claimed from the evidence, and he said to them — that he believed the defendant was guilty of having sexual intercourse with his daughter on February 2, that is, the date alleged in the indictment. And he said further that he believed he had had intercourse with her on other different occasions. Of course the defendant was only on trial for this one offense, but her conduct, and his conduct, as shown by the evidence at the time of the alleged commission of the offense in question, was before the jury; the fact that she made no resistance at that time, and that he accomplished his purpose, according to the testimony without causing her any great pain, as she testified was all before the jury.

The testimony of the physician who examined her was before the jury; and the fair conclusion from the testimony would be that she had had sexual intercourse with some one on other occasions, and the prosecuting attorney arguing from this evidence to the jury, made this statement. The evidence that was offered by the state that she had had intercourse with her father on other occasions was excluded. We are not entirely clear but that this would have been admissible; not for the purpose of convicting him for an offense committed at any other time, but as shedding light on the transaction in question, and upon the question of whether the girl was telling the truth or not in her narration of the transaction; but all that was excluded, and we need not and do not pass upon that question. But in view of the testimony that was admitted, we do not think that this remark of the prosecuting attorney was of such a character as would constitute in any respect misconduct on his part.

It is claimed further, and urged with earnestness that the evidence is not sufficient to sustain the verdict, that it was against the weight of the evidence, and we have examined the record with a great deal of care. It is urged that there is no corroboration; at least, not sufficient corroboration of the testimony of the girl to warrant a conviction. I do not intend to go over the testimony of the case at any great length; the girl testified as to her age, that she was about fourteen years old, that she had lived in a church institution in Cincinnati for some years; that ■she had come home about a year before February 2, 1901, when this offense is alleged to have been committed. According to the testimony of the girl and the other children in the family, and the defendant, they lived in a house at Mermill in this county in very close quarters; they had for a time only one bed with a lounge, and part of the time, two beds in it; the father and the girl occupied one bed, sometimes alone, and sometimes with a smaller brother, and sometimes other children were in that bed. The record shows clearly that they did occupy the same bed at times; indeed the defendant does not deny this.

The girl testifies to the transaction on the night in question, stating all the details fully upon cross-examination. She was examined by a physician soon after this alleged occurrence, who testified that in his judgment she had had sexual intercourse with some man. There was evidence offered tending to impeach the character of the girl for truth and veracity; and testimony was offered by the state to sustain her character for truth and veracity. The defense offered testimóny to sustain the character of the defendant for chastity, and the state in rebuttal called some witnesses attacking his character for chastity, and among others an older daughter, sister of the girl in question, some years older, who testified very positively that her father’s character for chastity and his conduct with women, were bad; that he had made improper suggestions to her.- She testified that her father told her, her mother being dead and having been dead for some years, that it was proper for the daughter to take the place of her mother, and narrated what occurred, and there was other testimony of a changing character. It is difficult under these circumstances to conceive of this girl manufacturing this charge against her father. We are unable to find any motive to impel her to come to the public authorities and charge her father with the commission of this grave offense.

It is not the rule in Ohio that a jury cannot convict upon the uncorroborated testimony of an accomplice. But does that rule which impeaches the testimony of an accomplice apply with all its force to the ease at bar? Was she an accomplice in the true sense of the word? An accomplice is one who freely and voluntarily engages with another in the commission of a crime, and when such person goes upon the witness stand and testifies against his partner in crime, he does so often with the purpose and intent of saving himself, and his testimony is discredited; but where a girl of fourteen years, with little conception of the enormity of the offense, is overcome by her father with whom she is occupying the same bed, and submits to incestuous intercourse upon his suggestion, and under his influence, she is not such an accomplice as necessarily renders her testimony on that account incredible or unworthy of belief, unless corroborated by other witnesses.

There should be in all such cases, corroboration, if possible, but, as suggested by some of the cases, a girl under those circumstances, joining with her father in the commission of the ofíense is not to be considered in the light of an ordinary accomplice; but the Supreme Court has said that even in an ordinary case, corroboration is not required absolutely; the court say in the case of Allen v. State, 10 Ohio St. 287, 288:

“While it is the duty of the court, in their discretion, to advise the jury not to convict of felony upon the testimony of an accomplice alone without corroboration, there is no rule of law preventing a jury from convicting upon the uncorroborated testimony of an accomplice.”

The court stated to the jury that the most of the evidence against the defendant, was that of the girl, the so-called accomplice, and after proper caution and instructions they found the defendant guilty.

We have examined this record with a great deal of care, and considered it fully, appreciating the grave consequences of this judgment to the plaintiff in error, and we are unable to find that the jury were not warranted in finding the defendant guilty of this crime. We are of the opinion that he is guilty. The judgment will be affirmed.

Parker and Haynes, JJ., concur.


author: WINCH, J.

