text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    WM. HOLLRAH v. HERMAN LASANCE et al.

      Lost or spoliated will — Admission to probate — Error from, probate court will not lie—
    A petition in error will not lie to reverse the judgment of the probate court admitting to probate and record a will lost or spoliated subsequent to the death of the testator, on the ground that the evidence did not justify such judgment.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

In the argument of this motion, counsel have fully presented the question, which is the real one in the case, whether, when an application is made in the probate court under the provisions of section 5944 to admit to record a lost will, executed according to law and not revoked at the death of the testator, when the same has been lost, spoliated or destroyed subsequent to the death of the testator, and such will has by such court been admitted to probate and record, a petition in error can legally be prosecuted in the court of common pleas to reverse such order er judgment.

Such proceedings and order were had and made by the ■probate court of this county to an alleged lost will of oneF. A. Lasance, and a petition in error to reverse such order, ■on the ground that the evidence taken did not justify it, was filed in the court of common pleas by one of the heirs at law. A motion was then filed to dismiss the same on the .ground that the court of common pleas had no jurisdiction in the case, but this motion was overruled by the court, and •on hearing, the judgment of the probate court was affirmed ■at the costs of the plaintiff in error. Thereupon a petition in error was filed in this court to reverse both judgments, ■and it is this last petition in error to which the motion applies.

Section 5948, Revised Statutes, provides ■ among other 'things, “that such .wills, ”(so admitted to probate), “shall, in all respects, be governed by the laws in force relating not only to the contest of the same, but in all other matters.”

Under this section, and the decision of the supreme court in Mosier v. Harmon, 29 Ohio St., 220, it would seem that ■where the lost will is admitted to probate by the probate •court, the contention of the counsel for the defendant in ■error that a petition in error to review such order on the ■ground that it was not justified by the evidence will not lie, is well founded. The syllabus of that case is as follows:

“1. Where a will,executed in due form, is probated and admitted to record on an application within the jurisdiction of the court, error will not lie to review the testimony upon which the order to probate was made,
“2. The mode of contesting the validity of a will thus admitted to probate, as provided by section 24 of the probate act, and section 19 of the wills act, is exclusive.”

If therefore this decision of the supreme court is still the law of the state, it would seem to be conclusive against the right of the plaintiff in error to have set aside the order of probate by a proceeding like this; seeking its reversal on the ground that it was not justified by the evidence.

It is claimed, however, by the counsel for plaintiff in error that there are other decisions of the same court which modify the decision in 29 Ohio St., and which show his right to prosecute error in this way,and he refers to 26 Ohio St., 541, and 56 Ohio St., 405. In the first of these two cases, it was held that where application under this same statute is made to admit a lost will to record, it is- necessary to give the notice required by the statute, and if it is not done, that petition in error to reverse the order admitting it to probate will lie. This, in our judgment, does not conflict with the case in 29 Ohio St. No notice having been given, the probate court for this reason had no jurisdiction to make the order complained of, and in that case error would lie to review the judgment on this ground.

The case in 56 Ohio St., 405, holds that an application to admit a will to record is a special "proceeding, within the meaning of section 6707, which provides that an order affecting a substantial right made in a special ([proceeding is a final order which may be vacated, modified or reversed as provided in Title 4, Revised Statutes; and that if on appeal to the court of common pleas from an order refusing to admit such will to record(which is allowed^by section 5934, Revised Statutes), that court makes a like order, the proponent can not again propoundrthe [alleged will for probate, but such order may be reviewed in the circuit court on the evidence.

This decision evidently proceeds upon] the idea^that the prosecution of error is the only modejfof relief for the party propounding the will, when his application to have it probated is refused. There is no statement anywhere in the decision that when the probate is allowed, the[[party objecting may appeal or prosecute error. On the contrary, the court, in commenting on the case in 29 Ohio St., 220, approves it. It is there said:

Geo. W. Hengst, for Plaintiff in Error.

O. F. Dwyer/and A. M. Warner, for the Defendants in Error. ,

“The will of the testator had been admitted to probate by the probate court. Many years after, an heir who at the time the will was probated was an infant, having reached majority, commenced an error proceeding to reverse the holding admitting the will. It was held that the statute having provided a method of testing the validity of a probated will by a direct proceeding in the court of common pleas, and having equitably preserved the rights of persons under disability, public policy required that that method should be pursued or the right barred. The case determines what remedy may be resorted to by one feeling aggrieved because of the order admitting the will to probate; it does not determine, nor attempt to determine, what remedy is open to one who is aggrieved by an order refusing to admit to probate. The decision seems a wise one, but we do not think it rules the case at bar.”

We are of the opinion, then, that the court of common pleas erred in not dismissing the petition in error and in rendering a judgment against the plaintiff in error for costs.

The plaintiff in error had the right to prosecute error in this court to reverse the judgment for costs, as the court of common pleas had no jurisdiction of the action.

The motion to dismiss this petition in error will be overruled and the judgment of the common pleas will be reversed and the case remanded to that court, with instructions to strike the petition in error from the files for want of jurisdiction thereof.


source: Caselaw Access Project

author: Norris, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Day, Price and Norris, JJ.,
    (Of the Third Circuit, sitting in the First Circuit.)
    THE MAIN STREET BUILDING & LOAN CO. v. RICHTER, et al.

      Building association — Settlement of borrowing member with association does not relieve him from liability to creditors—
    1. While a borrowing or a depositing member of a building and loan company, may make any reasonable compromise as to his liability, either as a borrower or as a subscriber to the stock of the company, 85 Ohio St., 258, 47 Ohio St., 250, — yet this right, as declared by the courts, does not contemplate that he may avail himself of that which would be gross inequity or fraud upon the other shareholders.
    2. The proper basis of assessment upon the stock of an insolvent Building & Loan Company to pay its debts, both in the case of borrowing and non-borrowing members, is dues and earnings which should stand to the credit of his stock.
   Norris, J.

The defendant in error, Richter, filed his petition in the common pleas court of this county, against the Main Street Building and Loan Company of this city and others, alleging that he is a member of said company owning shares of its capital stock, and asserting facts which disclosed the insolvency of that institution, and averring such further condition and- asking for such relief, as warranted that court in placing the company in the hands of a receiver for the purpose of collecting its assets, paying its indebtedness, and to take such other steps as will enable that court to do that which shall seem necessary and proper to the interests of the members of the association and others concerned, with a view to ultimate dissolution of the corporation.

The court did appoint a receiver of this company, and the receiver, under the court’s instruction, is in process of winding up its affairs. When it comes to realizing the assets of the company and to the payment of its debs, the fact is present that a full discharge of its liabilities necessitates the assessment of its shareholders to a very large amount, determined by the receiver to be a sum equal to 70 cents for each dollar standing to the credit of every member of the company, whether a borrower or depositor.

