text:
    RAILROADS — CARRIERS.
    [Huron (6th) Circuit Court,
    November Term, 1902.]
    Haynes, Parker and Hull, JJ.
    New York, Chicago & St. Louis Ry. Co. v. W. L. Willing.
    1. Liability of Railway for Unlawfully Ejecting Passenger Between Stations.
    A person lawfully on a train and unlawfully put off at a point on the railway track where there is no station and no stopping place, who is injured in ' walking upon a cattle guard at the next highway while going along the railway track in order to reach his destination, may recover for such injury.
    2. Exception — Knowledge of Passenger that Train Does not Stop at His Station.
    A person who goes upon a train knowing that it does not stop at his destination and refuses to pay fare to the next station at which it does stop, may be put off at any reasonably safe place. The railway company is not required to carry him to the next station or highway or to a place where it will be convenient for him to get off.
    Heard on Error.
    C. P. & L. W. Wickham and J. H. Clark, for plaintiff in error.
    Jesse Vickery, for defendant in error.
   HULL, J.

The defendant in error, plaintiff below, brought his action in this case to recover damages for being wrongfully and unlawfully put off the train of the railroad company in the month of May, 1900, at a point between the town of Bellevue and the village of Kimball on the line of the railroad company. The plaintiff recovered a verdict for $810. The motion for a new trial was overruled and judgment entered thereon, and it is to reverse this judgment that proceedings were commenced in this court.

The plaintiff claims that he was at the village of Arcadia, Hancock county, on the line of the railroad company, on the night of May 5,1900, and he desired .to go to Kimball in Erie county. He wished to take the train at Arcadia late at night (about eleven o’clock), and it is claimed that he asked the ticket agent at Arcadia if the train stopped at Kimball and the ticket agent told him that it did. Willing claimed he asked the agent how much the fare was and the agent replied that he did not know, as he was a new man, but that the train was a local train, stopping at all stations, and that it stopped at Kimball, and that he might pay his fare on the train as well as to buy a ticket, and that he got on the train after receiving this information. He claims that he paid the conductor on the train his fare between Arcadia and Bellevue, and that at the time he paid him he was told by this conductor that he would get off at Bellevue and that he could not take his fare to Kimball, but he could pay it to the conductor that would get on the train at Bellevue, at the end of the division. He claims he proceeded on his way to Bellevue, accompanied by a friend by the name of Howard, who got off at Bellevue, and Willing, the plaintiff below, stayed in the car and went out on the train in the direction of Kimball.

After he had gone a short distance from Bellevue he was informed by the brakeman and conductor that the train did not stop at Kimball. Willing claims he told the conductor that he had been informed by the ticket agent at Arcadia and also by the conductor in charge of the train from Arcadia to Bellevue that the train did stop at Kimball. The conductor told him the train would not stop until they reached Eorain, and that he would either have to pay his fare to Eorain, or get off — he could take his choice. Willing said he would rather get off, and thereupon the conductor pulled the rope, as he says, in an “ angry manner,” and the brakeman opened the door and he was ordered out of the car and off the train at a point perhaps three miles east of Bellevue, just at the edge of the yards where the sign “yard limits” stands, and about half way between Bellevue and Kimball, the latter place being about seven miles east of Bellevue. No physical violence was used in putting him off the train, and after he got off he concluded to go on to Kimball to the house where he intended to go, instead of going back to Bellevue, the distance being about the same.

After starting on his way, a short distance from where he was put off, there was a highway crossing the railroad track, and without seeing it, Willing claims he stepped on to and walked upon a cattle guard, and his foot turned and his ankle was sprained and he claims he was quite severely injured.

On the other hand, the railroad company denied that any such information as this was given to Willing at Arcadia when he purchased his ticket, and the conductor on the train from Arcadia to Bellevue denied that he made the statements testified to by Willing, and his testimony as to what occurred between Bellevue and the place where he -was put off was denied in some particulars.

A large number of exceptions were taken to the introduction and exclusion of evidence. While there was some testimony admitted perhaps that might have been excluded, we find, on examination-of the whole record, no error in this behalf to the substantial prejudices of the plaintiff in error.

It was contended by plaintiff in error that Willing’s injuries which he received, if he received any on account of stepping oh the cattle guard, could not and should not be permitted to sustain his claim for damages in any particular; that such injuries were not the natural or probable result of his being put off the train in this manner. We think, however, if he was lawfully on the train and unlawfully put off at a point on the railroad track where there was no station and no stopping place and from which it would be necessary for him to go either to his destination or back to Bellevue, we think if those were the facts, and if without any negligence on his part he was injured in walking upon the cattle guard, as he claims he was, that this would be an element that might be included in his claim. If the company wrongfully, and unlawfully put him off the train at such a point in the night they could not be heard to say that he ought not to recover for such injuries as those which resulted from his being so put off the train.

Testimony was introduced as to his injuries, — as to the result of this sprained ankle and his own conduct afterwards — his limping and other indications of lameness and pain. We think that admitting testimony such as this, while rather close to the line, was not error under all the circumstances.

Witnesses were permitted, however, to state what he said on different occasions, some time after his injury — that his ankle hurt him and similar expressions. This testimony, we think, ought not to have been admitted. Express declarations like these a long time after the injury, that his ankle pained him, or hurt him, ought to have been excluded.

A certain piece of evidence that was introduced and which was objected to by the railroad company, was an almanac showing the time the moon set on the night in question. It has always been the rule as far as we know, to admit almanacs in evidence, and upon examination of Jones on Evidence, we find that there is authority for it. In Jones on Evidence, Sec. 594, where there is a brief discussion of almanacs along with scientific and medical works, we find this language:

“ On the same principle almanacs have been admitted to prove at whst fe^ur the sun or moon rose at a given time. Although since this is a fact of which the court will take judicial notice, the evidence may be unnecessary, or it may be deemed as used for the purpose of refreshing the memory of the court and jury.”

We think it was not error to admit the almanac.

Quite a large number of requests to charge the jury were made by the plaintiff and by the defendant, and many of them were given.

Among the requests that were given on behalf of the plaintiff below was request No. 6, which reads as follows:

“ If you find from the evidence that the plaintiff at the time this train left Bellevue, knew that this train did not stop at Kimball, and if you find that he refused to pay his fare from Bellevue to Lorain, the conductor would have a right to eject the plaintiff from the train, but he would have no right to eject the plaintiff late at night, if the night was dark, in the country, far írom a railroad station, if by so doing such passenger so ejected would thereby and as a natural and probable consequence be exposed to danger.”

To the giving of this instruction- exception was taken by the railroad company and error is claimed from it here. It was claimed by the railroad company on the trial of the case, that the plaintiff’s claims in regard to his information, were false; that he knew that this train did not stop at Kimball; that it was untrue that he had been informed by the ticket agent at Arcadia, or by the conductor between Arcadia and Bellevue that it did stop; that he got on the train at Arcadia knowing that the train would not stop after it passed Bellevue until it reached Lorain ; and that he got on the train for the purpose of riding through to Kimball and getting there if possible on this train. So that the chief issue in the case between the parties was whether the plaintiff below had been misled in getting on .this train; had been misinformed by the agent of the railroad company as to its stopping at Kimball. It was conceded by all parties that if he knew this train would not stop at Kimball, knew it was a fast train from Bellevue east, that he had no right to get on to it and that the railroad company would have the right to eject him. But it was claimed that although they had the right to eject him under those circumstances, that they did not have the right to eject him in the manner and at the time and place that they did, to wit, at a point between Bellevue and Kimball, where there was no depot nor stopping place and from which he would have to walk some distance to get off the right of way upon a public highway, and this instruction was drawn to meet the plaintiff’s view of the case.

