author: DUSTIN, J.

text:
    COURTS — OFFICE AND OFFICERS.
    [Franklin (2nd) Circuit Court,
    1909.]
    Wilson, Sullivan and Dustin, JJ.
    State ex rel. Thomas A. Curran v. F. M. Sayre (Aud.)
    County Pays Court Constables in Probate Court.
    Section 553 Rev. Stat. is not in contravention of Art. 2, Sec. 26, of the constitution of Ohio; but bas been repealed by the county officers’ salary law, 98 O. L. 89, wbicb provides that the county shall allow the probate judge á certain sum out of the county treasury to pay the salary of all his “deputies, assistants, clerks, bookkeepers, and other employes as may be necessary,” etc. The phrase “other employes” includes court constables.
    [Syllabus by the court.]
    In Mandamus.
    G. B. Okey, for plaintiff.
    K. T. Webber, for defendant.
   DUSTIN, J.

We are of the opinion that See. 553 Rev. Stat., providing for.the .appointment of court constables in the probate courts of counties having more than seventy thousand population, is not in contravention of Art. 2, -Sec. 26, of the constitution of Ohio. It is an act of a general nature and of uniform operation throughout the state in all counties containing more than seventy thousand inhabitants, and was enacted for the purpose of meeting conditions liable to occur only in large counties. It is. on a par with the election law, held to be constitutional, which provides that the polls in cities of more than three hundred thousand inhabitants shall open at 5:30 a. m. and close at 4 p. m. instead of at the hour provided for opening and closing in smaller towns and cities. Gentsch v. State, 71 Ohio St. 151 [72 N. E. Rep. 900].

But we are also of the opinion that the foregoing act has been repealed by the more recently enacted county officers’ salary law, 98 O. L. 89, which provides that the county shall allow the probate judge a certain sum out of the county treasury to pay the salary of all his. “deputies, assistants, clerks, bookkeepers, and other employes as may be necessary,” etc. We think the phrase, “other employes” covers, court constables. Section 23 of the act provides for the repeal of all acts inconsistent with the foregoing. The inconsistency is, to us, apparent.

The rule that a general act does not repeal by implication a former special one does not apply, for the repeal in this instance is not by implication but by express language. Although the act in question is. not specifically named, the legislative intent seems to be clear.

The writ therefor, will be denied and the petition dismissed at the-costs of the relator.

Wilson and Sullivan, JJ., concur.


source: Caselaw Access Project

author: GIFFEN, J.

license: Public Domain

text:
    WILLS.
    [Hamilton (1st) Circuit Court,
    March 6, 1909.]
    Giffen, Smith and Swing, JJ.
    George H. Bishop, Exr., v. Charles Rider et al.
    “Next of Kin” be Construed in Technical Sense, Where it is not Known-Whet her Certain Relatives are Living or Dead.
    Where it appears that a testator was uncertain as to whether certain relatives were living or dead, it will he presumed, in the absence of any reference to the statute of descent and distribution, that he intended by the use of the words “next of kin” to designate a particular class of persons related to him in an equal degree of consanguinity.

      Yeatman & Yeatman and E. C. Pyle, for the executor.
    Frank Dinsmore, for Charles Rider.
    RobertRamsey, for cousins of the testatrix.
   GIFFEN, J.

’ The only question involved in this case is the construction of item eighteen of'the last will and testament of Julia C. Giles, deceased, which is as follows:

“And lastly all the rest, residue and remainder of my estate, both real and personal of whatsoever kind or nature, I give, devise and bequeath to my next of kin, their heirs and assigns forever.”

It appears from the pleadings and the evidence that the defendant, Charles Rider, an uncle of the testatrix, is one of the next of kin, •and that it was unknown to her and is ;even now unknown to the defendant, •Charles Rider, and the executor whether the :two aunts, ..Harriet Ryder and Isabella Ryder, are living or dead, the presumption, therefore, in the absence of any reference in the will to the statute •of descent and distribution, is that the words “next of kin” were used in their technical sense to designate a particular class of persons related to the testatrix in an equal degree of consanguinity, and do not imply the principle of representation. Clayton v. Drake, 17 Ohio St. 368; Mooney v. Purpus, 70 Ohio St. 57, 65 [70 N. E. Rep. 894].

Decree accordingly.

Smith and Swing, JJ., concur.


author: SWING, J.

text:
    ATTACHMENT — ERROR.
    [Hamilton (1st) Circuit Court,
    December 19, 1908.]
    Swing, Giffen and Smith, JJ.
    Greenhow v. Harrison.
    .Judgment of Common Pleas on Appeal from J. P. in Attachment not Reviewable on Error. ,
    Error does not lie to. reverse, a judgment of a common pleas court, rendered on appeal from a determination of justice of the peace on motion to discharge an-attachment;-the-, judgment to which ’error may be--prosecuted under Sec. 6494 Rev. Stat. is that of the justice of the peace.
    Error to Hamilton common pleas court.

      H. R. Weber, for plaintiff in error.
    Guido Gores, for defendant in error.
   SWING, J.

This cause should be stricken from the files. There is no right giyen in the statute to prosecute error to the judgment of the court if in session, of the judgment of- a judge in vacation, on an appeal from the determination by a justice of the peace on a’ motion to discharge an attachment. Section 6494 Rev. Stat. provides that the judgment rendered on the appeal is to be transmitted to the justice of the' peace to be by him entered as his final judgment on the motion, and if error is to be prosecuted, it is to the judgment of the justice of the-peace, and not to the judgment of the court or judge rendering the judgment on the appeal. . See Williams v. McCartney, 30 O. C. C. 320 (10 N. S. 161).

This proceeding is to reverse the judgment of the court of common pleas on appeal from the determination of the justice of the peace of the motion to discharge an attachment.

Giffen and Smith, JJ., concur.


text:
    JUDGMENTS — MANDAMUS—MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    July 18, 1908.]
    Swing, Giffen and Smith, JJ.
    State ex rel. E. M. Ballard, Solicitor, v. C. L. Harrison et al. Sinking Fund Trustees.
    Sinking Fund Trustees Cannot Pay Judgments in Condemnation.
    Mandamus will not lie to compel sinking fund trustees to pay a judgment against a municipality for land taken in an action in the nature of condemnatory proceedings.
    Mandamus does not lie against sinking fund trustees.
    Application for mandamus to compel the sinking fund trustees to pay a judgment against the city. The relator alleged that the city had taken possession .of lands of Oliver without having appropriated the same by law or made compensation therefor; that Oliver brought’ suit against the city for $2,000 as damages for the trespass committed; that the city answered admitting that it took possession of the land as. alleged, is willing to pay the value thereof upon receipt of a deed therefor, and asking the court to fix the value. The court entered a decree finding the value and ordering it to be paid to the plaintiff, Oliver, upon delivery of a deed to the city. The solicitor thereupon certified the judgment to the sinking fund trustees. They declined to pay it on the ground that they were not authorized to levy taxes to provide for judgments against the city “in condemnation of property cases,” nor to pay such judgments.
    E. M. Ballard and Fyffe Chambers, for relatoi.
    T. M. Hinkle and A. G. Allen, for defendants.
   SWING, J.

The judgment entered against the city in favor of Oliver et al. was not in the nature of damages, but in its nature was one for condemnation. The sinking fund trustees are not permitted to pay judgments in condemnation. The writ should be refused.

Giffen and Smith, JJ., concur.


text:
    INTOXICATING LIQUORS.
    [Hamilton (1st) Circuit Court,
    1909.]
    Giffen, Smith and Swing, JJ.
    J. Elbert Thomas v. Leopold Markbreit.
    Jones Residence Local Option Petition not Piled Prematurely.
    Under Sec. 2 of act 98 O. L. 68, the Jones residence local option law, a petition may he filed with a mayor or judge at any time after two years from the filing of a petition under Sec. 1 thereof; but the decision of the mayor .or judge under Sec. 2 cannot take effect until two years after his decision under Sec. 1.
    J. D. Creed, F. P. Mulhauser and Yeatman & Yeatman, for plaintiff.
    G. W. Crubbe, for defendant.
   GIFFEN, J.

The only question involved in this application for leave to file a petition in error is, whether a petition under Sec. 2 of the act of March 22, 1906 (98 O. L. 68; Lan. Rev. Stat. 7283b; B. 4364-30b), was prematurely filed with the mayor of Cincinnati.

That part of Sec. 2 applicable to the question is as follows:

“The petition provided for in this section shall not be filed until after±wo:years' or móre:sháir have- elapsed after the filing of'the-petition provided for in Sec. 1 of this act.”

While it is plain that the provision permits a filing of a petition at any time after two years from the filing of a petition provided for in Sec. 1 (Lan. 7283a; B. 4364-30a) Rev. Stat., it does not attempt to limit the operation and effect of the decision of the mayor or judge upon the original petition. This is provided for in Sec. 6 (Lan. 7283f; B. 4364-30f) Rev. Stat., as follows:

“And the law shall remain in full force and effect in said resident district for two years and thereafter until another petition is presented under the,.provisions of .See. 2 of this act.”

This provision does not mean that the law, under the decisions of the mayor or the judge, shall remain in force only until another petition is presented under Sec. 2; but at least two years and thereafter also, unless another petition is presented. It seems to contemplate a filing of the petition at such time as a decision thereon would not conflict with or annul the decision rendered under Sec. 1. The petition under either section amounts to nothing until approved by the mayor or judge, and it is his decision that, gives effect to the flaw; which, according to Sec.- 6 shall operate for at least two years from the time the' petition is held sufficient by the mayor or judge. The decision of the mayor or judge is, in the language of the act, only prima facie evidence, and a later one cannot annul a former one, the duration of which is determined by the act itself.

It seems clear, therefore, that a petition under Sec. 2 may be filed at any time after two years from the filing under Sec. 1, and it is equally clear that the decision of the mayor under Sec. 2 cannot take effect until two years after his decision under Sec. 1. Leave to file petition in error denied.

