author: Kunkde, J.

text:
    QUO WARRANTO AGAINST A LIFE INSURANCE AGENT.
    Court of Appeals for Franklin County.
    State, ex rel Hogan, Attorney-General, v. Renschler.

    Decided, April 3, 1913.

      Jurisdiction of the Courts of Appeals — Quo Warranto Against One Charged with Doing a Life Insurance Business Without Authority— Action Brought in Franklin County — Defendant Served in Another County — Service Upheld.

    An action in quo warranto may be brought in the court of appeals of Franklin county against an individual charged with transacting insurance business contrary to the insurance laws, although such individual be a resident of another county and served with summons in said county.

      Timothy S. Hogan, Attorney-General, Frank Davis, Jr., and Charles J. Pretzman, for relator.

      Axline, Betts & Kerns, for respondent.

       Affirmed, Renschler v. State, ex rel, 90’ Ohio State, 363.

   Kunkde, J.

The petition states that defendant, John Rensehler, has since on or about March 1,1912, within this state, to-wit, in the county of Hancock, offended against the laws of the state and usurped and exercised authority and privileges not granted him, in that he has insured the lives of certain persons in the amounts stated in the petition and issued to such persons life insurance policies, called mutual notes, copies of which are attached to the petition.

The clerk of the court of appeals of this county issued summons to the sheriff of Hancock county, who served a copy of said summons upon the defendant in Hancock county.

The defendant, expressly disclaiming any intention of entering his appearance and objecting to the jurisdiction of this court over his person, moves the court to quash and set aside the pretended service in the county of Franklin or in any other county within the territorial jurisdiction of this court, but was in fact attempted to be served upon him in the same county of his residence by the sheriff of Hancock county, and not otherwise.

Sections 345 and 12311, General Code, are as follows:

‘ ‘ The Attorney-General may prosecute an action, information, or other proceeding in behalf of the state, or in which the state is interested, except prosecutions by indictment in the proper court of Franklin county, or of any other county in which the defendant or one or more of the defendants reside or may be found. No civil action, unless elsewhere specially provided, shall be commenced in Franklin county, if the defendant or one or more of the defendants do not reside or can not be found therein, unless the Attorney-General shall certify on the writ that he believes the amount in controversy exceeds five hundred dollars.
“An action under this chapter can be brought only in the Supreme Court, or in the circuit court of the county in which the defendant, or one of the defendants, resides or is found, or, when the defendant is a corporation, in the county in which it is situated, or has a place of business; except that, when the Attorney-General files the petition, it may be brought in the Circuit Court of Franklin County.”

The defendant claims that these sections of the General Code have no application for the following reasons:

“1. Being enacted prior to the constitutional amendment they can not apply to a court created by such amendment excepting to the extent provided by such amendment, viz., pending cases.
“2. The amendmént expressly provides as to new cases the jurisdiction of the court shall be governed by the ‘provisions hereof’ thus negativing the application of existing statutes and precluding future enactments on the subject.
“3. Any construction of either of these sections that would give the Circuit Court or the Appellate Court of Franklin County a special jurisdiction not common to the powers of the same court in other counties of the state would make that part of the sections void as special legislation.”

These sections, in so far as they relate to the right of the circuit court of this county to entertain jurisdiction over defendants who are not residents of this circuit district, have been before our Supreme Court upon different occasions. The latest expression of the Supreme Court upon this question that we recall is found in the case of Cleveland Terminal & Valley Rd. Co. v. The State, 85 Ohio St., 251. Judge Shauck, in rendering the opinion, says at page 292:

“The propositions to be taken as established are: the state became the owner in fee of all the lands, which it originally used in the construction of its canal system, including the lands in controversy; quo warranto will lie to protect the interest of the state in lands so acquired; the Circuit Court of Franklin County had jurisdiction of the subject of the action.”

Do the sections of the General Code above quoted apply to the ■courts of appeals? We have considered the reasons suggested by counsel for defendant in their briefs and are of the opinion that the court of appeals of this county has the same jurisdiction over the subject of this action that the circuit court would have had prior to January 1.

We think the statutory provisions relating to the jurisdiction of and procedure in the circuit courts apply to the courts of appeals, except as the same may have been expressly modified by Section 6 of Article IV of the Constitution, which took effect January 1, 1913.

This section of the Constitution provides, among other things, that the courts of appeals shall continue the work of the respective circuit courts, that all pending cases and proceedings in the circuit courts shall proceed to judgment and be determined by the respective courts of appeals and be taken to the Supreme Court “as now provided by law,” that the cases brought into said courts of appeals after the taking effect of the amendment shall be subject to the provisions thereof, and that the circuit courts shall be merged into and their work continued by the courts of appeals.

We think this construction is sustained by the recent decision of the Supreme Court in the case of State, ex rel Chittenden, v. Harmon, Governor, 87 Ohio St., 364, in which the court hold at page 376:

“Another provision is much more significant with respect to the question before us: ‘ The circuit courts shall be merged into and their work continued by the courts of appeals.’ While this form of expression would hardly be anticipated in an instrument of the character of this,-it can not be regarded as the mere equivalent of: ‘The circuit court shall be succeeded by the
court of appeals.’ It obviously denotes a more intimate relation between the circuit courts and the courts of appeals than would be denoted by the provision that the latter should succeed the former. It being clear that there was intended no such difference in the Constitution or functions of the intermediate courts as would make an election to one court inconsistent with service in the other, there being expressed the practical functional identity of the courts in the provision that judges actually serving in one should serve in the other, and there being in the provision lastly quoted a characterization of the transition which clearly retains a more intimate relation than that of mere succession, we think the language employed, considered with the objects to be attained, properly leads to the conclusion that by virtue of Ms election the relator will be entitled to exercise the functions of a judge of the court of appeals for six years from February 9, 1913.”

The motion will be overruled. Motion overruled.

Aluread, J., and Ferneding, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    PENALTY FOR. NON-PAYMENT OF LIQUOR TAX.
    Circuit Court of Lorain County.
    S. Susan v. O. E. Haserodt, Auditor, et al.

    Decided, April 26, 1911.

      Intoxicating Liquors — Addition of Penalty to Assessment — Oan Not be Recovered from One Engaged in the Traffic Without Payment of the Tax.

      The penalty of 20 per cent, imposed by Section 6082 upon one who engages in the liquor business without paying an assessment, is applicable to the assessment imposed by that section alone, and not by preceding sections, and such penalty can be recovered back where paid by one who had not paid the assessment and had not refused information to the assessor. Tax laws should be liberally construed.

      G. B. Findley, for plaintiff in error.

      F. M. Stevens, contra.
    Winch, J.
    Error to common pleas court.

       Affirmed without opinion, Haserodt v. Susan, 88 Ohio State, 678.

   This is an action brought by the plaintiff to recover back the sum of $129.14 paid by him to the county treasurer, under protest, as a penalty on a liquor traffic tax. A jury was waived by agreement of the parties and the ease was submitted to the court, resulting in judgment for the defendants.

The facts in the case are all conceded and only a question of law is involved.

Plaintiff started in the liquor traffic on October 8, 1910, without first having paid an assessment as provided by law. On October 21, the county auditor entered on the duplicate against him a liquor assessment in the sum of $620.88, being the proportionate amount due under the law from October 8, 1910, to the end of the assessment year in May, 1911, together with a 20 per cent, penalty thereon amounting to $124.18, and a collection fee or 4 per cent, on both amounts, in all $774.86. The county treasurer immediately demanded payment of this amount, and plaintiff not paying promptly, the treasurer seized and distrained plaintiff’s goods and chattels and threatened to sell the same as upon execution and apply the proceeds of such sale to the payment of said assessment.

The next day, October 22, 1910, plaintiff filed an affidavit of discontinuance of the liquor traffic, so-called, which entitled him to a rebate of $420.88 for the unexpired portion of the assessment year, and to save his goods from sale, paid under protest the sum of $353.98, which includes said 20 per cent, penalty amounting to $124.18, the only amount now in dispute.

He claims that there was no authority for the assessment of a 20 per cent, penalty under the law as it now stands.

That before the enactment of the General Code in February, 1910, the plaintiff would have been liable for the penalty in question there seems no question; the point is conceded.

The statutes then existing are found in Bates’ R. S. (6th Ed.), Sections 4364-9 to 4364-13 inclusive, originally enacted May 14, 1886 (83 O. L., 157). That law had several sections, the first providing for a tax on the liquor business; the second that the tax shall be a lien and fixing the time for its payment; the third providing for the refunding of part of the tax, if the business is discontinued; the fourth, collection'of tax in case of non-payment, and the fifth providing for assessors’ returns and certain penalties. The concluding sentence of this section reads as follows:

And if any assessment aforesaid shall not be paid when due, there shall be added a penalty thereto of 20 per centum, which shall be collected therewith.