text:
    STREET RAILWAYS — MUNICIPAL CORPORATIONS — CONSENTS.
    [Cuyahoga (8th) Circuit Court,
    November 28, 1904.]
    Hale, Marvin and Winch, JJ.
    A. J. Day v. Forest City Railway et al.
    1. Consents op Abutting Property Owners to Construction op Street Railway.
    The statutes seem to make a marked distinction between original grants for the construction of new street railways and grants for the extension of the. tracks of old street railways; hence it follows that the abutter has a right to consent, or withhold his consent, either to the construction of a hew railway or to the extension of the tracks of an old railway. If the abutter consent to the construction of a railway, either generally, or specifying some particular individual or corporation who may have his consent to construct, his consent inures to the benefit of the individual or corporation offering to carry passengers at the lowest rate of fare; if he consent to the extension of the tracks of an existing street railway, such consent inures' only to the benefit of the railway specified in his consent. This conclusion is based not only upon said distinction in the statutes, but upon principle.
    2. Consents to Construction op Street Railway on Pending Application por Grant May Be Considered on Subsequent Application, When.
    Where consents to the construction of a street railway are given while application for a grant is pending and the municipal authorities are enjoined from making such grant, and thereafter, and within a year, a new application is made for the right to construct a street railway on the same street, which application is granted and an ordinance therefor - passed, such original consents are not functus officio, but may be considered by council as consents to the latter grant, if presented to council as such, it appearing that said abutters had knowledge of the new application and never withdrew their consents.
    3. Right op Vendee op Abutting Land Under Contract to Convey to Consent.
    Where the vendee of land under a contract to convey it is not in default under his contract and is in possession of the land, which abuts upon a street upon which it is proposed to construct a street railway, the right to consent to the construction of such railway is in said vendee.
    4. Purchaser op Land Subsequent to Consent by Former Owner Bound Thereby Unless Revoked.
    Where the owner of land abutting upon a street has consented to the construction of a street railway upon said street, and the title to the land subseguently devolves upon another who has knowledge of said consent, but never revokes it, the latter is bound by the consent.
    5. Knowledge op Guardian Does not Bind Guardian.
    The mere knowledge of a guardian that the person from whom his ward derives title has so consented and neglect of the guardian to revoke it, does not bind the ward.
    6. Consent por Owner by Another Binding ip Intended by Former as Such.
    A consent signed for the owner by another, whether the name signed be that of the owner or such other, is the consent of the owner, if intended by the owner as such. Such intention may be gathered from authorization previously given by the owner or ratification or adoption after signing

      7. Agency Must Be Proved if Sufficiency of Consents is Attacked.
    Where a person signs a consent as agent for another, no presumption in favor of the agency arises from the rule that council is presumed to have acted with sufficient consents before it; and, in an action in which the jurisdiction of council lo grant a street railway frachise is attacked on the ground that it did not have sufficient valid consents before it, such agency must he proved as in other cases.
    8. Consents Requisite to Give Council Jurisdiction to Grant Street Railway Franchise.
    The council of a municipal corporation has no jurisdiction to pass an ordinance granting a franchise to construct a street railway in a street of such corporation unless, before the passage of such ordinance, there are produced to council the written consents of the owners of more than one-half of the feet front of the lots and lands abutting upon said street.
    Appeal.
    Wilcox, CoIIister, Hadden & Parks, for plaintiff.
    Blandin, Rice & Ginn, for defendants.
   WINCH, J.

This ease was heard on appeal. We are asked to enjoin the defendants from constructing and operating a street railway on Denison avenue, between Pearl street and the westerly limits of the city of Cleveland under an ordinance granting such franchise to them as an original grant, passed by the council of said city, September 9, 1903. It is said that said council was without jurisdiction to pass said ordinance, and that the same is null and void because before its passage there were not produced to the council the written consents of the owners of more than one-half of the feet front of the lots and lands abutting upon said Denison avenue between the limits stated.

This is the sole question presented to us for determination in this case.

An agreed statement of facts has been submitted which shows that there is private frontage on that portion of Denison avenue in con-controversy amounting to 28,638.66 feet. The plaintiff claims that to this frontage should be added certain property owned by the Big Four Railway Company, amounting to 154.65 feet. The evidence shows that said railway company owns said land in fee, though a small'part of it is covered by its tracks. We see no reason why this railway company property should not be counted in making up the total of the frontage' on the street and therefore find that, including said property, the private frontage on the street is 28,793.31, and that the validity of the ordinance depends upon whether the written consents of the owners of a majority of said frontage, to wit, 14,397 feet, were produced to the council as aforesaid.

The agreed statement of facts contains a list of owners and their frontages, who did not give their consent. This amounts to 10,837.938 feet, and starting with these figures we have examined the contested frontgages, and in this opinion will state as concisely as possible our findings of facts and conclusions of law upon each one of them, in the order that they are set forth in defendants’ memoranda of disputed frontages.

1. Mary C. Lemmerman, 54.6 feet. Consent was signed by her husband for her and we find that he was authorized so to do and that the consent should be counted for defendants.

2. William R. Long, 277.19 feet. Consent signed August 22, 1903, contained the following provision: “This consent holds good only if franchise is passed on Monday, August 24, 1903.” It appears that the ordinance was not passed on that date, and we hold that it was of no validity thereafter, and this frontage is counted as not consenting.

3. Regina Hafele, 110 feet. The evidence shows that this property was formerly owned by one Elizabeth Pletcher. She signed a consent, while owner. July 3,1903, she sold and conveyed the property to Regina Hafele. It does not appear that the latter knew of this outstanding consent until after the ordinance was passed. This frontage is counted as not consenting.

4. Jennie Cleveland, 49.68 feet. Lucius W. Baker formerly owned this property and signed a consent. June 27, 1903, he conveyed it to Jennie Cleveland. She did not know of the outstanding consent until November 16, 1903. This frontage is counted as not consenting.

5. Flora L. Mclntire, 59.38 feet. Consent signed, “Flora Mclntire by D. C. Mclntire,’"’ her husband. He had no authority to sign for her and she new nothing of his signing her name until long after the ordinance was passed. Counted as not consenting.

6. Lucy B. Winslow and Annie L. Chadwick, 575.34 feet. The owners had been in Europe for some time. Their interests here were looked after by N. M. Platt. He had no power of attorney from them and never consulted them about their wishes in the premises, but signed a consent for them. Of this they had no knowledge until December, 1903, when they promptly disaffirmed his act. Counted as not consenting.

7. Barbara Canda, 108.06 feet. Consent signed August 24, 1903, “Barbara Canda by John Canda, agent.” John was Barbara’s son, and from the evidence we find that he was authorized to sign for her and count this frontage in favor of the ordinance.

8. George Fleisher, 209.59 feet. From the evidence it appears that on August 19, 1903, George Fleisher signed a consent reading as follows :

“The undersigned property owner hereby consents to the construction of a double track street railroad on Denison avenue for all the property standing in my name.”

August 24, 1903, he signed a writing as follows:

“I, the undersigned, being the owner of property to the extent of 210.59 feet upon Denison avenue in the city of Cleveland, hereby withdraw and cancel any and all consents which I have heretofore given for the construction of any other street railroad except the Cleveland Electric Railway Company upon said street.”