Swing and Smith, JJ., concur.


author: ALLREAD, J.

text:
    INTERSTATE COMMERCE.
    [Franklin (2nd) Circuit Court,
    October 12, 1909.]
    Sullivan, Dustin and Allread, JJ.

       Railroad Commission of Ohio v. Ann Arbor Ry.
    1. State Railroad Commission Limited to Consideration oe Intrastate Commerce only.
    Tbe state railroad commission under act 98 O. L. .342, instituting and prescribing the powers and duties thereof, cannot prescribe rules or assume powers not conferred by tbe act; and in tbe construction of tbe act it may be assumed that tbe general assembly sought to avoid constitutional infirmity in its provisions and intended to limit its provisions to state jurisdiction.
    2. Terminal Facilities of Cars Used in Interstate Commerce Held not within the Powers or State Railroad Commission.
    Section 2a of act 98 O. L. 342, limiting its application to state commerce comprehends both transportation and terminal service; tbe character of tbe property to be moved is tbe test in both classes; hence, it does not apply to either transportation or terminal facilities in tbe shipment of interstate commerce.
    Error to Franklin common pleas court.
    U. G. Denman, Atty. Gen., F. T. Eagleson and John Horst, for plaintiff:
    The power of the state to legislate wdth respect to its internal affairs; this includes the power to regulate a multitude of things incidental to interstate commerce and connected therewith. It has such authority by virtue of its police power. Cooley v. Philadelphia {Bd. of Wardens), 53 U. S. (12 How.) 299 [13 L. Ed. 996]; Mobile Co. v. Kim-ball, 102 U. S. 691 [26 L. Ed. 238]; Louisville & N. By. v. Kentucky, 161 U. S. 677 [18 Sup. Ct. Rep. 523; 40 L. Ed. 849] ; Erb v. Morasch, 177 U. S. 584 [20 Sup. Ct. Rep. 819; 44 L. Ed. 897] ; Chicago, B. & Q. By. v. Cutts', 94 U. S. 155 [24 L. Ed. 94]; Hennington v. Georgia, 163 H. S. 299 [16 Sup. Gt. Rep. 1086; 41 L. Ed. 166]; Pennsylvania By. v. Hughes, 191 U. S. 477 [24 Sup. Ct. Rep. 132; 48 L. Ed. 268]; Bichmond ób A. By. v. Tobacco Co. 169 U. S. 311 [18 Sup. Ct. Rep. 335; 42 L. Ed. 759]; Wisconsin, M. & P. By. v. Jacobson, 179 U. S. 287 [21 Sup. Ct. Rep. 115; 45 L. Ed. 194]; Chicago, M. & St. P. By. v. Solan, 169 U. S. 133 [18 Sup. Ct. Rep. 289; 42 L. Ed! 688]; Cleveland, C. C. & St. L. By. v. Illinois, 177 U. S. 514 [20 Sup. Ct. Rep. 722; 44 L. Ed. 868] ; Hooper v. California, 155 U. S. 648 [15 Sup. Ct.
      Hep. 207; 39 L. Ed. 297]; Williams v. Fears, 179 U. S. 270 [21 Sup. Ct. Rep. 128; 45 L. Ed. 186] ; New York v. Knight, 192 U. S. 21 [24 Sup. Ct. Rep. 202; 48 L. Ed. 325]; Hopkins v. United States, 171 U. S. 578 [19 Sup. Ct. Rep. 40; 43 L. Ed. 290] ; Bagg v. Railway,, 109 N. C. 279 [14 S. E. Rep. 79; 14 L. R. A. 596; 26 Am. St. Rep. 569] ; Atlantic Coast Line Ry. v. Commonivealth, 102 Va. 599 [46 S. E. Rep. 911] ; Fitch v. Livingston, 7 How. Pr. 410; Missouri.Pac. Ry. v. Flow Mills Co. 211 U. S. 612; Fairbank v. United States, 181 U. S. 283 [21 Sup. Ct. Rep. 648; 45 L. Ed. 862].
    The railroad commission of Ohio is a body authorized by law to regulate railroads within the state. This includes power to make regulations affecting both intrastate and interstate carriers. While it cannot regulate interstate commerce it may make orders affecting interstate carriers and control local services, although such services may be connected with interstate commerce. Stone v. Loan do Trust Co. 116 U. S. 307 [6 Sup. Ct. Rep. 334, 348, 349, 388, 391, 1191; 29 L. Ed. 636] ? State.r. Terminal Co. 41 Fla. 377 [27 So. Rep. 225]; Stone v. Railway, 62 Miss. 607 [52 Am. Rep. 193] ; Chicago, B. & Q. Ry. v. Bey, 38 Fed. Rep. 656; State v. Railway, 40 Minn. 353 [42 N. W. Rep. 21] ; Minneapolis do St. L. Ry. v. Railroad. do Warehouse Commission, 44 Minn. 336 [46 N. W. Rep. 559]; Railroad Commissioners v. Railway, 17 Ore. 65 [19 Pac. Rep. 702; 2 L. R. A. 195] ; State v. Railway, 86 Iowa 641 [53 N. W. Rep. 323]; New London Northern Ry. v. Railway, 102 Mass. 386; State v. Railway, 22 Neb. 313 [35 N. W. Rep. 118]; People v„ Railway, 104* N. Y. 58 [9 N. E. Rep. 856; 58 Am. Rep. 484] ; Burlington, C. R. do N. Ry. v. Bey, 82 Iowa 312 [48 N. W. Rep. 98; 12 L. R. A. 436; 31 Am. St. Rep. 477]; Chicago Ry. v. Jones, 149 111. 361 [37 N. E. Rep. 247; 24 L. R. A. 141; 41 Am. St. Rep. 278]; Chicago, B. do Q. Ry. v. Cutts, 94 IT. S. 155 [24 L. Ed. 94] ; Ruggles v. Illinois, 108 U. S. 526 [2 Sup. Ct. Rep. 832; 27 L. Ed. 812] ; Stone v. Railway,, 11& U. S. 352 [6 Sup. Ct. Rep. 349, 391; 29 L. Ed. 651]; Chicago do N. W. Ry. v. Bey, 35 Fed. Rep. 866; McWhorter v. Railway, 24 Fla. 417 [5 So. Rep. 129; 2 L. R. A. 504; 12 Am. St. Rep. 220]; Storrs v. Railway, 29 Fla. 617 [11 So. Rep. 226] ; State v. Railway, 38 Minn. 281 [37 N. W. Rep. 782] ; Southern Pacific Co. v. Railroad Commissioners,, 78 Fed. Rep. 236; State v. Railway, 19 Neb. 476 [27 N. W. Rep. 434]; Railroad Commissioners v. Railway, 63 Me. 269 [18 Am. Rep. 208]; State v. Railway, 87 Iowa 644 [54 N. W. Rep. 461]; Stone v. Loan <& Trust Co. 116 U. S. 307 [6 Sup. Ct. Rep. 334, 348, 349, 388, 391, 1191; 29 L. Ed. 636]; Westbrook’s Appeal, 57 Conn. 95 [17 Atl. Rep. 368]; Fairfield’s Appeal, 57 Conn. 167 [17 Atl. Rep.. 764] ; Union Terminal Ry. v. Railroad Commissioners, 54 Kan. 352 [38 Pae. Rep.' 290] ; State v. Railway, 104 6a. 437 [30 S. E. Rep. 891] • Jacobson v. Railway, 71 Minn. 519 [74 N. W. Rep. 893; 40 L. R. A. 389; 70 Am. St. Rep. 358] ; Chicago, M. <& St. P. Ry. v. Becker, 32 Fed. Rep. 849; Charlotte, C. & A. Ry, v. Gibbes, 142 U. S. 386 [12 Sup. Ct. Rep. 255; 35 L. Ed. 1051] ; Reagan v. Loan & Trust Co. 154 U. S. 361 [14 Sup. Ct. Rep. 1047; 38 L. Ed. 1014],
    Demurrage is. not interstate commerce. It is a local, charge, independently paid for, and is not a part of the published tariff rate. Coe v. Errol, 116 U. S. 517 [6 Sup. Ct. Rep. 475; 29 L. Ed. 715]; Interstate Commerce Commission v. Railway, 167 U. S. 633 [17 Sup. Ct. Rep. 986; 42 L. Ed. 306] ; •Diamond Match Co. v. Ontonagon, 188 U. S. 82 [23 Sup. Ct. Rep. 266; 47 L. Ed. 394]; Gulf, C. & S. F. Ry. v. Texas, 204 U. S. 403 [27 Sup. Ct. Rep. 360; 51 L. Ed. 540]; Steamer Daniel Ball v. United States, 77 U. S. (10 Wall.) 557 [19 L. Ed. 999]; Kelley v. Rhoads, 188 U. S. 1 [23 Sup. Ct. Rep. 259; 47 L. Ed. 359]; Brown v. Houston, 114 U. S. 622 [5 Sup. Ct. Rep. 1091; 29 L. Ed. 257]; United- States v. Boyer, 85 Fed. Rep. 425; Atlantic Coast Line Ry. v. Corporation Commission, 206 U. S. 1 [27 Sup. Ct. Rep. 585; 51 L. Ed. 933].
    Even if the interstate commerce act can be construed to give the interstate commerce commission authority to make car service rules, said commission has not acted with relation thereto, and the power has not been withdrawn from the state. Missouri Pac. Ry. v. Flour Mills Co. 211 U. S. 612.
    Wilson, Wilson & West and F. A. Durban, for defendant.

       Affirmed, no op., Railroad Commission v. Railway, 55 Bull. 423; *83 O. S. 000; affirming Ann Arbor Ry. v. Railroad Commission, 19 Dec. 691.

   ALLREAD, J.

The action in the court below was brought by a number of railroad companies located in this state and engaged in state and interstate transportation, against the railroad commission of the state, to enjoin it from enforcing certain rules and regulations affecting car service and demurrage.

The case was submitted to the court below upon demurrer to the second cause of action. The first cause of action, which challenged the reasonableness of the rules, was not presented; and no question is made, so far as the second cause of action is concerned, as to the reasonableness of the rules, but only as to the powér of the state c<m-mission to promulgate and enforce them.