Manifestly the word “aforesaid” referred to any assessment provided for in the fifth or any preceding section of the act, and it was so held in the case of Simpson v. Serviss, 3 C. C., 433.

The code commission chopped up these sections into smaller parts and we now find said Section 5 of the original act in General Code 6081 and 6082. General Code 6081 provides that each assessor shall return to the county auditor a statement as to each place within his jurisdiction where the liquor business is conducted, showing the name of the.person, corporation or co-partnership engaged therein, signed and verified before the assessor by such person, etc.

General Code 6082 reads:

“If such person, corporation or co-partnership, on demand, refuses or fails to furnish the requisite information for the statement, or to sign or verify it, such fact shall be returned by the 'assessor, and thereupon the assessment on said business shall be fifteen hundred dollars. If such assessment is not paid when due, there shall be added a penalty thereto of twenty per cent, which shall be collected therewith.”

The. treasurer claims his 20 per cent, penalty under the last sentence of this setítion. There is no other section authorizing it. He claims that although this sentence, by the use of the words "such assessment” clearly indicated the assessment of $1,500 in case the trafficker refuses or fails to furnish the requisite information for the assessor’s statement, still it must be construed to read, "any assessment in this chapter mentioned,” or "any assessment aforesaid” as in the original law.

That such can not be the construction to be put upon the law appears from the fact that in General Code 6076, preceding, a penalty of 50 per cent, is provided in case a railroad company fails to pay assessments on its liquor traffic in buffet or dining cars.

Whether the Legislature intentionally or unintentionally changed the law as to penalties in eases like the one here before us when it enacted the General Code, is immaterial. All laws assessing taxes and assessments are to be strictly construed, and here is a law not only assessing a tax, but providing a penalty for failure to pay it on a specified day, to-wit, the day when the trafficker starts his business — if after the beginning of the assessment year.

Construing this statute, not strictly, in a sense, but literally, according to the ordinary meaning of the words used, the plaintiff was not liable to a penalty on his assessment.

We do not feel required to read into this statute some other meaning than its language intends. If the Legislature has made a mistake in enacting it, and did not intend the consequences necessarily following from the change in wording of the law on this subject, it can easily remedy its mistake and correct the law. Until it does so, we hold that the 20 per cent, penalty can not be assessed in a case of this kind.

Judgment reversed, and the facts of the case being conceded, judgment is rendered for plaintiff in error.

Marvin, J., and Henry, J., concur.


author: Gorman, J.

text:
    DAMAGES FOR. BREACH OF CONTRACT TO PURCHASE REAL ESTATE.
    Court of Appeals for Hamilton County.
    Henry Eisenstadt and Theodore Finkelman v. John H. Lucke and Julius Fleischmann.

    Decided, December 20, 1915.

      Refusal to Take Property as Per Contract — Measure of Damages for the Breach — Necessary Parties — Tender of a Deed Not Required, When — Evidence Showing Title.

    1. Where a contract for the sale of real estate runs in favor of persons to whom the proposed grantor is indebted, they are proper and necessary parties to an action for damages on account of failure of the defendant to take the property.
    2. The measure of damages in such a case is the difference between the contract price and the market price at the time of the breach, and it is error to admit evidence as to what the property brought when offered at public auction at a later date and upon different terms.
    3. Perfect title in the plaintiff is not shown by admission in evidence of a deed from the immediate grantor to plaintiff’s creditor with a declaration of trust by the creditor in his favor.
    4. A tender of a deed is unnecessary where the defendant has declared that under no circumstances does he intend to comply with the contract to purchase, and the plaintiff has made evident that he was ready and willing to perform his part of the contract.
    5. It is prejudicial to the defendant in such a case to exclude a deed from the plaintiff to a third party for the property in question, which deed was executed prior to the breach but was not recorded for some time thereafter.

      D. S. Oliver, for plaintiff in error.

      Kramer & Belt man, Alfred Bellman and John D. Ellis, contra.

       Reversing Lucke et al v. Eisenstadt et al, 17 N.P.(N.S.), 209.

   Gorman, J.

In the Superior Court of Cincinnati the defendants in error commenced an action against plaintiffs in error to recover damages for the alleged breach of a contract for the sale of real estate. On a trial had to a jury a verdict was returned in favor of the plaintiffs below, and a judgment rendered thereon. Plaintiffs in error ask for a reversal of that judgment, claiming that several errors are disclosed in the record, prejudicial to them.

It is urged that inasmuch as Mr. Fleischmann, who held the legal title to the property contracted to be sold, had no interest in the damages which might be awarded in the action, therefore he was not a necessary or proper party plaintiff. The record discloses that Mr. Fleischmann held the legal title to the property in trust, to secure the Market National Bank on account of a debt owing by John H. Lucke to the bank, and that he was also trustee for Lucke of the equity which Lucke had in the property after the claim of the Market National Bank should be satisfied.

The contract to sell the property ran in favor of both Lucke and Fleischmann, trustee, and therefore Fleischmann and Lucke were necessary and proper parties. The fact that neither the Market National Bank nor Fleischmann, its trustee, would receive any part of the damages, if any should be awarded, was a matter between Lucke and Fleischmann, trustee, and was no concern of. the defendants.

The contract for sale obligated the plaintiffs Lucke and Fleischmann, trustee, to convey a perfect title. The only title proved was the offer and admission of a deed from the' immediate grantor of Mr. Fleischmann, Elmer and Jessie Britney, and a written declaration of trust by Mr. Fleischmann in favor of Lucke.

We are of the opinion that this proof was insufficient to establish a perfect title in Fleischmann and Lucke, under the rule laid down in Walch v. Barton, 24 O. S., 28 Syl. 2:

“When a vendor of land having contracted to convey a perfect title, brings his action to compel specific performance against the vendee, who denies the sufficiency of the vendor’s title, the burden of showing title in himself rests on the plaintiff, and the introduction of a deed of recent date executed to himself, without further proof of title, is not sufficient. ’ ’

We see no good reason why the above rule, applied in a ease of specific performance, should not be applied in an action for damages. In order to recover damages the plaintiff must prove that he has a perfect title or the defendant will not be required to respond. In a case of specific performance he must establish a perfect title in order to have a decree compelling the defendant to perform specifically. If he fails in his proof in the former case as to his perfect title, we apprehend that the rule of proof should not be more lax because he seeks redress in a court of law, rather than in equity, the forum of conscience.

It is not alleged, nor is it proven, that a deed was tendered to defendants before the commencement of the action. It is alleged and shown by the record that defendants were notified, both orally and in writing, that the plaintiffs were ready and willing to deliver a deed, but the defendants refused to accept it, repudiated the contract and refused to be bound by it. Under such a state of facts it would seem that the rule laid down in Brewing Co. v. Maxwell, 78 O. S., 54, would apply and excuse the plaintiffs from making a tender of a deed. When the party to whom the conveyance is to be made repudiates the contract and makes it certain that under no circumstances does he intend to comply with his part of the contract, a showing of readiness and ability on the part of the complaining party to perform his part, communicated to the other party is a sufficient compliance without an actual tender. While this rule was laid down in an equity case for specific performance, it appears to be a sound rule to apply in a case at law, such as the the instant case. Plaintiff should not be required to do a vain and useless act — a tender of a deed to one who has declared that he will not accept it.

It was error to admit evidence of the price received on the sale of the property at public auction, because the terms and conditions upon which the property was sold were different from those contained in the contract of sale with the defendants, and as the ■price received might have been, and no doubt was, in some measure affected by the terms, that sale would not reflect the market value of the property. The measure of damages was the difference between the contract price and the market price at the time of the breach of - the contract. This sale was made some time after the alleged breach.

Defendants offered in evidence a deed for this property from Julius Fleisehmann to Gfustave R. Fries, dated, attested and acknowledged six months prior to the date of the contract claimed to have been breached. The deed was not recorded until more than three months after the date of the contract. The court excluded this deed on the ground that the defendants failed to show that the deed had been delivered to Fries before the execution of the contract of sale. The trial court stated to counsel for defendants that, if he would show a delivery of the deed before the date of the contract, he would admit the deed in evidence. This, counsel for defendants failed to show.

In the ease of Ochler v. Walsh, 7 C.C.(N.S.), 572, the circuit court of this county, the predecessor of this court, held that in the absence of evidence to the contrary it would be presumed that a deed was delivered on the date of its execution. See also Devlin on Deeds, Section 108, where it is said:

“But when the time of actual delivery is doubtful, resort must be had to presumption. And the presumption in cases of this kind, it may be stated, as a general ride, is that a deed is delivered at its date.”