In distributing the amount to be assessed upon the shareholders, the court, in adjusting the liability of those who had borrowed money from the company, and those who were depositors only, finds (and I quote Uom the finding): “that in pursuance of article 13 of the constitution of said corporation, said company made annual settlement with its borrowing members, crediting the principal of the loan with the amount of dues paid during the current year; and thereafter charging interest only upon the balance of the principal unpaid; and in distributing their dividends semi-annually, gave each borrowing member dividends, only upon dues paid in during the current year; and not al lowing dividends upon any money paid by way of dues, on account of principal prior to the current year in which the dividend was declared. And at the same time gave to depositing members dividends upon the entire amount paid in by them and standing to their credit upon the books of the corporation at the time of declaring the dividend.”

Upon what they are pleased to term the limitation of article 13 of the constitution of this company, certain borrowing members, in ascertaining the amount necessary to cancel their mortgages, assert that their liability in assessment can be extended no further than upon the amount which thus stands to their credit upon the books of the company. That their liability to contribute, is measured by their right to share in the profits of the concern, and that, hence, they can be assessed for losses no further than the amount standing to theii credit in the current year which witnesses the assessment. That all else by them paid as dues, having gone to liquidate their debt to the company, is, under article 13, a tale that is told; leaving the burden of paying the losses and expenses upon the depositor who owes no debt to the company, and whose money the mortgagee has borrowed, and whose dues and accretions appear to his credit upon the corporation books.

The common pleas in determining the method of assessment coincides with this view, and so upon this basis fixe® the amount to be paid by each member, and orders the assessment to be thus made.

There is no complaint as to the finding of facts upon> which the conclusions that led to this assessment are based; but the plaintiff in error, the Main Street Loan and Building Company,prosecutes error to this judgment of the common pleas, and assigns as its ground of error, that the findings of fact do not warrant the conclusions of law, nor the judgment rendered by the court.

A corporation of this character has such power conferred by law as will enable.it to carry out the purposes of its= organization, and its members may adopt a constitution,and its directors may enact by-laws for the proper exercise of the powers granted to it, and to properly conduct and manage its affairs. The essential purpose of this kind of a corporation is to raise money to be loaned among its members. As with all others who incur liability, its chiefest duty is to pay its debts. A member of an organization of this kind does not cease to be a member when he takes a loan from the association, and is not excused from liability by becoming a borrower. Though a borrower, he is still a shareholder. He has such voice in directing the policy of its management as his holdings give a member, He may vote for its directors, he may offer and vote upon amendments to its constitution, and may exercise all the privileges which a non-borrower, whose dues are fully paid, may exercise. He is a part owner of the reserve fund, if the institution has a reserve fund. And this he does under article 13, though he has not a cent in the concern, though his stock is made worthless from the fact that all his dues are absorbed by his loan, and he stands in relation to the other members, only as one who has their money in his pocket; yet his stock is uncancelled, and he is still a member. To be sure he has agreed to pay back the loan, which is the usual condition between debtors and creditors. One of the things the shareholder agrees to do is to help to pay the debts of the company ' arising while he is a member of the company. When he becomes a borrower, his only further agreement is to pay his own debt in the manner determined by the rules of the association. It is true that a borrower, or a non-borrower, may make any reasonable compromise as to hie liability, either as a borrower or as a subscriber to the stock of the corporation; but this right, as declared by the courts in 35 Ohio St. 258, and 47 Ohio St. 250,and elsewhere, does not contemplate that he may avail himself of that which would be a fraud upon his co-members, and surely the opportunity which this article 13 offers to the borrower, as construed by the court, to escape all liability for debts of the company incurred during his membership, would be, and is not only a gross inequality, but a downright fraud on the other shareholders; and for this reason is in the face of the law which creates the corporation, and the purposes for which the company is organized.

Under article 13 of the constitution of this corporation the company makes settlement with its borrowing members, crediting the loan with the dues of the current year and the dividend upon the dues of the current year. In other words, the dues of the current year paid by borrowers, and the dividends thereon, were divided each year among and paid to the borrowers as their respective credits appeared to warrant.

Section 3836-6 of the Revised Statutes,' determines what part of the assets of the company may be divided and paid out to the stockholders. Only the residue of earnings over and above that part reserved for payment of contingent losses may be thus paid. Nowhere in the act regulating institutions of this character, is it contemplated that the dues paid on stock are to be divided among the members, as provided in article 13 of the constitution of this company. So that we conclude that article 13, as it thus provides, is inimical to the law of this state governing building and loan associations of the nature of this company; and hence, that its provisions cut no figure when it comes to assessing stockholders for the payment of the debts of the corporation. Assessment on the stock of a member to pay debts, should be in proportion to the value of his interest in the property of the corporation; the dividend-bearing assets of the concern. Dividends themselves are not such property. Dividends, when declared to the members respectively, are to be by each received, either in cash, or turned into the company to be credited upon the stock, or if a borrower, upon his loan; so that, whatever may be done with his dividends by a member, dividends would not appear to enter into the basis of an assessment; for when once declared,they are not, in character, an interest in the corporation property until credited upon the stock and thus becoming a part of the profit-bearing assets of the corporation. So that in this corporation, the only proper basis of assessment would seem to be, the amount which should be credited to stock — the amount of dues standing to the credit of each member, or which should stand to his credit when paid; that is to say, the dues which he has paid or owes to the corporation, together with the earnings credited to his stock. And this, so far as it concerns dues, applies as well to the borrowei who has-participated in the profits of the concern and received his dividends, either in the ordinary way, or by being excused each year from paying interest on a part of his loan equal in amount to all of his dues, as to the non-borrower, the lender, who receives dividends on all of his dues, each year; of course, the earnings of the non-borrower’s stock being credited upon his loan, is not the subject of assessment.

M. F. Galvin, and J. B. Bower, for Plaintiff.

Wilson & Herrlinger, for Defendant.

We consider, therefore, that the proper basis of assessment, both in the case of borrower and non-borrower, is dues and earnings which should stand to the credit of his stock, and find that the court was in error in fixing the assessment upon a different basis; and for this reason the case is reversed at the costs of the defendant in error, and the judgment and order of the common pleas is set aside. And this court rendering' the judgment which the trial court should have rendered, finds for the plaintiff in error, and orders the receiver to make an assessment of 70 per cent upon the basis here determined.


author: Caldwell, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1893.)

    Before Caldwell, Marvin and Burrows, JJ.
    (Sitting in the First Circuit.)
    ETTA C. COATES et al. v. THE VILLAGE OF NORWOOD.
    A village in Hamilton county in passing an ordinance to widen a street, proceeding under section 2271, R. S., provided that the expense of the improvement should be assessed by the front foot on the abutting lots and lands to the depth of 150 feet. It ap- • peared that some lots to the said depth belonged to different owners, being divided in such a way that some parts of such lots within the 150 feet in depth belonging to different owners were not abutting on the improvement at all.

      Held, that the council had a right to determine the depth to which all abutting land should be assessed for the improvement, and that all the land within the distriit thus established was liable to the assessment whether it abutted on the improvement or not.
   Caldwell, J.

