author: DOUGLASS, C. J. Ruggles, C. J.,

text:
    CONSTITUTIONAL LAW.
    [Holmes (5th) Circuit Court,
    November Term, 1901.]
    Douglass, Voorhees and Donahue, JJ.
    State ex rel. Allison v. Wm. F. Garver, Pros. Atty., et al.
    1. Act 93 O. D. 660, is Local and Constitutional.
    The act of April 26,1898, 93 O. D. 660, in so far as it prescribes and limits the compensation of county officers, the operation of which is expressly limited to Holmes county, relates to a subject local in its nature and*therefore does not conflict with Art. 2, Sec. 26 of the constitution of this state, requiring uniform operation of general laws.
    2. Contingency — Submission to Vote Does not Invalidate.
    The contingency named in Sec. 13 of said act, “ that if upon such election a majority of the votes cast upon said proposition shall be in favor of a salary law, this act shall take effect and be in force from and after the first day of January, 1899, but if a majority of said votes cast on said proposition be against a' salary law then this shall be void ” does not make said act invalid. This submission by the legislature to a local constituency oí a question affecting their local interests does not render such act invalid, although by its terms it was to take effect only after it should be approved by a majority of the popular vote at such election.
    í General Rule as to Contingent Laws.
    The power of the general assembly to pass laws cannot be delegated by them to any other body or to the people, but a valid statute can be passed to take effect upon the happening of a future event whether certain or uncertain : (a) Laws may be absolute, dependent upon no contingency, or they maybe subject to such conditions as the legislature may impose, (b) No valid reason appears why a vote of the people in favor of a law should be excluded from the number of those firture contingent events upon which it is provided that a law shall take effect, (c) While power to make the law cannot be delegated, yet, authority may be conferred as to its execution under and in pursuance of the law. In such event the contingency of. a popular vote becomes the law’s appointed means of determining a result which the law declares and enacts shall be the contingency of its operation. Making the operation of the láw depend upon a popular vote is a part of the law itself, and thus putting it into operation is the legislative will on the subject. It is the law that makes the vote, and not the-vote that makes the law.
    4. Presumption is in Favor oe- Validity oe Law.
    The presumption is always in favor of the validity of a law ; and it is only when there is a clear usurpation of a power, or a manifest assumption of authority, or a clear incompatibility between the constitution and the law, that judicial tribunals will refuse to execute it.
    Judge Wellington Stilwell, for plaintiff,
    cited :
    Act of April 26, 1898, 93 O. I/. 660, is unconstitutional. Sec. 26, Art. 2, of the constitution; Art. 2, Sec. 30, and Art. 13, Sec. 7.
    It is a general principle that where a statute is passed, unless there is something in the statute providing against the taking effect, or a constitutional provision, it takes effect from the date of its passage. The authorities are found in 7 Tawson R. &. R., Sec. 3764. .See also C. W. & Z. R. R. v. Clinton Co., 1 Ohio St. 77.
    That the act or any act of that kind except those especially excepted by our constitution were considered as being prohibited- by those who advocated as well as those who opposed the above cited provision of the constitution in the constitutional convention of 1851, is clearly established by the debates.' See Vol. 2, P. 163, 4, 215.to 228, 568, 578, 579, 633, 807, 831, 833, the last page being its adoption as it now stands.
    I concede that in the excepted cases of schools, changing county seats, county lines, establishing new counties, banking associations, the legislature may provide in the act for the submission of the question of the taking effect of the act on the approval by vote, and that in such case so much of the act as provides for taking the vote will he in effect so far as to authorize that vote. This in a case of changing a county seat specially authorized to be submitted to a vote is settled in State v. Commissioners, 5 Ohio St. 497; see also Noble v. Baker, 5 Ohio St. 524; -Weaver v. Cherry, 8 Ohio St. 564.