These two documents were in the hands of Peter Witt, clerk of the city of Cleveland, and he had them with him in the council chamber when he presented to the council a written communication as follows:

“September 9, 1903.
“To the City Council.
“Gentlemen: I have examined the consents for the construction of the double track street railway on Denison avenue, presented by Albert E. Green, and find that the same represents a majority of the feet fronting on Denison avenue.
“Respectfully yours,
“Peter Witt, City Clerk.”

The council acted upon this communication and did not itself, or by committees, examine the consents. Mr. Witt testifies that he did not count the Fleisher frontage in favor of the ordinance. The question presented is whether the council should have counted said frontage as consenting.

Testimony was admitted, over the objection of defendants’ showing that the Cleveland Electric Railway Company was, prior to the passage of the ordinance in question, operating a street railway in the city of Cleveland, under a franchise granted by the council of said city. That on July 27,1903, it filed with the city council an application for leave to extend its tracks on Denison avenue, the street here in question. This ordinance went to its second reading on August 17, 1903, and was then, and for some time after, pending before the council.

August 3, 1903, George Fleisher signed and delivered to an agent of said company the following writing:

“I, the undersigned, being the owner of property on Denison avenue in the city of Cleveland, to the extent of 210.59 feet front, hereby request the Cleveland Electric Railway Company to construct an extension of its existing street railway lines upon and along said street in front of my premises, and to maintain and operate the same as a part of its system of street railway now in operation in the city of Cleveland.
“This request is made as a personal request, and to the said Cleveland Electric Railway Company only, and I consent to the construction and operation of such an extension of said company’s lines upon and along said street; but this consent shall not be assignable, and is not intended as authority for any other street railroad to be constructed and operated upon said street.”

For a satisfactory determination of the question here involved, it is necessary to consider the statutes regulating the granting of street railway franchises.

Laning R. L. 5520 (R. S. 3437) provides that street railways “may be constructed or extended.”

Laning R. L. 3763 (B. 1536-183) provides that: “The right so to construct or extend such railway as is provided for in See. [Lan, 5520] 3437 Rev. Stat., within or beyond the limits of a municipal corporation can be granted only by the council thereof, by ordinance * * * ; and that no extension of any street railroad located wholly without any such city, or of any street railroad wherever located, which has been built or shall be built in pursuance of a right obtained from any source or authority other than a municipal corporation, shall be made within the limits of such city, except as a new route, and subject to the provisions of Sec [Lan. 3767] 2501 Rev. Stat., and Sec. 30 [Lan. 3764; B. 1536-185] of this act.”

The foregoing provisions seem to make a distinction between the “construction” and “extension” of street railroads, and following up the provisions on the subject, we further find it provided for the construction of new railroads as follows:

Laning R. L. 3767 (B. 1536-184; R. S. 2501). “No corporation, individual or individuals shall perform any work in the construction of a street railroad, until application for leave is made to the council in writing, and the council by ordinance shall have granted permission,” etc.

Laning R. L. 3764 (B. 1536-185). “Nothing mentioned in Sec. 2501 Rev. Stat., shall be done; no ordinance or resolution to establish or define a street railroad route shall be passed, and no action inviting proposals to construct and operate such railroad shall be taken by the council; and no ordinance for the purpose specified in Sec. 2501 Rev. Stat., shall be passed until public notice of the application therefor has been given by the clerk of the corporation * * * for the period of at least three consecutive weeks in one or more of the daily papers, * * * and no such grant as mentioned in See. 2501 Rev. Stat., shall be made, except to the corporation, individual or -individuals, that will agree to carry passengers upon such proposed rhilroad at the lowest rates of fare, and shall have previously obtained the written consent of a majority of the property holders upon each street or part thereof, on the line of the proposed street railroad, represented by the feet front of the property abutting on the several streets along which such road is proposed to be constructed. ’ ’

With regard to the extension of tracks by existing street railroads it is provided:

Laning R. L. 3770 (B. 1536-188; R. S. 2505). “The council of any city or village may grant permission, by ordinance, to any corporation, individual, or company owning, or having the right to construct, any street railroad, to extend their track, subject to the provisions of Sec. 3437, 3438, 3439, 3440, 3441, 3442 and 3443, on any street or streets where council may deem such extension beneficial to the public; and when any such extension is made, the charge for carrying passengers on any street railroad so extended, and its connections made with any other road or roads, by consolidation under existing laws, shall not be increased by reason of such extension or consolidation.”

' A provision common to both construction and extension is the following :

Laning R. L. 5521 (R. S. 3439). “No such grant (for the construction or extension of a street railroad) shall be made until there is produced to council * * * the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way, along which it is proposed to construct such railway or extension thereof; and the provisions of Secs. 2501 and 2503 to 2505 inclusive, so far as they are applicable, shall be observed in all respects, whether the railway proposed is an extension of an old or the granting of a new route, ’ ’ etc.

A marked distinction is thus drawn between an original grant for construction and a grant for an extension of a street railroad. In the former case a grant can he made only upon publication of notice of the pendency of an application and then to the company offering to carry passengers at the lowest rate of fare; the grant of a right to extend tracks can only be granted to a company owning or having the right to construct a railroad, and there can be no bidding for the grant — the only provision for fare being that it shall not be increased by reason of such extension. '

From this we conclude that the abutter has a right to consent or withhold his consent, either to the construction of a new road or to the extension of an old road. While it has been held with regard to a new road that a general consent, or even one specifying some company or individual, will inure to the benefit of the company or individual offering to carry passengers at the lowest rate of fare, we think it equally clear that a consent to the extension of an old road will inure only to the benefit of such old road.