The village of Norwood instituted proceedings to straighten and widen Highland avenue of that village. It became necessary to take certain property in order to widen and straighten the avenue, and certain property was to be condemned, and the city undertook to proceed under section 2271, which is applicable to Cincinnati, and which section requires the assessment to be made by the foot front on abutting lots or lands to the ordinary depth of lots in the vicinity, and allows the city council to include, with qther damages,the costs and expenses of making the appropriation,

The land was laid out in the immediate vicinity of this avenue in such a manner that when the council declared to the extended depth, to that of 150 feet, it included several parcels of property that did not abut on the improvement, but lay back of it. For example, some of these were where lots were made to front on streets that crossed Highland avenue, and had a frontage on the street that crossed Highland avenue, and yet lay within the 150 feet which was designated as the depth of the taxing district.

This action is brought claiming there are defects in the proceedings of the village that render the whole proceeding null and void, and claiming also, that by reason of the fact that there were many pieces of property in the taxing district that did not abut the street, that the mode of taxing was not applicable to the case in hand, but that some other mode should have been resorted to.

Now, the first objection argued to us, is, that the ordinance declaring the assessing district and the property to be appropriated, is not such as to include lots that did not abut upon the improvement; and the second point raised is, that the assessing ordinance does not conform to the appropriation ordinance in this regard, that the assessing ordinance undertakes to assess property that does not abut upon the improvement, while the appropriation ordinance did not include such property; and the first objection is, that the assessing ordinance was not followed up. That the plan of the assessment by the foot front was not followed, but that there are some fifty pieces, or fifty different standards of payment within the assessing district. Some parcels pay a certain amount, while other parcels pay a less amount, and still other parcels a still less amount, and that the city council got away entirely from the plan it adopted of assessing by the foot front at a uniform rate wherever the lots abutted upon the improvement or upon the property that was taken. Then it is claimed that there was certain property known as the Wooley property that had a street through it, and that the village assessed the property, the Wooley property, as though it was not divided by a street, as though it was not in parcels, but as a whole, and that the property even covered by the street was assessed as a part of the Wooley property. Then the question is made as to the charges that were made as a part of the expenses. Expert witnesses testify as to the values of these different properties that were being appropriated, and the expense of the attorney who attended to the matter for the village, and various other matters, and then there are certain irregularities in charging. These irregularities consisted in this: that where there were two pieces in certain places along this improvement that constituted the 150 feet in depth but belonging to different persons, both pieces are assessed against one, and that the evidence in this case does not show separately and distinctly the two pieces by boundaries by which they can now be by us separated so as to put the tax that is against one person,though upon the property as a whole, against the two owners, giving to each the payment of that which belongs to each one to pay.

These cover the objections to this proceeding on the part of the plaintiffs, and I think are about all that were argued to us, and all I find in the brief filed in the case.

Now, as to the section of the statutes, 2271, under which this proceeding took place. It is said by the attorneys on both sides,that this is the statute that is made applicable by the legislature to a proceeding of this kind in this county, and there is no objection to the village proceeding under this statute, except this, that it is claimed, that on account of the facts existing in the case as to-the property,that the statute can not be adapted to this case, and therefore can not be used; but the village should have resorted to some other provision in the statutes for making this improvement.

This statute provides that the council, in passing the ordinance appropriating the property, shall indicate what property shall be assessed, The council undertook to do this by indicating that all property abutting upon the improvement should be assessed, and it is claimed that it indicated that any other property lying within the 150 feet that did not actually abut, should be assessed, and it is claimed on behalf of the parties who bring this action, the plaintiffs, that the ordinance does not cover such property as does not abut, and yet lies within the 150 feet. We think that that objection to the proceeding of the council is not well taken, and I will consider that in connection with some of the other objections.

The statute clearly, and the parties agree to this, includes within it, property that lies within the 150 feet of the improvement, and yet dees not abut upon it, and that is a correct construction of the statute. It does include such. In determining, therefore, what lands shall be assessed by the council, we think that the council framed its ordinance in such a way, although not very clearly, that the owners of property lying within the 150 feet would understand that their property was to be assessed for the improvement, whether it abutted or did not abut upon the improvement.

As to the question in connection with this — and what I say upon this bears upon the question I have just noticed, as to the question of different values, and getting away from the idea of assessing by the foot front, that arises largely in this way: A. owns a little strip of land, 50 or 75 feet, we will say — a little strip of land that actually abuts upon the improvment, and is only twenty feet deep. B. owns a parcel of land lying right in the rear of that, which is 50 feet wdde and 75 feet long, so that it has the same frontage towards the improvement that the piece that lies in front of it has, and C. owns the land in the rear of these two pieces, extending from those pieces to the depth of the taxing district, 150 feet. Now, how are those parties to pay? There are three parcels 75 feet wide that constitute the 150 feet deep. Now, when it comes to forming the assessing district, those three parcels will be considered by the council as one parcel, abutting 75 feet upon the improvement and extending back 150 feet. They may belong to one owner — that would make it a very clear case. They may belong to three different owners' — -that is not so clear; but the assessment now is upon the 75 feet front by the foot front, and 150 feet deep as though it were owned by one individual, and yet, when they come to pass the assessing ordinance, the amount that that land 75 feet abutting and 150 feet deep is to pay, is then assessed to three different owners, and it is assessed in what manner? Now, if one person had owned that property, there would have been an assessment upon it by the foot front, 75 feet, and whatever each foot had to pay would be paid by each foot of the 75; but it is not the foot front that lies next to the improvement that pays the money, it is all the land of the party that lies within the assessing district, so that it is the 75 feet and the 150 feet deep. You find the area of that, and every foot of that area pays an equal amount towards the improvement. Now if that is true as to a single owner, and it certainly must be true under the provisions of this statute, otherwise, if it is not true, then only the actual land that abuts, which may be an inch or half an inch or a foot, does the paying. If it is not true,as I have stated,then that is the only land that pays anything. But that is not the case. It is all the land lying within the assessing district, and every square foot of that land, pays equally. Now, that being true, when you come then to the three persons owning this land that abuts 75 feet and 150 feet deep, then that is to be pro-rated among those three owners.' The amount that one man alone would have paid had be owned the whole of it,is to be prorated among those owners according to the number of square feet that each one owns. That being true, the only way to determine how much each one of those three owners must pay, is to find the number of square feet in the whole tract of 75 by 150, and the proportion of that that each one owns, indicates the proportion of the assessment that he is to pay, Now, taking this theory of the case, these parcels do not pay differently from others as I have stated already.

The council in determining this matter, when it maps out its assessing district, does not take into consideration that three persons own that; but they proce.ed in making out the assessment as though one person owned the whole of it. Then, when they come to pass the ordinance for assessing, they divide that according to the land that each one owns. This being true, the objection now that different persons pay does not vary the rule of assessing by the foot front, nor does it in any manner change it, because after all, when you assess by the foot front, foot front means that every foot lying or abutting and running back 150 feet, and that every foot of that is to pay equally, so that we see nothing irregular or nothing illegal in the proceedings taken by the council in regard to these parcels of land that lie in and not abutting against the improvement, and in the rear within the assessing district of land that does abut.

