author: PARKER, J.

text:
    ASSESSMENTS — ERROR.
    [Lucas (6th) Circuit Court,
    June 8, 1907.]
    Haynes, Parker and Wildman, JJ.
    Fred W. Ridenour v. Thomas Biddle, Treas., et al.
    1. Reassessment of Unpaid Portion of Invalid Assessment.
    A street improvement assessment having been set aside after settlement has been made as to part of the lots and lands affected, a reassessment of the lots with respect to which there has been no settlement is not invalid because the lots covered by the settlement are omitted from the reassessment.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 385-405. — Ed.]
    2. Effect of Descbiption of Unaffected Lands in Improvement Obdinance.
    The fact that a parcel of land described in a special improvement ordinance is not specially assessed does not affect the validity of the assessment, provided such parcel is not specially benefited by the improvement.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 385-405; 6 Cyc. Dig., "Municipal Corporations,” §§ 1280-1284.- — Ed.]
    3. Construction of Nonprejudicial Irrequlabities in Improvement Proceedings.
    The principle that in error proceedings when error is shown it is presumed to be prejudicial, does not apply to irregularities in apportioning improvement assessments; such cases are governed by the principle of liberal construction provided for in Rev. Stat. 2327 (Lan. 3679; B. 1536-280).
    [For other cases in point, see 4 Cyc. Dig., “Error,” §§ 466-474. — Ed.]
    4. Informality in Improvement Assessment must Be Prejudicial.
    An informality in an improvement assessment is not sufficient grounds for setting aside the whole assessment unless it is shown that prejudice has resulted to the plaintiff by reason of such informality. ' )

    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 535-537. — Ed.]
    [Syllabus approved by the court.]
    B. A. Hayes, for plaintiff.
    C. S. Nortfaup and O. W. Nelson, for defendants.
   PARKER, J.

On May 15, 1899, the common council of the city of Toledo adopted an ordinance providing for the improvement of a part of Navarre avenue from Woodville street to the easterly city boundary. Navarre avenue was subsequently improved in accordance with this ordinance by paving the central thirty feet thereof. The assessment upon the property benefited was set aside by this court in accordance with the decision of the Supreme Court in Ayers v. Toledo, 72 Ohio St. 651, or, rather, the principles that seemed to be applied by the Supreme Court in the reversal, without report, of the decision of that case by this court, which decision is reported in 26 O. C. C. 767. Thereupon the council took steps to have a reassessment upon certain of the property ben-fited, it appearing that as to a large .part of the property the assessments had been paid, or settled or adjusted in such a manner as that it was not necessary for the council to take any steps with reference to such parcels; in other words, there were some 114 parcels in all and but eight parcels remained unadjusted, and those are the eight represented by the plaintiff here. The-council, on April 16, 1906, taking notice of this judgment setting aside-the original assessment, and taking notice of the fact that the assessments as to all of these lots and parcels, excepting the eight, had been adjusted, ordered that there should be a reassessment of these eight parcels (quoting from the resolution) : “As near as may be according-to benefits and in proportion that the benefits received by said lots and lands bear to the total benefits received by all the lots and lands bounding and abutting upon said improvement and as set forth in the resolution and ordinance providing for said improvement.”

Assessors were appointed who made their report assessing a part of the cost M this improvement upon these eight parcelsand in their report they set forth, among other things, that they “find and report an estimated assessment upon the lots and lands set forth in said resolution adopted April 16, 1906; which estimated reassessment so reported herein is made on the lots or parcels of land to be charged therewith as nearly as may be, to the special benefits which result from said improvement to the said several lots or parcels of land so assessed, and is apportioned among the several lots or parcels of lands specially benefited by said improvement in the proportion that the special benefit to each lot or parcel of land benefited bears to the whole special benefits conferred by said improvement.”

They then proceed to find the fair market value of these lots and set forth the amount of benefits. This report was confirmed by the council, and the assessments made in pursuance of this action — these reassessments by this commit bee — are attacked by the plaintiff here, and the attack is made upon several grounds, which I shall mention in their order.

The first ground is, that all of the 114 lots not having been reassessed, but only the eight lots of the plaintiff, the reassessments could not have been according to benefits, as required by original Rev. Stat. 2264 (see Lan. 3600; B. 1536-210) then in force — the statute under which the reassessments had been made.

We find.no statute requiring that, upon a reassessment because of a former assessment having been set aside, such reassessment shall include the lots and lands with respect to wbicb settlement has been made, and we can think of no reasbn why that should be done. Counsel in his brief' quotes from the ease of Cornell v. Franklin Co. (Comrs.) 67 Ohio St. 335, 339 [65 N. E. Rep. 998], as follows:

‘To any extent that one man is compelled to pay in order to relieve others of a public burden properly resting upon them, his property is taken for private purposes, as plainly and as palpably as it. would be if appropriated to the payment of the debts or the discharge-of obligations which the persons thus relieved by his payments might owe to private parties.’ ”

That is undoubtedly true; but here, as I read from the report of' these assessors, they took into consideration not only the benefits resulting to these eight parcels, they not only found that such lots were-specially benefited to the extent of the assessments returned, but they found that no assessment exceeded a fair and just proportion of special benefits conferred upon the lot assessed; and they further say distinctly, that they apportion the whole cost of the improvement — that, is to say, the whole amount which was to be assessed upon private property — “among the several lots or parcels of land specially benefited by said improvement in the proportion that the special benefit to each lot or parcel of land benefited bears to the whole special benefits conferred' by the improvement.”

In the absence of any showing that they did not do this, we must assume that their statement is correct; that they did proceed in this, way, and that they took into consideration the benefits to the other lots, not reassessed, the amount that should be apportioned to them had they not paid their share of the assessments, precisely in the same way and with the same effect of relieving these eight lots from the burden of assessments as if they had actually returned a new assessment against the omitted lots. .We cannot see how they could well have actually returned a new assessment against these other lots, in view of the fact that such lots had borne their shares and proportions of the expenses. We think that in this action the authorities complied with the requirements of the law.

It is pointed out as a second reason why this reassessment should., be set aside, that a part of a certain tract of land, described in the improvement ordinance, was not assessed any part of the cost or expense' of this improvement by either the original assessment or this reassessment, and counsel presents the case upon the assumption that because this parcel of land was described in the original improvement ordinance it must necessarily follow that it was one of the parcels of land benefited by the improvement, that it must share a ■portion of 'the burden of the improvement, and, it not having done so, that its share — some part of it at least — must have fallen ■upon the eight lots owned by the plaintiff. While the statute required that the ordinance should set forth specifically the lots and lands to be ■assessed, we do not understand that such designation by the ordinance ■determines, necessarily, that every one of the lots so set forth shall be ■assessed. In other words, if the committee commissioned to make the assessments should discover that some one or more of the parcels of land described in the ordinance are not in fact benefited by the improvement, we do not understand that they are required to return that there is some benefit, or to make some assessment upon these lots simply because they have been desferibed in the improvement ordinance. For aught that appears, this small parcel of land to which our attention is called, which was omitted from the lands assessed, was not benefited by the improvement. It is a small parcel of land irregular in form, lying eighty rods distant from this paved street; and ■as we are shown, there are other streets intervening between this parcel ■and the improved street. It is doubtful if an assessment upon this parcel could be sustained had it been made.

There is a question discussed by counsel in this case respecting the ■presumption of prejudice, or no prejudice, resulting from error in proceedings of this character. I wish to defer what I have to say upon this ■subject until I have said something about the third ground of complaint, for that subject has to do with both the second and the third ¡grounds — perhaps with all the grounds of complaint.

The third ground of complaint, is, that no assessment was made to be paid by the city on account of the intersections.

In the ease of Burr v. Parker, 30 O. C. C. 297, decided by this court in February, 1907, we had occasion to discuss, briefly, the statute on that subject. We were not required in that case to pass upon the question whether a part of the costs of such improvements should be assessed against the city on account of the intersections, in pursuance of Sec. 2275 Rev. Stat. (repealed, 96 O. L. 96), for the reason that the parties had not, by their averments, put themselves in a position to fairly raise that question; but we called attention to the peculiar' ¡state of the law on the subject as apparently made applicable to the ■city of Toledo, and expressed our doubts as to whether it was ever really intended that Toledo should be subject at the same time to the provisions of Sees. 2274 and 2275 Rev. Stat. (repealed, 96 O. L. 96). It is now urged on behalf of the plaintiffs that if these two sections are not reconcilable, Sec. 2275 Rev. Stat. (repealed, '96 O. L. 96), having been enacted or amended after Sec. 2274 Rev. Stat. (repealed, 96 0. L. 96), the former should prevail over the latter, and that- therefore, in the city of Toledo, at the time of this improvement, ■some share of the expense of the improvement should be assessed against the city on account of intersections; in other,words, the intersections should be treated as abutting property.

It appears that in this ease the whole cost of the intersections was paid by the city. If, proceeding under Sec. 2275 Rev. Stat. (repealed, 96 6). L. 96), the city had directed the assessing committee to assess the whole cost of the improvement including the costs of intersections-upon all of the abutting property, including the intersections, it is not apparent that that would have lightened the burden of plaintiffs here; indeed it seems to be almost demonstrable that a heavier burden would have fallen upon the property owners than was laid upon them where the city proceeded, as it did, to deduct the whole cost of the intersections and pay it from the city fund. We still, entertain doubts as to whether Sec. 2275 Rev. Stat. (repealed, 96 0. L. 96) should be given ■effect; but, assuming that it should, it is not apparent that any prejudice resulted to the plaintiffs from the city’s proceeding as it did instead of proceeding as counsel for plaintiffs contends it should have proceeded.