This personal right of the property owner to designate whether hi« consent shall inure to the benefit of the lowest bidder for a new road or •for the benefit of an old company seeking a right to extend its tracks, is not founded alone upon the distinctions shown to exist in the statutes, between new construction and extension; it has natural justice back of it. If the right to consent or withhold consent is a personal right, the property owner should be allowed to exercise it as he sees fit and as he deems to his best advantage. It may be considered by him a more desirable thing to have a street railroad in front of his property which will take him for five cents all over the city, than to have one with a three cent fare which only runs up and down the street for two or three miles and neither goes near his own.place of business or that of others with whom he trades or desires to meet. On the other hand, if he prefers the new railroad, because of its lower fare, he should have a right to express his preference.

With these views of the law of the case we have admitted testimony as to the situation of the parties in order that we might determine the intention of George Flesher as expressed in his so-called withdrawal of consent dated August 24, 1903, and we hold that said instrument was a revocation of the general consent given theretofore and the exception therein contained referring to the Cleveland Electric Railway Com-' pany inures only to the benefit of the latter company in a proposed extension of its tracks along Denison avenue.

This frontage is counted as not consenting.

9. Carrie E. Rundell, 46 feet. Counted against the ordinance for reasons stated in No. 8.

10. Joseph H. Storer, 524.31 feet. Counted against the ordinance for reasons stated in No. 8.

11. Frank S. Pelton, 120.88 feet. Pelton filed a consent, but revoked it August 17, 1903. On September 9, 1903, he signed another consent, but the evidence shows that the last consent was not produced to council. Counted against the. ordinance.

12. Horatio B. Carpenter, 100 feet. Counted against the ordinance for reasons stated in No. 8.

13. The Union Savings & Loan Company, 93.33 feet. Consent was signed, “Union Savings & Loan Company, A. G-. Hutchinson, secretary.” Revocation was signed, “Union Savings and Loan Company, ■by H. Q. Sargent, president.” Neither consent or revocation was authorized by the board of directors at a meeting regularly held, but we are satisfied that the several members of the board were consulted in each instance and that the revocation is as valid as the consent. Counted ; against the ordinance.

14. C. F. Brandt, 90.78 feet; Maria Peters, 155.00 feet; Michael J. Maher, 105.27 feet; Henry Maulberger, (1-2 of 35) 17.50 feet; John A. Dennerle, 138.18 feet; Nellie M. Noderer, 69.12 feet; Michael Froelich, (1-2 of 105) 52.50 feet; Ellen I. Sears, 414.75 feet; P. J. & Nettie Reilley, (1-2 of 50.8) 25.10 feet.

The only objection made to the above consents is that they were • signed in 1902, about a year before the passage of this ordinance. At that time a similar ordinance was pending, but the Supreme Court enjoined the council of the city of Cleveland from granting any street railway franchises until after its reorganization under the new municipal code. Further proceedings with regard to the old ordinance were dropped and application for the present franchise was made after the reorganization of the city government.

We do pot think these old consents were functus officio, as claimed by plaintiff. They were outstanding with full knowledge of the consenters and unrevoked. This conclusion is sustained by Sanfleet v. Toledo, 8 Circ. Dec. 711 (10 R. 460), affirmed by the Supreme Court without report. See also State v. Henson, 66 N. J. Law 601, 617 [50 Atl. Rep. 468, 616], and Nellis, Street Surface Rys. 81.

These frontages are counted as consenting.

15. The Frisbie Company and William and Minnie Stroh, land contractees, 41.96 feet. Title in the Frisbie Company, but William and Minnie Stroh in possession of the property under a land contract. Consent signed by the Frisbie Company and Mrs. Minnie Stroh, one of the contractees.

We hold, that where the vendee of land under a contract to convey it is not in default under his contract and is in possession of the land which abuts upon a street upon which it is proposed to construct a street railway, the right to consent to the construction of such railway is in' said vendee.

Applying this rule to this frontage, one of the vendees having consented and the o.ther having failed to give consent, only half of the frontage can be counted in favor of the ordinance, and wo therefore count one-half of 41.96 feet, or 25.98 feet against the ordinance;

16. The Frisbie Company and J, C. Buehler, land contractee, 42.06 feet. Both vendor and vendee signed consent. We see no reason why it should not be counted in favor of the' ordinance.

17. Estate of Mrs. P. W. Pelton, 1765.70 feet. Susan A. Pelton was at one time the owner of this land, signed a consent and then died. The property descended to her two daughters, Lucy A. Wenham and Elizabeth Pelton. Elizabeth Pelton was an imbecile and after the mother’s death, Lucy A. Wenham was .appointed her guardian. Mrs. Wenham knew that her mother had signed a consent and approved of it. Having such knowledge she never revoked the consent..

We hold that where an owner of land has consented to the construction of a street railway and the title to said land subsequently devolves upon another who has knowledge of said consent, but never revokes it, the latter is bound by the consent. Under such holding it follows that the one-half of this property which Lucy A. Wenham inherited must be counted as assenting.

As to the one-half inherited by the imbecile daughter, it is. conceded that had there been no outstanding consent, the guardian could not have consented for her ward without an order of the probate court authorizing such consent. The written consent, therefore, of the guardian, would have been of no avail, without an order from the probate court, and we are unable to see how the mere knowledge of the guardian of the former consent and the guardian’s neglect to apply to the probate court for instructions regarding it, can alter the case. The one-half of this frontage, 882.85 feet, owned by Elizabeth Pelton, imbecile, is counted against the ordinance.

18. Estate of Frederick W. Pelton, one-third of 858.50, or 286.167 feet.

Frederick W. Pelton, husband of Susan A. Pelton, mentioned above, owned 858.50 feet, and by his will left one-third to his widow, Susan A. Pelton, and after his death she signed a consent. No consent was ever given for the two-thirds devised by Frederick W. to his daughters, Lucy Wenham and Elizabeth Pelton. The contention is, with regard to the one-third devised to the widow, which, by inheritance, upon her death •passed the same as in No. 17, and the facts being the same in both cases, we count the one-half of this one-third, or 143.083 feet, inherited by the imbecile daughter, against ordinance.

19. Marie Reppennagen, 98.75 feet. This consent was withdrawn in the same manner as the Fleisher consent was withdrawn, and for the reasons stated in that case, this frontage is counted against the ordinance.