The court of common pleas, Ann Arbor Ry. v. Railway Commission, 19 Dec. 691 (8 N: S. 233), held the rules valid except as affecting cars employed in interstate commerce. And a permanent injunction was only allowed to prevent their enforcement to that extent.

The railroad commission prosecute error to this court to reverse so much of the judgment as enjoined the enforcement of its rules to the extent above stated.

The principal argument of counsel is directed to the effect of the “commerce clause” of the national constitution, delegating to congress the power to regulate commerce among the states. In this connection it may be remarked that this clause has been the subject of repeated adjudications by the Supreme Court of the United States. But, notwithstanding all that has been expressed, the line of demarcation between federal and state jurisdiction is not clearly established, and the power to regulate terminal facilities and car service lies within the area of doubt and dispute. But aside from the constitutional question is one raised by counsel in the case as to the construction of the state railroad commission act, 98 O. L. 342. It is apparent that the state railroad commission has only such powers as the act creating it confers. It cannot prescribe rules or assume powers not conferred by the act. We may, therefore, properly inquire what power is conferred or assumed to be conferred by the state act in relation to car service rules and charges as affecting interstate shipments.

In the construction of the act it may be assumed that the state legislature sought to avoid any constitutional infirmity in the provisions of the act and intended to keep safely within the limits of state jurisdiction.

The act itself carries this legislative construction in Sec. 2a, that “The provisions of this act shall apply to the transportation of passengers and property between points within this state, and to the receiving, switching, delivering, storing and handling of such property, and to all charges connected therewith, including icing charges and mileage charges.”

It is contended by the attorney-general that the limitation of the application of the act to state commerce refers only to the transportation and not to local or terminal facilities. But it will be observed that .the limitation of the scope of the act to property involved in state commerce applies not only to transportation of property but to the terminal service of such property as well. The character of the property to be moved is made the test in both classes of service. If the property moves m state commerce, the act applies both as to actual transportation and as to receiving, switching, delivering, storing, handling, and all charges connected therewith. But the act does not assume to apply as to either transportation or terminal facilities if the property which is the subject of shipment moves in interstate commerce.

It is also contended by the attorney-general that Sec. 3 of the act relating to discrimination and rates is general in terms and applies to all railroads, regardless of the nature and character of the property transported. We are of the opinion, however, that the legislative construction in Sec. 2a underlies the whole act and is the limitation of its scope. The subject-matter of Sec. 3 is the charge for transportation of passengers and property as well as the terminal facilities. Now, the terms employed in See. 3 have been construed and applied in See. 2a to intrastate shipments and it necessarily follows that the use of these terms in Sec. 3 or any other section in the act, unless a contrary intention appears, must follow the definition and application of the preceding section. This is confirmed by the language employed in Sec. 24, prescribing the penalties.

It is not necessary to express an opinion as to whether the requirements of' Secs.' 4, 10a and 12 of the act fall wholly within the legislative construction prescribed in See. 2a relating to transportation and terminal facilities.

The act under consideration in Sec. 21 gives the state commission power to investigate freight rates on interstate traffic and if found to be unjust or discriminatory, to request the railroads affected to revise the tariffs, and in case of failure, to petition the interstate commerce commission for relief. This is the only section in the act which refers expressly to interstate commerce; and in view of the legislative construction in See. 2a of the act and the doubt and conflict that exists as to the limit of state jurisdiction, we may fairly assume that the power conferred in Sec. 21 is the only authority intended to be conferred upon the state railroad commission as to interstate commerce or the facilities and instrumentalities employed therein; and that all other grants of power contained in the act are to be confined to state commerce.

The attorney-general argues that ears are often ordered or furnished without definite knowledge or intention as to consignee or place of destination, and that an important field for regulation might thus be left open and free from control by either state or federal commission. This question, however, is not before us in the present record. The injunction allowed by the court below restrains the commission only as to car service so far as it affects interstate shipments. Until interstate commerce is in some way impressed upon the instrumentality sought to be controlled or regulated, the injunction does not apply. The only question here is as to whether the state railroad commission can enforce its rules as to cars which have been impressed as instrumentalities of interstate commerce.

It, therefore, follows that in the opinion of this court, the ■ state railroad commission had no power under the act creating it to enforce ear service or demurrage rules as to cars employed in interstate commerce.

In this view, it is not necessary to discuss or express an opinion as to the constitutionality of an act conferring such power upon a state railroad commission.

The injunction in the court below was, therefore, properly awarded, restraining the commission from the enforcement of its rules as to car service and demurrage so far as affecting interstate commerce; and the judgment is, therefore, affirmed. ■ . ‘

Sullivan and Dustin, JJ., concur.


text:
    CARRIERS — EVIDENCE.
    [Hamilton (1st) Circuit Court,
    March 23, 1908.]
    Swing, Giffen and Smith., JJ.
    John Ziegler v. Horace M. Freeman.
    Burden of Proof in Action to Recover Loss of Traveling Bag.
    In an action to recover for the loss of a traveling bag from a carrier of parcels for hire, to whom it was entrusted to -be delivered at a.designated . depot in time for a particular train, a prima facie case is made out by the testimony of the plaintiff that he inquired at the baggage room at the proper time and was unable to find his baggage.
    B. B. bjelson, for plaintiff in erroi:
    Renner & Renner, for defendant in error.
   GIFFEN, J.

A carrier of parcels for hire who agrees to deliver a telescope bag at a railroad passenger station in time for the owner to take a particular train and gives a claim check therefor is required to affix a duplicate check to the baggage and to deliver the same at' the baggage room or other usual place of deposit of baggage at the depot; and in .an action to recover for nondelivery, proof by plaintiff that he inquired at the baggage room of the persons in charge thereof, and at a proper time for his baggage, and was unable to get it, makes a prima facie case which entitles him to recover, unless met with evidence of equal weight; but the burden of proof does not shift from the plaintiff to the defendant.

The court therefore erred in charging the jury that the burden •of proving delivery rested upon defendant. Klunk v. Railway, 74 Ohio St. 125 [77 N. E. Rep. 752].

Judgment reversed and cause remanded for a new trial.

Swing and Smith, JJ., concur.


author: MARVIN, J.

text:
    CRIMINAL LAW — PHYSICIANS AND SURGEONS.
    [Cuyahoga (8th) Circuit Court.
    January Term, 1909.]
    Henry, Marvin and Winch, JJ.
    John R. Vincent v. State of Ohio.
    Physicians Prohibited from Filling Prescriptions in Drug Stores eor Others than Their Own Patients.
    A physician, not a legally registered pharmacist or assistant pharmacist, filling prescriptions for others than his own patients, is not engaged in the business of a physician within the meaning of Sec. 79 of act 99 O. L. 507; hence, in a prosecution for unlawfully selling a certain drug to a person named in violation of Sec. 77 of said act, it is not necessary to negatively aver in the affidavit that the sale charged was not done in connection with the business of a physician, or that the party charged was a physician.
    Error to Cuyahoga common pleas court.
    William Howell, for plaintiff in error.
    C. P. Hine, for defendant in error:
    Cited and commented upon the following authorities: Hale v. State, 58 Ohio St. 676 [51 N. E. Rep. 154]; State v. Miller, 24 Conn. 522; State v. Alley, 29 Vt. 60 [67 Am. Dec. 754]; Commonwealth v. Jennings, 121 Mass. 47 [23 Am. Rep. 249] ; 1 Chitty, Crim. Law 284;, State v. Hutchinson, 55 Ohio St. 573 [45 N. E. Rep. 1043]; Billig.heimer v. State, 32 Ohio St. 435; Schlagel v. State, 16 Dee. 295 (3 N. & 429); State v. Kendig, 133 Iowa 164 [110 N. W. Rep. 463]; Com
      monwealth v. Hovious, 112 Ky. 491 [66 S. W. Rep. 3] ; People v. Moorman, 86 Mich. 433 [49 N. W. Rep. 263]; State v. Evans, 130 Wis. 381 [110 N. W. Rep. 241]; State v. HovorJca, 100 Minn. 249 [110 N. W. Rep. 870; 8 L. R. A. (N. S.) 1272]; Noel v. People, 187 111. 587 [58 N. E. Rep. 616; 52 L. R. A. 287; 79 Am. St. Rep. 238]; State v. Forcier, 65 N. H. 42 [17 Atl. Rep. 577]; State v. Marble, 72 Ohio St. 21 [73 N. E. Rep. 1063; 70 L. R. A. 835; 106 Am. St. Rep. 570] ; 8 Cye. 789; State v. Bixman, 162 Mo. 1 [62 S. W. Rep. 828]; State v. Smiley, 65 Kan. 240 [69 Pac. Rep. 199; 67 L. R. A. 903]; France v. State, 57 Ohio St. 1 [47 N. E. Rep. 1041].
   MARVIN, J.

The plaintiff in error was prosecuted before a justice of the peace-upon an affidavit which charged:

“That on or about the eighth day of October, a. d. 1908, at and in the county of Cuyahoga and state of Ohio, one John R. Vincent not being then and there a pharmacist legally registered under the laws of the state of Ohio, and not being then and there a legally registered pharmacist under the laws of the state of Ohio, did then and there unlawfully sell a certain poison, to wit, tincture of iodine, to Frank H. Frost, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”

As a result he was found guilty.

Error was prosecuted to the court of common pleas, where the judgment of the justice was affirmed. It is sought here to obtain a reversal of the judgment of each of said courts.

The prosecution was under Sec. 77 of the act of May 9, 1908 (99 O. L. 507). That section reads:

“No person not a legally registered pharmacist, shall open or conduct a pharmacy or retail drug or chemical store, either as proprietor or manager thereof unless he has in his employ and places in' charge of such pharmacy or store a pharmacist legally registered under the laws of this state. No person not a legally registered pharmacist shall compound, dispense, or sell any drug, chemical, poison or pharmaceutical preparation upon the prescription of a physician or otherwise; but a legally registered assistant pharmacist may compound, dispense or sell any such drug, chemical, poison or pharmaceutical preparation when employed in a pharmacy or drug store under the management and control of a legally registered pharmacist.”