Now, as to the Wooley property. There was evidence offered in the case that the street that was put through the Wooley property, and the street itself being included in the Wooley property, there was evidence that that street was put through after these proceedings were commenced. That is the evidence of the village engineer, and that when the appropriation ordinance was passed, and perhaps, I am not clear about that, after the assessing ordinance was passed, this street had not then been constituted a legal street. That being true, there is nothing irregular about that, There is nothing illegal about it I mean to say, such as would destroy entirely the proceedings of the council up to that point; but this street being put through after-wards, nothing more could be accomplished than to have it made exempt now from the taxation that is placed upon it, nor is it therefore irregular to assess the Wooley property all in one tract instead of separating it by reason of the local surface,or by streets or any other objects being placed through it.

Now, as to the expenses. The evidence in this case, we think, shows clearly that no illegal expenses or no overcharges have taken place in this case, but the proceedings are regular, and the charges are proper, and such as may be included under the statute in this sort of proceeding.

There are certain irregularities in this case. For instance, the property belonging to two different persons is assessed in the assessing ordinance against one person. This error does not reach back beyond the assessing ordinance. The council undertook to make out in its assessing ordinance the exact amount that each man should pay on his land, and that included against A., not only his lands, but the land of B.. lying in the rear of it, and within the assessing district. This being true, th9 testimony of the engineer is such that he says that it can easily now be separated by scaling the chart that was placed before us. He says he can deterrriine the exact amount of land belonging to A., and the exact amount belonging to B. That being the evidence, it is an error simply creeping into the assessing ordinance that does not affect at all the appropriation ordinance, nor does it go to the merits of the case, and is a mere irregularity that may be corrected in the assessing ordinance.

Then it is claimed that certain property is assessed in the name of one person while another owned it at the time, and the assessment should have been in the name of the real owner. That is admitted on behalf of counsel for the village, and what I have stated in regard to the other case is applicable to this. It can be corrected.

We find, therefore, no error on the part of the proceedings of the village council in making this improvement.

Of course, in levying taxes, whether it is for a special improvement, or whether it is state or county taxes, exact equality is impossible, and we believe, that so far as any defects in this proceeding are pointed out, the village has been in its proceedings as exact as any such proceedings ever are or very well can be, and we find nothing in it that should defeat the proceedings of the council up to this time.

A decree, therefore, will be rendered in this court for the village, requiring the village to make the corrections that I have pointed out which are better known to the attorneys than to myself. I have only mentioned two of them. There may be others of the same character, and after being thus corrected, the assessing ordinance with all the proceedings of the council will be affirmed by this court, and the petition of the plaintiffs will be dismissed.

Oliver B. Jones, for Plaintiffs.

Wm. E, Bundy, Village Solicitor, for Defendants.


text:
    (Third Circuit — Hancock Co., O., Circuit Court
    May Term, 1898.)
    Before Day, Price and Norris, JJ.
    THE LAKE ERIE AND WESTERN RAILROAD COMPANY v. PATRICK MULCAHY.

      Negligence — Pleading—Petition setting up two causes of actionable negligence — Evidence sustaining one sufficient—
    1. Where, in an action to recover for personal injury caused by the negligence of another, the petition sets up and attributes the injury to more than one negligent act, either of which, independent of and without reference to the other, is such want of care as will sustain an action; and either of which is of such character, as might, if the facts warranted, be the proximate cause of the injury:
    Held, that the allegations of the petition which affirm that both together as one series of facts conspired to the accident, assert nothing repugnant or contradictory; and that with one eliminated from the case by the evidence and the other sustained by the facts, it is not error to proceed to judgment upon the petition as thus supported by the evidence.

      Same — Combined negligence of superior officer and fellow servant—

    1k\Where the jury finds that the injury resulted from the combined negligence of a superior and of a fellow servant of the plaintiff; upon a state of facts which discloses that, without the negligence of the superior, the injury would not have resulted, the general verdict for the plaintiff is not inconsistent with such special finding.

      Expert testimony — How far admissible—

      S. The opinion of a witness, who has had experience in, and is familiar with, the duties of an employment, may be given in evidence, to explain the duties which certain exigencies demand to be performed, when the matter to be decided by the jury involves the duties of that service'; but having done this, the witness may not give his opinion as to what relation the facts he is called upon to recite, bear to the controversy between the parties, and how they affect the issues on trial to the jury; and the admission *of such evidence is error.
    Error to the Court of Common Pleas of Hancock county.
   Norris, J.

The issues upon which this action was tried in the common pleas are to be found in the amendment to the petition filed November 13th, 1897, the answer thereto, and the reply.

The petition, after reciting such facts as are necessary to jurisdiction, alleges that the defendant owned and operated its railroad across West Putnam Street, a public thoroughfare in the city of Findlay, and had, at the time named, across this street its main track and various sidings and switches. That the safety of its employes required that the defendant construct at this point a safe and sufficient street-crossing so as to prevent them from getting their feet caught between the planks of the crossing and the rails of the defendant’s track. That on the 7th of September, 1891, defendant company maintained at said street a crossing so negligently and carelessly made and kept, that a space, of about three inches was left between the rails and the plank, and had carelessly failed to bevel the edges of the plank next to the rail, which was necessary to prevent defendant’s servants who were working about this crossing, from getting caught and held fast in the space so left. The defendant, it is alleged, also negligently allowed one of the planks, to remain in the crossing after it had become defective, and a part of it next to the rail had been split off and removed, thereby enlarging the space next to the rail, and niaking it in such form as to render it yet’ more unsafe, and increasing the liability of those of its servants who were employed about this crossing to become fastened and held until run down by the cars.

Plaintiff says that this crossing remained in this condition for a long period of time next before September 7th, 1891; and that defendant knew, and by the exercise of ordinary care could have known of its defective state, and that plaintiff did not know and had no means of knowing of is dangerous condition. On the 7th of September, 1891, and for a short time before, plaintiff was in the employ of the defendant as a brakeman on one of its freight trains. On this day the north bound freight train on which plaintiff was working, arrived at Putnam Street crossing at about the hour of ten o’clock at night. After the engine, and perhaps three cars of this train had passed the switch near this crossing, the train stopped and the conductor, who was in charge of the train, and under whose orders plaintiff was acting, opened the switch for the purpose of detaching an oil car — one of these three, — ■ and throwing it in upon the siding there; and the plaintiff was ordered by the conductor to uncouple this oil car so as to allow it to be run in upon the side track. In compliance with this order, and using due care for his safety, plaintiff stepped between the cars to puli the pin, and while attempting so to do his foot became fastened in the space between the broken crossing plank and ,the rail, and there he was caught and held; and while thus held,the conductor, who knew, or by reasonable care ought to have known, that plaintiff was there between the cars, wrongfully and carelessly signaled the engineer to kick the car, or move it back by sudden and rapid motion. In obedience to this signal of the conductor, the engineer did kick the car back, and it ran down upon the plaintiff and cut off his right foot and leg, and ran over and crushed his left leg, and inflicted upon him permanent and life long injury. He says that said conductor knew, and by reasonable care ought to have known, that to so cause the cars to be kicked back, without first knowing that plaintiff had come from between them, would necessarily result in his great bodily harm.