The deed having been recorded in October following the date of the contract, but dated in January prior to the date of the contract, the defendants had the right to offer the deed which presumptively was delivered before the date of the contract, to-wit, on the date of its execution. This presumption, to be sure, might have been rebutted by plaintiffs showing a delivery after the date of the contract, but the burden of thus showing delivery was not upon defendants but upon plaintiffs, and if they failed to overcome the presumption in favor of defendants’ contention that the deed was delivered to Fries before the date of the contract, then plaintiffs must fail because at the time the contract was made for the sale of the property to defendants plaintiffs ■could not give title. Fries was the owner, not the plaintiffs. It was therefore prejudicial to defendants to exclude this deed as evidence that plaintiffs were unable to perform at the time of the alleged breach.

It was not error to admit evidence of the contents of the contract of sale, when it was shown that the original contract had been destroyed by fire, although it was in existence when the action was commenced; but plaintiffs should have been required by supplemental petition, before admitting this evidence, to set up the destruction of the original contract after the suit was commenced.

"We find no errors in the record prejudicial to plaintiffs in error except those herein pointed out; but on account of those errors noted, the judgment will be reversed and the cause remanded for a new trial.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.


author: Carpenter, J.

text:
    ORDERS AFFECTING THE CUSTODY OF CHILDREN APPEALABLE.
    Court of Appeals for Lorain County.
    Benjamin F. Varsey v. Lillian Varsey.
    Decided, March 20, 1916.

      Appeal — May he Had in a Divorce Proceeding — From, an Order Affecting the Custody of Minor Children — Exception Contained in Section 18008 Enlarged under the New Constitution.

    Jurisdiction as to the custody of children is inherently equitable in its nature, and is given to the court of appeals under the section of the Constitution establishing that court; and it follows that appeal lies from an order in a divorce proceeding affecting the custody of minor children, notwithstanding the contrary provision of Section 12002, General Code.

      G. G. Washburn, for plaintiff.

      David Perris and Wm. G. Stuber, contra.
   Carpenter, J.

The defendant has appealed this case to this court so far as the decree of the court of common pleas relates to the custody of Russell Albert Varsey, minor child of plaintiff and defendant.

The question before this court arises out of the motion of the plaintiff to dismiss the appeal, for the reason that this court has no jurisdiction to entertain the same, by reason of its not being appealable under the provision of Article IV, Section 6, of the Constitution, establishing the court of appeals.

It is provided therein that courts of appeals have appellate jurisdiction in the trial of chancery cases. It will be observed that Section 12002, General Code, provides that no appeal will be allowed from a judgment or order of the common pleas court in a divorce case, except from an order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony, or where an injunction has been granted under Section 12001.

Section 8033 provides:

“Upon hearing the testimony of either or both of such parents, * * * the court shall decide which one of them shall have the care, custody and control of such offspring.”

Section 8035 provides:

“An appeal to a higher court may be had upon appellant giving bond * * * .”

In the case of Bower v. Bower, 90 Ohio St., 172, the syllabus reads as follows:

“An appeal will lie from a judgment or order of a court for the care, custody and maintenance of minor children regardless of whether such order is made in an action for divorce, divorce and alimony or alimony only, or in proceedings under the provisions of Section 8032, General Code. ’ ’

Notwithstanding the court in the foregoing case bases the right of appeal upon statutory grounds, yet it is somewhat suggestive of the legal characterism pertaining to the custody of children by the courts. In the case of Rogers v. Rogers, 51 Ohio St., 1, Judge Spear in his opinion speaks of the authority of a court over the matter of custody of children in divorce proceedings as probably being inherent, but it is given by the divorce statute. And the court in the memorandum opinion in the Bowers ease speaks of jurisdiction in such matters as being “incident to the suit.” If this right adhered to the court by feason of being an inherent right, is it not quite suggestive that the statute was a mere codification of that right?

It does not follow that where a class of cases is within the jurisdiction of chancery, that jurisdiction in chancery is taken away because courts of law subsequently give a remedy. Cram v. Green, 6 Ohio, 429. Accordingly, our Supreme Court has held that notwithstanding partition proceedings are regulated by statute in Ohio, yet they are inherently chancery cases, having been so classed by the courts of England, and are therefore appealable to the courts of appeals.

In the case of Sullivan v. Thomas, 3 S. C., 531, the court in its syllabus says:

“By the term, cases in chancery, as used in Article IV, Section 4 of the Constitution, declaring the jurisdiction of the Supreme Court, is meant such eases as were cognizable by the courts of equity of the state existing at the time of the adoption of the Constitution. ’ ’

In the opinion the court says :

“It must be premised that the jurisdiction of this court, so far as it was ascertained and fixed by the Constitution is unaffected by the provision of the code of procedure or any other statutory law. Again, the terms employed to mark out that jurisdiction must be taken in the sense in which they were understood at the time the Constitution was adopted. Thus, for instance, the term ‘cases in chancery’ at the time, meant cases of a class of which the court of chancery could entertain jurisdiction although since that time the court of chancery has been abolished and its jurisdiction conferred upon the court of common pleas. Vet, what was intended to be described as ‘cases in chancery’ must be determined now, not with reference to the present statute of jurisdiction and forms of procedure, but by the inquiry whether any given case could have been regarded, at the adoption of the Constitution, as a ‘case of chancery.’ When the nature of the right in controversy, or of the relief sought in any case is such that, prior to the code, it would have been appropriately pursued in the court of chancery, it will be regarded as within the expression ‘eases of chancery.’
“The circumstance that forms of proceedings, as it regards law and equity, are assimulated under the code, does not affect the jurisdiction of the court as established under the Constitution -, but we look to the substantial character of the controversy before us for the purpose of ascertaining the extent of the powers in relation to such case, rather than to the nature of the court from which the case comes or the technical mould in which the case is cast.”

That divorce and alimony cases were not recognizable in the court of chancery in England, is verified by the following excerpt from the opinion in the case of DeWitt v. DeWitt, 67 Ohio St., 340, 344:

“We gather from a somewhat extended examination of authorities that, in so far as we derive any common law rules respecting divorce and alimony from the mother country, we inherited those administered in the ecclesiastical courts, for, outside of parliament, no other tribunal had or assumed cognizance of such controversies. Such power did not, in England, belong to a court of equity. The ecclesiastical court was not, and never had been, a court of equity. It was a canonical court, and never deviated from the canon law. * '* * ‘The court for divorce and matrimonial causes owes its jurisdiction— in part original and in part derived from ecclesiastical courts— to the act of parliament by which it was created, and the several amending acts by which that jurisdiction has been in various ways altered and amplified. ’ * * * It may be fairly claimed, from the foregoing, that the courts of Ohio have not general equity jurisdiction in suits for alimony, but that the jurisdiction is such, and such only, as is given hy the statute.” * * *

It will be noticed that in the entire opinion no mention is made regarding the custody of children, and it is quite suggestive that the Legislature deemed it proper to enact a separate statute, as it were, to avoid confusion in the administration of justice. Having demonstrated by authority that divorce and alimony were not matters in chancery, it yet remains to determine whether the custody of children was in fact recognizable in courts of chancery. That that was so we find in 9 Eng. & Am. Enc. Law, 866:

“The ecclesiastical courts had no power to determine the custody of the children, as at common law the court of chancery has' jurisdiction in such cases. Where jurisdiction to grant divorce is conferred upon a common-law court, such court will have only such powers as to the custody of the children as are conferred by the divorce statute. But where the jurisdiction is conferred upon a chancery court it will have full power to fix the custody of the children, aside from the special provisions of the statute.
“On granting a divorce it is the duty of the court to protect the interest of the state by providing for the custody and support of the children, and this may be done although neither party has prayed for such relief.
“The statutes in the various states of the United States and in England give the courts power to provide for the custody and maintenance of the children of the parties pending the suit for divorce.
“Courts having chancery jurisdiction may make such orders by virtue of the general jurisdiction in equity although the statutes are silent as to such remedy or merely provide that the custody may be awarded after a divorce is granted.”

Again in the ease of In re Morgan, 117 Mo., 249:

“Divorce and alimony, part of this jurisdiction, belonged to the ecclesiastical courts in former times in England, and the power to make awards as to the custody of children is a part of the ancient chancery jurisdiction.”

Counsel for plaintiff has not referred us to any decision contrary to the foregoing, and knowing his accustomed diligence in preparation of cases, we may infer that there are none.

For the foregoing reasons, and upon the authorities cited, we hold that the custody of children is inherently equitable in its nature, having such characteristics and cognizable in a court of chancery, all of which, we think, brings it within the comprehension of the clause “Cases in Chancery” in Article IY, Section 6 of the Constitution of this state.

The motion of the plaintiff is therefore overruled.

Meals, J., and Grant, J., concur.


author: Jones (Oliver B.), J.

text:
    RENTAL NOT RECOVERABLE UNDER. A LEASE IMPERFECTLY EXECUTED.
    Court of Appeals for Hamilton County.
    The H. S. Hamberger Company v. Miller Brothers & Company.