The only danger that the plaintiff below encountered when he was put off the train, was the cattle-guard; it was the only danger from which he suffered any physical injury. That was the only danger and could be the only danger that the jury would have had in mind and to which their attention had been called. There were no dangers surrounding him when he was put off, or surrounding the place any more than are usual at and about a railroad track. It was an ordinary railroad right of way, with tracks and ties, and the company were required to put cattle-guards at highways wherever they crossed their right of way, and it might be presumed that cattle-guards were somewhere near by. The night was perhaps dark; the moon had just set or was about to set. It was not, however, a stormy night, and probably, according to the testimony, was a clear night; it was early in May and the weather was not inclement. There were no unusual perils near or about him when he was put off; no precipice or bridges or anything of that character.

It seems to us that this instruction cannot be sustained by the authorities ; it goes too far. Under it, it is difficult to see how the jury could have avoided returning a verdict in favor of the plaintiff, when they were instructed that although they could find that the plaintiff knew that he had no right to be upon this train ; that it did not stop at Kimball; that he refused to pay his fare from Bellevue to Borain ; and although the court told the jury that the conductor would have thb right to eject him, but that if he did, he would have no right to eject him late at night, if the night was dark, in the country, far from a railroad station, if by so doing, such passenger so ejected would thereby and as a natural and probable consequence, be exposed to danger.

Putting all these things together, it amounted practically to an instruction to the jury that if he was put off under the circumstances which were substantially admitted surrounded him at the time he was put off, although he knew he had no right to be on the train, and in fact' had no right to be there, yet he would be entitled to recover.

We think the instruction is faulty and defective in this, that it does not limit the danger to any unusual or serious danger, or any danger of an extraordinary character, but simply instructs the jury that if he was thereby, as a natural and probable consequence, exposed to danger, he would be entitled to recover.

There are two decisions of the Supreme Court of the state which are in point on this question. In Railway Co. v. Skillman, 39 Ohio St. 444, the Supreme Court say in the syllabus:

A person entering the cars, without having purchased a ticket, and persistently refusing to pay the full and reasonable fare, upon demand by the conductor, and after reasonable time in which to determine whether he will or will not pay the same, may lawfully be removed from the train.
“ The expulsion of such person may be at a place other than a railroad depot,, or usual stopping place, provided care is taken not to expose him to serious injury or danger.
“ Such person acquires no right to remain on the train, by offering to pay the usual fare after the train had been stopped for the purpose of ejecting him.”

This was a case where a man had got on the train without paying his fare ; the regular fare, if he bought a ticket; would have been twenty cents, but under the rules of the company, if he paid his fare on the train, it would be twenty-five cents. He refused to pay the extra five cents until the train was nearly stopped, then he offered to pay the twenty-five cents, but he was put off the train, and 'the Supreme Court held that the railroad company had a right to put him off, even if he did offer to pay the extra fare after he had once refused, and the train had been stopped, or practically so, on account of his refusal. The court say, on page 453, of the opinion:

“ The plaintiff also excepted to the charge of the court of common pleas, that when payment of the fare demanded was refused, the defendant had the right to eject him from its train, and also to the refusal of the court to charge, as requested by the plaintiff, that ‘ the defendant railroad company had no right to expel the plaintiff from its cars, except at a railroad depot, dr stopping place.’ Of the defendant’s right to eject the plaintiff from its car for a persistent refusal to pay his fare from the station at which he entered the car to the next station, there can be no serious question, provided he was not removed with unreasonable violence, or at a place where he would be exposed .to serious injury or danger. When he refused to pay the usual fare he had no right to remain on the train, or claim the right of a passenger, but might rightfully be treated as a trespasser, and be at once expelled. To hold that this could only be done at a railroad depot, or stopping place, would deprive a railroad company of its chief safeguard against that kind of fraud or imposition, and we know of no principle of law, or public policy, which requires that every one who prefers not to pay his fare shall be carried without charge from the station at which he gets on the train to the next station.
‘‘ We see no error in the charge of the court of common pleas, that, ‘when, for such refusal to pay, the train was stopped for the purpose of ejecting the plaintiff, his right to transportation was not restored by afterward offering to pay the fare so demanded ; especially when taken in connection with tfie instruction also given to the jury, that the plaintiff was entitled to a reasonable time, after the demand was made, to consider whether he would pay the sum demanded.”

v It will be noticed that the court use the words, “ provided care is taken not to expose him to serious injury or danger.” It is not left simply with the words, “ provided he is not exposed to any danger.” But he must be exposed to something more serious — some danger more serious — than simply being put off the train onto the railroad track. If this were not the rule, it might be almost impossible for railroad companies to run fast trains without stopping them at almost every station ; and every trespasser who got on such a train in the night or in the evening without a ticket and without fare and refused to pay his fare,.could insist on being carried to the next station or that he should not be put off until some place convenient for him was found. This would very much interfere with the running of such trains and practically prevent it.

Another case is found in Railway Co. v. Valleley, 32 Ohio St. 345. The court say in the syllabus:

“It is not only the right of a conductor to expel from a train a drunken, unruly, boisterous passenger, but when such a person endangers, by his acts, the lives of people, it is the duty of such conductor to remove such passenger in order to protect others from violence and danger.
“ But this right must be reasonably exercised, and not so as to inflict wanton or unnecessary injury upon the offending passenger, nor so as to needlessly place him in circumstances of unusual peril.
“ If having exercised reasonable prudence, considering the time, place and circumstances, as also the condition of the drunken man himself, the conductor expels such passenger, who is afterward run over and killed by another train not in fault, the expulsion itself is not such proximate cause of the death as will make the company liable.”

It will be seen that the Supreme Court, in the second paragraph of the syllabus, use the expression, “ nor so as to needlessly place him in circumstances of unusual peril.” In this case, the man was intoxicated, and he was put oft the train at a place not a station and was run over and killed by another train.

We understand the law to be that if a man is on a train unlawfully, as a trespasser, that the train may be stopped and the man put off at a reasonably safe place; that the railroad company is not required to carry him to the next station or to the next highway or the next place that would be convenient for him to get off. He has no claims upon the company; he is not paying for his transportation;- he is a trespasser upon the train, and they have a right to relieve themselves of him as speedily as possible, but without exposing him to any unusual or extraordinary danger. The mere fact of putting him off the train on the railroad track or within the right of way, in the night, if he is unlawfully on the train, is not exposing him to unusual or extraordinary peril.

In our view of this case, if Willing knew that this train did not stop at Kimball and remained upon it at Bellevue and refused to pay his fare, then the conductor had the right to put him off where he did, and there would be no liability on the part of the railroad company, if those were the facts.

Counsel, in drawing this request, must have overlooked the language of the Supreme Court to which attention has been called and, in our judgment, it was error for the court of common pleas to give the instruction to the jury. For this reason the judgment of the common pleas must be reversed and the verdict set aside.


source: Caselaw Access Project

author: HULL, J.

license: Public Domain

text:
    SHERIFFS — REWARDS.
    Sandusky (6th) Circuit Court,
    January Term, 1903.]
    Haynes, Parker and Hull, JJ.
    Isaac Brown v. Sandusky County (Comrs.).
    Sheriff not Entitled to Recover General Reward for Arrest of Criminal.
    A sheriff in a sister state, arresting a fugitive from justice under a warrant and pursuant to a notice from a sheriff in this state, describing such fugitive and indicating the place where he may be found, acts strictly within the line of hi* duty as an officer, and is entitled only to such reward or compensation as is allowed him by law, and cannot recover from county commissioners in this state a general reward offered by them for the apprehension of such fugitive under Sec. 918 Rev. Stat.
    Kinney, O’Farrell & Rimelspach, for plaintiff in error.
    Geo. H. Withey, prosecuting attorney, for defendants in error, cited:
    2 Kent Commentaries, 118, 188, 184, 454, 455, 463; Gilmore" v. Lewis, 12 Ohio 281; Rea v. Smith, 12 Re. 398 (2 Handy 193); 21 Am. & Eng. Enc. Law (1 ed.) 400; Smith v. Whildin, 10 Pa. St. 39 [49 Am. Dec. 572]; Spurgeon v. McElwain, 6 Ohio, 442, 444 [27 Am. Dec. 266]; Clark Contracts 184, 186, 418n., 502; Story Conflict Laws, Sec. 244; Oscanyan v. Arms Co., 103 U. S. 261; McCann v. Pennsylvania Co., 6 Circ. Dec. 610 (10 R. 139); Cincinnati, H. & D. Ry. Co. v. Morris, 6 Circ. Dec. 640 (10 R. 502); Moore v. Cassily, 9 Circ. Dec. 305 (16 R. 708) ; Leavans v. Bank, 50 Ohio St. 591 [34 N. E. Rep. 1089]; Ott v. Railway Co., 10 Circ. Dec. 85 (18 R. 395); Alexander v. Pennsylvania Co., 48 Ohio St. 623 [30 N. E. Rep. 69]; Riley v. Grace, 33 S. W. Rep. 207 [17 Ky. Law 1007] ; Witty v. Southern Pac. Co., 76 Fed. Rep. 217; Van Horn v. Water Co., 47 Pac. Rep. 361 [115 Cal. 448] ; Warner v. Grace, 14 Minn. 487; Ohio Cr. Law & Prac. 714; 1 Bishop. Cr. Proc. 639.
   HULL, J.