20. James Sears’ Estate, 1086.502 feet. Counted against the ordinance for reasons stated in No. 8.

21. Congregational city missionary society, 77.14 feet. Consent signed, “Congregational Church, by the authority of trustees, John f G. Simon. ’ ’ The society first mentioned, an incorporated body, owned' the property. The “Congregational church” whose signature purports to he affixed by Simon, occupied the church under some arrangement-with the incorporated society, but had no title to the property. Simon was not an officer of the incorporated society and had from it no authority to sign the consent. Counted against the ordinance.

22. Frieda Schwartz Schweiger, 51.025 feet. Consent signed, “A. Schweiger,” by her husband, Adolph Schweiger. The proof shows that the owner authorized her husband to sign for her, and we hold the consent should be counted in favor of the ordinance.

23. Big Four railway, 154.65. No consent was filed and this frontage is counted against the ordinance.

24. James Evans, 184.64 feet. Title to this property was originally in Mary A. S. Evans, wife of James Evans. She had conveyed the property to her husband, but his deed was not of record. The wife, with knowledge and consent of her husband, signed her own name to a consent. We count it in favor of the ordinance.

25. Orrin Wallace, one-fourth of 174.23, or 43.56 feet. Property owned in common by three brothers and a sister. Consent signed, “By authority, H. B. Wallace.” Evidence shows H. B. Wallace was so authorized by one brother and the sister. He himself testifies that he also had such authority from his brother Orrin. This Orrin denies. We do not think an agency is proved by the declarations of the agent, when the principal denies the agency. The rule that the presumption is, that the council acted with sufficient consents before it, does not extend, to the validity of any single consent when the validity of such consent is directly attacked. In the latter case the validity of the consent is to be determined as a fact, under the ordinary rules of evidence and applying them to this frontage we find that Orrin Wallace never consented, and this frontage is counted against the ordinance.

26. Ernst Schueneman, one-half of 45, or 22.5 feet. Ernst and Wilhelmina Schueneman owned the property, and the consent was signed, “Mr. Ernst Wilhelmina Schueneman,” by their daughter. 'It appears that she signed by direction of her mother; that her father was promptly informed of what she had done and never made any objection. Counted for the ordinance.

27. Katharine Ehrbar, 146.66 feet. Consent signed, “Katharine Ehrbar by F. C. Ehrbar.” The latter was her husband. There is some doubt whether the signature was written by the husband or by a daughter, but there is no doubt that Katharine adopted the signature and consented.

28. George P. Geib, 410.16 feet. Two consents, one signed June 6, 1902, by Geib, and one signed August 5, 1908, by his son. No revocations. Following our holding as to No. 14, this frontage is counted as consenting.

29. Herman Stuhr, one-third of 129.44, or 43.18 feet. Annie L. ■Wertz owned the property, consented and died. The property descended to three heirs. Two of them signed consents. There is no evidence that the third heir, Herman Stuhr, had any knowledge that Mrs. Weitz had signed a consent and we therefore count this property against the ordinance.

30. Estate of Samuel and Susan B. Storer, four-fifths of 292.68, or 234.13 feet. There are five consents and withdrawals in this case. It is necessary to consider but three of them. Consent dated August 11, 1903, signed, “S. Storer’s heirs, Mrs. Mabel Templin, executrix.” We think the proof shows that all the heirs at this time consented and authorized Mrs. Templin to sign for them. On August 14, 1903, a revocation was signed, “Mrs. Mabel Templin, Mrs. Julia Storer,” with the exception as to the Cleveland Electric Railway Company. Under our previous ruling we hold this to be a revocation as to the two owners who signed it. Mrs. Templin subsequently signed another consent. Mrs. Julia Storer did not, and we count her share, or 58/536 feet against the ordinance.

31. Marcus Dennerle; Marcus and Teresa Rohrbach, land contractees, 54.06 feet. Marcus Rohrbach signed a consent which was before the council, and under, our ruling in No. 15 we count his half of this frontage in favor of the ordinance, but the one-half, 27.03 feet, belonging to his wife, who did not sign, we count against it.

32. Joseph and Margaretha Oeschger, 'Charles Burlinghausen, land contractee, 182.89. Charles Burlinghausen having signed a consent, under the ruling in No. 15 we count this frontage for the ordinance.

33. P. J. and Nettie Reilley, 25.1 feet. Both owners signed a consent June 9, 1902, and for reasons before stated we count this for the ordinance.

34. Bertha Maulberger, one-half of 35, or 17.5 feet. Henry Maulberger and Bertha, his wife, owned the property in common. Henry signed his own name to a consent. There is no evidence that his wife authorized him to sign for her, and we count her half against the ordinance.

Summing up, we find that the frontage conceded as not consenting . is 10,820.438 feet; the total of disputed frontages which we have concluded should be counted as not consenting, is 4,820.461 feet. The two added together make 15,640.899 feet; a majority of the frontage on the street is 14,397 feet. It appears that owners of more than half of the street frontage did not consent. In other words, the written consents of the owners of more than one-half of the feet front of the lots and lands abutting on the street were not produced to council. It was, therefore, without jurisdiction to pass the ordinance, and the same being of no validity, defendants have no rights under it and the prayer of the petition is granted.

Hale, J., concurs.