    Decided, February 1, 1916.

      Assignment of Lease Within the Statute of Frauds — Parol Testimony as to Modification of Terms of the Lease which it is Sought to Transfer Not Admissible — Tender of an Imperfectly Executed Lease Does Not Constitute Performance.

    1. The assignment, not yet performed, of a written lease of real property is within the statute of frauds, and oral evidence of a modification of the terms of the transfer is inadmissible in an action for rental under the lease.
    2. The assignment of a lease is as necessary to performance of a contract to transfer as is delivery of possession of the property, and performance can not be claimed where an imperfect assignment was the only one proffered.

      Murray Seasongood and Robert P. Goldman, for plaintiff in error.

      Alfred B. Benedict, contra.

       Motion to require the Court of Appeals to certify its record overruled by the Supreme Court, April 25, 1916.

   Jones (Oliver B.), J.

This action is for the recovery of one-half month’s rent from June 15 to July 1, 1914, and for a proportionate share, for the same period, of an annual bonus for the transfer of a lease of the premises at 624 to 628 Race street, Cincinnati, made by Mary T. Harrison and others to H. S. Hamberger and formerly occupied by the IT. S. Hamberger Company and assigned by it under the terms of a written option to Miller Brothers & Company, who now occupy these premises. This option was accepted in writing May 15, 1914. The written agreement made by this option and its acceptance provided that plaintiff might vacate said premises any time within thirty days from its acceptance, with privilege of further time up to thirty days more, and assign the lease and turn over possession of the building.

At the close of plaintiff’s evidence the court instructed a verdict for defendant and rendered judgment thereon. Plaintiff prosecutes error to this court.

The petition alleges that the lease was duly assigned by H. S. Hamberger to plaintiff, the H. S. Hamberger Company, and by it duly assigned to defendant, and tendered to defendant on June 13, 1914, and again on June 15, 1914. These allegations are denied by the answer. Plaintiff, however, admits that a small part of the leased premises were occupied by its sub-tenant, ene Kamp, who carried on a cigar stand therein, renting from month to month and remaining in possession until July 1, 1914. But in the petition plaintiff pleads the original contract was by agreement of the parties modified so that plaintiff agreed to give up possession on June 15, 1914, of all said premises except that part occupied by Kamp and defendant agreed to so accept possession of the premises subject to such occupation by Kamp; and it was alleged that this modified agreement was duly performed. Defendant in the answer denied this modification of the contract, and denies that it took possession of the premises June 15, 1914, with Kamp still in possession of said cigar stand therein. .

It developed on the trial that plaintiff relied solely upon oral evidence to prove this alleged modification of the written contract. After some evidence tending to show such modification had been submitted, the trial judge ordered stricken out of the record all evidence relating to such oral modification, and refused to permit plaintiff to prove such modification by further evidence. Plaintiff excepted to this ruling of the trial judge, and complains of it here as the principal error relied upon.

What is called the fourth section of the statute of frauds is now found in Section 8621, General Code, as follows:

“No action shall be brought whereby to charge the defendant * * * upon a contract or sale of lands, tenements or hereditaments, or interest in, or concerning them; * # * unless the agreement upon which such action is brought or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”

Kling v. Bordner, 65 O. S., 86, holds that the written memorandum of agreement required by the statute is not sufficient, unless it contains the essential terms of the agreement expressed with such clearness and certainty in the writing itself, or other writings to which it may refer, that the contract can be established without the necessity of resorting to parol proof.

Clark v. Guest, 54 O. S., 298, also decides this question squarely. Its syllabus closes as follows:

‘ ‘ A verbal extension of the time within which to take off such timber is within the statute of frauds, and to be valid must be in writing; that such verbal extension of time, reliance thereon, and consequent delay in taking off such timber, is not such fraud as will take the case out of the statute.”

Judge Burket, on pages 306 and 307, uses this language:

“The circuit court found as its conclusion of law upon the facts found, that it would be a fraud upon the defendant in error to revoke such verbal extension of time; and that the ease was therefore taken out of the statute of frauds. This is not tenable. The statute was enacted to prevent frauds and perjuries. The law-making power knew that frauds and perjuries would be practiced with or without the statute, but it was thought that less harm would come from enacting and enforcing the statute, than otherwise. The only exceptions to the statute, engrafted therein by judicial interpretation, if not by judicial legislation, that can be justly defended, are cases in which the acts of both parties are sucia as to imply a contract with substantially the same certainty as would be shown by a written memorandum, as in the ease of a verbal sale of lands followed by a delivery of possession to the purchaser, and valuable permanent improvements made by him with the knowledge of the vendor.
■ “To say that to refuse to carry out a verbal purchase of standing growing trees is a fraud on part of the owner of the trees, is to disregard the statute, and in effect a repeal thereof. * * * He had no legal right to rely upon the verbal contract, and where there is no right there can be no fraud. If he intended to rely upon the extension of time he should have caused the contract therefor to be reduced to writing. The statute was enacted to protect men in their property rights and it should be enforced unless in eases clearly within some of the well established exceptions.”

Broom’s Legal Maxims, 8th Edition, star page 888, states the rule thus:

‘ ‘ Where a contract is required to be in writing by the statute law, it clearly can not be varied by any subsequent verbal agreement between the parties; for, if this were permitted, the intention of the Legislature would be altogether defeated. A contract, for instance, falling within the fourth section of the statute of frauds, can not be waived and abandoned in part; for the object of the statute was to exclude all oral evidence as to contracts for the sale of land; and, therefore, any contract sought to be enforced must, be proved by writing only; and if such a contract could be verbally waived in part, the new contract between the parties would be proved partly by the former writtén agreement and partly by the new verbal agreement. And this reasoning applies also to a contract for the sale of goods falling within the operation of the seventeenth section of the same statute. Such a contract can not be varied or altered by a subsequent verbal agreement.”

See also, Burdick on Sales, 35; Benjamin on Sales (6th Ed.), Section 216; and the leading case of Goss v. Lord Nugent, 5 B. and Ad., 58.

Brown on the Statute of Frauds thus states the rule in Section 411:

“It seems to be well established that where a contract, affected by the' statute, has been put in writing, and the plaintiff, in a case of subsequent oral variation of some of the terms of the written agreement, declares upon the writing qualified by the oral variation, he can not prevail. The decision in Cuff v. Penn, one of the earliest and most important cases of this class, was in fact to the contrary; but from the report the point does not seem to have been distinctly in the mind of the court, the whole stress of the opinion bearing upon another position; and later English and American authorities have conclusively settled the rule as above laid down.”

The court was therefore right in holding that this contract which was within the statute of frauds could not be varied by parol.

Nor does the case of Negley v. Jeffers, 28 O. S., 90, relied upon by plaintiff, hold otherwise. In that case the deed to the real estate had been executed and the title passed and subse- ' quently a modification in the manner of payments made by parol was sustained, the court distinctly holding that such a contract was not within the statute of frauds. (Syl. 6, 7 and 8.) This case was so understood and cited in the note to Section 421 of Browne on Statute of Frauds.

A written contract for the sale of land, where possession has not been delivered, may be rescinded by an oral agreement (Jones v. Booth, 38 O. S., 405). Such rescission can be proved by parol. So, of course, can complete performance of such a written contract. Likewise, the plaintiff may always show a substituted performance instead of that required by the original contract, when that performance has been actually and fully had and has been accepted by the other party in full substitution for such original terms, but it does not permit proof that such written contract is to be varied by parol where it is not yet performed.

This doctrine of substituted performance is stated in Browne on Statute of Frauds, Section 423, as follows:

“ * * * performance, according to the orally substituted terms, is available to either party in like manner as would have been performance, according to the original contract. This is manifestly not to enforce an oral agreement within the statute of frauds, even by way of defense; the oral stipulation is relied upon simply by way of accord and satisfaction; it is relied upon for the purpose of proving performance alone, which is thus, so to speak, dissociated from the contract itself. And in this sense and for this purpose, there is no difficulty in accepting the distinction asserted between the contract which is within the purview of the statute, and the performance, which is not.”

Leading cases on substituted performance are found in Leather-Cloth Co. v. Hieronimus, L. R., 10 Q. B., 140; Swayne v. Seamans, 9 Wall. (U. S.), 254.

If defendant could be shown to have accepted the lease and actually taken possession of the premises on June 15 with Kamp still in, as a substituted performance of this contract, plaintiff might recover.

The position of the plaintiff, however, is somewhat equivocal. After alleging in the petition the fact that Kamp occupied part of the premises with his cigar stand during the month of June and that defendant agreed thereto, plaintiff says:

"The defendant refused to accept tender of the key and assignment of the lease made as aforesaid June 13-, 1914, and again June 15, 1914, but nevertheless took possession of said premises on June 15, 1914, and has been in occupation of the same ever since.”