The plaintiff in error was also the plaintiff below. He was the sheriff of Kittitas county, in the state of Washington, and brought suit for $1,000, which he claimed he was entitled to as a reward offered by the commissioners of Sandusky county for the arrest of a fugitive from justice. The case was tried to the court and jury and a verdict returned in fayor of the defendants and judgment entered thereon. It is sought to reverse this judgment in this proceeding in error. The claim of the defendants is that Brown is not entitled to the reward, because whatever he did, he did as an officer of the law, as sheriff of the count}' of Kittitas, Washington ; that he did nothing his duty did not require him to do, and that, therefore, he cannot have nor claim any other compensation than his salary, or fees allowed him by law for such services. It is claimed by the plaintiff that the reward which was offered by the commissioners of Sandusky county, under Sec. 918 Rev. Stat., was a general one, open to any one who might undertake to discover and arrest the fugitive, and if he succeeded, that he was entitled to the reward, although he may have been an officer of the law.

It appears that in 1896 Jacob Hess was murdered in Sandusky county by Louis Billow; that he fled from the county and state, and on December 23, 1896, the commissioners of the county passed this resolution :

“ Fremont, Ohio, December 23, 1896.
“ Resolved, that we, the commissioners of Sandusky county, Ohio, offer a reward of one thousand dollars for the arrest and conviction of Louis Billow, under indictment for murder of Jacob Hess. All former offers of reward for said Louis Billow are hereby revoked.
“ (Signed) Henry Harmon,
“Christian Kiser,
“ Eeisha Hoff,
“ County Commissioners.”

This action was taken under Sec. 918 Rev. Stat., which provides :

“ The county commissioners may, when they deem the same expedient, offer such rewards as in their judgment the nature of the case requires, for the detection or apprehension of any person charged with or convicted of a felony, and pay the same on the conviction of such person, together with all other necessary expenses, not otherwise provided for by law, incurred in making such detection or apprehension, out of the county treasury, and said commissioners may, when they deem the same expedient on the collection of a recognizance given and forfeited by such person, pay the reward so offered, or any part thereof, together with all other necessary expenses; and not otherwise provided for by law, incurred in making such detection or apprehension.”

The resolution, as has been stated, was passed in December, 1896. Nearly three years went by, and in July, 1899, Billow had not been detected or arrested. About that time information came to the sheriff of Sandusky county that he was in Kittitas county, in the state of Washington ; and thereupon a letter was sent by the sheriff of Sandusky county to the sheriff of Kittitas county, addressing him as sheriff, not by name, and notifying him that Billow, charged with murder in the first degree, was in his county, and requesting him to arrest Billow, and hold him until an officer came from Sandusky county to bring him back to the state of Ohio. The letter was not produced at the trial, but according to the testimony of Deputy Sheriff Harris, of Sandusky county, this letter notified Brown that Billow was át a place called Easton, in his county. The sheriff is not clear that the letter notified him in what part of the county Billow was. In the letter of the sheriff was enclosed one of the cards which had been used by the officers of Sandusky county, in sending out notices of the reward. On one side of the card was a picture of Billow and on the other side were the words, Arrest for murder, Eouis Billow. Wanted in Fremont, Ohio ; $1,200 reward for his arrest and surrender. Thirty years old, five feet eight inches high, sandy complexion. Weight 165 pounds. Good picture on the other side.

“ L. C. McGormrey,
“ Sheriff Sandusky County, Fremont, Ohio.”

Plaintiff, on receiving this letter and card, went to Easton in his county and found Billow in a saloon; arrested him and brought him to the county jail and immediately notified the sheriff of Sandusky county that he had arrested the man and would hold him, or words to that effect; and the authorities of Sandusky county being satisfied that the man arrested was Billow, the sheriff sent his deputy, Harris, to the state of Washington to bring Billow back to Ohio. He took with him the necessary papers from the state of Ohio for the extradition of Billow. He found Billow in the custody of the plaintiff, as sheriff, and, after the proper proceedings had been had, with the deputy sheriff of Kittitas county, Washington, as his assistant, Harris brought Billow back to Fremont, and he was afterwards tried and convicted of murder in the first degree and, upon a recommendation of mercy by the jury, sentenced to the penitentiary for life. The deputy sheriff of Kittitas county, who came back with Harris, was paid his expenses and for his time in coming to Fremont. Afterwards h% returned to Washington and came back to Fremont again to testify on the trial of the case and was paid for his time and expenses at that time by the county, these sums amounting in all to several hundred dollars. But the commissioners refused to pay Brown the $1,000 reward, or any part of it, and he brought his action to recover that amount.

It is claimed on the one hand, as I have said, that this reward as offered by the county commissioners, and as authorized to be offered by the statute, was open to any one who desired to avail himself of it. whatever official position he held. It is said there are no exceptions in the statute, but that the commissioners were authorized to offer such reward to any one, and that there are no exceptions in the resolution, and that, therefore, the plaintiff is entitled to avail himself of it and to recover.

On the other hand it is claimed by the defendants in error that it is contrary to law and to public policy to permit an officer to have a reward for performing such a service as this.

On the trial of the case certain statutes of the state of Washington were introduced in evidence. The testimony of Brown, who was not present at the trial, was offered in deposition. Deputy Sheriff Harris was called, and some other witnesses. The plaintiff did not testify in his deposition whether or not he had a warrant when he arrested Billow. But Harris testified that Brown told him that he did have a warrant; that he procured one before a justice of the peace, and with that in his hands made the arrest, and this was not denied. The court, in substance, charged the jury that if Brown performed these services in the arrest of Billow as an individual, he was entitled to recover, but that if ;he performed them as sheriff, and did only what he was required by law to do, he could not recover the reward, being entitled to no compensation for such services except his fees and salary. As the jury found against the plaintiff, we need not determine whether the law would permit him to claim the reward on the ground that he was acting as an individual, and not as an officer. But it is sufficiént to say that we hold that under the testimony the jury were warranted in finding that the plaintiff was acting officially as sheriff, and that he procured a warrant, and acted under it and pursuant to it when he made the arrest..

In this state the law seems to be well settled that an officer, for the performance of services which it is his duty as such officer to perform, is not entitled to a reward; and that is held in most states. It is said by the courts to be against public policy to permit an officer to accept any reward or compensation for such services, other than that given him by law; that it would lead to officers remaining idle and inactive, in the performance of their duties in matters of this kind until a reward was offered, and to other evils.

In a case decided, by the superior court of Cincinnati, at general term in 1856, this question arose something as it does in this case, except that the reward in that case was offered by private citizens, and not by the public. The case is Rea v. Smith, 12 Re. 398 (2 Han. 193). The plaintiff in the case was a sheriff of Indiana and had arrested a fugitive from justice from the state of Kentucky, and brought suit- for a reward that was offered by private individuals. The opinion of the court was delivered by Judge Storer, the other judges being Spencer and Gholson. The court say in the syllabus:

“ 1. A public officer, whose duty it is to arrest all persons charged with or suspected of the commission of crime, cannot claim any other or further remuneration for his services than the fees allowed by law.
“2. Whenever an officer makes an arrest, he is supposed to be acting in his official capacity ; and where he performs the duty of sheriff, believing he was acting within the authority derived from law, the court will not allow him to change his relation and assume that of a privatie individual.”