Marvin, J., dissents, as to ruling number eight only, and therefore dissents as to the judgment.


text:
    LIMITATION OF ACTIONS — TAXATION—JUDICIAL SALES.
    [Lucas (6th) Circuit Court,
    October 17, 1904.]
    Parker, Hull and Haynes, JJ.
    James M. Wolcott v. Elizabeth Holland et al.
    1. Statute of Limitations'Runs Against Purchaser at Delinquent Sale From Time He is Entitled to Deed.
    The statute of limitations (Lan. R. L. 8492; R. S. 4977) begins to run against the purchaser at delinquent tax sale from the day he was entitled to present his certificate to the county auditor and receive a deed, to wit, two years after the date of sale; and after twenty-one years from the time the statute begins to run, without having demanded and received such deed, an action of ejectment by the purchaser against the delinquent tax owner is barred, although the legal title to land sold at delinquent tax- sale does not vest in the purchaser until the auditor’s deed is in fact executed.
    2. Auditor’s Deed to Purchaser at Delinquent Tax Sale not Prima Facie Evidence of Valid Title.
    The auditor’s deed to a purchaser at delinquent tax sale is not prima facie evidence of a good and valid title, as provided in Lan. R. L. 4337 (R. .S. 2877), unless it appear tliat the preliminary proceedings on the part of the county auditor and treasurer were regular and in conformity with the statutes governing such sales.
    Error to Lucas common pleas court.
    G. P. Thompson and F. A. Baldwin, for plaintiff in error.
    . King & Tracy and H. W. Lloyd, for defendants in error.
   HULL, J.

This is an action in ejectment, and a jury having been waived it was tried to the court of common pleas without a jury, and a finding made in favor of the defendants, upon which a judgment was entered and the petition dismissed. It is to reverse that judgment that a petition in error was filed in this court.

The defense made was that the action was barred by the statute of limitations, that the plaintiff’s cause of action had accrued more than twenty-one years prior to the commencement of the action, and therefore, was barred under Lan. R. L. 8492 (R. S. 4977).

The plaintiff claims title under a tax deed of land sold at delinquent tax sale, under Lan. R. L. 4337 (R. S. 2877). The case was tried on an agreed statement of facts; no other evidence was offered by either party. It appears from that that the land was sold for delinquent taxes at the courthouse in Toledo, on January 19, 1860, to V. H. Ketcham, and the tax certificate showing his purchase was issued to him as provided l^y law; that Ketcham assigned the certificate for a valuable consideration and delivered it to J. T. Newton, and that Newton assigned and delivered it to plaintiff. It appears further from the agreed statement of facts that on December 14, 1882, the plaintiff presented his tax certificate to the auditor of Lucas county, who, at the request of the plaintiff, executed and delivered to him a tax deed for the property; that that was filed with the recorder the next day and was duly recorded; that neither Ketcham, nor Newton, nor the plaintiff, nor any of them has ever occupied or been in possession of the property, or paid any taxes or assessments thereon, except the amount paid by Ketcham to treasurer of Lucas county for said tax certificate. That prior to January 9, 1860, which was the date of the sale, one W. W. Wolcott owned the property in fee. simple and was in possession and"occupation of it; and that he continued in the possession, occupation and control of it until June 18, 1868, when he sold the property by warranty deed to George Holland.

This deed was duly recorded and said George Holland occupied and was in possession and control of the property and paid all the taxes and assessments upon it from the date of his purchase until his death in the year 1902, and from that time the defendants, who are his heirs at law, have been in possession and control of and have occupied the premises and paid all taxes and assessments upon them down to the time of the commencement of this suit. This action was commenced by the service of summons on June 5, 1903, which was a few months less than twenty-one years from the time the tax deed was executed and delivered by the auditor to the plaintiff.

Under Lan. R. L. 4336 (R. S. 2876), the plaintiff or his predecessor was entitled to a deed two years after the date of the purchase on January 9, 1862, so that this suit was commenced a few months more than forty-one years after the time the parties were entitled to have a deed executed by the auditor, upon the presentation of the tax certificate. So that it appears from this statement of facts that twenty-one years had not elapsed by a few months from the time that the deed was executed to the plaintiff and before the commencement of this suit.

It is claimed by the plaintiff that his cause of action did not accrue until the deed was executed to him by the auditor; and that therefore his claim had not been barred at the time of the commencement of this action.

It is claimed by the defendants, through their counsel, that the statute of limitations began to run against the plaintiff at the time he or his predecessor might have had the deed executed by the auditor to wit, two years after the sale, which would be January 9, 1862; and that the statute of limitations began to run upon that day, or the next day, although no deed was in fact executed until twenty years later; and therefore it is claimed that at the time this action was commenced in June, 1903, the statute of limitations had been running over forty years, and that as a consequence of that, the plaintiff’s claim was barred.

' The plaintiff in error cites the case of State v. Godfrey, 62 Ohio St. 18 [56 N. E. Rep. 482], to sustain his claim that the cause of action did not accrue until the deed was executed. The first paragraph of the syllabus is

“A sale of land at a delinquent tax sale does not vest in the holder of a certificate of purchase at such sale, the title to the property so sold; but the holder of such certificate acquires a right to be invested with the title to such land at the expiration of two years from the sale, if not redeemed. ’ ’

And it is clear, as stated in this decision of the Supreme Court that the legal title to the property does not vest in the purchaser until the deed is in fact executed. /

But the plaintiff could not, by his own act, put off the running of the statute of limitations for this long length of time, or indefinitely, by neglecting to go to the county auditor and request that a deed be executed to him, which he had the right to do two years after the date of the sale, and authorities are cited by the defendants in error which sustain that proposition, especially some Iowa cases. The case of LaRue v. King, 74 Iowa 288 [37 N. W. Rep. 374], is one of them, and in, the second paragraph of the syllabus this is found:

“The statute of limitations begins to run against a purchaser at a. tax sale at the time he might obtain a deed; i. e., three years after the date of sale; and after five years from the time it begins to run, not only is the tax title extinguished, but all rights which are depending upon it.”

The case of Hintrager v. Hennessy, 46 Iowa 600 is in point:

“An action by the purchaser at tax sale to recover possession of the property sold for delinquent taxes is barred after the expiration of five years from the time he is entitled to a deed.”

The court say on page 602 of the opinion:

“We have no hesitation in holding that as to the purchaser the sale becomes complete whenever his right to a deed becomes perfect, and that the statute as to him began to run at that time, if not before. In other words, he cannot by his own act or laches, prevent the running of the statute. It would be unjust or unreasonable to hold otherwise, for if the purchaser may delay taking a deed for five years why not for ten, or such other period of time when he feels satisfied the owner could not, owing to the lapse of time, death of witnesses, or destruction of records prove the sale fraudulent or void.”