Plaintiff did not know, and had no means of knowing, and had no reason to believe that the conductor would cause said cars to be kicked back while he was so between them; and it was dark, and he could not see, and did not know of the defective condition of the crossing; and so be says that his injuries were received without fault upon his part, but wholly by reason of defendant’s negligence in so maintaining and keeping said street crossing; and through the negligence of the conductor in directing said cars to be moved in the manner stated. He alleges that he has been to great expense for nursing and medical attention, has suffered pain, and is permanently crippled, and for all this he seeks to recover.

Defendant in its answer admits that it owns and operates its railroad across Putnam Street in Findlay, and that plaintiff was a brakeman in its employ, and was injured at the time alleged; but it denies that he was injured to the extent claimed, and denies all the other averments of the petition.

It says that upon this occasion of plaintiff’s injury, he gave all the signals that put the train in motion, and that the conductor gave no signals.

It pleads that at the time of this accident, and long before, it had in force, and published, a code of rules to govern the conduct of its servants, including brakemen, switch-men, engineers and conductors, in the handling and management of its trains and locomotives and cars and switches, of which rules plaintiff had full knowledge. That by these rules plaintiff was required to use the utmost caution to avoid injury, especially in going between cars to uncouple them while in motion; that brakemen in that duty were to take ample time,and were not to incur imminent and apparent danger in such employment; and that engineers were bound to note and obey and comply with the signals of brakemen while engaged in this species of service.

As to the crossing, defendant says it was not negligently constructed' and not out of repair as plaintiff alleges; but that it was so constructed and kept and was at the time of this accident in the best condition to afford safety to those who crossed, and to defendant’s servants who might be employed at that place, and to defendant’s trains and those who were passengers upon them. That if there was negligence in and about the uncoupling of this car, it was chargeable to the plaintiff; and that his injury resulted from his own negligence in failing to observe the rules of the defendant which were prescribed for his safety, and with which it was his duty to comply, and that by his own failure he contributed to the accident which caused his injury,

In his reply plaintiff denies these allegations as to the rules of defendant, and says, that if there were such rules as those detailed in the answer, he had no knowledge of them, and no means of knowing them; and that if there were such ruleB defendant, at the time of plaintiff’s injury, by custom of doing its work, and by direction of those in charge of its trains, had habitually disregarded the same; and at the time of this injury it was the common custom of brakemen in its service to uncouple cars by going between the cars while in motion, to perform that duty; and this being done by the consent of, and under the direction of defendant, was an abrogation of its rules pleaded in the answer. The reply denies the other averments of the answer.

The issues thus tendered were submitted to a jury in the trial court, which was, together with its general verdict, requested to find specially upon particular questions of fact, which, at the request of the parties, were referred to the jury for that purpose by ' the trial court. The jury rendered its verdict for the plaintiff for the sum of $15,000, and returned its written findings of fact that had been submitted.

Thereupon the defendant filed its motion for judgment notwithstanding the verdict, and also its motion in arrest of judgment. Both of these motions were overruled, and the defendant then presented to the court its motion for new trial which was not allowed, and judgment was entered upon the verdict.

To reverse these proceedings of the trial court error is here prosecuted.

As reasons for reversal are assigned in the motion for new trial and in the petition in error, the following: — ■

The verdict for damages is for an excessive amount.

The verdict is against the weight of the evidence and contrary to the law of the case.

The court erred in its charge to the jury.

Error in refusing to charge as requested by defendant.

Error in overruling defendafit’s motion for judgment notwithstanding the verdict.

Error in refusing to arrest the judgment on the verdict.

That the facts stated in the petition are not sufficient to sustain the action against the defendant.

That the general verdict is inconsistent with the special findings of fact returned by the jury.

Error in the rejection of evidence offered by the defendant.

Error in admitting evidence offered by the plaintiff,

And, error in overruling defendant’s motion for new trial.

As to the first assignment of error that the damages as computed by the jury are excessive, courts are slow to disturb a verdict upon this ground, in as much as a remittitur would in all cases equalize the amount of recovery to the injury sustained,and without further comment we refuse to consider this as a sufficient reason to reverse this judgment.

The next assignment is, that the verdict is not supported by the weight of the evidence, and is contrary to law.

We do not concede that the record presents to us a case which warrants this criticism. The jury has eliminated one phase of this case, by finding upon certain of the particular questions of fact which were submitted to it, as the defendant claimed the facts to be.

To the question, “Did the plaintiff catch his foot between the crossing plank and the rail?” The jury answers, “No.”

To the question, “Was there a sliver off of a plank in the main line at Putnam Street crossing substantially as described in the petition?” The answer is, “No.”

To the question, “Was the crossing properly constructed? The jury answers, “Yes.”

“Was the main line crossing at Putnam Street so constructed as to be reasonably safe?” The answer to this question is, “Yes.”

“Was this crossing at the time of the injury so kept in repairs as to be reasonably safe?” The jury answers, “Yes.”

So that the claim of the plaintiff that the Putnam Street crossing was carelessly constructed, and heedlessly suffered by defendant to become out of repair, and that owning to this fault of the defendant,'plaintiff’s foot became fastened between a crossing plank and the rail, and that his injury to a degree is traceable to these conditions and caused by this negligence upon defendant's part, are not elements in this case which this court here may consider in review.

It is claimed by the defendant, that with this out of the case, the controversy tendered by the pleadings is practically ended. That the incomplete and unsafe crossing, and plaintiff’s foot fast in the space between the edge of the broken plank and the rail, was the essential condition of plaintiff’s case, and without it he has no case; and even with it, that the facts recited in his petition are too weak to sustain an action. We do not agree with defendant’s counsel in this view, but are of the opinion that while these allegations as to the crosssing, relate to negligence that is attributable, not to the management of a train, but to failure upon defendant’s part to maintain a safe crossing, which of itself, substantive and independent,is negligence, without reference to the conductor; yet this negligence is not of such character as that it might not combine with the alleged negligence of the conductor, so that both would work the injury to plaintiff in the manner claimed by him. While the defective crossing, had the facts so disclosed it, might have been the proximate cause of the injury; or while the negligent act of the conductor if the evidence so revealed it,might have been the proximate cause of the injury; yet the allegations of the petition which affirm that both together, as one series of facts, conspired to the accident,assert nothing repugnant or contradictory. And so we are of the opinion, that with the defective crossing and its consequence, as claimed by the plaintiff, out of the case, the petition still, without inconsistency, declares the conductor guilty of such negligence as will support the action. So, if the defendant is liable at all, it is liable because of the negligence of the conductor, and upon this rests the plaintiff’s action.