The court, in the opinion, say on pages 399, 400:

“ Can a public officer, whose duty it is to arrest all persons charged with or suspected of the commission of crime, claim any other or further remuneration for his services than the fees allowed by law?
“ Our own Supreme Court, in Gilmore v. Tewis, 12 Ohio 281, have authoritatively settled the question, and we would have been content to have referred only to the well considered opinion of Judge Wood, without any other examination of the law, did we not feel it to be our duty, when the obligations of ministerial officers, we fear, are not always clearly understood, and in many cases are but slightly regarded, to reaffirm what we believe to be sound law and equally' sound morality, and thus vindicate the principles by which official conduct should be regulated, and the oppression under color of law, redressed.
“ It is contended, however, that the plaintiff in error, though holding the office of sheriff when he made the arrest, acted as a private person ; that it was not his duty to apprehend a fugitive from the justice of another state, and cannot therefore be subjected to the rule we have indicated.
“ On referring to the Revised Statutes of Indiana, vol. 2, pages 10, 11, we find the sheriff is declared to be a ‘ conservator of the peace, and is bound to execute all process directed to him by legal authority, and pursue and commit to the jail of the county all felons.’ The power thus conferred is certainly broad enough to authorize the apprehension of murderers or felons, whether the offense was committed in Indiana or Kentucky ; and it is difficult for • us to perceive how the duty could be denied by the officer in every proper case, whether the accused person was a fugitive or a domestic felon. An admission of the contrary doctrine would change the character of the sheriff from that of a high public functionary, to whom the largest powers have been confided, for-the preservation of the public peace and the protection of private right, to the passive condition of an agent, acting only as he may be directed by the magistrate or the court. We cannot so regard the question. When ever an officer has made an arrest he is presumed to have acted in his official character; and where, as in the present case, he performs the duty of a sheriff, believing he was acting within the authority he derived from the law, we cannot permit him to change his relation as an officer, and assume that of a private individual. He might well have arrested without warrant, upon probable cause of suspicion, if the necessity of the case required it, and he would have been protected if the accused should afterward have been discharged.”

The case of Gilmore v. Lewis, 12 Ohio 281, is referred to by Judge Storer. The syllabus in that case- says:

“A reward oflered for the apprehension of a thief, and money, can not be claimed by a constable, who arrests the thief by 'virtue! of a war. rant delivered to him for that purpose.”

The court say in the opinion on page 286 :

“ But public officers, on whom the law casts this duty, from whom it requires exertion, and to whom it affords adequate compensation, occupy different ground.”

And on page 287, referring to the claims of counsel for the constable:

“ But it will be seen that his view of the case can by no means be sustained. It is not the case made by the declaration. The promise of the reward, as laid, is for the apprehension of the thief and money; and this arrest of the thief, and seizure of the money, are averred to have been made by the plaintiff, by virtue of a warrant delivered to him as constable. The promise, is therefore, illegal and void. True, it is stated the plaintiff searched out the thief, and ascertained where the money was, and made oath on which the warfant issued; but, for this service no promise of reward is laid. It is for the apprehension of the thief, and seizure of the money; and as this was done in virtue of his office, the plaintiff must be content with his legal fees, and the reflection that he has done the state some service.”

The question is discussed at some length in Throop on Public Officers, Sec. 485. The author says:

“ It is evident, from what has been heretofore said, that where a reward has been offered, by the public authorities or by an individual, for a service which is within the line of the officer’s duty, he cannot claim the reward, although he may have performed the service.”

A case is cited from the Supreme Court of the United States, which seems to be contrary to these authorities and to the weight of authority as laid down by the courts of the different states. United States v. Matthews, 173 U. S. 381 [19 S. Ct. Rep. 413]. By act of congress the attorney general was authorized to offer a reward. The syllabus is short, I will read it:

“The authority conferred upon the attorney general by the act of March 3, 1891, c. 542, 26 Stat. 985, to offer rewards for the detection and prosecution of crimes against the United States, preliminary to the indictment, empowered him to authorize the marshal of the northern district of Florida to offer a reward for the arrest and delivery of a person accused of the committal of a crime against the United States in that district, the reward to be paid upon conviction; and a deputy mar-shall, who had complied with all the conditions of the offer and of the statute, was entitled to receive the amount of the reward offered.”

A majority of the court in this case held that the deputy marshal, having performed the service, was entitled to receive the reward. Two of the justices, Harlan and Peckham, dissented generally from the opinion of the majority “ upon the ground, as stated on page 389, in the report” that:

“ The offering or payment of a reward to a public officer, for the performance of what was at all events nothing more than his official duty, was against public policy, and the act of congress authorizing the attorney-general to offer and pay rewards, did not include or authorize the offer or payment of any reward to a public officer under such circumstances.”

Justice Brown concurred in the judgment, upon the ground, as stated by him, that the deputy marshal was not paid directly by the government of the United States, but was paid by the marshall himself, and therefore did not come within the general rule prohibiting an officer from receiving such reward.

It seems to us that the law of this state, and the law generally in other states, is against the proposition that an officer may receive a reward for the performance of an act that his duty as such officer requires him to perform. When this statute (Sec. 918 Rev. Stat.) was passed by the legislature this was the general law of the laud, as it is now. And when this resolution was adopted by the board of county commissioners of Sandusky county, there was impliedly excepted from its provisions, officers who did nothing more than perform the duties of their offices.

The plaintiff had no knowledge that Billow was within his county or state until he was notified by the sheriff of Sandusky county. He had done nothing, had expended uptime nor money in the work of detecting or apprehending Billow pursuant to this reward, and when he was advised by the sheriff of Sandusky county that Billow was within his county, and, according to the witness, Harris, notified at what point he would be found in his county, he simply, as sheriff of Kittitas county, Washington, went where Billow was and arrested him and thereupon notified the authorities of Sandusky county that he had arrested Billow, and held him in custody until the officer came from Ohio to take him back to Sandusky county. Plaintiff stands no differently, it seems to us, than if the sheriff of Sandusky county, instead of writing to him, had sent an officer to Kittitas county, or had gone himself and verbally notified Sheriff Brown that Billow was at Easton in that county and requested him to arrest him, as the sheriff of that county, whose duty it was to arrest all violators of the law, and to execute any warrant that was lawfully placed in his hands, and if pursuant to such request he had gone before a justice of the peace and had sworn out a warrant, and with that in his hands had arrested Billow and turned him over to the sheriff of Sandusky county. It would be contrary to the law of this state, as we understand it, and contrary to public policy to hold that a sheriff for performing such a service might recover a reward of $1,000 or any other sum. Brown acted entirely as an executive officer, strictly within the line of his duty as such officer. He performed no duty as a detective in ferreting out the criminal, or in ascertaining his whereabouts.