The contention of the defendant in error is correct; the statute of limitations did begin to run against the purchaser of this property at tax sale on the day that he was entitled to present his certificate and have executed to him a deed, to wit, on January 9, 1862. He could not by his own act or failure or neglect to present his certificate postpone for twenty years the running of the statute. If he might postpone it for twenty years, he could for thirty years or for forty. On the day that he became entitled to have the deed executed to him, when he was by law entitled to have the legal title vested in him, so-far as it affects the statute of limitations, it must be held that he then became the owner of the property and that his cause of action then accrued. We think that this is sustained by the authorities generally. The case of Palmer v. Palmer, 36 Mich. 487 [24 Am. Rep. 605] is in point. The court say in the last paragraph of the syllabus:

“Whatever may have been the prejudice formerly against statutes of limitations, they are now regarded as just and entitled to be fairly construed; and the cause of action should be held to accrue for the purpose of setting the statute in motion, at least where no delay is contemplated, as soon as the creditor by his own act and in spite of the debtor can make the demand payable.”

On page 494 of the opinion, the court says:

“We cannot but think this to be sound doctrine; whatever may have been the ancient prejudice against statutes of limitation they are now regarded as just and entitled to be fairly construed. If a creditor has the mean's at all times of making his cause of action perfect, it would be unjust and oppressive to hold that he could postpone indefinitely the time for enforcing his claim by failing to present it. He is really and in fact, able at any time to bring an action, when he -can by his own act fix the time of payment. It is no stretch of language to hold that a cause of action accrues for the purpose of setting the statute in motion as soon as the creditor by his own act, and in spite of the debtor, can make the demand payable. It may be otherwise, possibly, where delay is contemplated by the express terms of the contract, and where a speedy demand would manifestly violate its intent. But where no delay is contemplated the rule is just and reasonable; and the presentment should be reasonably prompt, or the creditor should be subjected to the operation of the statute.”

In the case at bar, the plaintiff or his predecessor, at any time after January 9, 1862, could have demanded of the auditor the deed to which he was entitled, and have invested himself with the legal title to this property. Parties saw fit not to ask for this deed for some reason, for more than eighteen years after they were entitled to it, and we think the case comes within the rule of law laid down in this Michigan case, that at the time when a party could by his own act have perfected his title, it must be held that then the statute of limitations commenced to run. The record does not show what the fact is, but it might be, for aught that appears here, that these defendants or their predecessors have put valuable improvements upon this property; they have occupied it, — the defendants and their predecessors — for over forty years, the plaintiff and his predecessors standing by during all that time, bringing no action to oust them from possession. I say, they may have put valuable buildings, or other valuable improvements fipon the land, and it would seem a hard rule that after this long lapse of- time, the plaintiff waiting these many years before procuring his deed that he might eject the defendants from their possession at the end of forty years.

In 19 Am. & Eng. Enc. Law (2 ed.) 193 and 194, this is stated as the general rule:

‘ ‘ Where, however, it is the right or duty of the claimant to comply with certain conditions in order to render his right of action absolute, or where the performance of the condition is within his power, such performance must be accomplished within a reasonable time, and the statute will begin to run, not from the time of actual performance, but from the time when it was reasonably practicable.”

A large number of authorities are cited to sustain the proposition that the statute will begin to run, not from the time of the actual performance of this condition, but from the time when it was reasonably practicable; and the time in this case was, of course, when parties might have demanded this deed. There is nothing to excuse the delay. If the record disclosed anything that prevented delivery, a different question might arise; but nothing of that kind appears; and in the absence of anything of that bind, the statute of limitations, in our judgment, would begin to run, on the day that the right accrued to demand the deed. It seems to us that this is the only fair and just rule. Statutes of limitations were anciently held in disfavor somewhat by the courts; but this is no longer true and are now regarded rather as statutes of repose; and where a case comes fairly within the limitation laid down by the statute, it should be enforced by the courts. Such statutes are for the purpose of cutting off stale claims and preventing parties from standing by for forty or fifty years and then undertaking to assert their claims, after it has become impossible on account of the death of witnesses or for other cause to make a defense.

In our judgment therefore, this claim was barred by the statute of limitations at the time of the commencement of this action.

We are of the opinion further that the plaintiff was not entitled to recover in this ease for another reason. The finding of facts shows the date of the sale and the day that the certificate was presented to the auditor and the deed delivered, but there is no finding and no evidence as to the preliminary steps required by the statute before the sale for delinquent taxes could be legally made. The introduction of the tax deed itself under Lan. R. L. 4337 (R. S. 2877) does not make a prima facie case, and is not sufficient to establish a good title in the plaintiff. The statute is as follows:

‘ ‘ The deed so made by the auditor shall vest in the grantee, his, or their heirs and assigns a good and valid title both in law and in equity, and shall be received in all courts as prima facie evidence of a good and valid title in said grantee, his heirs and assigns.”

In onr judgment a deed executed under this statute does not make a prima facie showing of a good and valid title, unless it is also shown that the proceedings prior to that time on the part of the auditor and treasurer have been regular and in conformity with the statutes governing tax sales; and that therefore, there being no showing made in this ease as to the regularity of the proceedings no title was proven, not even a prima facie showing of title in the plaintiff was made in the case. In the case of forfeited lands for nonpayment of taxes where they have been sold at treasurer’s sale the language of the statute is different, and there the deed itself makes a prima facie case. The statute Lan. R. L. 4337 (R. S. 2877) says: “The deed so made by the auditor shall vest in the grantee,” etc., and it has been held by the Supreme Court that the phrase, “so made,” is to he interpreted as made according to the provisions of the preceding section, governing the sale of land for taxes and providing in what cases the auditor shall have the power and authority to make a deed, and what steps must be taken before he has the authority to make a deed to a purchaser at tax sale, etc.