And again:

"The defendant further claims not to have taken possession of said premises until July 1, 1914.”

Plaintiff undertook to show by evidence that certain acts of Mr. Fanning, defendant’s general sales manager, and of Mr. Hobelman, his window trimmer and utility man, operated as a taking of possession of the premises by defendant or at least tended in that direction so far as to require a submission to the jury.

It must be conceded, though, in the first place, that there is nothing in the evidence to show the authority of either of these men to act for or to bind defendant as his agent in this matter under the rule laid down in Bradford Belting Co. v. Gibson, 68 O. S., 442.

The evidence shows without dispute that Mr. G-rote, who furnished men and teams for the purpose, moved out from the premises shelving, piping and other things for plaintiff and was so engaged until at least June 20th ; that Fanning and Hobelman acted for defendant in the matter only so far as to see that none of the tables, chairs and other chattel property which plaintiff had sold to defendant and which remained in the premises, were taken, and that such other movables and fixtures as did not belong to the building were not left to be in the way of defendant. The painting of plaintiff’s removal sign by Hobelman and the taking of it down, had nothing to do with the case. Nor do we find in the rocord any evidence tending to show that defendant went into possession of the premises before July first. In fact, it rather appears that plaintiff does not really claim that defendant actually took possession of the premises on June 15, with Kamp still in possession of the cigar stand, but rather that after Fanning had misled plaintiff into believing he would do so and thus caused him to sacrifice his property by a hurried sale, because of a carpenters’ stifike or for some other reason, defendant refused to carry out his oral contract and did not take possession until July 1st.

But an assignment of title was as essential to performance as delivery of possession. It is admitted defendant did not receive an assignment of the lease before that date. True, an assignment was executed by plaintiff June 13, 1914, and tendered to defendant on that day, and also on June 15, 1914; but that assignment was executed by the H. S. Hamberger Company, while the lease was made by PI. S. Hamberger. There had been an agreement by PI. S. Hamberger to convey same to the TI. S. Plamberger Company, which was shown by the minutes of that company. But until that agreement had been carried out and the assignment duly executed, defendant was justified in refusing to accept the proffered transfer to him from the company as is would not confer a complete legal title.

A careful consideration of the record fails to disclose any error to the prejudice of plaintiff, and the judgment is therefore affirmed.

Jones (E. PI.), P. J., and Gorman, J., concur.


text:
    STATUS UNDER. THE CIVIL SERVICE OF A MUNICIPAL EMPLOYEE APPOINTED TEMPORARILY ' ^ IN 1912.
    Court of Appeals for Hamilton County.
    State of Ohio, on the Relation of Gerhard Fischer, v. Philip Fosdick, Director of Public Service of the City of Cincinnati.
    Decided, May 8, 1916.

      Civil Service — Service' of a Temporary Employee in the Municipal Service — Not Automatically Dispensed with by the Filing of an Eligible List, When — No Rights Waived by Taking a Competitive Examination, When — No Prejudice Arises from Failure to File an Explanation — Section 4488.
    One who was given a temporary appointment to the municipal service during the year 1912 and prior to the furnishing of an eligible list by the civil service commission, was an incumbent at the time the civil service law of 1913 went into effect, and was entitled to hold his position until he failed to qualify therefore or was discharged for cause, ¡

      Moulinier, Bettman & Hunt, for relator.

      Charles A. Groom, City Solicitor, and Saul Zielonka, Assistant City Solicitor, contra.
   Gorman, J.

The relator, Gerhard Fischer, avers in his amended petition that on the 16th day of May, 1912, the mayor of the city of Cincinnati, to prevent the stoppage of public business, appointed him temporarily to the position of machinist of the filtration plant of the subdepartment of waterworks in the city of Cincinnati; that he continuously occupied said position and performed the duties thereof up to and including November 9, 1914; that his occupancy of said position and the performance of the duties thereof w’ere in accordance with and in pursuance of the orders of the diirt. ' < public service of the city of Cincinnati duly issued and made in the course of the management by that director of said waterworks; that at the time he was appointed to said position the same was and has -ever since been- and is now in the classified service of said city; that no examination for said position, competitive or non-competitive, was ever held or given by the civil service commission of said city until the 11th day of September, 1914; that on said day a competitive examination was held for all the positions of machinists of the subdepartment of waterworks of said department of public service, such examination covering the said position occupied by the relator as well as many other positions of machinists in said waterworks; that the relator took and passed said competitive examination; that the. civil service commission of the said city has never held or fixed any time for a non-competitive examination for relator of said position; that about November 6, 1914, an eligible list for the positions of machinists in said subdepartment of waterworks was made up by said civil service commission from the list of those who passed said examination; that on the 6th day of November, 1914, the said Philip Fosdick, then director of public service, issued and furnished relator with a copy of a pretended order of discharge to be effective November 9, 1914, containing as the exclusive and sole reason for the same the following: “for the reason he is a temporary appointee and civil service commission now has an eligible list;” that the eligible list referred to is the eligible list produced as the result of said examination of September 11, 1914; that since thé 9th day of November, 1914, said Fosdick as director of public service, and his successor, Charles F. Iiornberger, has refused to recognize relator as the occupant and incumbent of said position, and has refused to assign relator any work in said position or to permit him to do any work in said position, but has made an appointment of another person in place and stead of relator to perform the work of said position; that the director of public safety is the appointing officer of said position, and that at the time relator was laid off or discharged as •aforesaid said director of public safety did not furnish relator with a copy of an order of discharge, lay-off, reduction or suspension, or with any reasons for the same except the above-named order and reasons of November 6, 1914. Relator prays that a writ of mandamus may issue ordering the director of public safety to recognize the relator as, from and after November 9, 1914, the incumbent and occupant of said position of machinist at the filtration plant at the waterworks.

To this amended petition of relator an answer was filed admitting most of the allegations of the petition; and admitting especially that the defendant, the director of public safety, issued and furnished relator with a copy of an order of discharge to be effective November 9, 1914, containing as the sole and exclusive reason for the same the following: ‘ ‘ for the reason that he is a temporary appointee and civil service commission now has an eligible list,” the same reason set forth in relator’s petition. The defendant further says that relator on August 29, 1914, made application for competitive examination for the position of machinist in the division of -waterworks of the department of public service, pursuant to the ordering of and advertising same by the civil service commission of the city; that said examination was conducted according to law; and that relator pursuant to his application for admission to said examination appeared and took the same and received an average of seventy-one per cent., and the rank of nineteenth on the eligible list, which was approved and posted September 25, 1914,' as required by the statutes and rules of the civil service commission in such case made and provided; that on November 7, 1914, relator was served Avith personal A\'ritten notice that he was discharged for the reason that he was a temporary appointee and the civil service commission then had an eligible list and that his discharge AA>uuld be effective November 9, 1914, at five o’clock P. M., and that he might make and file his explanation with the director of public service. Defendant further avers that the eligible list referred to in said order and reasons for discharge was the eligible list produced as a result of the examination held September 11, 1914, at which relator competed. The defendant further avers that the relator has not made or filed any explanation whatsoever. Defendant further avers in his answer that on November 6, 1914, a regular requisition to fill the vacancy -in the position formerly held temporarily by relator was made by the director of public service as required by the statutes in such case made and provided, and three names from said list having higher grades and averages than the relator certified by the civil service commission from the eligible list for the position formerly held temporarily by relator, and from said eligible list and certification of the civil service commission of three persons qualified therefor the said' director of public service made an appointment to fill the vacancy on November 10, 1914, as required by the statutes in such case made and provided. The defendant further says that in March, 1912, the said civil service commission by a unanimous vote of the mémbers of said commission in regular meeting adopted rules and regulations, among which is Rule 74, reading as follows:

“74. A temporary appointment to prevent the stoppage of public business or to meet extraordinary exigencies shall continue only until such time as the commission can certify persons from an appropriate eligible list to fill the vacancy.”

Defendant therefore prays that the petition and the amended petition be dismissed.

A demurrer has been filed to this answer for the reason that the allegations thereof are not sufficient in law to constitute a defense.

A demurrer was filed to the answer to the original petition, and came on to be heard before Judges Spence and Pollock while they were sitting as judges in this district. And upon arguments and presentation of the law those judges found that the demurrer searched the record, and that the petition was insufficient in law and therefore sustained a demurrer to the petition and gave relator leave to file an amended petition, which was accordingly done. In the amended petition relator has sought -to meet some of the objections made by the visiting court in sustaining the demurrer to the petition.