We are of the opinion that the judgment of the court of common pleas was right and, therefore, it will be affirmed.


author: COOK, J.

text:
    BENEFICIARY INSURANCE.
    [Ashtabula (7th) Circuit Court,
    January Term, 1903.]
    Burrows, Uaubie and Cook, JJ.
    Protected Home Circle v. Perry P. Tisch.
    1. Constitution and By-laws of Beneficiary Association.
    Under the charter of the Protected Home Circle, the supreme circle has full authority to enact a constitution and by-laws lor the association and to amend the same.
    2. Effect of Amendment as to Death by Suicide.
    Where the constitution and by-laws of a beneficiary association provide that the same may be altered and amended, and the application for the beneficiary certificate sets forth that the member will comply with all the laws, rules and regulations then in force or that may thereafter be enacted; an amendment to the constitution and by-laws providing that committing suicide by a member, sane or insane, shall avoid the certificate and forfeit all benefits thereunder, is valid, and applies to a certificate issued under such application, previous to such amendment.
    Heard on Error.
    A. N. Williams and Perry & Roberts, for plaintiff in error.
    A. C. White, for defendant in error, cited :
    Angelí & Ames Corporations, Secs. 327, 328; Clark Corporations, 459; Bacon Mut. Ben. Soc., Sec. 80; Morawetz Corporations, Sec. 491; Beach Private Corporations, 311,421; Thompson Corp'orations, 955,960; Supreme Lodge Knights of Pythias v. LaMalta, 31 S. W. Rep. 493 [95 Tenn. 157; 30 L. R. A. 838] ; Metropolitan Accident Assn. v. Wind-over, 27 N. E. Rep. 538 [137 111. 417, .434]; Dayton & C. Ry. Co. v. Hatch, 12 Re. 501 (1 Disn. 84); Supreme Lodge Knights of Pythias v. Stein, 21 So. Rep. 627 [75 Miss. 107; 37 L- R. A. 775]; Supreme Lodge Knights of Pythias v. Trebbe, 74 111. App. 545 ; Supreme Lodge Knights of Pythias v. McLennan, 49 N. E. Rep. 530 [171 111. 417]; Supreme Lodge Knights of Pythias v. Kutscher, 72 111. App. 462; Ternpel v. Dodge, 32 S. W. Rep. 514 [89 Tex. 69]; Joliffe v. Insurance Co., 39 Wis. Ill [20 Am. Rep. 35] ; Farmers’ Mut. Ins. Co. v. Bachman, 1 O. S. C. D. 775 (39 Bull 324); Bacon Mut. Ben. Soc., Sec. 51; Commonwealth v. Wetherbee, 105 Mass. 149; Rockhold v. Mutual Ben. Soc., 21 N. E. Rep. 794 [129 111:440; 2 L. R. A. 420]; State v. Standard Life Assn.,-38 Ohio St. 281, 288; Bacon Mut. Ben. Soc., Sec. 71; Bauer v. Knights of Pythias, 1 N. E. Rep. 571 [102 Ind. 262]; Starling v. Royal Templars, 66 N. W. Rep. 340 [108 Mich. 440; 62 Am. St. Rep.]; Seiverts v. National Ben. Assn., 64 N. W. Rep. 671 [95 la. 710]; Kent v. Mining Co., 78 N. Y. 159, 182; Morrison v. Insurance Co., 18 N. W Rep. 13 [59 Wis. 162]; Becker v. Insurance Co., 12 N. W. Rep. 874 [48 Mich. 610] ; Gaut v. American Legion of Honor, 64 S. W. Rep. 1070 [55 L- R. A. 465] ; Wheeler v. Iron Hall, 68 N. W. Rep. 229 [110 Mich. 437] ; Cox v. Mutual Fire Assn., 3 Atl. Rep. [48 N. J. L. 53] ; Strauss v. Mutual Reserve Fund, 36 S. E. Rep. 352 [126 N. C. 971; 54 L- R. A. 605] ; Hale v. Equitable Aid Union, 31 Atl. Rep. 1066 [168 Pa. St. 377]; May Insurance, Sec. 552; Wist v. Grand Lodge Ancient Order of Workmen, 29 Am. St. Rep. 603; Bragaw v. Knights of Honor, 38 S. E. Rep. 905 [128 N. C. 354; 54 L- R. A. 602] ; Rosenberger v. Insurance Co., 87 Pa. St. 207; Bradfield v. Insurance Co., Berryman’s Digest, 859 ; Carnes v. Traveling Men’s Assn., 76 N. W. Rep. 683 [106 la. 281; 68 Am. St. Rep. 306] ; Benton v. Brotherhood Railway Brakemen, 34 N. E. Rep. 939 [146 111. 570]; Knights Templar v. Jarman, 104 Fed. Rep. 638; Pulford v. Fire Department, 31 Mich. 458 ; Lane’s Appeal, 17 Atl. Rep. 926 [57 Conn. 182; 4 L. R. A. 45; 14 Am. St. Rep. 94].
   COOK, J.

Nell A. Tisch, wife of defendant in error, became a member of Rockcreed Circle of the Protected Home Circle, August 1,1894, and died September 10, 1900, by committing suicide ; whether sane or insane does not appear. When she became a member she obtained a benefit certificate for the sum of $1,000 and designated her husband, Perry P. Tisch, as her beneficiary. In the written application which she signed to obtain the benefit certificate she stated :

“I do hereby agree that compliance on my part with all the laws, rules, regulations and requirements now in force or that may hereafter be enacted by the association is the express condition upon which I am to be entitled to participate in the beneficiary fund to the amount named in the constitution and laws of the association.”

The Protected Home Circle is a beneficiary association organized under the laws of the state of Pennsylvania. The fifth clause of the charter provides:

“ Said corporation shall have power to institute a supreme and such state, district and local circles as may be deemed necessary in accordance with its constitution and law; and also to draft a constitution and laws for their government which shall determine the time, place, and manner of electión of officers, their number, names and terms of service; the reception of members, their rights, privileges, obligations, duties, dues, fees, and penalties; the right to control all funds raised for the prosecution of its work in accordance with its laws; to determine the qualifications of its own members and also the right to have and use a common seal.”

Under the charter, the original incorporators adopted a constitution and by-laws. This constitution provided for a supreme circle, which is the legislative and governing body of the corporation ; a grand circle which is a state organization, and local circles. The supreme circle is composed of the supreme officers of the corporation and of delegates elected by the grand circle; the grand circle is composed of delegates elected by the local circles, and the local circles are the divisions to which all the membership must belong. The. supreme circle meets biennially, and at such meetings does all the legislating for the association, as provided by the fifth clause of the charter shall be done. The membership in 1902 was about fifty thousand and the number and amount of benefit certificates very large.

The first constitution and by-laws were made b}' the original incorporators soon after obtaining a charter in 1886, and this constitution and by-laws were adopted at the first meeting of the supreme circle, with the amendments at that meeting enacted, as the constitution and by-laws for the government of the supreme circle, grand circle, local circles, and the membership of the society. Ever since the organization began the constitution and by-laws have contained the provision that the same might be altered or amended by the supreme circle in the manner therein directed. The manner of making the alteration or amendment by the supreme circle has been changed at different meetings of the supreme circle.

Three years after the certificate was issued to defendant in error to-wit, in 1897, at its meeting in Detroit, Michigan, the supreme circle for the first time made provision against death by suicide. At that meeting, in accordance with the manner provided in the constitution and by-laws for alterations and amendments, it provided in the constitution as follows:

“ The benefit certificate issued to a member shall become void and all benefits thereunder shall be forfeited in case the insured shall die by suicide, felonious or otherwise, sane or insane, or by his own hand sane or insane, provided that in such case there shall be refunded to the beneficiary named in said certificate the amount of all payments made, together with interest thereon at the rate of three per cent, per annum.”

Immediately after the death of the member, Nell A. Tisch, proofs of death were filed with the corporation at its home office, which proofs of death showed that she came to her death by suicide. The association denied liability for any sum except the amount of payments made, with interest at three per cent, upon the ground that the proofs showed that the member died by suicide. The beneficiary instituted suit, recovered a judgment for the full amount of the certificate, and this proceeding in error is to reverse the judgment. The whole contention is upon the amendment respecting suicide. It is practically admitted by plaintiff in error that, if the constitution arid laws of the society contained no provision respecting'suicide, that the plaintiff should recover, and such we understand is the law of this state, where there is no showing that the assured was sane at the time of the commission of the act.

Defendant in error contends that the amendment is of no validity as against him, for the reason :

First. The supreme circle had no authority to make the amendment ; that it was not the act of the corporation, and that the corporation alone could make such amendment to the constitution or by-laws, under its charter.

Second. That the corporation could not make such an amendment affecting certificates already issued.

Third. The amendment upon its face does not refer to certificates previously issued.

Fourth. The amendrnent is unreasonable and against public policy.

The court below held with defendant in error upon the first proposition and instructed the jury that the supreme circle had no authority to make the amendment and that it was therefore invalid.