Upon this subject counsel for the plaintiffs, in his brief, cites the cases of State v. Aldridge, 66 Ohio St. 598 [64 N. E. Rep. 562], and especially 604; Cleveland Punch & Shear Wks. Co. v. Carbon Co. 75 Ohio St. 153, and especially 170, to the effect that in error proceedings, where error is shown, prejudice is presumed. That, of course, is the general rule, in cases of that character. He also cites the language of the court in the course of the opinion in the case of Stephan v. Daniel, 27 Ohio St. 527, the notation being at 536, to the effect that under Rev. Stat. 5848 (Lan. 9387) a remedy is given by injunction to restrain the collection of assessments or taxes unlawfully levied, and that in the application the plaintiff need not aver or show, as required under ordinary rules in equity, that great or irreparable injury is about to be done for which he has no adequate remedy at law, but he need only show that the tax which is about to be assessed or collected is illegal. But we do not think that the authority just mentioned, or those upon the subject of proceedings in error, quite meet the question. The authorities that we regard as more nearly in point are cited by counsel for the city, and to some of these I will call attention.

In tbe first place, it is provided in Rev. Stat. 2327 (Lan. 3679; B. 1536-280) that—

“Proceedings with respect to improvements shall be liberally construed by the councils and courts, to secure a speedy completion of the work, at reasonable cost, and the speedy collection of the assessment after the time has elapsed for its payment, and merely formal objections shall be disregarded; but the proceedings shall be strictly construed in favor of the owner of property assessed or injured, as to the limitations on assessment of private property, and compensation for damages sustained.” *

Now we do not regard the question made here as one involving limitation on assessments; it is not one involving compensation for damages sustained, nor is it one that goes to the jurisdiction of the city officials ; so that we think it is a case in which the doctrine of liberal construction should be applied to the proceedings of the city and its officials. Their actions should not be modified or set aside even if there should be informality therein, unless some prejudice to the party complaining should be made manifest or at least probable.

In Ayers v. Toledo, supra, we expressed our views upon this subject, and we have done so in a number of cases, but our views are challenged and we feel disposed to look further for authority than our own utterances. In the case of Burr v. Parker, supra, this was said:

“Now it may be, that, if it should be made to appear that some lots or lands that should have been assessed were omitted, that would render the assessment of the other lots and lands invalid so that the court would be required to enjoin the assessment and a new assessment would have to be made including those lots and lands; but certainly, where one goes: into a court of equity with a claim of that character, he should make it appear affirmatively that the lots and lands which he says should have-been assessed derived some benefit from the improvement, so that they should have been assessed and so it should appear at least probable that upon a reassessment some assessment would be laid upon such lots and lands and probably thereby the assessment upon his lots and lands would be lessened.”

And one clause of the syllabus in Ayers v. Toledo, supra, is:

“The presumption that an assessment is inequitable does not arise from the mere failure of the municipal council to make a record of the valuation of property charged therein.”

To be sure, as already said, this decision was reversed, but we do not understand that the doctrine stated in that clause of the syllabus: was necessarily disapproved; and I shall undertake to show that it is the-doctrine of the Supreme Court as set forth in a number of cases.

In the case of Steese v. Oviatt, 24 Ohio St. 248, it is said, page 2531

“Proceeding under the statute, the party complaining is not required to show a case of threatened irreparable injury, or the absence of a remedy by ordinary legal proceedings; but he must exhibit a ease in which, upon the merits, he is entitled to the equitable relief demanded.
“In these cases, notwithstanding the irregularities complained of, the plaintiff’s property was, under the statute, clearly subject to be charged to pay the expense of the respective improvements. The assessments were made by competent authority, and although irregularly made, it does not appear that any injustice was done.”

In Cincinnati v. Shoemaker, 25 O. C. C. 256, which was affirmed by ,the Supreme Court in Cincinnati v. Shoemaker, 68 Ohio St. 733, this language occurs, page 257:

“If the benefits conferred are equal to the assessment, there is nothing to move a court of equity to intervene by injunction.”

In Ridenour v. Safin, 12 Dec. Re. 238 (1 Handy 464), reading-from page 245, the court say:

“We know it is said, that for aught that appears, the heaviest and most costly part of the work might have- been done on that part of the-road which was not required to be improved; but that would be to reverse the rule of presumption, which holds, in matters of public duty, that the acts of the_ public officer are rightly done. Where it is not shown by proof, either way, how the matter stands, it ought to be presumed that the lawmaking power has acted in the spirit of equality and justice. ’ ’

In Benham v. Cincinnati, 26 O. C. C. 17:

“Where, however, the assessing board has made a finding of benefits and has made the assessment on that basis, such finding and assessment are prima facie correct, and should not lightly be disturbed or inquired into in the absence of allegations of some of the grounds usually invoking equitable intervention.”

In Bloch v. Godfrey, 26 O. C. C. 781, quoting from page 783:

“We are of the opinion, therefore, that there having been no objection made by Mr. Hayes at the time this apportionment was' made, but he having acquiesced in it, he is bound by it, and that the fact that some part of the assessment was not levied upon these other lots, in the absence of any evidence that there was any injustice therein, this apportionment of the whole cost of the improvement to lots 1 to 29, does not present any legal ground for invalidating the assessment or enjoining the levy.” Affirmed, Bloch v. Parker, 71 Ohio St. 533.

Chicago, R. I. & P. Ry. v. Chicago, 139 Ill. 573, 580 [28 N. E. Rep. 1108]:

In order to be entitled to relief plaintiff must show that his assessment would have been reduced by showing “that the street railway was specially benefited, and the extent of its benefits; but there can be no •presumption in that respect in the absence of evidence.”

In Walters v. Lake, 129 Ill. 23, 29 [21 N. E. Rep. 556], it was •claimed that part of the cost of the improvement should be assessed .against the city by reason of intersections; but it was said that

“The commissioners have decided that there has been no public benefit to the town. The only course left for the objectors was to show upon the hearing that their lots were benefited less than the amount assessed against them.”

Davies v. Saginaw, 87 Mich. 439, 451 [49 N. W. Rep. 667] :

“The confirmation of that roll by the council, determined that the proportion of the aggregate benefit received by each parcel was equal •to the burden imposed, and in the absence of fraud, oppression, or manifest mistake, s,ueh determiüations are conclusive.” ,

White v. Tacoma, 109 Fed. Rep. 32, 36:

'' “If it appears that an assessment has been levied by competent authority, and that it is fair, and not in excess of the benefits to accrue by reason of the improvements to be paid for, it will be sustained by the ■courts.” See also, Muchmore v. Miller, 9 Dec. Re. 176 (11 Bull. 160).

We are of the opinion that the plaintiffs have failed to show that they have been prejudiced by any informality that may have crept in here; they have failed to show that there is any equity or real merit in their complaint. On the other hand, it seems to us to be very apparent that the council has proceeded with care in the matter of this' reassessment. The burden laid upon these lots is somewhat lighter than it was under the original assessment and no property seems to have been omitted that was really ■benefited, and, therefore, we think we should not set this assessment aside. The petition of the plaintiffs will be dismissed at their costs.

Haynes and Wildman, JJ., concur.


source: Caselaw Access Project

author: JVIARVIN, J.

license: Public Domain

text:
    ATTACHMENT AND GARNISHMENT — EXEMPTIONS — JUSTICE OF THE PEACE.
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Winch, Henry and Marvin, JJ.
    Joseph W. Rancourt v. Arthur W. Hahn.
    1. Who abb Residents of this State under oub Exemption Laws.
    Where a defendant was at the time of the commencement of a proceeding’ in attachment against him, indebted to the plaintiff in the sum of $22.98-for groceries furnished as necessaries to his family, and he had for a long time resided in the city and county where such action was begun, and was living with his wife and children, but was about to remove his family to Canada, and had his goods loaded on a car, but his intention was to return in two years or more or as soon as his job was completed, he was at the time of levying of this attachment a resident of Ohio, and entitled to exemptions, as the head of a family. For he is a resident of this state, under our exemption laws, and is actually in the state, and has his home here. And when one has acquired a residence here he cannot lose it and become a nonresident by simply determining to remove elsewhere, without actjial removal. ’
    2. Who Entitled to Exemptions in Lieu of Homestead.
    Under Rev. Stat. 5441 (Lan. 8970) where neither the defendant nor his wife is the owner of a homestead, and is as in this case a resident of Ohio, he is entitled to property of greater value than that here attached, which is valued at $400, in lieu of a homestead; and a failure in his motion, to specify under which clause or section of the statutes he made his selection, is not fatal, for he must be presumed to have made it under thesection of the statutes which entitled him to the exemption, which is Rev. Stat. 5441 (Lan. 8970).
    [For other cases in point, see 4 Cyc. Dig., “Exemptions,” §§ 87-92. — Ed.]
    3. Demand for Exemptions may be Made before Justice.
    Where the defendant in an attachment proceeding made his claim for exemptions in lieu of a homestead to a justice of the peace by filing motion to discharge the attachment officer who held the property, the justice has jurisdiction to entertain and dispose of the contention, and the demand was not made to the wrong person.
    [For other cases in point, see 4 Cyc. Dig., “Exemptions,” § 77. — Ed.]
    4. Claim for Necessaries Entitles one to an Attachment.
    Under Rev. Stat. 6489 (Lan. 10066) the fact that a suit is brought for necessaries, authorizes the issuing of an attachment without reference to-whether any other of the causes provided in the statute existed; and plaintiff may have an attachment for such cause alone.
    [For other cases in point, see 1 Cyc. Dig., “Attachment and Garnishment,”’ §§ 41-43. — -Ed.]
    [Proof of this decision and syllabus has been submitted to Judge Marvin and corrected.]
    Error to Cuyahoga common pleas court.
    Hart, Canfield & Croke, for plaintiff in error.
    O. W. Broadwell, for defendant in error.
   JVIARVIN, J.

Hahn brought suit against Rancourt before a justice of the peace in Cuyahoga county, Ohio, upon an account, and at the time of beginning the action filed an affidavit for attachment against the defendant’s property, setting up various grounds for the attachment, among which is the statement that the claim on which judgment is sought is for necessaries contracted for since April 26, 1898, and that said defendant is a nonresident of said county of Cuyahoga.