    In the absence of a constitutional provision, laws submitting the taking effect to a vote of the people or to a court, or to persons, or the acts of any legislative body, municipal or otherwise, authorized to do an act delegating that power to any other person, court, board, or officer, in some of the cases even to the judges of the Supreme Court, have been held unconstitutional. .People v. Board, 52 N. Y. 556, 567; Barbo v. Himrod, 4 Seld. N. Y. (8) 483; Schofield v. City, 17 Mich. 437 ; Bellinger v. Gray, 51 N. Y. 610; Robison v. Dodge, 18 Johns. 351; Senate v. Alpena Co., 57 N. W. Rep. 1101 [99 Mich. 117; 23 R. R. A. 144]; Wisconsin K. Institute Co. v. Milwaukee, 70 N. W. Rep. 68 [95 Wis. 153 ; 36 R. R. A. 65; 60 Am. St. Rep. 105]; Scate v'. Field, 17 Mo. 529, 530 [59 Am. Dec. 275]; 65 Ga. 645; State v. Simons, 21 N. W. Rep. 750 [32 Minn. 540]; People v. Clark, 47 Cal. 456; State v. Young, 9 N. W. Rep. 737 [29 Minn. 474]; City v. Clemmeus, 52 Mo. 133; 37 N. J. R. 12; Brewer v. Inhabitants, 62 Me. 62; Territory v. Stewart, 23 Pac. Rep. 405 [1 Wash. 98]; Cooley on Constitutional Rimitations, 141,146 ; Municipal Suffrage, Ih re, 36 N. E. Rep. 488 L160 Mass. 586; 23 R. R. A. 113]; State v. Armstrong, 3 Sneed (Tenn.) 634 ; Santo v. State, 2 Iowa, 165 [63 Am. Dec. 487]; State v. Geebrick, 5 la. 491; State v. Weir, 33 la 134 [11 Am. Rep. 115]; State v. Copeland, 3 R. I. 33: Parker v. Commonwealth, 6 Pa. St. 507 [47 Am. Dec. 480]; State v. Wilcox, 48 Cal. 458 [Ex. Par. 6 Wall. 279]; 6 Am. & Eng. Enc. Raw (1 ed.), 1023.
    In State v. Parker, 26 Vt. 357, the act provided that it should be submitted to a vote of the people and on a favorable vote go into operation at a certain time. But in the event the vote was adverse, then the act should go into operation in December, 1853. The court held that the act went into effect absolutely without regard to the vote and therefore did not' come within the general principles noted as its going into effect did not depend on the vote. While some of the reasoning of the court appears to be adverse to my claims it was not necessary to the decision of the case and is a mere dictum. 7 Vroom. N. J. 72 ; 30 N. H. 292; Gordon v. State, 46 Ohio St. 607 [23 N. E. Rep. 63 ; 6 R. R. A. 7-19]; Commonwealth v. McClare, 72 Pa. St. 491; Weiser v. Weiser, 5 Watt’s 279, 283 [30 Am. Dec. 313]; State v. Morris, 12 Am. R. Reg. (N. S.) 32, refer to statutes in the nature of local option laws as the Ohio statute in which the acts passed were perfect and in effect, but the operation thereunder depended upon the vote of the people.
    This was the case in Commonwealth v. Bennet, 108 Mass. 27, 30 [11 Am. Rep. 304], in which that class of acts as was argued and claimed and decided in Gordon v. State, 46 Ohio St. 607 [23 N. E. Rep. 63; 6 R, R. A. 749], cited were the proper exercise of police powers. So in State v. Court, 36 N. J.; Lambert v. Lidwell, 62 Mo. 188.
    A few courts, State v. O’Neill, 24 Wis. 149; Oliver, In re, 17 lb. 681, and Smith v. Janesville, 26 lb. 291, and 14 Ky. 218, cases nearly all involving the sale of liquor, the exercise of police power or vesting some municipal authority in the municipality or the body of the people, or the organization of corporations to take effect upon the acceptance of the corporations, a distinctly different question, appear to sustain the opposite doctrine, But in those states no constitutional prohibition as in Ohio cited, and the case of Peck v. Weddell, 17 Ohio St. 271, was one of the excepted cases mentioned in Art. 2, Sec. 30, Ohio constitution. See also 3 Am. &Eng. Enc. Law (1 ed.) 678 ; Cooley on Taxation, 61, 62.
    The case of Bank v. Village, 18 N. Y. 38, and Starin v. Town, 23 N. Y. 439, and Gould v. Town, lb. 456, have been cited as not sustaining what I have claimed. Those cases referred to operation under acts like Cincinnati, W. & Z. R. Co. v. Commissioners, 1 Ohio St. 77, the language of the first being (see page 40), “ this act shall take effect im.mediately.” So in the second case noted, the court says “ the act took effect immediately on its passage.” Page 446.
    In Oregon, Brown v. Flemming, 4 Ore. 132, the direct question was passed upon which I have claimed here that only in the excepted cases such as the removal of county seats and others as in State v. Commissioners, 5 Ohio St. 497; Noble v. Commissioners, 5 Ohio St. 524, and Mad River &L. E- Ry. v. Barber, 5 Ohio St. 556 [67 Am. Dec. 312], and Peck v. Weddell, 17 Ohio St. 271, cited can such legislation be justified.
    In Indiana the constitution provides substantially as in Ohio, Sec. 25, Art. 1. See Maize v. State, 4 Ind. 342, 343.
    Wm. F. Garver, prosecuting attorney, for defendant,
    cited :
    1. The facts stated do not constitute a cause of action. Holmes county salary law, 93 O. L. 660; Richardson v. State, 10 Circ. Dec., 458 (19 R. 191).
    2. On the constitutionality of the salary law. Pearson v. Stephens, 56 O. S. 126 [46 N. E. Rep. 511]; State v. Commissioners, 5 Ohio St. 497, 503; Noble v. Commissioners, 5 Ohio St. 524, 527; Cincinnati, W. & Z. Ry. v. Commissioners, 1 Ohio St. 77; Grenada Co. Supervisors v. Brogden, 112 U. S. 261 [5 S. Ct. Rep. 125]; Cooley Const. Law, p. 160 ; 26 Wis. 292; Cass v. Dillon, 2 Ohio St. 607; Gordon v. State, 46 Ohio St. 607, 631, 635 [23 N. E. Rep. 63; 6 L- R. A. 749]; Stevens v. State, 61 Ohio St. 597 [56 N. E. Rep. 478]. See Gordon v. State, 46 Ohio St. 607, 615 [63 N. E. Rep. 63; 6 L. R. A. 749], brief; 14 Ky. 218.