The theory of defendant in error is that the corporation alone could make the amendment under its charter; that this association is analogous to an ordinary corporation, and in ordinary corporations the legislative power is lodged in the stockholders; that the membership constitute the stockholders, and that, in order to enact or amend the constitution and by-laws, the membership must act upon the same directly, either in person or by proxy given for that special purpose.' This position is wholly untenable. We must look at the whole scheme of the association, as shown by the charter and as developed under the charter. It is a beneficiary association. It was so incorporated. Such associations for many years prior to the issuing of this charter had a generally acknowledged place among the financial and social institutions of the country, all of them having supreme bodies which are the legislative and governing bodies of the society, made up of delegates selected by the members generally at meetings of the subordinate bodies with which the entire membership are connected. The charter of this association recognized this controlling characteristic of the order.

“ Said corporation shall have power to institute a supreme, and such state, district and local circles as may be deemed necessary, in accordance with its constitution and law.” The membership make their will known through their delegates, selected by them, to the supreme body, as the elector makes his will known through the representative he sends to the general assembly. These fifty thousand members, call them stockholders if you please, could manifest their will in no other way, and in our judgment it was never intended by the power that created the association, by giviug it a charter, that they should act in any other way. The cases referred to by counsel for defendant in error are cases in which the supreme governing body delegated its power to legislate to a board of control composed of certain members of the supreme body, instructing 't to form a constitution and by-laws, and make amendments to the ¿me, and the courts held it could not be done for the reason that the supreme body had no authority to delegate to any one the power to legislate, certainly not any more than a legislature- could delegate its power to make laws. In our judgment the supreme circle is the corporation in its ultimate power; certainly so for the purpose of making the laws for its government. This is shown by its entire operations from its beginning, and that has much force and effect in determining the original intention. The supreme circle has always controlled and governed the society; made all its laws for all its various branches, supreme, grand and local. This power has never been questioned before, in the state where it was chartered or in any other state or district. The certificate under which plaintiff below made claim emphasizes the fact. The contract made by it, as shown by the certificate, is between the supreme circle of the Protected Home Circle and Nell A. Tisch. Under the constitution the certificate must be so made. If the supreme circle is not the corporation or had not the power to so contract, then he has no claim he can enforce.

But, suppose we were wrong in our position, what right has defendant in error to complain of the exercise of the power to legislate by the supreme council? His rights are no greater than the member whose beneficiary he is under the certificate. When she became a member of .he association, by that act she subscribed to and agreed to be bound by all the laws of the association. Furthermore she was presumed to have full knowledge of such laws. Such is the settled law respecting beneficiary associations. They resemble mutual insurance companies in some respects, but the community of interest theory is much stronger. They'are not governed by statutory provisions regulating insurance companies; indeed are hardly considered as corporations for profit at all. In Bacon Benefit Societies & Life Insurance, Sec. 81, it is said:

“The by-laws of the society are binding upon all the members and all are conclusively presumed to know them.”

The supreme court of Indiana in Bauer v. Sampson Lodge, 1 N. E. Rep. 571, 574 [102 Ind. 262], says;

“ One who becomes a member of such an organization is chargeable with knowledge of its laws and rules and is bound by them., He cannot be ignorant of them, nor can' he refuse obedience to them unless, indeed, they are illegal or require the performance of acts which the law forbids. By-laws not in themselves illegal and not requiring the performance of acts contrary to law must, therefore, be deemed binding upon all persons who become members.” The reason of this rule is that, by becoming a member, one impliedly agrees to be bound by all legal acts of the majority under the compact of the articles of association; and a member cannot question the validity of the by-laws under which he became a member.

In a recent case, Pfister v. Gergwig, 23 N. E. Rep. 1041, 1042 [122 Ind. 567], the supreme court of Indiana said:

“ A person who becomes a member of a mutual insurance cqmpany assents to the by-laws under which he acquires a membership and he cannot afterwards assail their validity on the ground they were not regularly adopted. * * * One of the duties of a person who becomes a member of a mutual insurance company is to inform himself of its by-laws and he cannot escape their force although he may have no actual knowledge of them. A very strong application of this rule was made in a mutual insurance company case, in which Chief Justice Gibson declared that without such a rule mutual companies could not exist.”

When the wife of plaintiff in error became a member of this association and secured the certificate under which defendant in error claims, there was a constitution and by-laws enacted by the supreme circle, which constitution and by-laws provided that the same might be altered and amended by the supreme circle, and we must hold that the court below erred in saying to the jury that the amendment respecting suicide was not properly enacted, and therefore invalid as to defendant in error.

The second and third propositions of the counsel for defendant in error, taken together, involve the question as to whether or not this amendment affects this certificate which was issued prior to the amendment. In the first place it is claimed it is retroactive and affects vested rights.

It must be borne in mind that the constitution and by-laws which were in force at the time the wife became a member and procured this certificate and by which she was bound, contained the provision that the same might be amended. That provision became part of the contract of insurance, to the same extent as it the same had been written in the application or certificate. In Bacon Benefit Societies & Life Insurance, Sec. 91-a, it is said:

“ Generally speaking the same body which can make by-laws has the power to amend or repeal them, subject to the additional restrictions and limitations of the by-laws themselves, as well as those of the articles of association or charter and the implied conditions of being reasonable and not contrary to law. Where the by-laws contained no provision for amendment it was held that a majority of the members could amend and the others by silence might acquiesce. The body of the members at an annual meeting may adopt a rule in the nature of a by-law, which under the delegated power to the directors to make by-laws the latter would not have, even though it seems to impair vested rights. In order to be valid the amendments must be adopted at a legal meeting of the association. The question of vested rights often arises in determining the validity of changes in by-laws. While this question will be considered later, yet we may here say that although generally speaking it is true that no by-law can be amended or repealed so as to affect an existing cause of action or impair vested rights, and although a by-law that will disturb vested rights is unreasonable, yet where the member agrees to obey and conform to subsequently enacted laws as well as those existing at the time, or the by-laws themselves contain provisions for their alteration, a change regularly made and not unfair of itself will be valid and binding although it may seem to impair vested rights.”

In Sec. 186 of the same work, it is said:

“ It is often the case that after a person becomes a member of a benefit society the laws are changed and it then becomes a question to what extent the original contract is thereby affected. As the laws of every benefit society enter into the contract between it and its member, whether it be so stipulated or not in the certificate, it follows that when the laws provide for their amendment or repeal, and changes are made in the prescribed manner, the alterations are equally binding upon all the members because this is the express agreement of such members and no exceptions can be made.”

The learned author in Sec. 186 refers to a case in the supreme court of Indiana, Supreme Lodge Knights of Pythias v. Knight, 20 N. E. Rep. 479, 483 [117 Ind. 489], in which it says :

“ The provisions of the established by-laws of an association, such as that with which the assured united are, as appellee’s counsel justly affirm, elements of the contract of insurance. They are factors which cannot be disregarded. That they have this effect all who become members of the association must know. A person who enters an association must acquaint himself with its laws, for they contribute to the admeasurement of his rights, his duties and his liabilities. It is not one by-law of which the member must take notice, but he must take notice of all which affect his rights or interests. Where, as here, there is an express and clear reservation of the right to amend, he is bound to take notice of the existence and effect of that reserved power. The power to enact by-laws is inherent in every corporation as an incident of its existence. This power is a continuous one. No one has a right to presume that by-laws will remain unchanged. Associations and corporations have a right to change their by-laws when the welfare of the corporation or association requires it, and it is not forbidden by the organic law. The power. which enacts may alter or repeal. The duly chosen and authorized representatives of the members alone are vested with the power of determining when a change is demanded and with their discretion courts cannot interfere. Were it otherwise, courts would control all benevolent associations, all corporations and all fraternities.”

Mr. Bacon supports the of his work by the citation of numerous authorities, audit seems that little more need be added. Mrs T'isch lived for three years after this amendment, during all of which time she was a member of the association, was presumed to know of the amendment and made no complaint.