All of the other grounds which under the statute authorizing the issuing of an order of attachment by a justice of the peace are stated in the affidavit, except the one ground that the defendant fraudulently .and criminally contracted and incurred the obligation for which suit is about to be brought. There is no claim at all that any one of these ¡statements in the affidavit is true, except the one as to the necessaries, ¡and the one as to nonresidence. Attention is called to this, because <.of the apparent recklessness with which the plaintiff below resorted to ,-a proceeding in attachment, and it is a practice which should be severely criticised, that men will allow themselves to make an affidavit ¡for the purpose of obtaining an attachment, which contains statements which are not true, and which the plaintiff has no reason for supposing to be true.

One of the averments in the affidavit is: !‘That the defendant is mot the head or support of a family. ’ ’ Another is: “ That the defend¡ant has left the county of his residence to avoid the service of á summons; and that said defendant so conceals himself that a summons .cannot be served upon him.” Another is: “That the defendant has .assigned, and removed and disposed of and is about to assign, remove and dispose of his property, or a part thereof, with intent to defraud his creditors.”

There was no reason, so far as appears for the plaintiff who made this affidavit, to believe that the defendant was about to convert any property into money for the purpose of defrauding his creditors, and the very fact that the suit was brought for necessaries, furnished to the family of the defendant negatives the idea that the plaintiff supposed that the defendant was not the head or support of a family. It is said in reference to-this, that a printed form of affidavit was used, and that the party preparing it neglected to erase such parts of it as the plaintiff did not rely upon. If this be so, it shows, to use the mildest term, recklessness on the part of the person making the affidavit, and neglect on the part of the officer before whom it was made, in not distinctly calling the attention of the party making it to the facts he was making oath to. Perhaps it may as well be said here that equal recklessness is manifested in the affidavit filed by the defendant in support ■of his motion to discharge the attachment, for he made oath denying each and every and all of the allegations in the affidavit of the plaintiff; whereas he states in his evidence that the suit was brought for necessaries. It is a most unhappy thing that men will thus make'oath to so many things in affidavits which, if they carefully considered them, they would know were not true. However, the attachment was issued, and the property taken under the attachment consisting of household goods. These goods were loaded on a car of the Pennsylvania Railroad Company for transit to Canada. The defendant below moved the court to discharge the attachment on the ground “that he is a married man residing in the state of Ohio, and living with his wife and four children; that neither he nor his wife is the owner of a homestead; that the property taken by virtue of the attachment issued in these proceedings is his household goods, consisting of bed and bedding, furniture, chairs, etc., necessary for himself and family to keep house with; that the same are exempt under the laws of the state of Ohio; that said household goods will not exceed $400 in value; that he demands and selects the same as exempt under the laws of the state of Ohio.”

This motion was overruled by the justice. Appeal was taken to the court of common pleas on the overruling of the motion, and upon a hearing had in that court the motion was there overruled, and it is for the purpose of reversing this action of the court of common pleas that the present proceedings are prosecuted here. The bill of exceptions filed in the case, which contains all of the evidence, shows that the defendant below was at the time of the commencement of the action indebted to the plaintiff below in the sum of $22.98, for groceries furnished as necessaries to his family; that he had for a long time resided in Cleveland, Cuyahoga county, Ohio; that he was living here with his said wife and children, but was about to remove his family to Canada, where he had a particular job of work to do which might last for two years or more, and upon the completion of which it was his intention to return to Cleveland. It shows further, that neither the defendant nor his wife is the owner of any homestead, and the question is thus raised: First, was he at the time the attachment was issued a nonresident of Cuyahoga county, so as to justify the issuing of attachment ? And second, was he a resident of the state of Ohio in such sense that he was entitled to exemptions in lieu of a homestead, and if he was so entitled, did he make selection of and demand his goods attached in such wise as to entitle him to have them exempt? And still' further, if all the goods seized in the attachment were exempt, was a motion to discharge the attachment the proper means of obtaining the release of the exempted goods ?

"We consider first, the question raised as to whether, even if the defendant was a resident of Cuyahoga county, the plaintiff was entitled to an attachment, and we have reached the conclusion, after a careful analysis of Bev.. Stat. 6489 (Lan. 10066), that the fact that the debt for which suit was brought was for necessaries, authorizes’ the issuing of the attachment without reference to whether any one of the other causes provided for in the statute existed. The language of the statute is somewhat prolix, but we hold, that where the suit is brought to recover for work or labor, or for necessaries, the plaintiff may have an attachment fo'r such cause alone.

We consider next the question of whether the defendant was entitled to exemptions, and this depends first upon the question of whether he was a resident of Ohio, for it is shown without contradiction that he was the head of a family, a husband, living with his wife and children. We reach the conclusion that he was at the time of the levying of this attachment, a resident of Ohio, and therefore entitled to exemptions. as provided for residents of this state who are head of families. We have already called attention to the facts upon which this is based.

Whatever other definition may be given, it is certain that he is' a resident of the state, under our attachment laws, who is actually in the state, and has his home there, and not elsewhere. And when one has acquired á residence here he cannot lose it and become a nonresident by simply determining to remove elsewhere, without actual removal, while he and his family are still here, though he is preparing to remove elsevdiere with his family, until such actual removal, he has not become a nonresident of the state.

In Jacobs, Domicile Sec. 73, it is said that the word “domicile” is not synonymous with “residence,” and that the word “residence” commonly imports something less than “domicile.” This author says that no certain and accurate definition of the word “resident” or “residence” as used in the statutes of the several states seems to have been found, but nowhere does he intimate that one’s residence can be changed, after having been once acquired, without actual removal of his person.

In all the cases examined we find none where it has been held that after one has acquired a residence, in a particular state or county, »he can cease to be a resident of such state or county, until he has actually left the place of which he had been a resident.

In Weitkamp v. Loehr, 53 N. Y. Super. Ct. 79, the decision tends; .to strengthen the positions taken here, and the authorities cited and quoted in the opinion in Thomson v. Ogden, 13-23 O. C. C. 185, as; well as the case itself, tend to support the same view.

Drake, Attachment Sees. 58 and 59, says:

Section 58. “In determining whether a debtor is a resident of a particular state, the question as to his domicile is not necessarily alT ways involved; for he may have a residence which is not in law his. domicile. Domicile includes residence, with an intention to remain;while no length of residence, without the intention of remaining, constitutes domicile.”

Section 59. “A resident and an inhabitant mean the same thing. A person resident is defined to be one ‘dwelling or having his abode in any place’; an inhabitant, ‘one that resides in a place’. These terms, will therefore be used synonymously, as they may occur in the cases; cited. ’ ’

The question here, so far as residence is concerned, is one applicable to the matter of exemption, because we have already held under the affidavit charging that the debt sued upon was for necessaries, the attachment properly issued. When.we consider the use of the word “resident” in connection with exemption laws we must keep in mind that exemption laws are always to be liberally construed; this is the universal holding, and with that in. mind, attention is called to Waples, Home. & Exemp. Laws 774, under the heading “Besident.”

Among other things, this is said: “But an intention to leave the state, suspension of business, and the taking of machinery (claimed as exempt) to a railroad station for shipment to a place beyond the state, do not make the debtor a nonresident or affect his exemption privilege.” See Wood v. Bresnahan, 63 Mich. 614 [30 N. W. Rep. 206]; Birdsong v. Tuttle, 52 Ark. 91 [12 S. W. Rep. 158; 20 Am. St. Rep. 156].

It follows that if the defendant below made the proper selection and demand for his exemption, he was entitled to them. It is true, that the goods claimed by him as exempt are not shown to be such as. are • specifically exempted by the statute, but, under Bev. Stat. 5441 (Lan. 8970), neither the defendant nor his wife being the owner of a homestead, if he was, as we hold, a resident of Ohio, he was entitled to properi.y of greater value than this property here attached is shown to be, in lieu of a homestead. In his motion he stated that he selected and demanded the property attached, exempted under the laws of the state of Ohio. It is true that he did not specify under what clause or-

¡section of the statutes he made his selection, but it is but fair to say that he must be presumed to have made it under such section of the ¡statutes as entitled him to the exemption, and so that the exemption provided for in Rev. Stat. 5441 (Lan. 8970), was available to him under the selection which he made. As to whether the making the claim be- ■ fore the justice of the peace instead of to the officer who held the prop- ■ erty, we regard that as settled by the case of Kirk v. Stevenson, 59 Ohio .St. 556 [53 N. E. Rep. 49], where the court say, in reference to a ¡similar state of facts: “Nor'was the demand made of the wrong per.son. The justice had jurisdiction to entertain and dispose of the contention. ’ ’

It is said, however, on the part of the defendant in error, that ■ even if the facts and the law would exempt all the property taken in the attachment, still a motion to discharge the attachment was not the proper means of obtaining the release of the property. This contention, we think, is disposed of by Kirk v. Stevenson, supra, and that the court ¡should upon this motion have. discharged the property whether it was ■.in form a discharge of the attachment or not.

In Swan’s Treatise (18 ed.) 444, it is clearly implied, that the justice, upon a motion to discharge the attachment, should in a proper ■case release the property attached, and forms are given for a discharge of all the property attached and for a discharge as to some part of the property attached. We find, then, that the court below should have discharged from this attachment on this motion all of the property attached, and for error in overruling the motion and refusing so to discharge, the judgment of the court below is reversed and the ease remanded.

Winch and Henry, JJ., concur.


author: COOK, J.

text:
    INTOXICATING LIQUORS.
    [Harrison (7th) Circuit Court,
    December Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    William Mullen v. State.
    ■C. O. D. Sales of Intoxicating Liquors Outside of Local Option District. When a purchaser living in a local option district orders, in writing -by mail from a person lawfully engaged in the liquor business outside of such district, a package of liquor to be sent to him for his own use by express, C. O. D., to a station within the prescribed district, and such purchaser received such package, pays the price for the same and the charges for the return of the money to the express . company for the seller, the sale is complete upon the delivery of the package to the express company by the seller, and he does not violate the law in the prescribed district.
    [Syllabus by the court.]
    ERROR to Harrison common pleas court.
    R. H. Minteer, for plaintiff in error.
    E. S. McNamee, for defendant in error.
   COOK, J.