Section 78 of the same act provides for the punishment of him who violates the provisions of See. 77.

By Sec. 79 of the same act, it is provided that:

“The preceding two sections shall not'apply to the business of' a physician or prevent him from supplying his patients with such medicines as to him seems proper.”

It is urged that the affidavit in this case is defective in that it. fails to negative the proposition that the sale charged was not done in connection with the business of a physician, or fails to aver that, the party charged was not a physician. This contention is not sound. The provision as to the business.of a physician, and as to such physician, supplying his patients with such medicines as to him seems; proper, is in a separate section of the statutes, and is not used in connection with the definition of the offense.

In the case of Sale v. State, 58 Ohio St. 676, 687 [51 N. E. Rep. 154], the court in speaking of this matter of negative averment says:

“The test appears to be that, when an exception or proviso in a. criminal statute is a part of the description of the offense, it must be negatived by averment in the indictment in order to fully state the offense,- but where its effect is merely to take certain persons or acts out of the operation of the general prohibitory words of the' statute, the negative averment is unnecessary.”

And in the same ease this language is used:

“An indictment which charges a violation of the general prohibitory provision, makes a prima facie case; and if the accused, or the act with which he is charged, comes within any clause of the proviso, that is a matter which lies more especially within his own knowledge, and should be brought forwárd by him in defense.”

The facts in this case show that the plaintiff in error is a physician ; that he is interested in a drug store; that he is not a pharmacist' or assistant pharmacist, legally registered; that he made a sale of a drug at this store to the party named in the affidavit at the time-' named; that the medicine was’ not furnished to any patient of his, and was not done in his business as a physician. It is urged that because he is a physician and that the drug business carried on at the store where this sale was made is partly owned by him, that he comes within the proviso; that Sec. 77 shall not apply to the business of a physician. This is clearly unsound. The business of a physician in its ordinary use means the professional business of a physician, that is, the practice of the profession of medicine. To hold that this language as used in the statute would include any other than the professional business of the physician would lead to absurd consequences. Physicians are not prohibited from engaging in banking, merchandising, manufacturing, or any other lawful business, but in no proper sense can the business of banking, merchandising, manufacturing and the like be called the business of a physician.

We reach the conclusion that there was no error in the judgment of the court of common pleas, and the same is affirmed.

Henry and Winch, JJ., concur.


text:
    NEGLIGENCE — STREET RAILWAYS.
    [Franklin (2nd) Circuit Court,
    July, 1909.]
    Dustin, Sullivan and Allread, JJ.
    Maurice Meeker v. C. D. & M. Traction Co.
    Person Injured While Signalling Approaching Car Guilty of Contributory Negligence.
    A person standing in close proximity to, and leaning over, an interurban traction company’s track to signal a rapidly approaching car on which he desired to take passage, contributes to his own injury precluding recovery for negligence of the motorman in failing to stop the car; misjudging the speed of the car and being blinded by the headlight’s glare were elements charging him with his peril rather than relieving him from the imputation of contributory negligence.
    Error to Franklin common pleas court.
    J. R. Hunt and E. G. Lloyd, for plaintiff in error.
    C. C. Williams, for defendant in error.
   ALLREAD, J.

The plaintiff sought to recover damages from the defendant for personal injury,. The injuries were received by him in an effort to signal and stop a car upon which he intended to take passage. At the time of signalling the car he stood just beyond the rail outside the track and leaned over the rail so as to be more readily observed by the motorman and signalled by waving a handkerchief. The signal was not answered and the car continued at the usual rate of speed. The plaintiff claims that he was blinded by the glare of the headlight and did not withdraw his person from the position over the rail until too late to avoid the car, which struck him, inflicting serious injury.

The court of common pleas at the conclusion of the plaintiff’s evidence instructed the jury to return a verdict for the defendant, which was done. Error is now prosecuted here.

The question here is as to whether the plaintiff’s evidence establishes contributory negligence.

The negligence of the'traction company in not observing or heeding the plaintiff’s signa] and stopping the car may be conceded. But it was also incumbent upon the plaintiff to use due care. Interurban Ry. & Term. Co. v. Hancock, 75 Ohio St. 88 [78 N. E. Rep. 964; 6 L. B. A. (N. S.) 997; 116 Am. St. Rep. 710],

When the plaintiff approached the railway to signal he was presumed to know that the ear might be approaching at a high rate of .speed — ns it is authorized in the open country — and that his signal might not be observed in time to stop. He was therefore bound to ■observe reasonable care for his own safety.

A railway track is always regarded ,as a place of danger and ■calls for a proportionate amount of care, and the rule is not different as to a traction company running in the country, from that of a steam company. Cincinnati, L. & A. Elec. St. Ry. v. Lohe, 68 Ohio St. 101 [67 N. E. Rep. 161; 67 L. R. A. 637]; Interurban Ry. & Term. Co. v. Hancock, supra.

It is contended that the plaintiff was misled by the glare of the headlight and misjudged the distance as well as the speed. This danger the plaintiff observed when he first came upon the tracks and instead of relieving him from the imputation of contributory negligence, added to his duty of care. He was bound to use care in proportion to the added peril. Balt. & O. Ry. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816],

The plaintiff concedes that he knew by the custom that a signal to stop would be recognized, if a stop is to be made, by a signal by the motorman and that he had been unable to obtain this signal of recognition from the motorman. He was therefore chargeable with knowledge that his signal was unobserved or for some other reason not acknowledged and that the car was approaching at its usual speed. He knew also or was fairly chargeable with knowledge of inability to see the ear or judge its speed; under these circumstances he was not justified in remaining on the track or dangerously near, until the car struck him, and his remaining in the way of the car when his view was blinded by the glare and when he was unable to judge the distance of the car was at his own peril. ■

Common ordinary prudence would suggest the safer course, of keeping out of the pathway of the car and not to take unnecessary risk.

Counsel for the plaintiff urge the doctrine of “last chance*” that is, that the traction company knew or ought to have known of the-plaintiff’s peril in time to have avoided the injury, and neglected to do so.

Subsequent or wilful negligence must be pleaded and set forth in the petition as a grounds for recovery, to be available. Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844]; Balt. & O. Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. Rep. 1071]; Cincinnati Trac. Co. v. Johnson, 30 O. C. C. 702 (10 N. S. 467).

We have carefully analyzed the second amended petition and are inclined to the opinion that it does not set forth subsequent or wilful negligence as a grounds of recovery. But at any rate the evidence does not make out a ease of -wilful or subsequent negligence. It did not appear that the motorman, even if he saw the plaintiff, knew that he was within the pathway of the car or knew or was presumed to anticipate his failure to step away from the front of the car. New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 340 [64 N. E. Rep. 130]; Cincinnati Trac. Co. v. Johnson, supra.

And it is only when the motorman knew or was bound to know from the situation, that the plaintiff was unable to step aside or get out of the pathway of the car or did not intend to do so, that his negligence became wilful or subsequent.

The evidence fairly shows concurrent negligence of both the plaintiff and the defendant contributing to and producing the injury, and this justified the action of the common pleas court in instructing the jury to return a verdict for the defendant, and the judgment should be affirmed.

Dustin and Sullivan, JJ., concur.


author: DONAHUE, J.

text:
    BRIDGES — DAMAGES—NEGLIGENCE.
    [Richland (5th) Circuit Court,
    January Term, 1906.]
    Donahue, McCarthy and Taggart, JJ.
    Baltimore & Ohio Ry. v. M. Elizabeth Simpson.
    'Construction of Bridge not Proximate Cause of Damages to Land by Retarding Flow of Flood Waters.
    Damages to land by flood waters cannot be attributed to a railway company for negligence in the construction of a bridge on its right of way over a flowing stream by mere casuai connection between damming the water and retarding its flow, especially in view of the facts appearing that the flood was unprecedented, and that other causes intervened and that the building of the bridge was not the proximate cause thereof.
    [Syllabus approved by the court.]
    Error to Richland common pleas court.
    Cummings, McBride & Wolfe, for plaintiff in error;
    Kerr & LaDow, for defendant in error.'
   DONAHUE, J.

Mrs. Simpson commenced an action against the Baltimore & Ohio Railway Co. for alleged negligence in that the company had, in the year 1899, changed the railroad bridge across a stream, and substituted therefor a new bridge, lowering the structure so as to obstruct the flow of water at flood times under the bridge, and so changing the character ■of the bridge from an open framework to one with solid sides; that it narrowed or contracted the space through which the water could flow under said bridge, causing it to back, and turning it to one side of the •stream, and thence across to the other side of the stream, upon the other ■side ,of the bridge throwing it against plaintiff’s land, cutting a channel ■.through her land and causing her great damage.

The situation as shown in the record is substantially as follows: ’The railroad right of way extends in a northwesterly direction. The public road runs for a distance parallel with the railroad right ■ of way, turns abruptly to the south, and crosses the stream in question. This fork of the Mohican, creek runs in an easterly direction south of the field which was claimed to be injured, and turns to the east of said field. The railroad bridge, which was rebuilt in 1899, with the solid sides, the record shows rests upon the same abutments or piers that the old bridge with the openwork rested upon, except that it is claimed, , and the testi mony tends to prove, that the pedestal stones or abutments were lowered about twenty-two inches; and that the solid sides of the new bridge-extended down toward the bottom of the creek about the same distance that the rods of the old bridge extended.