The constitution and by-laws provided that amendments should be made. In her application she consented that she would be governed by changes that might be made after the issuing to her of the certificate, and the beneficiary cannot now be permitted to complain, except the amendment is an abuse of discretion and clearly an unreasonable, and arbitrary invasion of vested rights. What vested rights had she or her beneficiaries at the time of the amendment ? Neither of them was a creditor of the association. A certain amount was to be paid to him provided she kept and observed all the laws and regulations of the association. If she became addicted to the habitual use of intoxicants or committed a crime she might be expelled from her local circle and the certificate became void, and after the amendment it became void if she committed suicide. No vested right whatever was affected.

In Stohr v. Musical Fund Soc., 22 Pac. Rep. 1125, 1126 (82 Cal. 557), it is said:

“ The term ‘ vested right ’ is often loosely used. In one sense every right is vested'. * * * The term, however, is frequently used to designate a right which has become so fixed that it was not subject to be divested without the consent of the owner, as contradistinguished from rights which are subject to be divested without his consent. Now a right, whether it be of such a fixed character or not, must be a right to something; and, when a man talks vaguely of his vested right, it conduces to clearness to ask: ‘ A vested right to what ? ’ * * * If the plaintiff has any right which is so fixed that it is not subject to change, we think it can only be to the fruits which ripened before the change is made; in other words, to such sums as become due before the new bylaw was adopted.”

Upon the same subject see also Bacon Benefit Soc. & Life Ins., Sec. 186, supra.

Two cases have been referred to by counsel directly in point. In Supreme Commandery Knights Golden Rule v. Ainsworth, 71 Ala. 436 [46 Am. Rep. 332], the court held:

“Under a contract of life insurance issued by a mutual company conditioned to be subject to any by-laws thereafter to be enacted, the insured is bound by a subsequent by-law forfeiting such policies when the insured should die by his own hand, sane or insane.”

Also in Supreme Lodge Knights of Pythias v. LaMalta, 30 L. R. A. 838 [31 S. W. Rep. 493; 95 Tenn. 157], it is held:

“The holder of a benefit certificate who agrees to be bound by all laws of the order ‘now in force or that may hereafter be enacted’ will be subject to a subsequent rule regularly passed destroying liability on certificates in case of the suicide of their holders.”

It is also claimed that the amendment was not intended to apply to certificates previously issued. We do not think so. The language in the amendment is: “The benefit certificate issued to a member shall become void.” This language applies as well to certificates issued before as after the amendment and covers both characters of certificates. Furthermore we must arrive at the intent of the supreme circle, from the considerations that must have induced it to enact the amendment. Experience had, no doubt, shown that provision must be made against losses arising from self-destruction. By making it applicable to future certificates, when it had r. complete legal right to make it applicable to certificates already issued, would make the action of the supreme circle' seem absurd; also if the amendment applied only to certificates issued subsequently to its enactment, there would be a class of members having certificates of greater value than the certificates held by another class; yet each class would be subject to the same assessments and the same duties.

Is the amendment reasonable and not against public policy? The law seems to be so well settled that an insurance company may provide by its policies or certificates against self-destruction by the insured, whether sane or insane, that it is only necessary to call attention to a few of the leading authorities: DeGogorza v. Insurance Co., 65 N. Y. 232; Travelers’ Ins. Co. v. McConkey, 127 U. S. 661 [8 S. Ct. Rep. 1360]; Beach Law of Insurance, Secs. 911 and 912, and cases therein cited.

Judgment of court of common pleas reversed for the reasons that the court erred in its charge and that the verdict is manifestly against the evidence.


author: DONAHUE, J.

text:
    STATUTES OF DESCENT.
    [Morrow (5th) Circuit Court,
    December Term, 1902.]
    Douglass, Voorhees and Donahue, JJ.
    Marvin B. Lyon et al. v. Mary Lyon et al.
    1. Ordinance of 1787 in Force.
    That part of the ordinance of 1787 not repealed by the constitution or statutes, in express words or by fair implication, is still in force in this state.
    2. “Next op ICin,” as Used in Sec. 4159 Rev. Stat., Sixth Paragraph, Ex-crudes the Harp Brood.
    The sixth paragraph of Sec. 4159 Rev. Stat., which provides that an 'estate acquired by purchase, in default of certain heirs, shall pass to the next of kill, is controlled by the third and fourth paragraphs of such section, and kindred of the whole blood of the intestate will take as next of kin under such paragraph to the exclusion of those of the half blood.
    Harlan & Wood, for plaintiffs and defendants, Mary Byon et al., cited:
    The words “next of kin” describe a class of persons to be ascertained by the rules of law and the degrees of consanguinity are to be computed according to the rules of the civil law. Clayton v. Drake, 17 Ohio St. 367, 368.
    Brothers of the whole and half blood are of the same degree, and would share equally unless distinction is made by statute. Oliver v. Sanders, 8 Ohio St. 501, 506.
    Under the ordinance of the northwest territory no distinction is made between the whole and half blood, and the next of kin share in .equal degrees and alike. Ordinance of 1787 at page 3646 Bates Rev. Stat.
    All laws of the northwest territory not inconsistent with the constitution of the state continue and remain in full force until repealed by the legislature of the state. Constitution of 1802, Sec. 4, Art. 8, of schedule; constitution of 1851, Sec. 1, Art. 10, of schedule; Cass v. Dillon, 2 Ohio St. 607.
    It has been said that the policy of our statutes prefers the whole to the half blood. This may be true, but when the statute is silent on the subject, courts have no power to enlarge on the same and hold that the whole blood is preferred to the half blood by implication, when the plain terms of the statute is to the contrary. Clayton v. Drake, 17 Ohio St. 367, 373.
    L. K. Powell, for defendants, Franklin P. French et al., cited:
    “Next of kin” under Sec. 4158 Rev. Stat., may not be “next of kin” under Sec. 4159 Rev. Stat., depending on the rules by which “next of kin” are ascertained. The result of this would be that the “next of kin” of Andrew of the blood of Emeline, under Sec. 4153 Rev. Stat., would include different persons from the “next of kin” of Andrew under Sec. 4159 Rev. Stat.
    The rules of the civil law are abrogated as to ancestral property, when it passes in the ascending line from the intestate, as uncles are preferred to grandparents. Curren v. Taylor, 19 Ohio 36.
    The distinction between the inheritable qualities of the whole and the half blood prevails throughout the entire Sec. 4159. Stembel v. Martin, 50 Ohio St. 496 [35 N. E. Rep. 208].
    I would suggest the following authorities as throwing light on the subject: Brewster v. Benedict, 14 Ohio 385; Prickett v. Parker, 3 Ohio St. 394, 396; diver v. Sanders, 8 Ohio St. 501; Clayton v. Drake, 17 Ohio St. 367.
   DONAHUE, J.

This is an action brought to partition certain real estate of which Andrew L. French died seized and intestate. The agreements of counsel are that eighty acres of this land were inherited by Andrew E. French from his father, Lucius French; that seven and one-half acres were inherited by him from his mother, Sener French; that eighty-seven and one-half acres were inherited by him from his sister, Emeline French; that two hundred and fifty acres were acquired by purchase.

It is further agreed that the eighty acres inherited from the father, goes to the next of kin of the blood of the father; that the seven and one-half acres inherited from the mother goes to the next of kin of the blood of the mother, whether they be of the whole or half blood. It is also further agreed that the eigh'ty-seven and one-half acres inherited from the sister goes to the next of kin of the blood of Emeline, as claimed in the petition and in the proportions therein stated.

The question submitted to us is, as to the descent of the title to the two hundred and fifty acres; and in reference to this, it is further conceded that this estate passes under paragraph six of Sec. 4159 Rev. Stat., and the sole and only question for us to determine is, who are the next of kin under this paragraph of the statute.