The first question to be determined is whether or not Fischer was legally removed or separated from his position or appointment. At the time this temporary appointment was made in 1912 many places in the city service were not in the classified list. Under the provisions of Section 4488, General Code, as it existed when Fischer was appointed, there was no eligible list from which an appointment could be made because the civil service commission had not held an examination and furnished such a list, and under the section above cited the appointing power was authorized to make a temporary appointment.

In 1913 the civil service law was amended so as to bring within its protection very many persons who previous to the adoption of the law were not on the eligible list. Under the law of 1913 (103 O. L., 703), it was provided, among other things, in Section 10, that:

“The incumbents of all offices and places in the competitive classified service, except those holding their positions under existing civil service laws, shall, whenever the commission shall require, and within twelve months after the rules adopted by the commission go into effect, be subject to non-competitive examinations as a condition of continuing in the service. Reasonable notice of all such non-competitive examinations shall be given in such manner as the commission may require, and all such non-competitive examinations shall conform in character to those of the competitive service.”

As has been stated, when Fischer was appointed there was no eligible list, and during the time that he occupied the position down to September, 1914, the civil service commission had failed to conduct a non-competitive examination or to give him an opportunity to submit to such an examination. The question presented is whether or not he was an incumbent of his place at the time the civil service law of 1913 went into effect? Hje was entitled to hold his position until he had been given an opportunity to take a non-competitive examination. It was not his fault that he did not take such examination but it was the fault, if any, of the civil service commission of the city.

We are of the opinion that the proper construction to be placed on Section 10, of the law of 1913, is that Fischer was an incumbent of the place he occupied at the time this law went into, effect,, and as such he was protected by the civil service law and entitled to hold his position until he failed by either a competitive or a non-competitive examination. In view of the fact that the character of the non-competitive examination shall be the same as that of the competitive examination, we see no reason why Fischer, when he passed the examination in 1914, although that was a competitive examination, should not be entitled to hold as though he had passed a non-competitive examination.

By the provisions of Section 17 of the civil service law of 1913:

“No person shall be discharged from the classified service * * * laid off, suspended or otherwise discriminated against by the appointing officer for religious or political reasons. In all cases of discharge, lay-off * * * or suspension * * * whether appointed for a definite term or otherwise, the appointing officer shall furnish the subordinate discharged, laid off * * * or suspended with a copy of the orders of discharge, lay-off * * * or suspension, and his reasons for the same, and give such subordinate a' reasonable time in which to make and file an explanation.”

Under the civil service law of 1913, as we read it, there were two classes of incumbents: those who had been appointed under the civil service law theretofore existing, who had taken the examination or who had otherwise been appointed in conformity to the law; and those who had been appointed without an examination as temporary appointments. Section 10, of the law of 1913, requires all those persons who had been temporarily appointed, as a condition of their continuance in the service, to take a non-competitive examination which should be of the same character as a competitive examination; all those persons who were in classified service who had taken an examination under the civil service law as it existed prior to the law of 1913 were protected and not required to take another examination. There were two classes of incumbents — those who had been appointed without an examination, and those who held by virtue of an examination taken under a previous civil service law.

In our opinion, therefore, Fisher was entitled to hold his place until he failed to pass a competitive or non-competitive examination, or unless he was discharged for some cause or reason.

The Moores-Barnes law. was passed and became effective September 1, 1915, about ten months after the discharge of Fischer and after this suit was commenced. Under this law no person is entitled to hold his place unless he has submitted to and passed a competitive examination, or unless he had been in the public sendee for at least seven years. When this law went into effect Fischer could have been discharged, because it is admitted that he had not been in the service for seven years, nor had he passed successfully, as one of the three highest a competitive examination. But at the time Fischer was discharged or released from the service the -Moores-Barnes law was not in effect and that law can not be invoked, in our opinion, to aid the defendant in his action in discharging Fischer.

It is claimed that by taking the competitive examination in 1914, Fischer waived his right, to have the non-competitive examination. This court is of the opinion that Fischer did not waive his right to hold the position, by taking a competitive examination. A person who is in the service, and who has been duly appointed after taking a successful examination, may nevertheless take a competitive examination for any position in the city service without waiving his right to hold his place or position.

Non constat but Fischer when he took a competitive examination was anxious to learn whether or not he would be eligible to appointment to some other place or position than that which he held in the eity service. He was given no option to take a noncompetitive examination or a competitive examination, and therefore we are unable to see how he waived any right when the option was not given him to take a non-competitive examination.

Further, it is claimed that by failing to give an explanation after he was released from the public service he is not entitled .to maintain this action. No explanation which Fischer could give would affect his case. He was not removed from the service or discharged because of any conduct on his part, but because of the construction placed on the law of 1913 by the director of public service. His construction of the law was that as soon as an "eligible list was furnished for the position which Fischer occupied he thereby automatically ceased to hold his temporary position, notwithstanding the fact that he had not been given an opportunity to take a non-competitive examination. The construction placed upon the law of 1913 by the director'of public service was that Fisher was not an incumbent of the office within the meaning of the law at the time the law of 1913 became effective. In this construction the court is not in accord with the director of public service. As has been stated above, we are of the opinion that he was an incumbent at the time the law of 1913 went into effect, and was entitled to the protection afforded him by that law.’

The defendant further sets up the rule of the civil service commission passed in 1912, to the effect that temporary appointments shall continue until there is an eligible list. This rule was adopted under the civil service law as it existed prior to the taking effect of the law of 1913. The rules of the civil service commission could only apply to the state of law as it existed when the rules were adopted, that is, the law in force prior to 1913. A rule of the civil service commission inconsistent with the law of 1913 must necessarily fall when that law became effective, and therefore the rule invoked by the defendant, in force in 1912, could not aid the defendant in ousting the relator from his position because that rule was abrogated when the civil service law of 1913 went into effect making Fischer an incumbent.

Counsel for defendant cited to us the ease of Shelvoy v. Fletcher, 84 N. J. Law, 547, in support of his contention that Fischer was not an incumbent at the time the law of 1913 went into effect. We have read the case and the facts upon which the law of that case was .enunciated, and we are unable to see how it applies to the case before us.

Upon a full consideration of the ease, together with a consideration of the decision of Judges Spence and Pollock, this court has reached the conclusion that the demurrer of the relator to the answer filed to the amended petition should be sustained, as the same does not present a defense.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.


author: Shields, J.

text:
    THE LAW OF EXTRADITION.
    Court of Appeals for Stark County.
    In the Matter of the Extradition of A. W. Williams.
    Decided, September Term, 1915.

      Extradition — Proceedings in — >Examination, Before Judge — Proof— Charge of Crime in Demanding State — Duty of Governor — Sectioú 110, General Code.

    1. The Governor of this state upon a demand made in due form by the Governor of another state, for the surrender of a fugitive from justice, should first determine whether or not the requisite preliminary steps have been taken, and that legal grounds exist, and that the case falls -within the purview of the statutes for issuing of an extradition warrant, and if he so finds it then becomes his duty to issue such warrant.
    2. The sheriff, in the instant case, took the fugitive before the judge of the court of common pleas who under Section 114, General Code, had jurisdiction to hear and determine the cause, and upon proof by him adjudged sufficient ordered the fugitive to be delivered to the agent of the state of Pennsylvania, who was named in said requisition, to be conveyed to the state of Pennsylvania for prosecution on said charge. Held: That neither the Governor nor the examining judge passes upon the ultimate guilt of the accused, but upon the question as to whether or not an offense is charged under the laws of the state demanding extradition, whether or not the identity of the party charged is established, whether or not the party charged is a fugitive from justice, and that the extradition is not for the purpose of enforcing any civil liability against the accused.
    3. The information upon which these proceedings were based charged the offense of obtaining money by false pretenses, and the objection to this charge being technical and the information substantially charging the offense, it is held to have been sufficient.
    4. The presumption is that the Governor of Ohio found in issuing the extradition warrant that the application for the requisition was made in good faith for the purpose of having the alleged fugitive answer to the offense charged, and the court finds there is not sufficient evidence to the contrary in the record to overcome this presumption.

      Amerman & Mills, for A. W. Williams.

      Clarence A. Fisher and Walter S. Buff, for state of Pennsylvania.
   Shields, J.