Now, how stands the case upon the evidence; and though to a degree conflicting, what conclusions are sustained by it? Going to this record,and giving a summary of the facts as the jury was warranted in finding them.

It is conceded that this plaintiff, Patrick Mulcahy, was at the time of this accident in the employ of the defendant as a brakeman on its freight 'train, and as such employe he was under the control of, and, in the line of his employment, acting under the direction of the conductor who had charge of said train, and who was his superior. It is admitted that while so employed at the time and place stated in the petition, he sustained the injury of which he complains. His limbs on the rails of defendant’s track were crushed by the wheels of defendant’s car. When the accident occurred, he was between defendant’s cars; the purpose of his presence there was to uncouple one car from the other. The occasion of his presence there was the order given hinf by the conductor to perform that service; the necessity of his presence there was, that the work required had to be done there. The act to be performed was in the line of his employment, and one of the ordinary duties which was called for in that service; and it is not disputed that while thus employed,from some cause or other, he was thrown under the wheels and the injury resulted. Now so far there is no room for controversy.

The plaintiff claims that when he went between these cars they were standing still; that he found the ccupling pin fast by reason of the tension of the train; that necessity and his duty required him to give the engineer, whose locomotive was fastened to the cars, the slack signal which is a signal understood by railroad men, in instances of this kind, as a request for just sufficient motion to relieve the strain upon the coupling pin and suffer the same to be removed. He says that immediately following this, the conductor,without warrant or excuse, gave the engineer the kick signal, which indicates that the requirement is, that a sudden and rapid motion be given to the cars. This kick signal the engineer obeyed; the car was put in quick, swift motion, and he was run down and hurt; and all this while the conductor who ordered him to go there knew, or by ordinary care ought to have known that he was between these cars.*

The defendant maintains that the conductor gave no signals at all upon this occasion; that the signals,whatever were given, were given by the plaintiff himself. That if the train was put in rapid motion,it was upon plaintiff’s signal to that effect, or, was the result of the engineer, the fellow servant of the plaintiff, not understanding the signal so given by the plaintiff; and that the accident was caused by the negligence of the plaintiff himself, or, by the negligence of the plaintiff and engineer, or alone by the mistake of the engineer, and not by fault of the conductor; and that in either event the defendant is excused from liability. It goes without the saying, that if this accident was occasioned by the negligence of the engineer, the defendant, as the evidence puts the case,is not liable; and it is without doubt, that if, by the negligence of the conductor, and without fault upon plaintiff’s part, the injury was caused, the defendant is responsible.

It is equally clear that the conductor knew that plaintiff was engaged in uncoupling these cars; he knew the character of that service and its requirements and dangers. And it was his duty before he gave any signal to put those cars in quick and rapid motion, to know that Mulcahy was not between them. He had no right to act upon a suspicion or upon a supposition, but a man of ordinary prudence under like circumstances would only have acted upon knowledge and conviction. He knew that it was the purpose to uncouple this car and kick it upon the siding and there leave it; he himself had ordered this done, and he knew just whht was necessary to accomplish it. He knew that one thing was to uncouple the car; without this, his order could not be executed. He knew that at this duty plaintiff was employed; he knew and had every reason to know that until this car was uncoupled Mulcahy’s duty, by his order, would call him right to the spot where he was hurt; yet this conductor says he did give the engineer a signal to kick that car onto the siding while he was yet in ignorance as to whethér Mulcahy had or had not succeeded, and he could have known for the asking, he says so himself; but he made no effort to find out. He says he saw plaintiff give a signal, and then he gave the kick signal. He does not say that plaintiff’s signal was a kick signal; he says that it was not the kick signal; that it was not exactly a slack signal; but whatever it was, from his own testimony, he was then, and is yet, not able to understand its meaning, and in the face of that fact, he was not justified in putting the cars in motion.

The engineer says that Mulcahy gave the kick signal, but in this he is controverted by the evidence of both Mulcahy and the conductor. Plaintiff says he gave no kick signal,the conductor says the same. The engineer says he answered a kick signal; the conductor says he did give a signal of that character. The two signals, one of which the engineer answered by rapidly starting this car, were given at about the same time, and by the testimony of two against one, the signal answered must have been the kick signal given by the conductor. So that the jury in finding that the conductor was guilty of negligence, is sustained by the weight of the evidence.

The jury finds that the engineer was guilty of negligence, and that might well be; for he swears he saw the plaintiff go íd there, and he was in there when he started the car in motion. And so the jury found that the engineer moved the train upon the signal of the conductor, and not upon the signal of Mulcahy, and that plaintiff received the injury for which he seeks to recover “through the combined negligence of the conductor and engineer.’’

The defendant maintains that the general verdict in fav- or of the plaintiff based upon this conclusion of the jury is contrary to law. Here the court again differs with counsel for defendant. It is the opinion of a majority of the court —for the court is not a unit on this question.

There appears no evidence in this record establishing the fact that this engineer is a superior in the sense contemplated in section 3365-22 of the Revised Statutes. That is to say, there is nothing to show that he is an employe of the company which would meet the definition, as this section is construed in the Margot case, 51 Ohio St., 130.

So that the engineer, in the absence of such fact, stands in this case in relation to plaintiff as that of a fellow servant. If this be the fact, injury of which his acts of negligence are alone the proximate cause, would not place the defendant in a position of liability; but that is not the case at bar, If the engineer was the fellow servant of the plaintiff, his act was in response to the order of the conductor, and in obedience to the direction of the superior of both the defendant and himself; the engineer did the very thing the conductor told him to do. The engineer’s knowledge of the dangerous position of plaintiff, would not leaven up the negligence of the conductor, or excuse him in giving an order, which under the circumstances, to give was negligence; neither would the engineer’s knowledge of the situation taint the care with which plaintiff was acting for his own safety. The negligence of the engineer would simply cut no figure in the matter. Judge Day does not agree with this conclusion. So that a majority of the court holds that the verdict is not against the weight of the evidence, and is not contrary to the law of the case. And we are of the opinion that the special findings of the jury are not inconsistent with the general verdict.

Coming now to the special propositions of law which the defendant requested the trial court to give to the jury as a part of the charge.

The opinion of the court as to some of these special requests is expressed in the disposition of matters already adverted to. To abbreviate, and without further comment, such of them as were proper and addressed themselves to the issues at bar were given. As to the charge itself, the charge, while it manifests no error, yet bears evidence of the difficulty by which the trial court was beset in having forced upon his attention innumerable special requests, a majority of which were laden to the guards with error. In the effort to steer around many of these propositions, the charge is lengthened to a degree that might tend to confuse, but without going into detail, we find no error in it, and the jury seems to have been able to follow it. So far we find no error.