It is contended, on the one hand, that children of the brother of the whole blood of the father take to the exclusion of children of the brothers of the half-blood of the mother. On the other side, it is contended that children of brothers of the half-blood of the mother take in -equal proportion to children of the brother of the whole blood of the father. This is the sole question submitted to us for consideration. The fact that one set of heirs claim through the mother, the other through the father has nothing to do with the question. It is the same as if the children of the brother of the whole blood of the father and the children of the brothers of the half-blood of the father were claiming this inheritance-; so then the question is fairly presented as to whether under paragraph six of Sec. 4159 Rev. Stat., the whole blood is preferred to the half-blood. Counsel have very fully and fairly presented this question! to us and aided us largely in our investigation.

To determine this question, we must look not only to the legislation but qlso 'to the history of descent, both under the common law or canons of descent and the civil law, for one of these will obtain unless the statute in express words, or by fair implication, abrogates both and gives a -new rule for determining the next of kin.

The common law and the civil law agreed in rules of descent to lineal heirs in the descending lines, but when the descending lines were exhausted, then the common and civil law parted company.

The common law, to meet the needs and purposes and intention of the feudal system, then sought next of kin among collateral kinsmen upon the theory that the inheritance should rest in a younger and stronger individual more capable of service to his feudal lord than would be the aged ancestor in the lineal ascending lines; therefore the kinship was reckoned from the intestate directly in collateral lines; and the natural and' necessary result was to exclude the half-blood when there were! brothers of the whole blood, because the whole blood were necessarily nearer of kin to the intestate than the half-blood.

The civil law reckoned on lineal lines only, going back to a common ancestor and then down to his nearest kinsman, so that if the half-blood and whole blood were all children of that ancestor, they stood in equal relation to the ancestor; and as the inheritance came not direct from the intestate but through the ancestor, only the kinship to the ancestor was important and the natural result of this rule was to make the whole and half-blood equal in the line of succession. Therefore, it is apparent that if the civil law obtains here the whole and half-blood stand equal. If the common law,the whole blood takes to the exclusion of the half-blood.

Section 2 of the ordinance of 1787, provides:

“That the estates both of resident and non-resident proprietors in the said territory, dying intestate, shall descend to, and be distributed among, their children and the descendants of a deceased child in equal parts., the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them; and where there shall be no children or descendants, then in equal parts to the next of kin, in equal degree; and among collaterals, the children of a deceased brother or sister of the intestate shall have, in equal parts among them, their deceased parent’s share; and there shall in no case, be a distinction between kindred of the whole and half-blood.”

That was the first legislation that affected real estate in this state upon the question of descent. The constitution, or I should say, both "constitutions of Ohio left this law in force.

The constitution of" 1802, Sec. 4 of the schedule reads:

“All laws, and parts of laws, now in force in this territory, not inconsistent with this constitution, shall continue and remain 'in full effect, until repealed by the legislature, except so much of the act, entitled 'an act regulating the admission and practice of attorneys and counsellors at law,’ and of the act made amendatory thereto, as relates to the term of time which the applicant shall have studied law, his residence within the territory, and the term of time which he shall have practiced as an attorney at law, before he can be admitted to the degree of a counsellor at law.”

Turning to Sec. 1 of the schedule of the constitution of 1851:

“All laws of this state, in force on the first day of September one thousand eight hundred and fifty-one, not inconsistent with this constitution, shall continue in force until amended, or repealed.”

So that unless the statute does amend or repeal, or in some way change the course of descent, this part of the ordinance of 1787 is still in force; and the whole and half-blood.stand equal, as by the rule of the civil law.

. Our next inquiry is, as to whether this rule is changed by statute. We have in this Sec. 4159 Rev. Stat., what is known as the statute of descent of non-ancestral estates. That provides:

“First. To the children of the intestate and their legal representatives.
.“Second. If there are no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate.
“Third. If such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood, and their legal representatives.
“Fourth. If there are no brothers or sisters of the intestate of the whole blood, or their legal representatives, the estate shall pass to the brothers and sisters of the half-blood, and their legal representatives.”

It is evident, so far as the classes named in the third and fourth paragraphs of this section are concerned, the ordinance of 1787 is repealed. This, in effect, excludes the half-blood, and gives the estate to the whole blood, to the exclusion of the half-blood.

The sixth provision of this statute is as follows:

“If the father and mother are dead, the estate shall pass to the next of kin, and their legal representatives, to and of the blood of the intestate.”

The question arises, whether the third and fourth paragraphs of this section control the sixth, or whether the sixth paragraph of this section stands alone and unaffected by the provisions of the third and fourth.

The case of Stembel v. Martin, 50 Ohio St., p. 495, gives us some advice as to the opinion of the Supreme Court upon this question. It does not construe this statute, but it construes Sec. 4162 Rev. Stat., and that provides for the descent of the estate after the death of the husband or wife, where the survivor has not disposed of the estate during his lifetime.

The Supreme Court, in disposing of this section, say this is not an independent section as it appears from the revised statutes of Ohio, but that it is a supplemental section to this other section of descent and distribution; and that it is controlled by the rules laid down in those sections, that the only effect of the supplemental section, is to divide the estate and send it back to be distributed under the rules given in the section just referred to.

We cannot understand why, if this supplemental section is controlled by the provisions of the third and fourth paragraphs of this section first referred to, the paragraph of the same section should not so be controlled.

It seems to us the conclusion is irresistible, that if the Supreme Court hold a supplemental section is controlled by paragraphs three and four, it must also hold that the sixth paragraph of the same section is controlled thereby.

There is an instructive case in. Curren v. Taylor, 19 Ohio 36, 39. Ia discussing this the court say:

“The argument is pressed with earnestness, that tSe civil law should govern, and not the common law, in determining who is the next of kin intended in this clause, and that in accordance with the 'better feelings of our nature, the grandfather is'regarded as a nearer relative than uncles or aunts.
“It has been the settled policy of the state, in its laws of descent, t© direct the property of a deceased brother to pass to the brothers and sisters who survive him, to hold them in this respect, as nearer than the father, or at all events, to prefer them to the father, even in a case where all the property had come by gift directly from him. If George Artér, the son, had died without a child, the estate now in controversy, would, under the' statute we are now considering, have passed to his brothers and sisters, and not to his father. Now it is difficult to understand why this law should be suffered to remain in force here, where statutes are so easily, and in point of fact, so frequently subjected to alteration and repeal, if there be in reality any general sentiment or feeling opposed to this principle of descent. In putting a construction upon the statute or upon parts of it, we, as a court, at least, would feel ourselves called upon to give some attention to the principle so recognized in the law of descents. If, then, this estate would have been properly settled upon the brothers and sisters of George Arter, senior, had he died without children, we cannot see a sufficient reason for diverting it from that course, because it has chanced to rest for a time in his infant son. We think that by a proper interpretation of the statute in question, the brothers and sisters of the intestate’s father, and not the grandfather, should take the inheritance.”

So we think that the rule of descent fixed by our statutes and the whole tendency of legislation upon that subject, is to exclude the half-blood and to give the estate to the whole blood.

Suppose, for instance, to show the analogy between this case I just read from and the case at bar: That this father had the property, that he died seized of this property, not the son, Andrew L., but Lucius died seized of this property, and he failed for heirs in the lineal line. The statutes would not send it back to the father, but it would send it to his brothers of the whole blood. If the father had died seized, then the statutes of the state would send it to his brothers of the whole blood.

It is further said in the case of Curren v. Taylor, supra:

“There is no theory, no reason for saying, that because the child held for awhile, that it should go through any different course of descent than the one it naturally had followed had the child never been born and lived to inherit through the father.”

We think there’s a direct parallel between that case and the one we have here. We think the statutes of descent in Ohio intend to give to the whole blood to the exclusion of the half-blood in cases of this kind. We think that if this estate came back to this father dr to the mother, and the father or mother held for ever so short a time, if they lived just long enough to arrest the title in themselves after the death of the son, it would have gone to the brothers of the whole blood, and there is no reason it should not go to the same heirs that it would have gone to if they had lived long enough to arrest the title.

That being our conclusion, the heirs of the half-blood will be excluded from the 250 acres, and as to the other land sought to be partitioned a decree may be entered according to the agreement of counsel.