William Mullen was indicted, convicted and sentenced for selling intoxicating liquor in Green township, a local option township in this county, and error is prosecuted in this court. He was tried upon •an agreed statement of facts which sets forth that he was lawfully engaged in the liquor business at Amsterdam in Jefferson county, this state. That a man by the name of Howard Dunn, residing in Green township, sent an order by mail to Mullen to send him a case of lager beer by express to Burton station, which was in Green township, and -on the line of the Cleveland and Alliance railroad. The order set forth that when the beer arrived at Burton he would pay for it to the •express company when delivered to him, and also pay the expressage ■on the beer and the charges of the company for sending the. money, the price of the beer, to Mullen. In a word, it was a clear C. O. .D. order on the part of Dunn. The beer was shipped by Mullen in accordance with the order; Dunn received it, paying the express company the price of the beer and the charges for returning the money to Mullen, which was paid over to him by the express company. Mullen at the time of expressing the beer to Dunn knew that Green township was a local option township; but the beer was ordered by Dunn in good faith for his own private use; and there was no combination upon the part of Mullen and Dunn to violate the local option law of Green township, differing in that respect from the case of State v. O’Neil, 58 Vt. 82 [56 Am. Rep. 557], reference to which is made in the case of O’Neil v. Vermont, 144 U. S. 323 [12 Sup. Ct. Rep. 693; 36 L. Ed. 450].

By the statement of facts the question is fairly and squarely made whether or not a person under such circumstances, lawfully engaged in the liquor business, may send liquor upon an order received in writing at his place of business into a local option district by express, C. O. D.

The answer necessarily turns upon the determination of the question as to where the sale was made. Was it at Amsterdam, Jefferson county, or in Green township, Harrison county? Dunn having in his. order designated the common carrier by which the beer was to be shipped, there could be no question but what the liquor was his at the time of such delivery at Amsterdam, unless the fact that it was to be shipped C. 0. D., changes the rule.

Norris v. State, 25 Ohio St. 217 [18 Am. Rep. 291], The third paragraph of the syllabus of that case is as follows:

“Where A, by false pretenses contained in a letter sent by mail, procures the owner of goods' to deliver them to a designated common .carrier in one county, consigned to the writer in another county, the offense of obtaining goods by false pretenses is complete in the' former county, and the offense must be prosecuted therein.”

In Benjamin, Sales Sec. 181, page 163, the author says:

“It is well settled that the delivery of goods to a common carrier, a fortiori to one specially designated by the purchaser, for conveyance to him or to a place designated by him, constitutes an actual receipt by the purchaser. In such cases the carrier is, in contemplation of law, the bailee of the-person to whom, not by whom, the goods are sent, the latter in employing the carrier being considered as an agent of the former for that purpose.”

It is' difficult to see how the order of the purchaser that the goods should be sent C. 0. D. would in any manner change the rule. He had directed his agent to whom the goods should be delivered at the place of consignment and the mere fact that he had elected to send the purchase price back by that agent to the seller when it had delivered' the goods to him would not seem to affect the general rule in any way.

It is said that the goods are not the goods of the purchaser until manually delivered to him. Not by any means. The goods are his-upon delivery to the carrier. The seller simply has a technical claim upon the .goods to insure the payment of the purchase price.

As held in Commonwealth v. Fleming, 130 Pa. St. 138 [18 Atl. Rep. 622; 5 L. R. A. 470; 17 Am. St. Rep. 763]:

“An order from a seller to a carrier to collect on delivery is a mere provision for retention of the seller’s lien; if accepted it creates a contract between the seller and the carrier, on breach of which by the latter, the seller may recover the price from him; but it does not make payment by the vendee a condition precedent to delivery, so that the seller may reclaim goods delivered by the carrier without payment.”

The carrier is the agent of the purchaser throughout. He had designated it as such; it was to receive the goods and deliver them to him; it was to receive the purchase price and carry the same back to the seller; for all of which services the purchaser was to pay the charges. There is nothing unlawful in this service, even if it should be held the carrier was the agent of both parties. It would in' no ■sense be such a double agency as to make it improper. No such diversity of interest whatever as to make it antagonistic.

That in such cases the sale is fully, completed when the liquor is delivered to the common carrier, subject only to the technical lien of the seller that it must not be delivered by the carrier to the purchaser until the purchase price is paid, is in accordance with the general tenor of the decisions in the different states.

In 17 Am. & Eng. Enc. Law (2 ed.) 300, it is said:

“Where goods are shipped C. O. D. — A somewhat different ■question is presented when the sales are made C. O. D. There is much diversity of opinion as to whether sales of this character are to be ■deemed absolute sales on the part of' the vendor with a provision foi^ withholding delivery until actual payment, so as to preserve the lien for the price, or only as executory contracts of sale not completed until actual delivery into the hands of the buyer. In a number 'of decisions it has been held that for the purpose of determining whether the seller has violated the liquor laws in force where the buyer lives,1 a sale C. O. D. is not complete until delivery, acceptance, and payment of the price by the person ordering the liquors. At least so far as cases dealing with intoxicating liquors are concerned. However, the weight of authority is against the foregoing view, and it is generally held that where intoxicating liquors are ordered to be shipped C. O. D., the sale is completed when the liquor is delivered to the carrier.”

The text is fortified by decisions from a large number of states. See also, Vol. 3 of Supplement 762, where a large number' of other authorities are referred to.

In Black, Intox. Liq. 434, it is said:

“A licensed dealer who receives, at his place of business, an order for liquor from a place in which he has no license, and fills it by selecting the liquor from bis stock and delivering it to an express-company or other carrier to be carried to the purchaser, does not violate the license law, although the carrier agrees to collect and return the price; for the sale is made at the place where the goods are separated from the general stock and delivered to the carrier, such delivery being delivery to consignee.”

This author also refers to a large number of authorities in support of the text.

But is the question an open one in this state. In the ease of Athens County (Treas.) v. Luchs, which went to the Supreme Court and which was decided without report, seems to be decisive of this-ease.

In that case Luchs was engaged in the sale of intoxicating liquors-at Marietta and shipped all kinds of liquors upon express orders, C. O. D., almost weekly, sometimes twice a week, to Broadwell, Lathrop' and Amesville in Athens county. To such an extent were these shipments, that there could be no question, from the record which we have' examined, but what he was keeping places for the sale of intoxicating liquors at- these various express offices, if the sales were made in Athens-county. The auditor of Athens county put Luchs upon the tax duplicate for the payment of the Dow tax; suit was instituted in the common pleas court by the treasurer of Athens county to recover the amount, so placed on the tax duplicate. Luchs defended alone upon the ground that the sales were made at his place of business in Marietta, Washington county. The court of common pleas decided in favor of Luchs, and the ease was taken to the circuit court upon error where the common pleas court was affirmed, and error was thereupon prosecuted in the Supreme Court where the circuit court was affirmed. We have' examined the briefs in circuit and supreme courts and no other question was made but the one: that although the orders were to send the liquor C. 0. D., yet the sales were made in Washington county. We-do not see that any other defense could have been made, for, if Luchs-was engaged in the sale of intoxicating liquors in Athens county, as we have said he was, if the liquors were sold in that county, then under Rev. Stat. 4364-9 (Lan. 7248), he would be required to pay the tax in Athens county.

Judgment of common pleas court is reversed and the accused is discharged.

Burrows and Laubie, JJ., concur, 1


author: MARVIN, J.

text:
    ANIMALS — CRIMINAL LAW AND PRACTICE — PRINCIPAL AND AGENT.
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Winch, Henry and Marvin, JJ.
    George W. Wood v. State.
    1. Pleas in Bab op Peosecution fob Cruelty to Gelding Mule not Sustained’ IN PROSECUTION FOB CRUELTY TO MABE MULE.
    Where the owner of a mare mule is prosecuted for cruelty to the same, by causing his agent or driver to work it while its shoulder and chest were sore thus causing it much pain, a plea in bar will not be sustained, in which it is urged that the offense was a part of another offense of a similar nature committed on the same day for which he was prosecuted and convicted for cruelty to a brown gelding-mule, working ’in a different team, by a different driver, but on the same job, for the two acts, cruelty to the gelding, and cruelty to the mare, were two separate and distinct offenses committed by different agents of the principal.
    2. Pbinclpal Responsible fob Act Done by Agent in Course of his Employment. _
    The owner of mules being driven by his agents, without his having any personal knowledge of the condition of such mules, is nevertheless responsible for acts of cruelty committed by such agent upon such animal in the course of his employment and with the apparent authority of the principal.
    [For other cases in point, see 1 Cye. Dig., “Animals,” § 100; 3 Cyc. Dig., “Criminal Law and Practice,” §§ 122-125, 379; 7 Cyq, Dig., “Principal and Agent,” §§ 27'6, 281, 328-334, 428-444.]
    [Proof of this decision and syllabus has been submitted to Judge Marvin and corrected.]
    ERROR to Cuyahoga common pleas court.
    Carpenter, Young & Stocker, for plaintiff in error:
    Cited and commented upon the following authorities: 1 Freeman, Judgments Sec. 225; Wharton, Crim. Plead. Sec. 254; People v. Tinsdale, 10 Abb. Pr. N. S. 374; State v. Comfort, 22 Minn. -271; Bex v. Mowg, 4 Car. & P. 364 (555) ; Commonwealth v. Prescott, 153 Mass. 396 [26 N. E. Rep. 1005]; Woodford v. People, 62 N. Y. 117 [20 Am. Rep. 464]; Ben v. State, 22 Ala. 9 [58 Am. Dee. 234] ; State v. Bosworth,. 54 Conn. 1 [4 Atl. Rep. 248]; MvMhauser v. State, 25 O. C. C. 81; Harris, Crim. Law 313; Clem v. State, 42 Ind. 420 [13 Am. Rep. 369].
    B. J. Sawyer, for defendant in error.
   MARVIN, J.