And now coming to the admission and rejection of evidence, we find no error in the rejection of evidence; every fact that has place in the controversy seems to have reached the jury. The opinion of men who have had experience in and are acquainted by personal contact in their every day employment, and by knowledge acquired in this manner, with the running and movement of trains, and the method of handling them; and of the duties of those who are employed in their management, may be given to the jury in a case as the one at bar, when the matter to be decided by the jury, involves the duty under certain circumstances of one who is in control of the movements of a train of cars,or is assisting in the duties that go with its management-But, after having explained the duties that the exigencies require to be performed, the witness may not be called upon for, and give his opinion as to what relation certain facts bear to the controversy between the parties, and how they effect the issues on trial to the jury; and the admission of such evidence is error.

We find this question on page 189 of the bill of exceptions, put in re-direct examination to one of plaintiff’s witnesses: “If the conductor gave the engineer the signal at that time which made him violate his duty, would the conductor be violating his duty if he didn’t know that the man was out?” Over defendant’s objection the witness answered, “He would”. In the same examination,on page 192, the plaintiff puts this question: “I will ask whether the engineer would have a right to suppose having seen that signal that this brakeman was still in between the cars when he saw the signal?” The answer over defendant’s objection is: “He has not seen the brakeman yet; he does not know he is out; the signal does not show he is out.”‘ On page 196, to the same witness, plaintiff puts this question: “Now, if the man was still between the cars and the conductor gave the signal which you say he had no right to give, and the engineer obeyed that signal which you say he had no right to obey, what is the fact as to whether that conductor did or did not violate the customs of the company?” Over defendant’s objection the witness answered, “He did.” And elsewhere,notably on pages 199, 201, 202, 230 and 235, are questions of the same import and effect propounded by plaintiff to his witness, and answered over the objection of defendant.

A. & J. Blackford, John B. Gockrum, W. E. Hackee dorn, and Doyle, Seoti & Lewis, for Plaintiff.

Einley, Beer & Bennett, Hurd, Brumback & Thatcher, and John N. Doty, for Defendant.

Now, to admit this evidence was error. The answers to these questions were expressions of opinion by the witness as to the merits of the controversy, and in so doing the witnesses were assuming in a certain sense the position of jurors. With this exception we find no prejudicial error ■' in the record, but on this ground the case is reversed.


author: Price, J,

text:
    (Third Circuit — Wyandot Co., O.,Circuit Court
    Jan. Term, 1897.)
    Before. Day and Price, JJ.
    THE STATE OF OHIO, on relation of Pietro Cuneo v. THE BOARD OF COMMISSIONERS OF WYANDOT COUNTY, OHIO.
    . Annual "financial report of county commissioners of Wyandot Co. under the act of May 21, 1894—
    ,(l.)'The act entitled “An act lo supplement section 917 of the Revised Statutes "of Ohio,” passed May 21, 1894, providing for publishing the annual report of the County Commissioners of Wyandot county, by printing small folders of,the_same ” and delivering them to the county treasurer for distribution among the tax-payers as they call to pay taxes, was repealed by new sec. 917 as passed April 17, 1896.

      Same — Act of May 21, 1894, unconstitutional—

    ,(2.) The said act to supplement sec. 917 of the Revised ^Statutes, passed May 21, 1894, was in conflict with ,'section„26,'article 2, of the constitution of Ohio, which requires that “all'laws of a general nature shall have uniformqoperation throughout the state.”
    (This ease was affirmed by the supreme coftrt without report, Nov. 30, 1897. See vol. 38 Weekly L. B., 280.)
   Price, J,

The relator in this case says he is a citizen and taxpayer of Wyandot county, and is the- owner and publisher of the ■only Republican newspaper published and of general circulation in said county.

It is also stated in his petition that under the provisions ■of section 917, of Revised Statutes of Ohio, as amended April 17, 1896, it was and is the duty of the county commissioners to make a detailed report of their financial transactions for the year, before the third Monday of September, and that they are required to cause such report, together with the report of the committee of examination of .same, to be published in two weekly newspapers of opposite politics, published and of general circulation in isaid county.

The commissioners^made a report according to law, but; failed and refused to have the same published in the paper of.the two political parties, or in either of them. The relator says he requested the publication in his paper, which-was refused, and that there has been no publication, except; in the form of folding circulars, which is provided' for by an act passed May 21, 1894, entitled, “An Act to supplement'section 917, of the Revised Statutes of Ohio, ”as found in Volume 91, of Ohio Laws, on page 876.

It appears that this supplement applies alone to counties having a certain population, and by the census on which it is based, can only apply to Wyandot county; and if this supplement is valid and in full force, it is conceded that the commissioners are not required to publish their report in any of the newspapers, or in any other manner than in folding circulars.

But, it is alleged that this supplement to section 917 is-void and in contravention of section 26, ,of article 2, of our state constitution, which requires that all laws of a general nature shall have a uniform operation throughout the state. It is further claimed that if it ever was a valid, enactment, it was repealed by the act passed April 17, 1896, amending section 917. The relator prays for a writ of mandamus to compel defendants to publish their' report.

The commissioners entered their appearance to the petition, and they demur generally, and clsim that the facts stated do not entitle defendant to the writ. The questions thus raised and argued are two:

First, Was the supplement to section 917, passed May 21, 1894, repealed by the act of April 17, 1896, amending section 917?

Second, If not repealed, is the supplement providing for publication by folding circulars, in the one county, constitutional and valid?

Of these in their order.-

We have nothing to do with the expediency or policy of the two different modes of publication provided for by the t.wo sections- — -whether one is wiser or more or less economical than the other; or whether,in fact, there is any beneficial use for either. Men might differ even on so simple a question as that. The questions are important legal inquiries to which we must address ourselves.

After something of a shifting policy for several years, as to the manner of making the report of county commissioners — its examination and publication, the statute finally reached a form that procured for itself a rest for several years from changes and innovations. It was thought to be nearly fair, and responsive to public interests and necessities. Hut this notion was not at last universal,and on the range of ten of a difference in the population, the county so distinguished from its sisters of the state was to be provided with a different channel of information for its taxpayers, as to what the commissioners had done with the finances of the county,

Aside from this, there ought to be no question among lawyers, that the entire chapter of the statutes which regulate the duties of county commissioners — including section 917 — is a law of a general nature and of uniform operation throughout the state.

For this reason, it is important to determine the true character and office of the supplement to section 917, passed May 21, 1894.

Its title reads as follows:

“ á.n Act to supplement section 917, of the Revised Statutes of Ohio.”

Then it proceeds:

‘‘Section 1. Be it enacted by the general assembly of the state of Ohio, that section ,917, of Revised Statutes of Ohio, be and the same is hereby supplemented as follows:
“Section 917a. That in counties which by the federal census of 1890, had a population of not less than 21720 and not more than 21,730, the detailed annual report of the county commissioners, shall be printed on folding circulars by the lowest responsible bidder therefor, and said printed report shall be delivered to the treasurer of said counties, who shall deliver to each of the taxpayers of said courfties, one copy of said report each year when said taxpayers make' their annual or semi-annual payment of taxes.” * * *

Here we see that original section 917 is supplemented with the new provision for folding circulars for the county favored with a certain population.