      MANDAMUS.
   DOUGLASS, C. J.

Two cases have been argued and submitted together; one is a proceeding in mandamus and the other, for an injunction. The ultimate purpose of these proceedings is to test the validity of an act of the general assembly of the state of Ohio, entitled, “ An act to limit compensation of county officers in Holmes county,” passed April 26, 1898, 93 O. L. 660.

The question presented by the proceeding in mandamus arises from an issue made as follows : The relator, Theodore Allison, as commissioner of Holmes county, avers, inter alia, that he prepared in due form his monthly account or bill for mileage and expenses paid by him for his services rendered said county as commissioner from September, 1899, to February 28, 1901. He claims a balance of $234.10 still due him. To his petition he attaches an itemized monthly statement of his mileage per diem and expenses paid out by him. “ The foregoing,” he says, “he presented to the prosecuting attorney and to the probate judge to be certified by the former and approved by the latter before presenting same to the board of county commissioners for allowance and payment as provided by .law. He says that the prosecuting attorney refused to so certify and that the probate judge refused to approve the same, solely upon the ground that the said special salary law referred to limited his compensation to $600 per annum, and traveling expenses while on duty outside of the county. That this said special salary act wholly superseded the general laws of Ohio as to the compensation of relator and other officials of Holmes county, etc. To relator’s petition a demurrer is interposed.

It appears that the purpose of this proceeding is to compel said prosecuting attorney to certify and said probate judge to approve relator’s account, that the same may be presented to the board of commissioners for allowance and ultimate payment.

This issue necessarily draws in question the said so called salary law of Holmes county. Aside from this, however, the demurrer raises another question. Counsel for defendant claim that in no event is there anything due relator, as shown by his statement attached to the petition, even when his rights are measured by the general statute, Sec. 897, Rev. Stat., fixing the compensation of county commissioners generally.

If this court reached the proper construction of said statute in the case of Richardson v. State, 10 Circ. Dec. 458 (19 R. 191), it would appear from a careful analysis of relator’s claim that it is at least doubtful if there is anything due relator upon his own claim and showing, even if his rights were fixed by the general law, for the validity of which he here contends, and insists that it is not superseded by the subsequent act of April, 1898, because the later act is unconstitutional. If this fact were established to our entire satisfaction the writ would be refused and our labors end. But since the case referred to, decided by this court, has for many months been in the hands of the Supreme Court without any decision at this date having been handed down, we prefer to await such final decision before applying the rule therein prescribed, when, as in this case, it is not necessary to do so, for the reason, as heretofore stated, that two cases are here argued and submitted together, and an examination of both leads us to the conclusion that while the rights of* the relator in this proceeding are somewhat problematical, that in the proceeding by injunction the validity of the said salary law is drawn in question also.

This brings us to the question presented, viz: Is the said act to limit the compensation of county officers in Holmes county unconstitutional ?

The petitions invite and the demurrers raise the question propounded, involving the validity of this act as to the salary feature thereof. Many other questions are argued but are not before us on the issues made by the pleadings, and for that reason will not be considered.

The first and thirteenth sections of said act, 93 O. T. 660, raise the question and provide as follows :

“AN ACT
“ To limit compensation of county officers in Holmes county.
“ Section 1. Be it enacted by the general assembly of the state of Ohio, That in Holmes county the compensation of the county officers hereafter elected in said county shall be by annual s,alary exclusively, except as otherwise provided in this section, to be paid in monthly installments as follows: Probate judge, one thousand dollars; auditor, fifteen hundred dollars; treasurer, twelve hundred dollars; clerk of courts, one thousand dollars; sheriff, twelve hundred dollars; recorder, seven hundred dollars; prosecuting attorney, seven hundred dollars, which amounts shall include all clerk or deputy hire for said officials, The commissioners shall each receive six hundred dollars, which shall be in lieu of all per diem, mileage and expenses now received by the com-' missioners. And no county officer shall receive, nor agree to receive, directly or indirectly, any additional compensation from any source whatever, for the performance or omission of any official duty, except that the probate judge shall be entitled to receive the fee now allowed by law for issuing a marriage license and filing and recording the certificate of marriage; and the auditor shall be entitled to receive the fees authorized by law for transfers of real estate; and the commissioners may receive their traveling expenses when on duty outside of the county. Nor shall either of said officers receive a reward of any kind from any employe in his office, or other person, in consideration of the appointment of any such employe, nor any portion of the compensation of any of his employes, nor any money or thing by way of gift or otherwise, from any officer, agent or employe of the county or its commissioners, or from any other person; and no such employe shall pay, or agree to pay, directly or indirectly, to the officer by whom he is employed any reward for his appointment, nor receive from any person any fee or compensation for his own use or for the use of such officer, for the performance or omission of any official duty.
“ Section 13. That at the next general election to be held in the state of Ohio, after the passage of this act, the officers whose duty it is to provide for the printing of the ballots shall cause to be printed on all ballots below the list of names of candidates for office, with a blank space on the left margin in which to give each elector a clear opportunity to designate his choice, the . following: For the county salary law. Against the county salary law. Notice that said proposition is to be submitted shall be given by the sheriff by proclamation, for the same length of time and in like manner as in his proclamation of general elections required by law. The clerks of each election precinct shall write on separate rulings on the left hand margin of the talley-sheets below the names of candidates : ‘ For county salary law.’ ‘ Against county salary law.’ And shall enter on the appropriate ruling the tallies of all votes cast for and against said proposition, and the aggregate number of votes for, and the aggregate number of votes against said proposition in each voting precinct, shall be forthwith certified by the precinct election officers to the proper board of deputy state supervisors of elections, or boards of elections, in like manner as the return of elections of county officers are certified, as required by law, who shall record the aggregate number of votes for and against said proposition. If upon such election a majority of the votes cast on said proposition shall be in favor of a salary law, this act shall take effect and be in force from and after the first day of January, 1899; but if a majority of the votes cast on said proposition be against a salary law, then this shall be void. ”