Wood was prosecuted before a justice of the peace for a violation of Rev. Stat. 6951 (Lan. 10610), punishing those guilty of cruelty to animals, the charge being that on April 4, 1907, in the city of Cleveland, in the county of Cuyahoga, and state of Ohio, one George W. Wood, did unlawfully and wilfully torture a certain animal, to wit, one brown mare mule, by then and there causing Robert Magruder to work and drive said brown mare mule, said brown mare mule then and, there having her right shoulder and chest sore, caused by the rubbing of the collar and padding against said sore shoulder and chest -of said brown mare mule, causing said brown mare mule much pain • and suffering.

Upon the trial Wood was convicted and sentenced to pay a fine. 'To reverse this conviction he prosecuted error to the court of common pleas, where the judgment of the justice was affirmed; to reverse which, the present proceeding is brought. Wood set up as a defense, first, a plea in bar, and in support of it offered evidence showing that he was prosecuted and convicted for cruelty to a brown gelding mule,' the offense having been committed on the same day that he was charged in this prosecution with- having been guilty of cruelty to the brown mare mule. ■

The evidence on this plea showed that Wood was part owner of •several teams of mules, all working on one job of excavation, being handled and driven by different drivers. The mare, for cruelty to which this ‘ prosecution was instituted, was working in a team driven by Ma-gruder. The gelding, for cruelty to which he had already been punished, was working in a different team, driven by a different driver, but the work was all being done, as already stated, on the same job and under the same superintendent or manager.

It is urged that the cruelty to the mare was a part of the same act as the cruelty to the gelding, for the reasons already stated. This plea in bar was nof sustained by the justice, nor should it have been, — the two acts, cruelty to the gelding, and cruelty to the mare, were two distinct and separate .acts, done by different agents of the plaintiff in error. As well might it be said that if a saloonkeeper were prosecuted for selling liquor, in violation of law, on the first day of the week, and it should turn out that sales were made by two different bar tenders in the saloon to two different people at the same time, that the saloon-keeper had committed but one offense; because both sales, were in the :same saloon and at the same time. This would border so closely upon the absurd that we suppose no one would make the claim that a conviction for one of these sales would be a bar to a prosecution for the ■other. The fact that each of the two mules were working on the same job, so long as they were not in the same team, but were being handled ,by different drivers surely does not make the cruelty to the one the ■same act as tiie cruelty to the other, and it is the act which was done by the agent of Wood in the prosecution for cruelty to the mare that was ■on trial in this case; that act being a different one from the act of cruelty to the gelding, and each being an act in violation of the statute, which constituted an offense punishable under the statute.

Suppose the cruelty to the gelding, for which he had already been punished, was of the mildest form to justify conviction under the statute, consequently such as to justify only the infliction of the mildest penalty provided by the statute; and supposing that the affidavit for cruelty to the gelding had been made by A, and the accused had plead •guilty, and this mildest penalty inflicted, and the affidavit for cruelty to the mare had been made by B and the cruelty to the mare had been •such as to justify the infliction of the severest penalty allowed by law; it would be manifestly a miscarriage of justice to allow the prosecution for cruelty to the mare to be barred by what had been done in reference to cruelty to the gelding.

The court having overruled the plea in bar the case proceeded to trial, resulting in the conviction of Wood. It is urged that upon the facts of the ease Wood should not have been convicted, because it is not shown that he had personal knowledge of the condition of this mare ■at the time when the cruelty is said to have been inflicted. The evidence ■.shows that he was in the city of Cleveland; that he was having this work done; that he had a driver of the team in which this mare worked, and that he was working her in such wise as to clearly constitute cruelty to iher under the statute.

In the case of Anderson v. State, 22 Ohio St. 305, the court discusses the question of the criminal liability of a principal where the wrongful act is done by an agent. In that case the statute under consideration provided that “it shall be unlawful for any person or persons, by agent or otherwise, to sell intoxicating liquors,” etc.

The claim in the case was madé that the agent violated the instructions of his principal, and the court held that if the agent had violated the statute without the knowledge of his principal, and in violation of his instructions given in good faith, the principal would not be criminally liable and attention is called to the language of the' statute “by agent or otherwise,” which language was used to show expressly and unequivocally that the act was intended to embrace every means that the person charged might employ in effecting the illegal sale. So that that case alone would not be authority for the proposition that the act*of the agent is necessarily to be held to be the act of the principal. In the case of Meyer v. State, 54 Ohio St. 242 [43 N. E. Rep. 164]; it is held: “The manager of a-mercantile corporation is .subject to a fine under the provisions of the ‘act to provide against the adulteration of food and drugs/ when the adulterated article is sold or offered for sale by an agent of such corporation acting within the scope of his authority.”

Applying that principle to the case at bar it would seem that the principal here would be prima facie liable for the act of his agent. That he might defend upon the ground that the agent was acting in violation of his orders, or by showing that he had no knowledge of what was being done, and that he could not by the exercise of reasonable diligence have known of the acts of the driver. This is held in the ease of Muhlhauser v. State, 25 O. C. C. 81. In that case Mrs. Muhl-hauser was prosecuted for cruelty to animals which were in charge of her agent on a farm in Lake county. She resided in the city of Cleveland. The evidence tended to show that her agent had been guilty of cruelty to the animals on the farm, in failing to provide them with wholesome water and suitable pasture and other food. The court held, upon the showing on the part of Mrs. Muhlhauser, that she had no-knowledge of this cruelty; that she resided at a distance of some twenty-five or thirty miles away, and that she had given proper instructions for the care of the animals in good faith, it made a complete defense for her, but there is no intimation that a prima facie case was not made against her by showing the cruelty on the part of her agent.

In Mechem, Agency Sec. 746, it is said:

“As a general rule he” (the principal) “cannot be held criminally liable for the act of his agent committed without his knowledge or consent. ' There is, however, a class of cases, as has been seen, where, by statutory enactment, the doing. of a certain act, otherwise perhaps, innocent or indifferent, or at the most not criminal, is expressly prohibited under a penalty. Of this class are many of the statutes in the-nature of police regulations which impose penalties for their violation, often irrespective of the question of the intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation exceedingly improbable, if not impossible. * * * It is the duty of the principal to see to it that such statutes are not violated by his agents in the course of their employment. * * *
“Instances of these principles may be found in the ease of the publication of libels; the smuggling of goods; the sale of unwholesome or adulterated food; the erection or continuance of nuisances; the transportation of forbidden goods; the transaction of business without a license and tbe like. Frequent illustrations are also found in tbe statutes regulating tbe traffic in intoxicating liquors. * '* * a baker has been held liable to a criminal charge for selling adulterated bread, although the adulteration was put in by his servant, and although he did not know that it was used in improper quantities; the directors of a gas company have been held liable to an indictment for a nuisance created by their superintendent, acting under a general authority to manage the 'works, though they were personally ignorant of the particular plan adopted, and although it was a departure from the original and understood method, which they supposed him to be following. * * #
“Where the criminal act is.committed by a known agent, this is prima facie evidence of the principal’s authority, but he may rebut the presumption by showing that the act was not in fact authorized or assented to by him.”

In the case of Commonwealth v. Nichols, 51 Mass. (10 Metc.) 259 [43 Am. Dec. 432], it is said in the syllabus:

“Sale by servant, in the shop of the master, is only prima facie evidence of such sale by the master as would subject him to the penalty for violating the statute forbidding the sale of spirituous liquors without a license.” '

The case of Rex v. Dixon, 4 Campbell 12, is the case referred to in Mechem on Agency, hereinbefore quoted, and the syllabus reads:

“A baker who sells bread containing alum in a shape which renders it noxious, is guilty of an indictable offense, if he ordered the alum to be introduced into the bread, although he gave directions for mixing; it up in a manner which would have rendered it harmless.”

This is a very old English case, but it is cited, apparently with approval by Mechem, and the eases to which attention has been called', in this opinion seem to us to justify the holding that where the act- is-, done by the agent in the course of his employment and with the apparent authority of the principal, a prima facie case is made out against the principal. We reach the conclusion, therefore, that was reached by the court, of common pleas, and its judgment is affirmed.

Winch and Henry, JJ., concur.


author: WILDMAN, J.

text:
    INSURANCE — PLEADING.
    [Lucas (6th) Circuit Court,
    June 15, 1907.]
    Haynes, Parker and Wildman, JJ.
    Isaac Kandar v. Aetna Indemnity Co.
    1. Plaintiff Need not Anticipate Adversary’s Defense.
    Where, in an actibn on an insurance policy, the plaintiff has been released from the performance of any of the conditions in the contract, he should aver such facts in his petition; hut matters óf a purely defensive nature need not he met earlier than at the filing of the reply.
    [For other cases in point, see 6 Cyc. Dig., “Pleadings,” §§ 342-356. — Ed.]
    2. Insurance Company Estopped to Dispute Acts of Agent in Taking Application for Insurance.
    Where the agent of the company, in filling out the application for a policy of insurance against loss hy burglary' or larceny, construes a certain question asked of applicant, to suit the circumstances of the particular case, he acts for the company; and such company cannot escape liability on the policy on the ground of the incorrectness of a statement in the application, based on a contrary construction.
    [For other cases in point, see 5 Cyc. Dig., “Insurance,” §§ 669-703. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    Chittenden & Chittenden, for plaintiff in error.
    Southard & Southard, for defendant in error;
    Cited and commented upon the following authorities: Travelers Ins. Co. v. Myers, 62 Ohio St. 529 [57 N. E. Rep. 458; 49 L. R. A. 760] ; Union Central L. Ins. Co. v. Hook, 62 Ohio St. 256 [56 N. E. Rep. 906] ; Eureka Fire & M. Ins. Co. v. Baldwin, 62 Ohio St. 368 [57 N. E. Rep. 57] ; Northern Assur. Co. v. Building, Assn. 183 U. S. 308 [22 Sup. Ct. Rep. 133; 46 L. Ed. 213]; Could v. Insurance Co. 90 Mich. 302 [51 N. W. Rep. 455] ; Quinlan v. Insurance Co. 133 N. Y. 356 [31 N. E. Rep. 31; 28 Am. St. Rep. 645] ; Pete v. Woodmen of the World, 26 O. C. C. 653; Hollis v. Insurance Co. 65 Iowa 454 [21 N. W. Rep. 774]; Éarre v. Insurance Co. 76 Iowa 609 [41 N. W. Rep. 373]; Wadhams v. Insurance Co. 117 Mich. 514 [76 N. W. Rep. 6] ; Kirkman v. Insurance Co. 90 Iowa 457 [57 N. W. Rep. 952; 48 Am. St. Rep. 454] ; Carey v. Insurance Co. 84 Wis. 80 [54 N. W. Rep. 18; 20 L. R. A. 267; 36 Am. St. Rep. 907]; Walsh v. Insurance Co. 73 N. Y. 5; Insurance Co. v. Pyle, 44 Ohio St. 19 [4 N. E. Rep. 465; 58 Am. St. Rep. 781].
    Materiality of representations. Doming Invest. Co. v. Insurance Co. 16 Okla. 1 [83 Pac. Rep. 918; 4 L. R. A. (N. S.) 607],
   WILDMAN, J.