The proof in this case unquestionably establishes the fact that this-was an extraordinary flood. Plaintiff’s own testimony convinces the court that such was the case. The defendant’s testimony tends to establish the-fact that it was an unprecedented flood. The defendant could only be held to the exercise of such .judgment in building its bridge as could1 reasonably and fairly meet the requirements of the usual and ordinary flood waters of that stream, and could not be called upon to build its-structures so as to anticipate extraordinary or unprecedented floods. The defendant cannot be called upon to respond for any injury resulting to plaintiff’s land which was not occasioned by its acts or failure-to provide against matters which it could not have reasonably anticipated.-

We have examined this record with great care, and we are unable-to see how the results are necessarily attributable or in anywise attributable to the acts of the defendant in building and erecting this bridge.. Assuming that the evidence shows that the bridge with its solid sides; did retain the water and prevent it from passing under the bridge as. freely as the former bridge, yet we fail to see the connection between the damming of this water, and the injury that resulted to plaintiff’s land in consequence of the flowing of the water below the bridge after it had', gone through and under the bridge;. nor do we discover in this record that the evidence sustains any theory upon which it can be claimed that this bridge was the proximate cause of the damages complained of by the plaintiff.

We think that a clear and explicit definition of the proximate cause- and the proof essential to be submitted to a jury is found in the case-of Laidlaw v. Sage, 158 N. Y. 173 [52 N. E. Rep. 679]. The proximate-cause of an event is that which in a natural and continued sequence,, unbroken by any new cause, produces that event, and without which that event would not have occurred; and the act of one person cannot be said to be the proximate cause of an injury when the act of another person has intervened and directly inflicted it.

An accident or injiiry cannot be attributed to a cause unless, without its operation, it would not have happened.

We cannot attribute the injury to the new bridge as built and maintained by the railroad company; the. evidence does not sustain plaintiff’s claim in that behalf, and all such theory in reference thereto must be mere conjecture, and the jury cannot be permitted to indulge in conjecture.

We call attention to the fourth paragraph of the syllabus in the case of Laidlaw v. Sage, supra:

“To justify the submission of any issue to the jury, there must be sufficient proof to sustain the claim of the party upon whom the onus rests * #

And this is the holding of our own Supreme Court in Clev. Term. & Val. Ry. v. Marsh. 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142] :

“To establish negligence, there should be either direct proof of the facts constituting such negligence or proof of facts from which negligence may be reasonably presumed. There should be no guessing by either the court or the jury.”

It appears in this record, and it is uncontradicted, that the bridge over the county road was washed out by this flood and lodged against the abutments of the railroad bridge, and that it interfered and retarded the flow of the water, and diverted it and turned it in the direction claimed by plaintiff. Here was an intervening cause, and we are unable to see how, from the evidence in this case, the injury could be attributed entirely to the defendant’s negligence, if there was negligence, and for this intervening cause, the defendant was in nowise responsible. Reading again from Laidlaw v. Sage, the eighth paragraph of the syllabus:

“When damages claimed in an action are occasioned by one of two causes, for one of which the defendant is responsible, and for the other of which he is not responsible, the plaintiff must fail if his evidence does not show the damage produced by the former cause, and the jury must not be left to mere conjecture, and a bare possibility that the damage was caused in consequence of the act of the defendant is not sufficient.”

Finding that the verdict in this case is contrary to the manifest weight of the evidence and- contrary to law, we reverse this judgment at the cost of the defendant in error. •

Judgment reversed. Exceptions entered, and the cause remanded to the court of common pleas for further proceeding according to law.

McCarthy and Taggart, JJ., concur.


text:
    INTOXICATING LIQUORS.
    [Delaware (5th) Circuit Court,
    December Term, 1908.]
    Taggart, Donahue and Shields, JJ.

      Daniel Lynch v. State of Ohio.
    1. Affidavit not Required to State Termini of Period in which Illegal Keeping of Place is Charged.
    An affidavit charging the keeping of a place where intoxicating liquors were, on a designated day, sold, furnished or given away in violation of law is sufficient to sustain a prosecution for the violation of Sec. 6942 Rev. Stat. as amended by act 99 O. L. 35; the gravamen of the offense ■being the keeping of a place, it is not necessary to state the dates from which and to which the alleged keeping a place in violation of law is averred.
    2. One Unlawful. Sale Proven, Sufficient to Sustain Conviction.
    A conviction for keeping a place where intoxicating liquors are sold, etc., contrary to law, is sufficient if sustained by proof of one unlawful sale. •3. Charging General Violation of Intoxicating Laws Sufficient.
    An affidavit averring unlawful sale of intoxicating liquors, and proof of any unlawful sale are sufficient to sustain a prosecution for violation of the liquor laws; it is not necessary to aver a particular statutory violation.
    ■4. Proof of Certified Copt of Local Option Election to Make Prima Fací* 1 Case not Exclusive Evidence.
    Section 1 of act 99 O. L. 35, the Rose local option law, making a certified copy of the result of a local option election sufficient proof thereof, is not exclusive; any competent evidence may be offered to sustain a prosecu- ■ tion for a violation of the act.
    5. Evidence of Chief of Police Telling where Officer Obtained Liquor is Sufficient.
    The admission of testimony of a chief of police merely stating “that a police officer told him where he got intoxicating liquors in dry territory” is not prejudicial error.
    [Syllabus approved by the court.]
    Error to mayor’s court.
    Marriott & Freshwater, for plaintiff in error:
    E. S. Owen, for defendant in error:

      Affirmed, no opv Lynch v. State, 81 O. S. 489.

   DONAHUE, J.

This proceeding in error is prosecuted to reverse the judgment of ■the mayor of the city of Delaware, finding the plaintiff in error guilty ■of a misdemeanor, and adjudging him to pay a fine.

The first contention is, that the affidavit filed with the mayor in this case is defective, and does not state a crime under the laws of Ohio.

It is contended that if the prosecution is under Sec. 6942 Rev. Stat., that the affidavit should state the dates from which and to which the defendant was keeping a place where intoxicating liquors were then and there sold in violation of law.

We are of the opinion that this prosecution is under Sec. 6942 Rev. Stat., as amended,’99 O. L. 35, and as that section now reads the gravamen of the offense is keeping such a place. And if on or about the twelfth day of December, a. d. 1908, the defendant was then and there the keeper of a place where intoxicating liquors were sold, furnished-or given away in violation of law, he was guilty of an offense under this section of the statute, and the affidavit is sufficient.

It is further contended that the mere showing of one unlawful sale is not sufficient evidence to warrant the mayor in finding the defendant guilty. We think that question has been disposed of correctly in the case of Volk v. Westerville (Vil.), 17 Dec. 776 (3 N. S. 241), and particularly at page 244.

It appears that the circuit court of Franklin county, in another case, unreported, of the same title, held that the proof of a single sale is sufficient, without proving a series of sales.

In the ease Belle Center (Vil.) v. Welsh, 24 Bull. 176, it was also held by the court, to which añ application was made for leave to file a petition in error, that under the section as it then read, a single sale was sufficient to warrant a conviction.

It is also contended by plaintiff in error that an attempt is made here to prosecute for a violation of the Rose local option law, and for that reason neither the affidavit nor the proof is sufficient.

It is not important what law is violated in the sale of intoxicating liquors under a charge of this character. It is sufficient for the affidavit to state the sale was unlawful, and then in the hearing of the case proof can be offered that the sales were made on Sunday, to a minor, or person in the habit of becoming intoxicated, or in territory where the sale of intoxicating liquor is prohibited, or any other reason that renders the sale unlawful. So that, when the state came to offer this evidence in this prosecution it could show that under the provision of the Rose local option law the sale of intoxicating liquors was prohibited in Delaware county.

It is contended, however, that the proofs failed to show that the sale of intoxicating liquors was prohibited in that county by reason of an election held under the provisions of the Rose local option law. And looking to the evidence offered by the state it would seem as if -there were a defect in that behalf. True, it is provided in the Rose local option law that a copy certified by the clerk of the court of common pleas' showing the result of such election, provided such a result shows a majority of votes against the sale of intoxicating liquor as. a beverage, shall be sufficient evidence to make a prima facie case; but we-take it that this is not exclusive, and that any other competent, evidence-may be offered.

In this whole record, the question of whether or not the sale of intoxicating liquors was prohibited in Delaware county under the provisions of this act does not seem to be mooted. True, the plea of not guilty puts in issue every material allegation of the affidavit, but in the trial of this case questions were asked by counsel for the state, as-, well as by counsel .for the defendant, indicating that the Sale of intoxicating liquor as a beverage was at the time of the alleged offense-prohibited and unlawful, and, in fact, .some of the answers.fixed the-exact date when the provisions of that law came into operation in tnat county.

It is true that some of this evidence would have been incompetent had objections been made thereto; but no such objection was'made, and, therefore, the admission, was not prejudicial error. And particularly is this true in the evidence of the defendant himself. He testifies that he has sold no whiskey to anybody since the local option law went into effect in Delaware, and on page 14 of the bill of exceptions, it appears, from his evidence, that local option went into effect in that county, the last of October or the first of November of that year. So that we think the evidence was sufficient for the mayor to find that the sale - of intoxicating liquors in Delaware county was, at the time-.charged in this affidavit, prohibited and unlawful, and that this sale, ■if he found such a sale had been made, was an unlawful sale, and that, the defendant by reason thereof was guilty as charged in the affidavit.

Some objection is made to the testimony of the chief of police, and particularly to that portion where he undertakes to tell what officer Vining told him; but it appears that what the officer said to him was not repeated by the chief of police, but that he merely says that the officer told him where he got it, but he does not say what the officer told him, or from whom the officer said he received the half pint of whiskey that, was offered in evidence. We think there was no error in the admission of that evidence, or in the refusal of the court to strike it out. Finding-no error apparent in the record of this case prejudicial to plaintiff in error, the judgment of the mayor is affirmed, with costs. The cause is; remanded for execution. Exceptions of plaintiff in error are noted.

Taggart and Shields, JJ., concur.


author: DUSTIN. J.

text:
    OFFICE AND OFFICERS.
    [Franklin (2nd) Circuit Conrt,
    October 19, 1909.]
    'Sullivan, Dustin and Allread, JJ.
    State of Ohio ex rel. Atty. Gen. v. Frank Gebert.
    Mayor and Member of Congress not Incompatible Office.
    The offices of mayor and member of congress are not incompatible, and may be held by the same .person.
    [Syllabus by the court.]
    Quo Warranto.
    U. G. Denman, Atty. Gen., and .F. T. Eagleson, for plaintiff.
    Williams, Williams, Taylor & Nash, for defendant.
   DUSTIN. J.