It is suggested that Sec. 1 of this act limiting its operation to Holmes county alone, is therefore repugnant to and in conflict with Art. 2, Sec. 26, of the constitution of Ohio.

This contention is at once answered by the Supreme Court in Pearson v. Stephens, 56 Ohio St. 126 [46 N. E. Rep. 511], wherein the court say, in construing an act of similar character expressly limited to Miami county, “ That the act of April, 1896, in so far as it prescribes and limits the compensation of certain county officers and their assistants therein named, the operation of which is expressly limited to Miami county relates a subject local in its nature and therefore does not conflict with Sec. 26, Art. 2, of the constitution of this state.” Upon this contention we rest our decision upon the above case.

The Holmes county salary law is modeled much after the provisions of the Miami county act. Said acts are alike in their main provisions. The principal difference, however, is that the Holmes county act provides for a submission of the proposition, whether for or against a salary law, to a popular vote of the electors of the county before it shall go into effect, which provision is not found in the Miami county act.

Here arises the real contention in this case. It is strongly contended :

First. That the said act provides for its submission to a vote of the electors in virtue of its own ■ provisions before the act by its own terms is to take effect.

Second. That by virtue of Sec. 18 said act is to take effect on a majority vote of the electors approving a salary law instead of an approval by the general assembly according to the requirements of Art. 2, Sec. 26, of the constitution of the state, and therefore in conflict with the same.

The first proposition finds a complete answer, as we think, in two cases, State v. Perry Co. (Comrs.), 5 Ohio St. 497, and Noble v. Noble Co. (Comrs.), 5 Ohio St. 524. The court held that, for the purposes of the vote, the acts took effect on their passage, though their operative effect was made dependent upon a vote of approval by a majority of the electors voting therefor. It is proper to remark that said vote of approval in these cases was in pursuance of a constitutional requirement which provides for such submission in certain excepted cases, and do not aid or control in the determination of the second and real contention above referred to.

Coming now to the last and real contention for determination, viz.: That by virtue of Sec. 13 of said act it is to take effect on a majority vote of the electors approving a salary law instead of an approval by the general assembly according to the requirements of Art. 2, Sec. 26 of the constitution of the state, and is therefore in conflict with the same.

We will assume that when the validity of a law is assailed'that the presumption is always in favor of its validity. That there must appear either an unwarranted assumption or usurpation of power, or a clear incompatibility between the constitution and the law sought to be enforced, before the judicial power will declare it a nullity. However, it is not only the right, but a duty imposed upon judicial tribunals, when a legislative act properly drawn in question in a suit pending before it, to determine whether the law is opposed to the constitution of the state, or the fundamental law of the land, and if so found, to treat it as a nullity and declare it void.

As before stated, Sec. 13 of this act calls for a submission to the electors of Holmes county on .the questiou, whether for or against a salary law. Said election provides the machinery for registering and declaring said vote, and concludes as follows :

“ If upon such election a majority of the votes cast on said proposition shall be in favor of a salary law, this act shall take effect and be in force from and after the first day of January, 1899; but if a majority of said votes cast on said proposition be against a salary law, then this act shall be void.”

The claim is that this act in question does not belong to any of the classes provided for in the exceptions to Art. 2, Sec. 2 of the constitution, such as schools, nor as to the excepted cases named in Sec. 30 of the constitution, such as creating new counties, changing the lines thereof, and removing county seats and the like, wherein there is especially reserved to the electors thereof the right of a submission to a vote of the people before such acts shall be operative.

The further claim is that this salary act does not belong to any of such excepted cases, and the attempted submission to a vote of the people as provided by Sec. 13 thereof, is an unwarranted submission to them of a power not reserved to them by the constitution and is therefore void under the general delegation of legislative powers to the general assembly of the state.

It is important first to notice the character of this act. Under the authority of Pearson v. Stephens, supra, the operation of this act being expressly limited to Holmes county makes it a local law and not a rule of action prescribed for the state.