This is a proceeding in error to reverse the action of the court of common pleas in sustaining a demurrer to the amended reply of the plaintiff and rendering judgment for the defendant on the pleadings. The ease below was one instituted by the plaintiff in error, Kandar, upon a policy of insurance issued by the defendant company to 'indemnify Kandar against loss b¡y reason of burglary, theft or larceny of property of certain classes described in the policy. Among the claims asserted in the answer is one embodied in what is called the second defense. It is properly the first defense, because the matters treated of in the so-called first defense are merely admissions and denials of the aver-ments in the petition. This so-called second defense asserts, in substance, that a certain misrepresentation was made by the insured in the application for the policy, or, what is equivalent thereto, perhaps,' in,a certain “schedule” containing a number of statements, not signed by the insured but attached to the policy itself. The policy purports to be issued in consideration of $12.50 premium “and of the statements in the schedule hereinafter contained, which statements the assured makes on the acceptance of this policy and warrants to be true.” The particular statement embodied in the schedule and referred to as No. 6, reads:

‘ ‘ The assured has never suffered loss by burglary, theft or larceny either at the premises above described or elsewhere, nor received indemnity therefor except as herein stated. ’ ’

There is a clause, No. 16, not in the schedule, but in the body of the policy, reading as follows:

“No agent has authority to change this policy or to waive any of its provisions nor shall any notice to the agent or knowledge of his or any other person be held to effect a waiver or change in this contract or in any part of it. ’ ’

Relying upon these provisions in the policy, the defendant in the so-called second defense, alleges that it was not true that the plaintiff had never before had any property stolen from him, but, on the contrary, that some time in the year 1901, he had suffered loss by burglary, theft and larceny at his warehouse at the corner of Short and Huron streets, in the city of Toledo, Ohio, “at which time persons unknown to defendant broke into and entered the said warehouse of plaintiff, and then and there did steal,” certain property mentioned. The property claimed by the plaintiff to have been stolen and for the loss of which he sought this indemnity on the policy, was a certain diamond ring of the value, as claimed by the petition, of $450, which was stolen from some room in the residence of the plaintiff in .the city of Toledo. The amended reply of tbe plaintiff, to which demurrer .was interposed and sustained, is, so far as relates to this inquiry, as follows:

“For reply to-the second defense in defendant’s answer, plaintiff states that he did not read the questions contained in the application for policy of insurance mentioned in the petition, but that the questions were asked him by the agent of the defendant and that said agent inquired of plaintiff only as to any previous burglary, theft or larceny that plaintiff may have had in his residence, and said agent assured said plaintiff that it was only necessary for defendant to know as to whether or not any burglary, theft or larceny had been suffered by plaintiff in his residence, and plaintiff denies each and every allegation contained in said second defense conflicting with the foregoing allegation.”

The defendant contends that this is no reply; that it does not legally meet the defense asserted; and it is suggested to the court also, by counsel for defendant in error, that this claim in the reply amounts to a waiver of the conditions of the policy and that it should have been asserted, if proper at all, in the petition rather than in the reply. With this latter claim we are not in accord. It is not a waiver of some condition to be performed; not a waiver of some requirement on the part ■of the plaintiff, but it is a matter rather of claimed estoppel to assert the •defense which is alleged in the answer. The answer asserts that the plaintiff is not entitled to the relief which he seeks because of the incorrectness of a representation made to the company upon which it based its action in issuing this policy; and the plaintiff attempts to meet this ■claim by saying that the defendant company had knowledge of these facts; that it did not need to rely upon ariy representations made by the plaintiff to it or to its agent; in other words, that the company had this. knowledge and the agent of the company having placed a construction upon what may possibly be an equivocal or ambiguous clause in its schedule attached to the policy, is estopped now to dispute that construction. ’ We think it altogether true that when a plaintiff is suing upon a policy and is seeking to avoid the performing of some -condition precedent, or subsequent, obligatory on him, he should assert the facts in his petition which release him from the performance of such obligation. As, for instance, concerning the requirements as to proofs of loss and payment of premium, if for any reason he has been released from such requirements, he should aver such fact in his petition and he could, not meet the obligation resting upon him so to plead by asserting that he had performed all the conditions precedent. A waiver of performance is not the same thing as performance. But he was not bound to anticipate here the assertion of this defense. The claim, asserted by the defendant is purely defensive, and for that reason the plaintiff was not compelled to meet it at any earlier stage of the proceedings than the filing of his reply.

Bevised Statute 3644 (Lan. 5855), having reference to insurance companies other than life, provides that:

“A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party, company or association thereafter issuing it policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding. ’ ’

In the policy before us .there is no provision that the solicitor for the insurance shall not be deemed the agent of the company, or that he shall be deemed the agent of the insured; but it is perhaps not necessary to invoke the aid of the statute in behalf of the plaintiff here, in view of the fact that this question arises upon a demurrer which concedes the truth of the allegations properly made in the reply, and the reply nowhere says that the person placing this construction upon the schedule was merely a soliciting agent, but the language is, that the questions were asked him by the agent of the defendant “and that said agent inquired of plaintiff only as to any previous burglary, theft or larceny that plaintiff may have had in his residence, and said agent assured said plaintiff that it was only necessary for defendant to know as to whether or not any burglary, theft or larceny had been suffered by the plaintiff in his residence;” and he further avers that “at the time of writing said application and policy of insurance defendant had full knowledge that plaintiff had suffered loss by theft and larceny at his place of business.” ¥e must then take it for granted that these statements were made by the agent of the company; that he had knowledge of the fact •of a previous larceny of the plaintiff’s property, and, possibly of the further fact that the company itself had such knowledge, as averred in the reply, treating all of these allegations as conceded by the demurrer to be true. But in view of the probability that in the drafting of this pleading,' counsel meant no more than this, that the company had constructive knowledge, or that knowledge which they were bound to have by reason of the communication of facts to their agent, or knowledge possessed by the agent, it is well enough to consider what is the law applicable to such condition.

Beliance is placed by counsel for defendant upon two cases, Union Cent. Life Ins. Co. v. Hook, 62 Ohio St. 256 [56 N. B. Rep. 906], and Travelers’ Ins. Co. v. Myers, 62 Ohio St. 529 [57 N. E. Rep. 458; 49 L. R. A. 760], One of these is a life insurance case and the other an insurance against liability to employes who sustain bodily injury while on the pay roll of the insured. In the case of Union Cent. Life Ins. Co. v. Hook, supra, page 256 of this report, it was held, as stated in the first syllabus:

“In an action to reeover on a written contract for life insurance- and upon an alleged subsequent verbal modification of the same, statements ¿nd representations made by the agent who solicited the policy,, prior to, and contemporaneous with, the issue of the policy, are inadmissible to vary, in any respect, the terms of the written policy. In the-absence of proof of fraud or mistake, such statements and representations are merged in the written contract. ’ ’

The verbal representation which was relied upon in the Hook ease-was one which it was claimed extended the policy one year and waived the payment of an annual premium. These were changes which, under the terms of the policy, could not properly be made by an agent of the company nor could they be proven by parol; but Judge Davis, who rendered the opinion in the case, says, on-page 265:

“We do not decide that there might not be an estoppel by conduct, notwithstanding such an agreement. But that case does not arise here. ’ ’

The other case, Travelers’ Ins. Co. v. Myers, supra, provides, as we read in the third syllabus:

“When such policy contains a stipulation that ‘No agent has authority to waive or alter anything in this policy contained, ’ and the same is accepted by the insured, it is both notice to, and an agreement by, the insured that an agent has no authority to waive or alter anything contained in the policy.”

We take this to mean that the agent has no authority to change the contract, but that is not inconsistent with the view that the company may, under certain circumstances, be estopped by- its own conduct, from asserting some matters of defense. The question is, whether the matter which we have here is one which might be covered by that principle. Counsel for the plaintiff in error urge as a proper construction of the policy that the term “elsewhere” as found in the schedule, is to be construed as meaning other premises on which the insured has resided, or something equivalent to that, and considerable support'is found for this contention in some of the cases, notably State v. Clark, 52 N. J. Law 291 [19 Atl. Rep. 462],

It is insisted that the case falls within the principle wherein the courts have held that when certain articles or certain places are enumerated and then some general wo^d is used following the conjunction “or,” this general term is to be treated as ejusdem generis; that is to-say, of the same kind .or class, as the articles, or places just mentioned. Here the statement is, in substance, that the assured has not suffered loss by burglary, theft or larceny either at the premises above described. or “elsewhere;” and it is very earnestly urged that the word “elsewhere” does not mean anything more than some other premises in their general nature like those already described. Perhaps in the construction of this phrase, however, we should consider the purpose of this stipulation. What was the object of the insurance company in asking for such information? We think it altogether likely that the company designed to ascertain whether the person seeking insurance was careless as to the protection of his property — one who would be likely to leave it unguarded or put it in such place or places that it might tempt others to larceny or burglary — and perhaps with that thought, it might not make very much difference whether the prior theft was one from the residence or whether it was one from the warehouse.