In the case of Jones v. Devore, 8 Ohio St. 430 the Supreme Court in the syllabus say:

“A valid sale and conveyance of lands by the county auditor for the nonpayment of taxes, bars all pre-existing rights of dower, inchoate or perfect.
“Section 39 of the act of March 23, 1840 (38 O. L. 77), ‘prescribing the duties of county auditors’ does not make the deed of the county auditor prima facie evidence of a valid title, unless it be shown to have been made in pursuance of authority given by law. Lessee of Carlisle v. Longworfh, 5 Ohio 369, followed.”

The court say on page 432 (in this case the tax sale was set up in the answer) :

“No state of facts is averred in the pleading which would authorize the county auditor to sell and convey the premises. It is not alleged that a tax was legally assessed upon the premises, that a delinquency occurred in the payment of taxes, or that notice of the sale was given by advertisement. ’ ’

And that is true of the case at bar; no allegations of that kind appear in the petition and no statement of that kind appears in the statément of facts. The court proceeds:

“In short, neither the authority of the officer, nor the acts done under it, are shown; and courts will not raise a presumption in behalf of an officer intrusted with the power to sell and for the nonpayment of taxes, to cover any radical defect in his proceedings.”

Farther along in the opinion on this subject the court cited with approval the case of Carlisle v. Longworth, 5 Ohio 368, 369, and say:

“Where it was held, that a deed from the county auditor, for lands-, sold for taxes, cannot be received in evidence without transcripts of the various records of the proceedings upon which the sale was founded.
“The act of 1825, to which, in this case, the court gave a construction,, after specifying the preliminary proceedings which should authorize the making of a deed, proceeded, in Sec. 9, to declare the effect of the-deed so made, in the following terms. ‘The deed made by the county auditor as hereinbefore specified, shall be received in.all the courts as prima facie evidence of a good and valid title in the purchaser, ’ etc. In regard to the effect of this section, the court said: ‘The legislature does not say that a deed made by the county auditor shall be received as prima facie evidence of a good and valid title, but, ‘the deed,’ ‘as hereinbefore specified. ’ In other words the deed made by the auditor in pursuance of this act. This is the manifest intention.”

On page 434 in discussing this act, the act as it was when this decision was rendered and as it is now, the court say:

“But, it is probable from an auditor’s deed which we find among the papers of the case (and which bears date May 12, 1851, and purports to be founded on a sale made on account of the taxes of 1841 and 1842), that the defendant’s .title was acquired under the act of 1840.” Our act as it is now:
“So far as the effect of the auditor’s deed is concerned,- the terms of this act are quite similar to those of the act of 1825. The act of 1840, ‘prescribing the duties of county auditors,’ (Swan, new ed., 62), after specifying the preliminary acts to be done, and how, when, and under what circumstances the deed shall be made by the auditor, thus declares, the deed.”

The court then quotes the statute and continues:

“Here it is apparent that the deed which is to be ‘received in all cases as prima facie evidence of a good and valid title’ is one which shall vest in the grantee, his or her heirs or assigns, a good and valid title, both in law and equity. It could not have been intended to give such effect to a deed made by a county auditor without -authority. The language is, ‘the deed so made by the auditor, shall vest,’ etc. The adverb-‘so’ in this connection, can only mean ‘as hereinbefore specified’ which was the exact language of thé act of 1825. The construction which was. given to this latter act in 1832, was known to the legislature of 1840, and it is to be presumed that that body, in using'terms of precisely the same-import, intended them to receive a similar construction. We hold, therefore, that by the act of 1840, the deed of the county auditor neither vests a good and valid title in the grantee, nor is it prima facie evidence of such valid title, unless it be shown to have been made in pursuance of authority given by law. And as the answer in this case does not state facts sufficient to show such authority, the plaintiff’s demurrer must be sustained. ’ ’

In 35 Ohio State Reports are three cases bearing upon the question. In Rhodes v. Gunn, 35 Ohio St. 387 the court say in the syllabus, fourth paragraph:

“A tax deed executed under the act of March 23, 1840 (1 Curwen 630), is not, without other evidence than the deed itself, prima facie evidence of the validity of the tax sale; nor will the destruction of the records in the office of the county auditor relating to such sale warrant the presumption of its validity.”

On page 395 of the opinion, the court cite with approval Jones v. Devore, 8 Ohio St. 430 and say:

‘ ‘ That a tax deed executed under the act . in question is not, of itself, prima facie evidence of the validity of the sale, was decided in Jones v. Devore, 8 Ohio St. 430.”

Speaking of the case then under consideration, the court says a little farther along on the same page:

“No evidence was given to show a compliance with these provisions of the statute. The destruction of the records in the office of the comity auditor did not destroy the evidence to be found in the office of the auditor of state, and in the newspaper in which the delinquent list and notice were published, if such publication was made. . Nor was it shown that such evidence was not attainable.”

This was a holding in short that it was necessary, notwithstanding the deed to show that the preliminary steps had been regular and according to law. We do not think that Lan. R. L. 4340 (R. S. 2880), which was referred to by counsel in their brief applies to this question. That provides in case the title is defective the purchaser shall not lose what he has paid out at the tax sale, but shall have his purchase money back, with interest and penalty. But in this case there is no evidence as to the amount of the purchase price and in fact, no relief is asked along that line, no equitable relief is asked and by the judgment of the court below the title of the defendants was quieted as against the plaintiff, as we observe from the decree.

We think that under these authorities it is clear that a deed executed under Lan. R. L. 4337 (R. S. 2877) does not make a prima facie case of title, as the Supreme Court say, it is only the deed “so made,” to wit, the deed made according to the provisions of the preceding section. A showing must be made that the taxes assessed were properly assessed and properly advertised for sale; that they were sold according to law that all of the other steps were taken necessary to make a valid sale. No showing of that kind whatever was made in this ease, but simply the fact that the deed was delivered to the plaintiff. The record does not show title to the property in the plaintiff. And for this reason, as well as that the action is barred by the statute of limitations, the judgment of the court of common pleas against the plaintiff and in favor of the defendants was correct, and will be affirmed,

Parker and Haynes, JJ., concur.