In November, 1907, Carl C. Anderson was elected and qualified as mayor of the city of Fostoria. Frank Gebert, defendant, was, at the same time, elected president of the city council of said city.

In November, 1908,1 said Anderson was ■ also elected a' member of the congress of the United States. He continued to serve as mayor of Fostoria; but on February 20, 1909, he left Fostoria for Washington, D. C., where he remained until the filing of the petition herein. March 16, 1909, he qualified as a member of congress, and entered at once upon ,the arduous work of tariff revision. Directly he had qualified as a member of congress, the city council of Fostoria, by resolution, declared his office as mayor, vacant, and that defendant, Gebert, had succeeded to it by virtue of Sec. 132 of the Munic. Code of 1902. Gebert forthwith took oath to faithfully discharge his duties, gave bond, which was approved, and has since been- assuming to act as mayor.

It is agreed “That Carl C. Anderson has not failed, neglected and refused to perform any of the duties of the office of mayor of the city of Fostoria, excepting in so far as his absence in the city of Washington, * * * may be regarded as an implied failure, neglect and refusal; and that he has not removed from the city of Fostoria, excepting in so far as his absence in. the city of Washington, as aforesaid, may be regarded as a removal.”

The statutes do not cover the case, and it is left to the court to say, under a quo warranto proceeding against Gebert, whether the common law holds the offices of mayor and of member of congress to be incompatible.

Offices are considered incompatible whén one is-subordinate to, or in any way a check upon, the other; or, when it is physically impossible ior one person to discharge the duties of both.

The latter element is eliminated from this case, for although Mr. Anderson cannot discharge the duties of mayor while absent in Washington, listening to, or enaging in, the debates of the national congress, the statutes have made provision for temporary absences and furnished a substitute mayor in the president of the city council. (See Sec. 132, Munie. Code of 1902.) And this court will take judicial notice that a member of congress is not always engaged in'the work of legislation. Most of his time is spent at home, engaged in correspondence with -his ambitious constituents, or “on the., stump.” His-.absences, ...therefore, -on congressional duty, are always temporary.

On the other point, however, it is urged by council for defendant that the offices of mayor and member of congress are incompatible, because one is legislative and the other is executive and judicial; and that it is contrary to the spirit of our government to unite the three coordínate powers in one person.

This would be quite forcible if the powers were exercised in the same jurisdiction. If, for instance, the mayor should be elected a member of the city council of Fostoria and attempt to discharge the duties of both offices; in that case, he would find himself as mayor in a state of incompatibility with himself as a member of council; he would have a veto power over the legislative acts of a body of which he was a member.

So, if he were a member of the state legislature as well as mayor, he would, as legislator, have the power to vote upon acts regulating his own duties and emoluments as mayor.

These instances come within the common law definition above stated, and the only remedy is a divorce on the old and familiar ground of incompatibility.

But what connection can there be between federal legislation and the official duties of a mayor? None, that we perceive. For, whether -as a member of congress, he revises the tariff up or down, he is powerless, as mayor of Fostoria, to enforce it, nullify it, or construe it. Neither is he beholden to congress in any way for his honors or emoluments as mayor.

It has never been doubted in Ohio that the mayors of small cities and villages could legally exercise their statutory powers in criminal hearings. A mayor is an executive of the city in the enforcement of its ordinances; and a representative of the state, with the judicial powers of a justice of the peace, in respect to crimes and misdemeanors. These duties have not been regarded as incompatible, nor, in our view, are the duties of mayor and member of congress.

Indeed, it may almost be said to be a part of the common law, that an Ohio man may occupy as many offices as he can be elected or appointed to. It is left to his own sense of fitness and propriety as to whether he should ever decline any.

A judgment of ouster may be entered against the defendant.

Sullivan and Allread, JJ., concur.


author: SULLIVAN, J.

text:
    MUNICIPAL CORPORATIONS — OFFICE AND OFFICERS— STATUTES.
    [Franklin (2nd) Circuit Court,
    October 12, 1909.]
    Sullivan, Dustin and Allread, JJ.

       State ex rel. Samuel C. Slaybaugh et al. v. Sylvester C. Noble, Aud.
    Tenure of Director of Public Safety Runs from August 1, 1909.
    Section 146 Munic. Code of 1902 as amended by act 99 O. L. 562, providing for tbe appointment of a director of public safety, takes effect August 1, 1909, as .prescribed by tbe plain and unambiguous language of Sec. 3 of tbe amendatory act.
    [Syllabus approved by tbe court.]
    Mandamus.
    H. M. Meyers and Williams, Williams, Taylor & Nash, for plaintiffs:
    Cited and commented upon the following authorities: Mack v. Brammer, 28 Ohio St. 508; Scovern v. State, 6 Ohio St. 288; Eurford v. Omaha City, 4 Neb. 336; Shellenberger v. Ransom, 41 Neb. 631 [59 N. W. Rep. 935; 25 L. R. A. 564]; Ives v. McNicoll, 59 Ohio St. 402 [53 N. E. Rep. 60; 43 L. R. A. 772; 69 Am. St. Rep. 780] ; State v. Akins, 10 Cire. Dec. 121 (18 R. 349).
    G. S. Marshall, city solicitor, and E. L. Weinland, for defendant: Cited and commented upon the following authorities: People v. Butler, 147 N. Y. 164 [41 N. E.'Rep. 416]; Shellenberger v. Ransom, 41 Neb. 631 [59 N. W. Rep. 935; 25 L. R. A. 564]; State v. McElroy, 44 La. Ann. 796 [11 So..Rep. 133; 16 L.-R. A. 278; 32 Am. St. Rep. 355]; Bossmiller v. State, 114 Wis. 169 [89 N. W. Rep. 839; 58 L. R. A. 93; 91 Am. St. Rep. 910] ; Detroit (Common Council) v. Bush, 82 Mich. 532 [46 N. W. Rep. 791; 10 L. R. A. 171],

      "Affirmed, no op., Noble v. State, 81 O. S. 550.

   SULLIVAN, J.

The petition of relators shows that they furnished for use of the fire department of the city of Columbus a quantity of oats, which was accepted by the city, and that a voucher therefor was approved by Foster C. Burdell, as director of the department of public safety of said city; that they presented said approved voucher to the respondent and demanded that he issue his warrant as city auditor on the treasury of said city for the amount of said approved voucher, which was refused by said respondent, and that he still refuses to issue the same. They, therefore, pray that they may have the order of this court requiring him to do so.

To this petition the respondent .has demurred, and for his ground of demurrer states that the petition does not state facts sufficient to constitute a cause of action and to entitle the relators to the relief prayed for. Counsel for respondent in support of the demurrer contends that Foster C. Burdell was not at the time he approved said voucher, or at any time theretofore, or now is, the director of the department of public safety of said city, and therefore,. was without authority to approve it, for the reason that his appointment to said position by the mayor of said city was without authority of law; that Sec. 146 of the Munic. Code of 1902 as amended April 29, 1908 (99 O. L. 562), by favor of which said appointment is claimed to have been made, does not take effect until January 1, 1910. Therefore, said appointment was premature and of no effect. Though See. 3 of said act, in language of plain import, provides that the several sections relating to the department of public safety, including Sec. '146, shall take effect and be in full force on and after August 1, 1909; but when the several sections of the act, including Sec. 146, are construed as a whole, observing the well established rules of statutory construction, it is claimed- that the legislature did not intend what it said in plain language, but did intend that said section should not take effect until January 1, 1910. It is claimed first by respondent’s counsel that this is apparent from the provisions of Sec. 154a.

This section provides for a board of control to be composed of the mayor, the director of public' safety and- the director of public service, and as there 'cannot he an appointment made to the last department until January 1, 1910, because the board of public service, by favor of Sec. 3 of the act, remains in office and in charge of that department until said date, there can be no board of control until January 1, 1910.

The duty of this board is simply to determine whether the director of public safety and of the public service shall award contracts involving an expenditure of the public money in excess of $500. The mayor is ex officio president. A Record of the board’s proceedings is to be kept; all votes shall be by yeas and nays and' entered of record, and a majority of all the members shall be necessary to adopt any question. The director of public safety voting with the director of public service vrould result in an approval of contracts to be entered into by the latter and vice versa. By Sec. 154 the director of public safety is positively forbidden from creating an obligation in his department against the city in excess of $500 without being first authorized and directed by ordinance of council, and in making contracts for such an expenditure, he is to be governed by the provisions of See. 143. This section relates to and has to do with the board of public service. By the provisions of the latter section the director of public service must first advertise for bids. When the expenditure has been authorized and directed by council, the director shall make a written contract with the lowest and best bidder. The contract shall be between the corporation and the bidder. It would seem from these sections that when the council authorized and directed the expenditure that the duty enjoined upon the director of public safety was imperative and the contract would have to be entered into in accordance with the provisions of Secs. 143 and 154. These sections are for the purpose of restraint upon the respective directors. When an expenditure exceeding $500 is suggested or said to be needed by either of the directors, the council has the authority to pass upon the wisdom and necessity of the same. Suppose the council should find the improvement,' repair, etc., unwise, inexpedient or unnecessary, and decline to authorize and direct the same, the query suggests itself whether the board of control, two-thirds of which is composed of the directors, could still require the contract awarded and the expenditure made.

The matter proposed to be safeguarded by Sec. 154a we think finds ample and better protection in Secs. 143 and 154, and that the interests of the municipality would not suffer materially if the taking effect of Sec. 154a was not only delayed until January 1, 1910, but indefinitely postponed. We think it more reasonable to assume that the legislature did not intend Sec. 154a to go into effect until January 1, 1910, than to say it did not intend by the plain language of See. 3, that Sec. 146 should take effect August 1, 1909. We are therefore of the opinion that respondent’s contention is npt supported by the provisions of Sec. 154a.

The second ground of respondent’s contention is that if proper force is given Secs. 162 and 166, it is clear that the legislature intended to continue the present system of civil service in force until January 1, 1910; that Sec. 162 lends strong color to this conclusion and Sec. 166 puts it absolutely beyond doubt.