It may safely be said that the most that can be claimed by either of the parties to the controversy is, that the phrase is somewhat ambiguous ; that it is not free from doubt as to its construction. Now, if that be so, a second inquiry becomes altogether pertinent: What is the effect of the phrase or rather, the construction put upon it by the agent of the company at the time when the question is asked and the answer given? And the further question as a corollary to that: If the agent of the company placed a construction upon it, making the answer given an honest one, is the company bound by it so as to be thereafter estopped from asserting as a defense to an action on the policy that a false representation had been made in this regard? We are not without authorities upon questions somewhat analogous. We have found reference to a mass of litigation along the same lines in Clemans v. Supreme Assembly, 16 L. R. A. 33 [131 N. Y. 485; 30 N. E. Rep. 496] et seq. On page 35 is a reference to a case, Texas Mut. L. Ins. Co. v. Davidge, 51 Tex. 244:

“The knowledge of the agent of the misrepresentations upon which the insurance was procured must be pleaded in reply if it is intended to rely thereon to defeat the defense based on such misrepresentations. ’ ’

That is precisely the course that was taken by the plaintiff in error here.

“If the insurer’s agent after being informed fully as to the facts' incorrectly states them in the application, the insurer is estopped to take advantage of the error to avoid liability on the policy.” North American Fire Ins. Co. v. Throop, 22 Mich. 146 [7 Am. Rep. 638].

Numerous other cases are cited in a somewhat extensive paragraph,, which include some eases in New York. On the same page is this:

“If the statements in the application relied upon as breaches of warranty are inserted by the agent of the insurer, without collusion or fraud on the part of the insured, the insurer is estopped to set up their error or falsity.” Baker v. Insurance Co. 64 N. Y. 648, and other cases.

I invite attention 'to these merely because of their treatment of this sort of a claim as a claim of estoppel, which is recognized by Judge Davis as already quoted in Union Cent. Life Ins. Co. v. Hook, supra, as not inconsistent with the conclusion arrived at in that case.

On page 37 is cited the case of Key v. Insurance Co. 77 Iowa 174 [41 N. W. Rep. 614]:

“An insurance company whose agent himself prepared an application with knowledge of the fact that the 'insured, had only a title bond for his land, which was not paid for, cannot defeat an action on the policy on the ground that the application improperly states that the insured was the sole and undisputed owner of the property, and that it was unincumbered, where this was signed by the insured after making a full statement of the facts, in accordance with the agent’s theory of his title.”,

There was a case where the agent seems to have put a construction upon the facts which was adopted by both the agent and the insured .and the insured made the application and signed it. And again, on page 38, citation is made of the ease of Equitable Life Ins. Co. v. Hazlewood, 75 Tex. 338 [12 S. W. Rep. 621; 7 L. R. A. 217; 16 Am. St. Rep. 893]:

“A former rejection of the insured on his application to a legion of honor is not a breach of a warranty that he had never applied for insurance in any other company, when the agent told him that a legion of honor was not an insurance company. ’ ’

Just as here, where he claims the agent told him that this clause “elsewhere” had reference only to other residences formerly occupied by him and not to a warehouse. The case of Continental Life Ins. Co. v. Chamberlain, 132 U. S. 304 [10 Sup. Ct. Rep. 87; 33 L. Ed. 341], is also mentioned. I have the case before me, but I will not stop to read from it. The annotation in Clemans v. Supreme Assembly, supra, page 38, is as follows:

“Where the agent writes in the application that the applicant has no other insurance, although the applicant told him that he had certificates of membership in co-operative companies, which the agent said were not considered insurance by him, the company is bound by the agent’s interpretation, and estopped from asserting the contrary.”

That case seems to be pretty close to the case at bar, and, being a decision of the Supreme Court of the United States, is, of course, entitled to the highest respect. It was the unanimous expression of that court.

In our own state we have, among other cases, that of Insurance Co. v. Williams, 39 Ohio St. 584 [48 Am. Rep. 474]. This was not a life insurance case, so as to be affected by the express provisions of the section in our statutes as to life insurance companies, but it was embraced in a class of insurance other than life insurance.

The syllabus of the case is as follows:

“A soliciting agent, procuring for an insurance company risks and applications on which policies are issued, who fills up the application, is, in so doing, the agent of the company, and not of the insured; and if the agent make a mistake in wrongly stating facts which were correctly given him by the insured in preparing the application, the company is bound by, and responsible for, such mistake.”

Judge Follett quotes, on page 588 of his opinion, from the ease of Combs v. Insurance Co. 43 Mo. 148, 149 [97 Am. Dec. 383], which is the language of the supreme court of that state:

“ ‘The authority of the soliciting agent of an insurance company to take applications for insurance carries with it the legal implication of authority to fill up the application, and do all those things which may be needful in perfecting it.’ ”

And then Judge Follett adds:

‘ ‘ That was a case sought to be defeated on the ground of false representations and warranties in the application. Here the agent wrote the application, and was given a correct description and told to write it in the application, and by mistake did not do it. ’ ’

He refers also to the case of Rowley v. Insurance Co. 36 N. Y. 550, in which the court say, page 589:

“ ‘An agent, authorized to take applications for insurance, should be deemed to be acting within the scope of his authority, where he fills up the blank application of insurance; and if, by his fault or negligence, it contains a material misstatement not authorized by the instructions •of the party who signs it, the wrong should be imputed to the company, and not to the insured. ’ ’ ’

Numerous other authorities are cited from the state of New York ■showing that the result of the adjudications in that state is not inconsistent with the conclusion of the court in Insurance Co. v. Williams, supra, and the application of the principle of estoppel.

Judge Follett also cites Union Mut. Life Ins. Co. v. Wilkinson, 80 U. S. (13 Wall.) 223 [20 L. Ed. 617], where the Supreme Court say:

“ ‘Hence, when these agents in soliciting insurance, undertake to prepare the application of the insured, * * * they will be regarded, in doing so, as the agents of the insurance companies, and not of the insured.’ ”

Other cases are cited, including the case of Massachusetts Life Ins. Co. v. Eshelman, 30 Ohio St. 647, in which our own Supreme Court commission held:

“ ‘A subagent of a life insurance company appointed to represent it in a particular branch of its business, becomes, in reference thereto, the direct representative of the company, and notice of a fact to him will operate as notice to the company, and it will be bound by acts done by him in respect to that branch of its business intrusted to him. ’ ’ ’

Then Judge Follett concludes with this paragraph:

“As showing this to be the policy of our law, we now have a statute going much beyond this case, passed March 5, 1879, and is now See. 3644 [Lan. 5855] Rev. Stat. reading: ‘A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party hereafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding.’ ”

That section, as cited by Judge Follett, has undergone slight changes in arriving at the condition in which we find it embodied in our present revision. The changes are immaterial so far as this answer is concerned. As suggested by my associate, Judge Parker, the Supreme Court in this case of Insurance Co. v. Williams, supra, is basing its conclusion not upon Rev. Stat. 3644 (Lan. 5855), which was passed after the rights of the parties had accrued, but Judge Follett cites the section merely as showing the tendency of our legislation. In reference to this section of the statute, it is manifest that the legislature had some purpose in enacting that the soliciting agent should be deemed, under such circumstances,, the agent of the company, although so far as the terms of the .legislation go there is nothing further. The purpose of the section is its application as fixing the rights and liabilities of the insured and the insurer. It must be, that the legislature in enacting that the soliciting agent under certain circumstances, shall be deemed the agent of the company, intends that he shall have power to bind the company as its agent to some extent, and we think that the statute was passed in recognition of the general practice of agents of receiving the statements of claimed facts from persons whom they were seeking to insure and embodying them in applications for insurance or in such schedules perhaps as w^ find here, attached to this policy.

I find that our own court has had occasion to look somewhat into this question and to pass upon the principle in the case of Phoenix Mut. Fire Ins. Co. v. Bowersox, 3 Circ. Dec. 321 (6 R. 1). I read the fifth paragraph of 'the syllabus:

“Where the agent of an insurance company, in taking an application for insurance against loss by fire, himself writes out the answers of tbe applicant to interrogatories propounded in behalf of the company, he acts, in that regard, as the agent of the company-; and if any mistake •occurs in writing out such. answers, such as an excessive estimate of value, based on the truthful statements of the assured, without fault on the part of the assured, the latter is not prejudiced thereby.”

The members of the court at the time this decision was rendered, in 1901, were Judges Haynes, Bentley and Scribner, and the opinion is per curiam, all of the judges indorsing not only the judgment which, was rendered, but the entire phraseology of the opinion. I will not stop to read from this opinion, but will say only that it fully sustains the proposition in the syllabus which I have already read. It is suggested to me, and before leaving the discussion of the subject I will say that the provision in our present revision, Rev. Stat. 3644 (Lan. 5855), has application to all insurance companies other than life. When originally ■enacted as a part of the Holland law it had reference to fire insurance •companies only, but it is now embodied in the chapter pertaining to insurance companies other than life, and in another part of the same chapter we find provision for insurance companies of the class represented by the defendant in this suit ¡'that is, insurance against losses by ■crimes such as burglary, theft, larceny, etc. The case of Phoenix Fire Ins. Co. v. Bowersox, supra, received consideration by another court higher than the circuit court; it was carried to the Supreme Court and the entry on the docket of the Supreme Court shows that it was dismissed March 21, 1893, so that the last judicial determination of the matter, so far as that case is concerned, is embodied in the decision as ■quoted. There is an earlier ease in Ohio to which reference might be made: Hartford Protec. Ins. Co. v. Harmer, 2 Ohio St. 452 [59 Am. Dec. 684], in which it was held, in the sixth paragraph of the syllabus:

‘ ‘ If a representation is untrue as to incumbrances, but not fraudulently made, and the agent of the company knows the true state of facts, .and writes the statement as made from his own knowledge, and fails to state it truly, such misrepresentation will not avoid the policy, and this is true, although the statement is signed by the agent of the insured. ’ ’

In the so-called second defense in this answer there is perhaps a ¡substantial averment of fraud on the part of the plaintiff; that is, an allegation that he knew the statements to be false; but that part of the answer is denied by the reply. The plaintiff does not mention it specifically, but he denies all matters antagonistic to, or inconsistent with, the statements made in the reply including the statement that the defendant’s agent and the defendant had full knowledge of all the facts. We think that there is enough in the reply, to carry to the mind of any reader an understanding that the plaintiff is asserting that the defendant company was not misled by any language in tbis schedule negativing a previous larceny in his residence or elsewhere, and that plaintiff made the statement in good faith.