It appears that on the first day of July, 1915, an application was made, in due form, to the Governor of the state of Pennsylvania, by W. D. Burns, as district attorney of the county of Clarion, in said state, accompanied by a statement in writing by him and by a duly attested copy of an information charging the plaintiff in error with the crime of obtaining money under false •pretenses; that the obtaining of money or property under false pretenses was an offense under the laws of said state, that the offense therein charged was committed in said state, and the plaintiff in error was then in said state, accompanied also with an affidavit of the facts constituting said alleged offense by one claiming to have actual knowledge thereof, and that the plaintiff in error was then a fugitive from justice. Whereupon the Governor of the state of Pennsylvania issued a requisition upon the Governor of the state of Ohio for the' extradition of the plaintiff in error. The Governor of the state of Ohio, after an examination of the documentary and other proof submitted to him with said requisition, issued a warrant directed to the sheriff of Stark county, Ohio, commanding him to arrest the ■plaintiff in error and take him before a judge of the Supreme Court, or of the circuit court, or common pleas court, to be examined on said charge. Having taken him before one of the common pleas judges of said Stark county for said purpose, upon such examination and upon proof by said judge adjudged sufficient, the plaintiff in error was ordered by said judge to be delivered to the agent named in said extradition warrant to be conveyed and surrendered to the authorities in said county of Clarion, in said state of Pennsylvania, for prosecution on said charge. Thereupon a motion for a suspension of the execution of said order and judgment was made to said judge on behalf of said plaintiff in error to enable him to prosecute error to said judgment to the Court of Appeals in and for said Stark County, which said motion was allowed, and pending the suspension of said order and judgment the plaintiff in error filed a petition in error in this court to reverse the said judgment, and was admitted to bail.

The principal errors relied on are:

1. That the alleged information does not charge a crime under the laws of the state of Pennsylvania.
2. Assuming that it does charge said crime, the evidence shows that the ulterior purpose of this extradition proceeding is not to prosecute plaintiff in error for a violation of any offense committed against the laws of said state, but to compel the payment of an alleged civil liability.

In this state the statutes regulating^ extradition proceedings are plain and admit of no necessity for construction. The Governor of the state upon a demand made, in due form, for the surrender of a fugitive from justice, first determines whether or not the requisite preliminary steps have been taken, that legal grounds exist and that the case falls within the purview of the statutes for the issuing of an extradition warrant, and if he so finds, it then becomes his duty to issue such warrant (Work v. Corrigan, 34 O. S., 64), all of which appears to have been done in this case. After apprehending and arresting the plaintiff in error, it further appears . that the sheriff of Stark county took the plaintiff in error before one of the judges of the court of common pleas of said county, who under the statute had jurisdiction to hear and determine the same, and who upon proof by him adjudged sufficient, ordered and adjudged that he be delivered to the agent named in said requisition, to be conveyed to the state of Pennsylvania for prosecution on said charge.

It is contended that the information upon which the right to extradite the plaintiff in error is based does not charge an offense, and therefore the Governor was without jurisdiction to issue said warrant, and that the judge hearing said charge was likewise without jurisdiction to order the plaintiff in error to be extradited. As we construe the statutes regulating extradition proceedings, neither the Governor nor the examining judge passes upon the ultimate guilt of the accused, but, among other things, passes upon the question as to whether or not an offense is charged under the laws of the state demanding extradition, whether or not the identity of the party charged is established, whether or not the party charged is a fugitive from justice, and that the extradition of the plaintiff in error is not for the purpose of enforcing any civil liability against him, that is, that the criminal machinery of the state shall not be invoked and employed to lay a foundation for or to work out any civil remedy against the party charged. Speaking for the court in the case of Wilcox v. Nolze, reported in 34 O. S., 520, Judge Okey says:

“The Governor of a state, in issuing his warrant of extradition of a fugitive from justice, acts in an executive, and not in a judicial, capacity. He is not permitted to consider the question whether the accused, is guilty or not guilty; he is not to regard a departure from the prescribed forms for making application, or as to the manner of .charging crime, in any matter not of the substance, and he is not to be controlled by the question whether the offense is or is not a crime in his own state, the inquiry being whether the act is punishable as a crime in the demanding state. Nor have the courts larger powers in any, of these respects than the Governor.”

And in The Law of Extradition, by Spear, in referring to the provisions in the several extradition treaties of the United States, it is observed that the offense charged in the demand made for the fugitive from justice shall be proved by such evidence,

“as according to the laws of the place where the fugitive or person charged shall be found, would justify his apprehension and commitment for trial, if the offense had there been committed. The delivering government, and not the one making the demand, is by the terms of the treaty in regard to evidence the final judge as to the propriety of the demand, and also as to the sufficiency of the evidence in its support. It applies its own rule of evidence to the ease, and withholds or grants the surrender under that rule.”

While the charge in said information may be a little .lame in some unimportant particulars, and perhaps is, still we think the

objection made is technical and that it charges the offense of obtaining money by false pretenses. In Jackson v. Archibald, 12 C. C., 155, it is held that:

“If a felony is substantially charged in the indictment attached to the requisition for the extradition of a fugitive from justice, the fact that it is inartistieally drafted, or that there is some technical defect in the form of the indictment, ought not to prevail to defeat extradition.”

We are not inclined to disturb the judgment below on the ground urged.

It is contended on behalf of the plaintiff in error that the real purpose of this extradition proceeding is not to have his return ordered to the demanding state for trial on the offense laid in the requisition, but for the purpose of working out a civil remedy against him, and it is contended-that this is manifest from the evidence' taken upon the hearing hereinbefore referred to. If such contention was well founded, the court would be unwilling to lend its aid in the working out of any such purpose. Section 110 of the General Code provides that:

“The demand or application must be accompanied by sworn evidence that the party charged is a fugitive from justice, and that the demand is made in good faith for the punishment of crime and not for the purpose of the collection of debt or pecuniary mulct, or of removing the alleged fugitive to a foreign jurisdiction to serve him with civil process, and by a duly attested copy of an indictment or an information, or a duly attested copy of a complaint made before a court or magistrate authorized to take it and accompanied with an affidavit or affidavits to the facts constituting the offense charged by persons having actual knowledge thereof.”

It is apparent from the langiiage of the foregoing section that the application for a requisition for a fugitive from justice must be founded on good faith for the sole purpose of having him answer to the identical offense charged and not for any other purpose. The presumption is that the Governor of Ohio so found before issuing the extradition warrant, but it is contended that the evidence taken before said examining judge shows otherwise. We have carefully read the evidence taken on said hearing and find the prosecuting witness testified that after he failed to recover back money paid for certain shares of stock, he instituted this criminal prosecution. Granting this, does it follow by any principle of sound reasoning that the plaintiff in error is sought to be extradited for any other than the purpose of being prosecuted for this alleged offense in the absence of any proof to the contrary? It does not so impress the court, and it follows that the second ground of error alleged is not sustained.

Besides the errors alleged and already specifically referred to herein, said petition in error contains other errors alleged, all of which we have considered, and we find no such prejudicial error in the record for which the judgment- of the court below should be reversed. <

The view we have taken of this case renders it unnecessary to pass upon the motion submitted on behalf of W. S. Smathers, the sheriff of said Clarion county, and the duly appointed agent of the state of Pennsylvania fOr the purpose named in said requisition, in which motion it is contended that the'proceedings herein are in violation of certain provisions of the Constitutions of the United States and of the state of Ohio.

The judgment of the court of common pleas will therefore be affirmed; and said cause is remanded for execution. Exceptions noted.

Powell, J., and Houck, J., concur.


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    PROSECUTION FOR. CONTRIBUTING TO THE DELINQUENCY OF CHILDREN.
    Court of Appeals for Hamilton County.
    John Petri v. State of Ohio.
    Decided, November 8, 1915.

      Criminal Law — Waiver of Jury — Presumption as to Prisoner Being Given Opportunity to Make Statement When Sentenced — Evidence as to Delinquency of Children.

    1. Waiver of tbe right to a jury trial does not clearly and affirmatively appear where the record merely states that the "defendant did not demand a trial by jury.”
    2. A conviction under Section 1651 of causing, encouraging and contributing to the delinquency and neglect of children must be based on evidence of the delinquency of said children.
    3. Where the record does not distinctly disclose that the defendant was not asked if he had anything to say why sentence should not be passed, it will be presumed that such a question was asked in compliance with the statute.

      Cotvell & Lamping, for plaintiff in error.

      John W. Weinig, contra.
   Jones (Oliver B.), J.

Plaintiff in error was convicted by tbe judge of the juvenile court without the intervention of a jury, under Section 1651, General Code, of causing, encouraging and contributing to the delinquency and neglect of two girls aged respectively eight and ten years. He seeks a reversal of the judgment in this court on three grounds: 1. That the court had no authority to try plaintiff in error without a jury. 2. That the finding of the court is not supported by any evidence of the delinquency of the minors. 3. That plaintiff in error was not asked, after being found guilty and before sentence, if he had anything to say why sentence should not be pronounced against him in accordance with the requirements of Section 13694, General Code.

1. The record as presented fails to show distinctly that the defendant below waived his right to a trial by jury but merely that the “defendant did not demand a trial by jury.” It is held in the ease of Simmons v. State, 75 Ohio St., 346, that the waiver of a right to a jury trial must clearly and affirmatively appear on the record, and can not be assumed or implied by a reviewing court from his mere failure to demand a jury.