Section 162 provides in effect that chiefs and members of the police and fire departments shall be dismissed for the causes designated in Sec. 152, and the proceedings in such cases shall be as provided in 'the latter section, except the appeal shall be to the civil service commission. Dismissals under this section cannot be had until it goes into effect, which is January 1, 1910. When it dries take effect that provision of Sec. 152, providing for appeals, would not apply to appeals, under Sec. 162, and yet See. 152, if counsel’s contention were correct, would still be in force by virtue of Sec. 166, which provides that no officer, secretary, patrolman, fireman, etc., at the time Sec. 166 took effect except in accordance with the provisions of Sec. 152. Hence, there would be two tribunals to which appeals could be taken. That this was not intended as we think is clearly shown by See. 162, which provides that appeals in all cases of dismissals, etc., shall be to the civil service commission. We think, therefore, no reason can be found in these sections to support the contention of respondent’s counsel. The apparent inconsistency between these sections furnishes no reason why effect should not be given other sections where the intent of the legislature is expressed in plain terms capable of literal interpretation.

The several amended sections creating the department of public safety, the appointment of a director to administer the department, defining his powers and duties, are sufficient within themselves to be capable of execution without reference to other sections of the act. The sections of the act repealing the old sections and fixing the date when the same shall take effect are in plain and unambiguous language and easy of interpretation, and if literally construed, the sections, creating the board of public safety et seq., were repealed and the repeal would take effect and be in force on and after August 1, 1909» And as the single director is a substitute for the board, the latter went out of existence on the above date, and to hold, if the merit system is to continue during the interim, that no violence will be done to the language of Sec. 152, to hold that the appeal therein provided for can as well be taken to the director as it could to the board which went out of existence at the above date.

“If the language of a statute is plain and free from ambiguity, and expresses a single definite and sensible meaning, that meaning is conclusively presumed to be the meaning which the legislature intended to convey. In other words the statute must be interpreted literally.” Black, Interp. of Laws, 35, 36, and cases.cited.

Apply this rule in the interpretation of Secs. 2 and 3 of the act under consideration, and the conclusion is forced that the amended sections relative to the department of public safety went into force on August 1, 1909; that the board of public safety went out of existence at that date; and that the appointment of a director to that position on the date named was authorized; and the demurrer to the petition is overruled at defendant’s costs.

Dustin and Allread, JJ., concur.


text:
    FIXTURES.
    [Hamilton (1st) Circuit Court,
    January 25, 1908.]
    Swing, Giffen and Smith, JJ.

      Commercial Tribune Bldg. Co. v. Rapid Electrotype Co.
    Movable Partition Erected by Lessee oe Third Floor oe a Building not a Fixture.
    A partition, consisting of glass in the upper part and wood in the lower, fitted into a groove of a cleat nailed to the floor and without other fastenings than being wedged at the top and sides, capable of being easily removed without injury to the building, constructed by -lessee across the third floor of a building for subletting a part thereof, cannot be regarded as a permanent accession to the freehold.
    Appeal from Hamilton common pleas court.
    Mallon & Vordenberg, for plaintiff:
    The partition is a fixture and part of the building. Teaff v. Hewitt, 1 Ohio St. 511 [59 Am. Dec. 634]; McBea v. Bank, 66 N. T. 489; Kent’s Commentaries 343; Taylor, Land. & Ten. Secs. 544, 547; Murfree, Sheriffs Chap, -16; Gwynne, Sheriffs 247, 249; Gray v. Oyler, 2 Bush: (Ky.) 256; Brennan v. Whitaker, 15 Ohio St. 446 • Columbia Ins.. Go v, Kneisley, 9 Dec. Be. 432 (13 Bull. 437) ; Fortman v. Goepper, 14 Ohio St.;558; Burkhardt v. Hopple, 6 Dec. 127 (5 N. P. 388) ; Paine v. Coffin, 4 Dec. Be. 351 (2 Clev. L. Bep. 1).
    The tenant lost the right to remove partition by its failure to reserve it under a new management. Wigmore, Evidence See. 1071; Cook v. Scheid. 6 Dec. Be. 867 (8 Arn. L. Bee. 493).
    ■ Johnson &. Levy, for defendant.

      Affirmed, no op., Commercial Tribune Bldg. Co. v. Electrotype Co. 81 O. S. 521.

   GIFFEN, J.

The defendant, as lessee of the third floor of a building belonging to the plaintiff, constructed a partition across the same, for the purpose of subletting a part thereof, the upper part being of glass and the lower part being of wood fitting into the groove of a cleat which was nailed to the floor. At the edges and at the top it was wedged but not' otherwise fastened to the walls or the ceiling, and could easily be removed without doing any substantial injury to the building.

Held: The nature of the article affixed, the relation of landlord and tenant, the structure and mode of annexation, and the purpose or use for subletting a portion of the floor space, show no intention to make the partition a permanent accession to the freehold. Teaff v. Hewitt, 1 Ohio St. 511 [59 Am. Dec. 634]; Brown v. Wallis, 115 Mass. 156.

Injunction dissolved and petition dismissed.

Swing and-Smith, JJ., concur,


author: VOORHEES, J.

text:
    EVIDENCE — EXPERT WITNESSES.
    [Muskingum (5th) Circuit Court,
    April Term, 1909.]
    Taggart, Donahue and Voorhees, JJ.
    Carrington T. Marshald, Admr., v. John J. Thomas.
    1. Court Having Admitted in Evidence Several Standards of Comparison of Handwriting Cannot Withdraw Part from the Jury.
    Where a number of standards of handwriting have been admitted in evidence for the purpose of proving the genuineness of a signature, it is an abuse of discretion on the part of the trial judge amounting to prejudicial error to refuse to permit the jury to take to their room all the standards so introduced as exhibits.
    2. Theoretical Speculations of Expert Witness on Handwriting Improperly Admitted.
    An expert witness on handwriting should be confined to matters apparent on the face of the writing. He cannot be permitted by argument or inference. to draw conclusions as to matters not appearing on the face of the writing, and the value of his opinion will depend upon the clearness, with which he demonstrates its correctness.
    13. Prima Facie Evidence of Delivery and Consideration of Notes.
    Where promissory notes are found among the papers of a decedent delivery will be presumed; and nothing else appearing, the form of such notes, stipulating that they were for value received, is prima facie evidence of consideration.
    [Syllabus by the court.]
    Error to Muskingum common pleas court.
    C. T. Marshall and G. K. Browning, for plaintiff in error:
    Cited and commented upon the following authorities. Murphy v. Eagerman, Wri. 293. 296, 298; 4 Enc. of Ev. 296; Adams v. State, 93 Ga. 166 [18 S. E. Rep. 553]; Linch v. Elevator-Co. 80 Tex. 23 [15 S. W. Rep. 208]; 5 Enc. of Ev. 461; 6 Enc. of Ev. 388; 15 Am. & Eng. Enc. Law 276.
    Winn & Bassett, for defendant in error.
   VOORHEES, J.

This action is brought by the plaintiff in error as administrator of the estate of Sarah E. Holden, deceased, upon two promissory notes, with warrants of attorney attached, both bearing date, September 21, 1898, due one year after date. Copies of which with warrant of attorney are attached to the original petition. The defendant in error answers. setting up two defenses. The first defense, after making certain admissions, denies each and every allegation contained in the first cause of action, and further denies, that he ever executed and delivered to said Sarah E. Holden, or to anyone for her, the alleged promissory notes set forth in the petition; and as a second defense to each of said notes pleads want of consideration.

The files or transcript do not show there was any reply to this answer of the defendant, but the case was tried to a jury, and the evidence was received bearing upon the issues made in the case as if a reply were filed, so we assume that there was a reply, and the issues properly joined between these parties.

The cause was submitted to a jury and resulted in a verdict for the defendant. Motion for a new trial was filed and overruled, and error is prosecuted to this court- to reverse the judgment of the court below, and various grounds of error are assigned in the 'petition in error for a reversal of the judgment.

Without setting for the numerous errors complained of in the petition in error, the principal ones which we will consider are, errors in the admission of evidence on behalf of the defendant; error in the court’s refusing to allow all the exhibits that had been admitted by the court below as standards of the genuine signature of the defendant in. error, to be taken by the jury to their room for deliberation; that the verdict of the jury is against the weight of the evidence and is mot supported by the evidence, and is contrary to law. The main contention in the case centers upon the question as to whether or not the court erred1 in its order refusing to allow all the exhibits that had been admitted by the court below as standards of the genuine signature of the defendant to be taken by the jury to their room when they retired to deliberate upon their verdict. We will consider this question first:

A large number, fifty or more of signatures and writings, admitted to be the genuine handwriting and signature of the defendant, were introduced in evidence and used as standards of comparison with the alleged signatures to the notes set forth in the petition.

At the trial, the court did no,t limit in any way, the number of standard signatures, that could or should be used for the purpose of comparison. These standards were all used on the trial in the examination of expert witnesses as standards of comparison with the two notes in suit. On the conclusion of the charge, the court ordered that only two of the- standards should go with the jury in its deliberation. After-wards, the court permitted two other standards to be selected for that purpose, and such selections were made, and these exhibits with the notes in suit were taken by the jury to its room during its deliberation.

The plaintiff in error took exceptions to the order of the court,, limiting the number of exhibits or standards that should thus be taken, by the jury.

The general rule as to what papers may be taken by the jury, rests in the discretion of the court; and it is only when there has been an abuse of this discretion, the judgment will be reversed.

In considering this question, the nature of the issue involved is important, namely, where the genuineness of the handwriting of a party is challenged, the jury have the right to make comparisons between the standards and the writing in dispute. We have no doubt that the court may limit in a reasonable degree the number of genuine signatures or writings to be used as standards of comparison; and if the court had so limited the number in this case it would come within the sound discretion of the court; but after the court admits such standards or ex•hibits in. evidence, it-dias no right- to withdraw any portion of them from ,,the jury or.-refuse to permit it to have.all the,.standards so admitted, to nse them in comparison with the disputed signature.