Our judgment is, that the demurrer should have been overruled, and that the court, in sustaining it, committed error; that the court also erred in dismissing plaintiff’s case upon-the pleadings. For these errors the judgment of the court will be reversed and the cause remanded, with instructions to overrule the demurrer and for such further proceedings as may be required.

Haynes and Parker, JJ., concur.


text:
    CITY SOLICITOR — FEES—MANDAMUS.
    [Lucas (6th) Circuit Court,
    June 15, 1907.]
    Haynes, Parker and Wildman, JJ.
    State ex rel. Charles S. Northup v. David T. Davies, Jr., Aud. State ex rel. Lyman W. Wachenheimer, Pros. Atty. v. John W. Kerr et al.
    City Solicito» Prosecuting Attorney of Police Court, Effect of Appointment of Assistant.
    The appointment of an assistant prosecuting attorney for the police court does not have the effect of terminating the tenure of the city solicitor to the office of prosecuting attorney of the police court. The city solicitor continues to be ex ofiicio police court prosecutor and the county auditor may be compelled, by mandamus, to recognize such solicitor’s claims to the compensation, to which he is entitled by virtue of the statute, Lan. 3125 (B. 1536-663) construed.
    Syllabus approved by the court.]
    L. W. Wachenheimer and B. W. Johnson, for plaintiff.
    J. P. Mantón and Janies Austin, for defendants.
   WILDMAN, J.

These are two suits, one, the title of which is first given, instituted in this court and the other brought into this court by appeal. The first mentioned is a proceeding in mandamus to compel the auditor to recognize the claims of the relator to certain compensation to which he asserts he is entitled as solicitor of the city of Toledo, and, by virtue of that office, prosecuting attorney of the police court. The other action, appealed to this court, is a suit for an injunction to restrain the allowance and payment of the same compensation. Both actions involve the construction of a section of the municipal code, in our latest revision of the statutes designated as Lan. 3125 (B. 1536-663). In the mandamus suit a demurrer has been filed to the second defense in the answer of the defendant Davies, auditor. In the injunction suit a motion has been filed by the defendant Northup, to strike matter from the amended petition which was filed in this court after appeal of the action. The decision of the demurrer in the one case substantially disposes, upon principle, of the decision of the motion in the other, and, indeed, no question is-presented except that to which I have already referred, the question of the proper construction of Lan. 3125 (B. 1536-663).

The case, by reason of much public discussion, has assumed undue-importance. No question of so-called “graft” is involved, and it is of very little consequence to the public whether the compensation which, is sought here is payable, by a proper construction of the statute, to the city solicitor or to some assistant solicitor who, for some period is, by virtue of this statute, authorized to act as prosecuting attorney in the-police court. Our construction of the statute will, in its ultimate result, neither add to nor take from the county treasury one dollar, so far as the application of this compensation is concerned. The statute provides, for the election of a city solicitor for the term of two years and that his tenure of office shall continue until the election and qualification of, his successor. He is required to be a practitioner of law in the courts-of Ohio; his powers and duties are such as are provided in certain other sections numbered and such as are provided in the act to which I have-already referred and all other acts or parts of acts having uniform-operation throughout the state and not inconsistent with this act; he is required to do certain duties for the city, and finally, in one of the-paragraphs of the section, we have this provision:

‘ ‘ The solicitor shall also be prosecuting attorney of the police court,, and shall receive for this service such compensation as council may prescribe, and such additional compensation as the county commissioners shall allow; provided, that where council allows an assistant or assistants to the solicitor, said solicitor may designate an assistant or assistants to act as prosecuting attorney or attorneys of the police court. The duties of the solicitor as prosecuting attorney of the police court shall be such as are provided in Sec. 1813 [Lan. 3345] of the Revised Statutes ; such as are provided in this act, and in all other acts or parts of' •acts applying to all cities of the state and not inconsistent herewith. In case of the inability or absence of the solicitor or any óf his assistants to act as prosecuting attorney of the police court, the provisions of Sec. 1815 [Lan. 3347] of the Revised Statutes shall apply.”

Revised Statutes 1813 and 1815 mentioned in this section are now-known in the latest revision as Lan. 3345, 3347 (B. 1536-844, 1536-846).. It is manifest that the framers of Lan. 3125 (B. 1536-663) took cogniz.ance of the existence of the other two sections mentioned and the application of those sections goes only so far as to provide what shall be the ■ duties of the solicitor as prosecuting attorney of the police court, but there is no suggestion that the compensation shall be such as is provided in the other two sections mentioned, or that the compensation shall be governed by any rules specified in those two sections. The two sections ■so referred to — Rev. Stat. 1813, 1815 (now Lan. 3345, 3347; B. 1536-844, 1536-846) — had, I think, been .in existence many years, with perhaps some amendments, and were in force at the time when this more recent ■statute, Lan. 3125 (B. 1536-663), was enacted. "We will not search for inconsistencies in the two sections. I am not inclined to think that there .are any, so far as this matter of compensation is concerned; but, if there be such, by any construction, the later enactment will, of course, .■govern.

■ Now what is the construction of Lan. 3125 (B. 1536-663) ? The attorney for the prosecuting attorney and the auditor insist that upon the .appointment or designation by the city solicitor of any of his assistants ■to act as prosecuting attorney or attorneys of the police court, his right ; so to act ceases, and the right to compensation also fails. We are not ■disposed to adopt this contention. I will spend no time in any elaborate • discussion of the paragraph which I have read, but will touch only such .salient features of it as seem to us to make clear its proper interpretation. The statute provides, not that the solicitor shall act as prosecuting attorney of the police court, but that he shall be prosecuting attorney •of the police court. By virtue of his office as solicitor, he is al§o prose-■eiiting attorney of the police court, and in the same sentence in which the statute makes this provision we have the provision for compensation. The clause is:

“And shall receive for this service such compensation as council may prescribe, and such additional compensation as the county commissioners shall allow.”

Emphasis is placed by the assistant county attorney, who represents the prosecuting attorney here and the auditor, upon the clause in the paragraph beginning with the word “provided,” and his idea seems to be, that by this proviso an entire change in the status of the solicitor is made or may be made. The language is: “ Provided that where council allows an assistant or assistants to the solicitor, said solicitor may designate an assistant or assistants to act,” not to be, but to act as prosecuting attorney or- attorneys of the police court. And there is no provision that thereupon the city solicitor shall lose his power or his ¡status as prosecuting1 attorney of the police court. He is still proseeut-ing attorney of the police court, so far as any language of this section provides. There is nothing in the section anywhere which says that his office, his official status, as prosecutor shall terminate, when he designates someone else to act. There is no provision here as to the length of tenure of such assistant or assistants; there is no provision that the appointing power — the solicitor himself — shall not also have the power to terminate the period during which such assistant or assistants shall so act, and we. are inclined to the view that all of this power is lodged in the city solicitor and remains with him during the time that he is such city solicitor. The statute has practically conferred upon the city solicitor the functions and duties known as those pertaining to the office of prosecuting attorney of the police court.

Again, it is to be noted in this section that no provision is made by the section, in terms, for the payment of any compensation to such .assistant or assistants. The compensation has already been provided for in the clause preceding the proviso giving to the solicitor power to designate some one to act as assistant, or to act in his stead, temporarily ■or otherwise, as he may determine. "We find nothing in the section as to compensation after the beginning of this so-called proviso, and it seems to us that if the legislature had intended that his right to compensation •should cease immediately upon the appointment of anyone to act as prosecuting attorney in the police court, the legislature would have so said. It would have been very easy to give expression to such an intent .as that; but nothing of the kind has been done.

Again, in the last sentence of the section we have the provision that “in ease of the inability or absence of the solicitor or any of his assistants to act as prosecuting attorney of the police court, the provisions of .Sec. 1815 [Lan. 3347; B. 1536-846] shall apply. ’ ’ The intimation is clearly given by this sentence that the solicitor or any of his assistants designated by him may act as prosecuting attorney of the police court. They may be disabled or they may be absent, but if they are able to act and are present, then they have the power to act. He, as solicitor has power to continue to act, because he is the prosecuting attorney of the police court, and his assistants have power to act because, he has designated them to act; but, in case of the inability or absence of the solicitor, or any of his assistants, then the provisions of the other section apply; to wit, that when there is a temporary inability or absence’of such prosecuting attorney or a vacancy in the office by resignation, death or ■otherwise, the judge of the police court, or, if there be more than one .judge of said court, then the judges thereof shall appoint some competent member of the bar to perform the duties of the office, such appointee to act until the removal of the inability or the return of such prosecuting attorney, and in ease of vacancy until his successor shall be elected at the next annual municipal election and has been duly qualified. Said appointee must qualify in the same manner, and has the same power and authority to discharge the same duties, and is subject to the same liabilities, and receives the same salary as the officer whom said appointee succeeds; but in case of inability or temporary absence of such prosecutor the judge may deduct such amount from the salary of such prosecuting attorney. It is not provided that the court shall deduct such compensation or salary from any supposed compensation awarded by this other section, Lan. 3125 (B. 1536-663), to some person who acts temporarily as prosecuting attorney; but it is to be deducted from the salary which is awarded to the officer who holds the office.

There are other expressions in some of these sections that may afford aid to the construction, but I will not prolong this opinion by any special reference to them. It suffices to say that it is the unanimous judgment of the court that the contention of the city solicitor, Mr. Northup, as to the proper construction of Lan. 3125 (B. 1536-663), should be sustained; and, holding that view, the demurrer to the second defense in Davies’ answer in the mandamus suit and the motion to strike matter from the amended petition filed in this court in the injunction suit, should be sustained and it will be so ordered.

Haynes and Parker, JJ., concur.