The electors are invited to register their will in this county as to a “Salary Taw,” not in terms of this act, but to reach a consensus of opinion on the advisability of a salary law. They are not called upon to fix the terms upon which the act may be performed or the obligations thereupon attaching. These are all absolutely prescribed by the legislature, and whenever called into operation, if at all, govern and control in every detail. It is not mandatory but permissive. It is of local concern only.

Counsel for plaintiff implicitly rely upon the case of Barto v. Himrod, 8 N. Y. 483, 490 [59 Am. Dec. 506 ; 4 Seldon, 483], as supporting his contention. And it must be conceded that the logic of this case would sustain the claim of plaintiff.

The act under consideration in that case was one to establish free schools throughout the state. The provision held to be obnoxious to the constitution of the state was as follows :

“ The electors shall determine by ballot at the annual election to be held in November next whether this act shall or shall not become a law.

The distinction to be taken between the case at bar and the case of Barto v. Himrod, supra, here reviewed, is, that in the latter case it is a general law ; in the case at bar it is a local law. In the New York case the electors are to determine whether the act shall or shall not become a law; in the case at bar the electors are called upon to determine whether they are in favor of a salary law, — not necessarily the act in question.

If by the vote they so declare themselves to be in favor of a salary law, then the law passed by the general assembly will take effect on a day named, etc. Further reference to these distinctions will appear in this opinion.

In this case here reviewed it is not denied that a valid statute may be passed to take effect upon the happening of some future event, certain or uncertain. The argument is that a statute as it is promulgated by the legislature must be a law in presentí to take effect in futuro, and that the popular vote upon the expediency of the law is not such a future event within the meaning and intent of the constitution. That on the question of expediency the legislature must exercise its own judgment definitely and finally. That it has no power to make a statute dependent on such a contingency, because it would be confiding to others that legislative discretion which they are bound to exercise themselves, and which cannot be delegated. The conclusion of a well reasoned opinion is, that the law under consideration was a mere proposition submitted to the people to be adopted or rejected as they pleased; that the legislature merely propose the law and that the people pass or reject it by a vote ; that this is legislation by the people.

In Bank of Rome v. Rome (Vil.), 18 N. Y. 38, 44, and Starin v. Genoa, 23 N. Y. 439, and Gould v. Sterling, 23 N. Y. 456, the case of Barto v. Himrod, 8 N. Y. 483 [59 Am. Dec. 506], is examined and the broad doctrine of that case is modified, if not repudiated. At least a clear distinction is made between a general law, as in Barto v. Himrod, supra, and a local law, such as this salary act.

A reference to Bank of Rome v. Rome (Vil.), supra, will show the distinction here taken. The third and fourth divisions of the syllabus is as follows :

“ An act which by its terms is to take effect immediately, but which confers upon the authorities of a municipality certain powers not to be exercised until such has been approved by a vote of the inhabitantss, is constitutional. This is not a delegation of legislative power within the case of Barto v. Himrod, 4 Seldon, 488. The submission by the legislature to a local constituency of a question affecting their local interests, is to be distinguished from the submission of a question affecting the whole state to the entire body of electors.”

Referring to page 44 of said case, Johnson, C. J., says:

“ Another question, which was assumed in the commencemeut of this opinion, remains to be considered. In Barto v. Himrod, 8 N. Y. 483, the free school law was held to be unconstitutional. That was an act relating to the whole state, and the question was submitted to the people of the whole state, to be determined by their votes, whether or not the act should become a law. The act now in question differs in substance from the school law in the particulars on which that case turned. The matter involved was one of local interest only. * * * The case is, therefore, in substance, only a submission to a vote of the parties interested, of the question whether or not they chose that the municipal corporation should subscribe to the railroad. In other words, the legislature did not compel the village to subscribe, but, creating by law the necessary machinery, left it to the taxpayers to determine that matter.”

A reference to Starin v. Genoa, supra, shows that this same case was there considered, and while not repudiated was distinguished from the case then under consideration, and it is there said that the parties to be affected by the act were at liberty to accept the privileges granted and incur the credit or obligations it -would impose, as their interests or will should dictate. And that any one or more of the towns might make it effective as to themselves. And it will be observed in all these cases, one of the principal grounds taken against their valididity was that it delegated the legislative power of the state to the voters of the village of Rome, within the principle settled in Barto v. Himrod, supra. And in all these cases, these acts were sustained as not in violation of the constitution, although the provisions of the acts required the same to be approved by the electors before the power conferred could be exercised.

These references, and especially that of Bank of Rome v. Rome (Vil.), supra, clearly show that the courts distinguish between a general and local law, and while this distinction does not commend itself to us as founded upon any good reason, yet it cannot have any other effect than to very materially weaken the authority of Barto v. Himrod, supra,

Referring to Attorney General v. O’Neil, 24 Wis. 149, the second division of the syllabus is as follows :

“ An act establishing a board of public works in the city of Milwaukee, provides that it shall be void unless accepted by a majority of the legal voters of that city in a manner therein prescribed. Held to be a valid law.”