When standards are thus admitted, if the jury takes any part of th,em, it should take all, and when the court orders that only a part can be taken it is an abuse of discretion prejudicial to the parties concerned. It may be illustrated in this way — the court on the trial of any issue may reasonably limit the number of witnesses to be used upon any one issue involved in the suit, but after the court has permitted evidence to go to the jury on any such issue either by the testimony of witnesses or by other evidence, it would have no right to say to the jury, or direct, that certain testimony or a certain number of witnesses only are to be used in its consideration of such issue. It is not necessary to cite authorities as to the right of the jury upon a question of handwriting, to make comparisons between the disputed handwriting and that which is admitted to be the genuine handwriting of the alleged maker of the disputed signatures; and the jury may decide by comparison the issue between the parties.

Returning to the question of the court refusing to permit the jury to have all the exhibits that had been received in evidence as standards •of comparison with the signature in controversy; it was held in the case of Rainford v. People. 61 Ill. 365, to be error for the court to allow the jury to take out a part of the evidence without taking all. Applying this principle here, the court was in error when he directed that ■only a certain number of exhibits that had been introduced in evidence as-the genuine handwriting or signature of the defendant in error should be taken by the jury to its room. The jury examining and comparing the signatures of only a part of the standards, with the disputed signatures, would reason with one another as to why they should have a part •of the admitted signatures, and the others were excluded from their consideration. Their minds would naturally be impressed by the rejection, and unconsciously form conclusions from the refusal to permit' them to have all of the exhibits. Little do we know the secret and insidious manner by which impressions are produced on the mind, or how slight the operating cause may be.. .

We think a sound discriminating discretion .was not exercised in permitting only a part of the admitted standards to be taken by th& jury when they retired to consider, weigh and determine upon the testimony and evidence in the case.

In refusing to allow the jury to have all the admitted standards-there was prejudicial error in this case; unless the other contention of the defendant in error, was established, namely, that the notes were without consideration and were never in fact delivered to the payee named' therein.

1. Were the notes without-consideration?

2. Were the notes delivered to the payee?

The form of the notes, stipulating that they were given for value received, nothing else appearing, if the notes were genuine, they would be prima, facie evidence of consideration.

Delivery is in general presumed from possession of a bill or note. So, where a note was found among the papers of a deceased payee, its proper delivery is to be presumed. Holliday v. Lewis, i Hun. 478. But if a note were found among papers of a deceased person who is a stranger to the note, and the representative of the deceased person makes-no claim to it. no delivery to the payee will be presumed, and delivery actual or constructive must be shown. Blanchard v. Sheldon, 43 Vt. 512.

The evidence in this case shows that these notes were found among the papers of the deceased, Sarah E. Holden. Being so found their proper delivery is to be presumed until the contrary is shown.

It is also urged in argument by the plaintiff in error, that there-was error in permitting the expert witness, George W. Wood, to give his reasons for the opinion he had formed, as to the signatures in question on his examination in chief, the contention being, that his reasons for his opinion or judgment should be tested by cross examination.

We do not agree with this contention; yet, we think it is proper and perhaps necessary in this case for the court to say something as to the examination in chief of an expert witness on handwriting, before he chn be permitted to give an opinion, where his only knowledge is-gained from a -comparison of admitted genuine writing with the writing. of the disputed instrument, or, in other words, where the knowledge of •the expert is gained from a comparison of admitted genuine writing with the writing in dispute.

In the ease of Koons v. State, 36 Ohio St. 195, the court laid down this formula, as being requisite for' the qualification of an expert witness' to give an opinion:

“It must appear before such opinion is called for, that the witness has formed, or is then able to form an opinion upon the matter in question.”

With the contention of the plaintiff in error, that the court erred in permitting the expert, Wood, in his examination in chief to give his reasons for the opinion or judgment he had formed we do not agree; in Keith v. Lothrop, 59 Mass. (10 Cush.) 453, the court say at page 457:

“The witness Smith who was called as an expert was rightly allowed to give his reasons for the opinion that he expressed.” This point was adjudged in Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 301, and in Collier v. Simpson, 5 Car. & P. 73, Tindel, C. J., ruled, “that counsel might ask a witness who was called to testify as an expert, his judgment and the grounds of it. The value of an opinion may be increased or diminished in the estimate of the jury by reasons given for it.”

It is proper on the examination of an expert, even on his examination in chief, to require him to state the reasons for his opinion, so that the jury will be enabled to estimate the value of his testimony. People v. Shattuck, 109 Cal. 673 [42 Pac. Rep. 315].

In examining the testimony of the expert, Wood, we think some parts of his testimony are objectionable, on the ground, that his opinion is formed or based upon argumentative statements, mere inferences and speculation. When an opinion is speculative, and theoretical only, it should not be received, such statements are not within the domain of expert testimony.

An expert cannot testify that a forger in imitating and disguising handwriting is more particular at the beginning than at the close of the effort; he should be confined to matters apparent on the face of the writing, he may testify to the difference in the letters or words of the writing or signature in 'dispute, similar characteristics or other matters as they may appear to him on the face of the writing, as for example, simulation, naturalness and the like, and may in a proper case give his opinion whether a given writing is a genuine or a feigned or forged signature. By comparison is meant the collation of writings in juxtaposition for the purpose of ascertaining by inspection if they were written by the same ■ person. Persons of experience 'and shill though previously unacquainted with the handwriting in question may be allowed to depose as to appearances perceived by them, as to the resemblance or difference in the formation and appearance of the different letters or words, or even in the general appearance of different portions of the writing. Handwriting is an art concerning which the value of an opinion is susceptible of demonstration. The value of an opinion of a handwriting expert, must depend upon the dearness with which the expert demonstrates its correctness. That demonstration would naturally consist in the indication of similar characteristics or lack of similar characteristics between the disputed writing and the standards, and the value of the opinion will largely depend upon the number of those characteristics which appear or are wanting. Thus, comparison is rated after the fashion or circumstantial evidence, depending for strength upon the number, prominence and consistency of the links in the chain. But the rule, as to circumstantial evidence, will not permit one inference to depend upon another inference in.establishing the question in issue. Therefore, the expert should be confined to matters apparent on the face of the writing, arid not by argument or inference draw conclusions upon matters not appearing upon the face of the writing.

As an example of the violation of these principles in the examina- . tion of the witness Wood, we will give a single example, reading from the bill of exceptions, at the bottom of page 84:

“Now, as a matter of comparing the handwriting in the two questioned signatures with the handwriting in the standards, the two exhibits numbered 49 and 50, as well as all of the other standards in evidence, there is just one logical conclusion to be arrived at, and that is, that whoever wrote these two questioned signatures held the pen in an entirely different way from the manner in which the pen was held in writing any of the standards in evidence. Now, as I have stated before, these two questioned signatures were unquestionably written with the pen held sidewise, pretty much after the fashion in which a stub pen is ordinarily held by writers who employ stub pens. Now that is not the case, nor was it the case in writing any of the standards. John J. Thomas, in writing his signatures as portrayed distinctly in all of his signature writing in evidence as standards, held his pen as writers ordinarily hold their pen, • with fhe pen facing the writer. Now that is distinctly portrayed by tbe shading in the downward strokes; the heavy strokes of John J. Thomas’s signature writing are made with the downward movement of the pen. In some of his signatures, in some of the standard signatures in evidence, the heavy strokes are much heavier in some instances than the others. In many instances, they are quite as heavy as some of the heavy strokes in these questioned signatures, but they are made in a different direction; they are made with a downward motion of the pen, or at any event they are not with the side motion of ■the pen, and therein is portrayed, in comparing the questioned signatures with the admitted signatures of John J. Thomas, an" entirely different habit of holding the pen, and it portrays two extremes. There are just two ways in which a pen can be held, two extreme ways, two extremes; one in which the pen facing sidewise, and the other with the pen facing the writer. Of course, there are different modifications, from one extreme to the other, but here we have, in a comparison of the questioned signatures with the standard signatures of John J. Thomas, those two extremes.”

This is only one illustration of the method of the witness arguing in support of his opinion without stating facts that are apparent from an examination of the writings themselves, it presents no question of science and involves no rule not subject to as many variations as there might be efforts at simulating writing. The care of one man is not evidence of the care which may be exercised by another in an effort to commit a forgery, any more than is the skill of one man in executing the imitation or disguise, evidence of the skill of another. An expert cannot testify, that a forger in imitating and disguising handwriting is more particular at the beginning than at the close of the effort. These principles are well recognized by authority; 6 Enc. of Ev. 384, Subd. 3, and authorities there cited, and Gordon Case, 50 N. J. Eq. 397 [26 Atl. Rep. 268],

We appreciate the difficulty of establishing a definite rule for the examination of an expert witness, to separate that which is argumentative, theoretical and speculative from that which is proper illustration, in pointing out the difference in the letter or words of the writings, in the way of demonstration. We realize that the examination must b'e left largely to the discriminating discretion of the trial judge when the testimony is being given.

Eliminating from the testimony of the expert witness, Wood, that which would come under this rule of exclusion, we think the verdict of the jury is manifestly against the weight of the evidence, in finding that the signatures of John J. Thomas to Exhibits “A” and “B” are not genuine; on the contrary, the weight of the testimony is manifestly in favor of their being genuine. The witnesses who testified to the genuineness of these signatures were bank officials, men of long experience in the examination by comparison of handwritings, and the decided weight of the testimony is in favor of the genuineness of these two disputed signatures, and the jury has so disregarded the weight of the evidence in their verdict that the court is forced to the conclusion that their judgment must have been influenced largely by the incompetent evidence given by this expert, Wood, in his argumentative and speculative way of supporting his opinion that the signatures of “A”' and “B” were not genuine.

We have examined the charge of the court and find no error in the charge, or in the refusal to charge as requested by the plaintiff in error, but for the reasons stated, the judgment is reversed with costs, and remanded to the common pleas for further trial and proceedings according to law. Exceptions noted.

Donahue and Taggart, JJ., concur.