What relation does a supplement sustain to the principal section? Webster gives the following definitions of.a supplement:

“That which supplies a deficiency;” “that which fills up,'completes or makes an addition to something already organized, arranged or set apart;” “a part added to, or a continuation of.” etc. “It is used sometimes as a synonym of appendix.”

■ When we bear these definitions in mind and take up ’the language of the supplement in question, we find that its very life and operation depend on the provisions and ■operation of the section tq which it is added.

Without the principal section, there, is no law requiring the commissioners to make any report, of -their financial transactions; no law for its examination by any one appointed by the court, or the making of a report of such examination.

All the machinery and the material out of which and by ■which, the financial report is made up, are provided alone in the principal section. The supplement simply provides for furnishing folding circulars of the- report to the taxpayers of the county.

Hence, without the principal section, the supplement would be of no force or effect. Its purposes could not be accomplished. Its life and operation are both derived from, the main section, and if that falls, the supplement falls, with it.

To further illustrate our meaning,let us suppose that the legislature, on the 17th day of April, 1896, instead of' amending section 917, (as it did), had simply passed, an act repealing section 917, What then would become of the supplement of May 21, 1891? On what did it rest for support and operation? It would have no subject matter upon which to take hold, for we have seen that it does not require the commissioners to make any report. There-would be no commissioners’ report to publish in any form,

The supplement would die with the principal section, as, wholly useless and inoperative.

Then, what effect on this supplement had the new.section-917, as passed April, 1896? See Ohio Laws of 1896, pages 188-9.

This act is entitled “An act to amend section 917 of the-Revised Statutes of Ohio.”

There is no express repeal of original section 917, and nothing whatever said about the supplement thereto added, May 21,' 1891. But the authorities are abundant that where the new section or statute covers the whole subject of the former, and revises it and was intended as a substitute for the former, no. express words of repeal are required, but the repeal' will be implied. One becomes a substitute for the other. There are numerous decisions in Ohio to this effect. One, among many, is found in the-case of Lorain Plank Road Co. v. Cotton, 12 Ohio St., 272.

The following is the leading proposition of that case.-

“A subsequent statute revising the whole subject matter of the former act,and evidently intended as a substitute for it,although it contains no express words to that effect, operates to repeal the former.”

The whole case cited is very instructive on the subject ¿before us, and fully sustains our position in the case at bar.

Now let us look for a moment at the new act of April 17, 1896, to see if it does cover the whole subject matter ■of original section 917. We have already given the title ■ of the new- act.

We quote enough from it to show its character and scope, to-wit:

“Section 917. The county commissioners, annually, • on or before the third Monday in September, shall make .a detailed report in writing to the court of common pleas of the county, of their financial transactions during the next year preceding the time of making such report.’’
-if * *

The section then provides a fine on e^ch commissioner for every day such report is unlawfully delayed; provides for the appointment of a committee of examination of the report; defines its powers and duties, and in short,embraces all of the original section and adds as new feature, the five • dollars per day fine, already stated, and the duty to publish in a German newspaper if it have at least six hundred •subscribers in the county, but it must be published in two weekly papers of opposite politics.

By comparison of the new with old section 917, we see they are exactly alike except the two features referred to and the supplement in question. Evidently the new section is a substitute for the old,and repeals it by implication.

What legislative intent do we gather from this new act? Did the legislature intend to revise and add to the ■original section these new features, regarded as proper to ■ complete the law on the subject, and still allow the supplement of 1894 to survive? Or, was not the new section intended as a substitute for all past legislation on' the subject?

We have seen that the new section, by implication, repeals former section 917. An implied repeal is as broad and thorough as if made in express words. As before observed,, if the act of April 17,1896,merely repealed original sec. 917, without enacting anything in its place, the supplement would have gone down also. And by reasons fully as sound, the repeal, by implication, wrought by the act of April 17, 1896, extends to the supplement as well as to the principal section to which it is an appendix.

T. E. Grissel, and D. D. Hare, for Relator.

Ezra Carter, for Respondent.

We hold, therefore, that the supplement to section 917, passed May 21, 1894, is no longer in force, but was repealed by the act of April 17, 1896, which is now the whole law regulating the publication of the commissioners’ report.

This being our conclusion it does not become necessary to pass on the second question — the constitutionality of the supplement. Büt we are of the opinion that the supplemental section refered to is in conflict with section 26 article 2 of the constitution of Ohio, which requires that “all laws of a general nature shall have uniform operation throughout the state.

The demurrer to the petition is overruled, and a writ of mandamus awarded as prayed for.


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    THE HAUCK BREWING CO v. GISECKE ET AL.

      Bill of Exceptions — Additions after signing and sealing — Effect—
    A bill of exceptions is probably rendered invalid where subsequent to its being signed and sealed and allowed special charges asked and refused are added thereto, and the bill, as thus enlarged, is not re-signed and sealed and allowed.
   Swing, J.

We think it very doubtful whether there is any bill of exceptions here for us to consider. The record discloses that.on March 30, 1895, a bill.of exceptions was allowed, signed and sealed and made a part of the record. And it. further discloses the following entry on the journal of the court:

“It appearing to the court that the special charges askedl by the plaintiff and the special cnarges asked by the defendant and ruled on by the court were by inadvertence omitted! from the bill uf exceptions, heretofore, to-wit, March 30, 1895, allowed by the court and filed herein, on motion of the defendant it is ordered that the entry allowing said bill of exceptions and the filing thereof be and the same are hereby set aside and held for naught. And now comes the defendant and presents to the court his certain bill of exceptions, embodying all the evidence and the charges of the court, which having been examined by plaintiff’s counsel, and being found by the court to be true, is allowed, signed and sealed, and on motion is hereby made part of the record of this case.”

Which entry was made April 27, 1895.

We find a bill of exceptions among the papers which was signed by the judge, not on March 3 or April 27, but on April 5.

On the cover of the bill appears the following indorsement:

“The within now includes the special charges inadvertently omitted when the bill was first filed, and it is ordered refiled as of this date.
“Howard O. Hollister, Judge.
“April 27, 1895.” .

The journal entry set aside the allowance and signing of the bill as of March 30, and says that the judge on April 27, signed and sealed a true bill which is signed and allowed as a bill of exceptions, but instead' we find the above on the bill, which says the bill is refiled as of that date. Ordering a bill to be refiled can hardly be considered as equivalent to signing, sealing and allowing a bill, and was hardly so considered by the judge, as what the judge did was simply to endorse the above words on the cover of the bill, and not in the place usual for the signing of the bill, to-wit, at the end of the bill; and if the bill was not signed and allowed on April 27, 1895, there is admittedly no bill of exceptions here.

Von Seggern & Dewald, for Plaintiff.

Corcoran & Corcoran, for Defendant.

' But without regard to this question, we have gone over the whole record and considered all the questions raised by the plaintiff in error, with the result that we find no error in the record.

The judgment will therefqre be affirmed.