And Cole, J., in the opinion, says:

“ And it is very manifest that the precise question submitted to the electors was whether they were in favor of a board of public works or against a board of public works. If a majority of the electors were or should be in favor of the board created by the law, then the law was to be in full operation, otherwise not. And the question is, can such a law be said to be an unauthorized delegation of the legislative power to the people, because it appears upon the face of the act that the legislature merely propose a project or plan for a law, and submit the question to the electors to determine whether it should become a law or not. It appears to us not.
“ The question here presented is not a new one. It has frequently been presented to the courts, and while it may be admitted that in some of the cases many very nice distinctions are taken and much subtle reasoning employed to show that certain laws were invalid because made to depend upon a vote of the people, yet this proposition seems generally to be conceded, that a valid statute may be passed to take effect upon the happening of some future event, certain or uncertain.”

Ruggles, C. J.,

makes this concession in Barto v. Himrod, supra, and there is no doubt but that the principle is approved by many high authorities. And while conceding this proposition the chief justice in that case thought it was not competent for the legislature to provide that a general statute should take effect upon that happening of a future contingent event, such as a vote of the people in its favor. The courts’ of New York, however, have not shown any disposition to extend the doctrine of Barto v. Himrod, supra, to local and special statutes which relate to local government and matters of municipal concern. Bank of Rome v. Rome (Vil.), 18 N. Y. 38; People v. Comrs. of Taxes 23 N. Y. 224, 239, and Gould v. Town of Sterling, 23 N. Y. 456.

In State v. Parker, 26 Vt. 356, 365, Redfield, C. J., says, that the distinction attempted between the contingency of a popular vote and other future contingency, is without all foundation in sound policy or sound reasoning ; that it has the appearance of having been made more from necessity than choice.

“This criticism upon the soundness of the doctrine of Barto v. Himrod, and cases of that class, strike my mind,” says the judge, “ as having great force, though it is not necessary to fully adopt it as correct in this case, since the law before us is one of local concern, relating solely to municipal government of the city of Milwaukee, and may provide that an act, perfect in itself, may go into operation and effect on the contingency of a vote of the people in its favor.”

It seems to us that all the legislature has done, in the section above quoted, was to prescribe the condition upon which the law was to be in full fore.- and effect, and that when the condition was performed, or the contingency happen, the provisions of the law derived their authority, not from the vote, but from the will of the law-making power.

Again, referring to Smith v. Janesville, 26 Wis. 292, the third division of the syllabus is as follows :

“ An act of the legislature affecting the people of the whole state is not invalid because by its terms it was to take effect only after it should be approved by a majority of the popular vote at a certain election.”

In the opinion by Dixon, C. J., at page 294, we have the following:

“ But it is said that the act is void, or at least so much of it as pertains to the taxation of certain shares in the national bank, because it was submitted to a vote of the pieople, or provided that it should take effect only after approval by a majority of the electors voting on the subject at the next general election. This was no more than providing that the act should take effect on the happening of a certain future contingency, that contingency being a popular vote in its favor. No one doubts the power of the general assembly to make such regulations and conditions as it pleases with regard to the taking effect or operation of laws that may be absolute or conditional and contingent, and if the latter, they may take effect upon the happening of any event which is future and uncertain. '
“ The only question here would seem to be whether a vote of the people in favor of a law is to be excluded-from the number of those future contingent events, upon which it may be provided that it shall take effect. A similar question was before the court in the late case, 24 Wis., 149. We came unanimously to the’ conclusion in that case, that the provisions for a vote of the electors of the city of Milwaukee in favor of an act of the legislature before it should take effect, was a lawful contingency and that the act was valid. There the law was submitted to the voters of Milwaukee, and here it was submitted to those of the state at large.”

Then the court asks, “ What is the difference between the two cases? It is manifest on principle that there cannot be any. The whole reasoning of that case goes to show that this act must be valid, and so it has been held in the best considered cases as will be seen by reference to that opinion.” And the court concludes, sustaining the law in all particulars.

The case of In re Richard Oliver, 17 Wis. 703, is a well considered case and a large number of authorities áre reviewed, including Cincinnati, W. & Z. R. R. Co. v. Clinton Co. (Comrs.), 1 Ohio St. 77, and the doctrine of the former cases heretofore referred to is sustained.

The case of Burr v. Blanding, 14 Cal. 357, is quoted by Paine, J., with approval, and is as follows :

“ Laws may be absolute, dependent upon no contingency, or they may be subject to such conditions as the legislature.may impose. They may take effect only upon the happening of events which are future and uncertain, and among others, the voluntary acts of the parties upon whom they are designed to operate. They are none the less perfect and complete when passed by the legislature, though future and contingent events may determine whether or not they shall ever take effect. In anticipation of invasion' or insurrection or local disturbance, or other emergency requiring the exercise of special powers, acts are constantly passed, and yet no one has ever questioned their validity as laws because dependent in their operation upon occasions which may never arise."