2. The record fails to show proof of the delinquency of the minor children or record their conviction as such delinquents. In the original Section 1651, General Code, in accordance with which the affidavit was drawn, the offense provided contemplated the existence of a delinquency in the child. The section as amended in 103 O. L., 871, provided another offense, to-wit: “acting in a way tending to cause delinquency in a child.”

While the record might establish the latter offense, it is not sufficient to establish the offense charged in the affidavit without evidence of the delinquency of the children, and without such proof the charge must fail, no matter how culpable the acts of the defendant may be. Fisher v. State, 84 Ohio St., 360, 369.

3. The record does not distinctly disclose that defendant was not asked if he had anything to say why sentence should not be passed upon him before the sentence was actually pronounced. It must therefore be presumed that such a question was asked in compliance with Section 13694, General Code; Bond v. State, 23 Ohio St., 349; Carper v. State, 27 Ohio St., 572; Bartlett v. State, 28 Ohio St., 669.

For the reasons stated the judgment must be reversed.

Jones (E. H.), J., and Gorman, J., concur.


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    INCOMPETENT STATEMENT BY CORONER. AS TO WHAT CERTAIN INSANE PATIENTS HAD TOLD HIM.
    Court of Appeals for Stark County.
    George E. Dawson v. State of Ohio.
    Decided, February Term, 1916.

      Evidence — Constitutional Right Denied — In Admission of Statements Made t>y Insane Patients to Coroner — Circumstances Under which a Defendant is Rot Required to Speah — Criminal Law

    In tbe trial of an attendant in a hospital for the insane for the unlawful killing of one of the patients, it is a deprivation of a constitutional right guaranteed to the defendant to admit in evidence a statement by the coroner of what was told him three days later by certain insane patients as to the circumstances of the killing which they had witnessed, the testimony of members of the medical staff of the hospital being to the effect that said patients did not have the mental capacity to properly observe the incidents which took place or the memory to relate accurately what took place.

      Chas. C. TJphami, for plaintiff in error.

      A. T. Snyder, Prosecuting Attorney, and Henry Harter, Jr., Assistant Prosecuting Attorney, contra.
   Shields, J.

Tbe plaintiff in error was indicted at tbe September, 1914, term of the Court of Common Pleas of Stark County for tbe unlawful billing of one Alfred Tisch, on tbe 13th day of September, 1914. Upon a plea of not guilty, be was tried and convicted of said crime. A motion for a new trial was made wherein various reasons were set forth why said motion should be granted, which said motion was .by the court overruled, and the plaintiff in error was thereupon sentenced according to law. A bill of exceptions was afterward taken embodying all the evidence and proceedings of said trial, including the charge of the trial court to the jury, and by a petition in error filed the judgment of said •court is now brought before this court for review.

The principal errors complained of by the plaintiff in error are that the court below erred in the admission of certain evidence upon the trial, that the verdict of the jury is not sustained by sufficient evidence to warrant the conviction of the plaintiff in error of the crime charged, and that said verdict was contrary to law.

It appears that the plaintiff in error was on the day in question and for a year or añore prior thereto had been employed at the Massillon State Hospital as an attendant and as such he had charge of and was required to exercise supervision over and control of the decedent and forty-eight other insane patients in a certain ward in said hospital, in which said ward the decedent had been confined as an insane patient for over a year. At an early hour on said morning, Sunday, September 13th, said attendant went on duty and entered said ward and requested the decedent to make up certain beds in said ward as he had been in the habit of doing, when the decedent declined to do so and assaulted the plaintiff in error by striking him in the face, breaking his spectacles, as claimed by him, whereupon the two wrestled with each other and so continued until they reached an adjoining wash-room, when and where the decedent fell over and Soon thereafter died. Tt further appears that on the following Wednesday, September 16th, the prosecuting attorney and Dr. Frank W. Gavin, the coroner of said county (and after a coroner’s inquest had been held, as claimed by him), went to said hospital and caused to be brought before them, in a certain room therein, separately and in charge of -a guard, certain insane patients confined in' said hospital, in said ward, to-wit: William Ring, Edward B. Potter, James McCauley, Daniel M. Call and Austin Marsteller, and in the presence of the plaintiff in error, said insane patients were interrogated by the prosecuting attorney and said Gavin as to what had occurred between the plaintiff in error and the decedent on the said Sunday morning. Said insane patients at said time undertook to and related what they claimed occurred between said parties on said morning, and that the plaintiff in error who was present made no reply thereto, nor was any inquiry made of him. The said Dr. Gavin in the evening of said day claimed to have made notes of the statements so made by said insane patients concerning said occurrence. Afterward, and on the 18th day of September, 1914, the plaintiff in error was arrested before a justice of the peace, charged with the unlawful killing of the decedent. After being indicted and when placed on final trial for said crime, the State sought to introduce' in evidence by the witness Gavin the statements so made by the said insane patients to him and to the prosecuting attorney, to which the plaintiff in error by his counsel objected, and who at said time offered to show by the testimony of medical witnesses connected with said hospital, and who were familiar Avith the mental condition of said insane patients, that they were not mentally capable of observing the incidents of said occurrence on said Sunday, nor did they have sufficient memory to enable them to retain and afterwards state what they may have observed at that time, which said offer was objected to by the State and said objection sustained, and said objection made to the evidence proposed to be offered by'the witness, Dr. Gavin, was also overruled, to which the plaintiff in error excepted.

Thereupon, over the objection of the plaintiff in error, the witness, Dr. Gavin, Avas permitted to give to the jury what he claimed to be the statements of the said insane patients, made under the circumstances and in the manner heretofore described to the prosecuting attorney and himself, on Wednesday, September 16th. This action on the part of the trial court is assigned as prejudicial error.

Upon the trial it was admitted by the State that the said Ring, Potter, Gall, McCauley and Marsteller were insane patients in said hospital and that they had been committed to and confined therein as such patients for a considerable period of time.

Under the laws and Constitution of this state, could said admitted insane patients, confined as they were at the time of said trial in said hospital, he permitted to speak and testify to material matters through the witness, Dr. Gavin, an intelligent and experienced witness in criminal trials, as his official relation would imply, against a citizen on trial charged by. indictment with a felony ?

Article I, Section 10 of the Constitution, provides, among other things:

‘1 In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copjr thereof; to meet the witness face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed; but provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, of any witness whose attendance can not be had at the trial, always securing to the accused means and the opportunity to be present in person and with counsel at the taking of such deposition, and to examine the witness face to face as fully and in the same manner as if in court.”

In the case of Summons v. State, 5 O. S., 325, it is held that:

“The clause of the tenth section of the Bill of Rights providing that ‘on any trial, in any court, the party accused shall be allowed to meet the witness face to face,’ which, like numerous other provisions in the Bill of Rights, is a constitutional guaranty of a fundamental principle well established and long recognized at common law, has reference to the personal presence of the witnesses called to testify, and not the quality or competency of the evidence to be given.”

And the judge delivering the opinion in said case says:

“The scope and operation of it are clearly defined and well understood, in the common law recognition of it, and the assertion of it in the fundamental law of the state, was designed neither to enlarge nor curtail it in its operation, but to give it permanency and secure it against the power of change or innovation. ’ ’

This constitutional guaranty is now and always has been the sacred right of any one charged with a crime, and in no case can it be invaded or taken away. In such case the accused is entitled to “meet the witness face to face”'and to have an opportunity to cross-examine such witness, or witnesses, and in addition, the accused likewise has the right to test the qualifications of a witness before testifying when his competency as a witness is questioned in good faith. In the ease before us it appears that the plaintiff in error was deprived of these legal rights, and,each of them.

On the trial the learned judge seems to have admitted the testimony of the witness, Dr. Gavin, in permitting him to narrate the said statements of the said insane patients, on the ground that the jury were to judge of the effect of the silence of the plaintiff in error at the time said statements were made. There may be cases where parties accused of crime are called upon to speak, but the case presented by this record leads us to the conclusion that under the cvrcumstanees the plaintiff in error wa§ not required to speak, and this conclusion is strengthened by the evidence of the witnesses of the medical staff connected with the hospital, who knew of the mental condition of the said insane patients and who testified that they did not have “the mental capacity to properly observe the incidents of the occurrence between Dawson and Tisch and afterwards have mental capacity enough to relate properly and accurately what took place.”

Without pursuing this subject further, we are of the opinion that the plaintiff in error was deprived of his constitutional rights in the respects hereinbefore indicated; that the admission of the statements made by the said insane patients to the witness, Dr Gavin, was prejudicial error; that said verdict is manifestly against the weight of the evidence, and that said judgment of conviction and sentence is contrary to law.

The judgment of the court of common pleas will therefore be reversed, and said cause will be remanded to said court for such further proceedings as may be deemed proper.

Powell, J., and Houck:, J., concur.