The well known case of the Cincinnati, W. & Z. R .R. Co. v. Clinton Co. (Comrs.) supra, seems to furnish logic and consolation to both parties of a kind decisive to both their contentions. In this case the county commissioners were authorized by the general assembly to subscribe to the capital stock of the company, the question of the subscription having been first submitted to the qualified electors of the county. The question here decided is only analogous to the one now under consideration. It is only by the broad and able discussion of Underlying principles by Ranney, J., in delivering the opinion, that we are essentially aided in our judgment in this case. He says, inter alia: “Undeniably, the complete exercise of legislative power by the general assembly does not necessarily require the act to so apply its provisions to the subject matter as to compel their employment without the intervening assent of other persons, or to prevent their taking effect only upon the performance of conditions expressed in the law.”

Further on he says : “ The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to. what the law shall be, and conferring an authority or discretion as to its execution to be exercised under and in pursuance of •the law. The first cannot be done; to the latter no valid objection can be made.”

Again : “ So far as the statute confers authority and discretion, it is as obligatory from the first as the legislative power can make it; and although its further practical efficiency may depend upon ' he discretionary act of some other body or indivdual, it is not derived from that discretion, but from the will of the legislature which authorized the act, and prescribed its consequences.”

Our conclusion from this case is, that the act then under consideration, commanding a vote to be taken, was a submission to the discretion of the voters of Clinton county, who alone had to bear the burden if assumed by them.

That this power of deciding upon the manner of its execution was a condition prescribed by the general assembly itself, upon which alone it is permitted to have effect.

The case of Gordon v. State, 46 Ohio St. 607 [23 N. E. Rep. 63; 6 L. R. A. 749], is one more nearly in point. The question under con. sideration in this case involved the constitutionality of an act to further provide against the evils resulting from the traffic in intoxicating liquors by local option in any township in Ohio. It is a law to take effect upon a contingency, to-wit, a vote of the people for or against it. This vote postpones its operation and effect to a later day. This act, in a well considered opinion by Dickman, J., is held not to be in conflict with the constitution, and therefore a valid law.

The question made in this case is whether, when an act of the general assembly makes its execution contingent upon the vote of the electors to be affected by it, is such a provision a delegation of su h legislative power to the people as to render the act for that reason unconstitutional ?

The court, in the opinion, on page 633, say: “ The local option act under consideration is virtually a law to prohibit the sale of intoxicating liquors upon the contingency that a majority of the qualified electors of any township shall vote against the sale. Practically, it is to go into operation upon such contingency.” Then, quoting from the opinion of Judge Scott in Peck v. Weddell, 17 Ohio St. 271, say: “Many laws can only operate upon the happening of certain contingencies; yet they are, nevertheless, valid.” Then the court proceeds: “Indeed, the doctrine is generally accepted that it is within the scope of the legisla, tive power to enact laws which shall not take effect until the happening of some particular event or some contingency thereafter to arise, or upon the performance of some specified conditions. May not the execution of a law depend upon the condition of a popular vote as well as upon any other fair and reasonable contingency?

Then, quoting from the opinion of Redfield, C. J., in State v. Parker, supra, say: “ After a full examination,” says he, “ of the arguments by which it is attempted to be maintained, that the statutes made dependent upon such contingencies are not valid laws, and after a good deal of study and reflection, I must declare that I am fully convinced— although at first, without much examination, somewhat inclined to the same opinion — is' the result of false analogies, and so founded upon a latent fallacy. It seemed to me that the distinction attempted between the-contingency of a popular vote and other future uncertainties, is without all just foundation in sound policy or sound reasoning.”

The court, quoting with approval Commonwealth v. Weller, 14 Bush (Ky.) 218, [29 Am. Rep. 407] in which there was under consideration an act to prohibit the sale of intoxicating liquors in the county of Bullitt, provides that it shall take effect whenever it shall be ratified by a majority of the voters of the county. The view taken by the court in construing the act was that the legislature w7as not attempting to delegate its authority to a new agency; that when the act passed the legislature and was signed by the executive, it became a law, and by reason oí the law the people interested in its passage were authorized to vote for or against its provisions; that the making of its operation dependent upon the popular vote was a part of the law itself, and its going into operation on the contingency that the people voted for it, was the legislature’s will on the subject.

The case, Smith v. Janesville, supra, is quoted with approval, and many other cases sustaining the doctrine of those above cited.

In the light of these authorities, how stands this case?

Under our constitution it may be regarded as absolutely settled, that when a sovereign people have by their fundamental law conferred upon the legislature the law making power, that organic body cannot delegate such power to any other agency. Laws must be enacted only through this established agency of the people. But grave doubts always arise when we undertake to ascertain the boundaries between that legislative power which cannot be delegated and those discretionary powers which the legislature may entrust to other departments or persons in the execution of the laws.

Th’e act under consideration applies to Holmes county alone. Upon the authority of Pearson v. Stephens, supra, it is, in that regard, a valid local law.

It is universally conceded that a valid statute may be passed to take effect upon the happening of some future event, either certain or uncertain. It may be absolute, depending upon no contingency, or it may be conditional or contingent. The controlling question presented would seem to be, whether a vote of the people in favor of a law, is to be excluded from the number of those future contingent events, upon which the legislature may provide that it shall take effect.

In Barto v. Himrod, supra, this doctrine is denied. It is asserted that a popular vote is not such a future event within the meaning and intent of the constitution. But in later cases in the same state, Bank of Rome v. Rome, and Starin v. Genoa, supra, this doctrine, as we have shown, is wholly repudiated in so far as applied to local laws such as the act now under consideration. Gordon v. State ; Peck v. Weddell, supra, and many other cases, some of which are cited in this opinion.

But it may be said that this presupposes a valid law, perfect in all its parts, and that the condition of a popular vote applies only to its proper execution. But may not the contingency of a popular approval be one of its parts, conditions or contingencies? And, as said by Agnew, J., (which is quoted with approval in Gordon v. State, supra): “This popular vole is but the law’s appointed means of determining a result, which the law enacts, in an alternative form, shall be the contingency of its operation.”

The true distinction, we conceive to be this: While the legislature cannot delegate its power to make a law, yet it can make a law which delegates a power to determine facts or ascertain a given status upon which the law makes its own action or efficiency depend. Making its operation depend upon a popular vote was a part of the law itself, and thus putting it into operation was the legislative will on the subject ; hence the provisions of the law derive their authority, not from the vote but from the will of the law-making power. As said by Ranney, J., in delivering the opinion in the case referred to, Cincinnati, W. & Z. R. R. Co. v. Clinton Co., supra : “ So far as the statute confers authority and discretion, it as as obligatory from the first as the legislative power can make it; and although its further practical efficiency may depend upon the discretionary act of some other body or individual, it is not derived from that discretion but from the will of the legislature which authorized the act and prescribed its consequences.”

In the act under consideration the discretion vouchsafed to those to be effected is not in fixing the terms and conditions upon which the law may go into operation and be performed, or in fixing the duties assumed thereby or the obligations that are imposed. These are all definitely prescribed by the general assembly and conclusively govern. It is a complete and perfect law. It commands a submission to a popular vote of the electors of Holmes county, and as said by Ranney, J., in the case cited: “ It is not the vote that makes, alters even or approves the law, but * * * it is the law that makes the vote and prescribes everything to he done consequent upon it.”

After a careful consideration of this case, and of the authorities and argument of counsel, we are unable to reach the conclusion that the act under review is repugnant to the constitution and therefore void, upon any ground presented by the issues made. We do not, at least, have a clear and strong conviction that the law in question and the constitution are clearly incompatible, which should exist in the mind of a court, before an act of the legislature is declared void, or that the general assembly has transcended its powers. The judgment of the court of common pleas is therefore affirmed.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    ADMINISTRATORS — BONDS.
    [Cuyahoga (8th) Circuit Court,
    December 16, 1901.]
    Caldwell, Hale and Marvin, JJ.
    Anna L. Murphy v. Margaret Dorsey, Admx.
    Administrator’s Bond — Money Received Merexy as Trustee.
    The obligation of a surety on an administrator’s bond cannot be extended beyond the plain terms of the undertaking. Therefore, sureties upon the bond of an administratrix are not liable for money, the proceedsrfjf a policy of life insurance held by decedent, for which such administratrix receipted as such, but which was not assets of the estate being administered upon by her, and was held by her “ only as trustee for the beneficiaries entitled thereto ” under a policy of insurance carried by her decedent.
    Heard on Error.
    White, Johnson, McCaslin & Cannon, for plaintiff in error.
    F. A. Beecher and J. P. Dawley, for defendants in error.
   MARVIN, J.

This is a proceeding in error to the court of common pleas of this county.

The parties, plaintiff and defendants here, are respectively as they were in the court of common pleas. The only judgment rendered in that court, as appears by the transcript, was one in favor of the defendant, Margaret Dorsey, Admx., etc., and tliis was entered upon a verdict returned in her favor by direction of the court.

The suit was upon a bond given by the defendant, Kate Murphy, as administratrix of the estate of Dennis R. Murphy, deceased, which was executed by the defendants, James Reilly and one Rosa Ward, as sureties. Since the execution of said bond, said Rosa Ward has deceased, and the defendant Margaret Dorsey is the duly appointed and qualified adminis-tratrix de bonis non with the will annexed of the estate of said last named decedent in which representative capacity she was made defendant in this original action.

The facts in the case are, that at the time of the death of said Dennis R. Murphy he was a member of a mutual benefit society, which entitled such person as he should designate to the payment of a sum of money by such association, at his death. By his last will he designated this plaintiff as the beneficiary of one-half the amount so to be paid. The entire amount to be paid was $1,485 ; so that the sum to which this plaintiff was entitled was $742.50.

This last amount was paid to said Kate Murphy by said association while she was engaged in the execution of her trust as administratrix as aforesaid, and she receipted therefor as such administratrix, and has not paid the same or any part thereof to the plaintiff. Thereafter plaintiff brought suit in the court of common pleas of this county, against said Kate Murphy both in her individual capacity and as such administratrix, for the money so received by her from said association; in this action of plaintiff recovered a judgment against said Kate Murphy in both capacities in which she was sued; that judgment is still in full force.

The petition in this action is based upon said judgment, the same having been first duly presented to the defendant Margaret Dorsey, as admin-istratrix as aforesaid, of the estate of Rosa Ward, deceased, and having been disallowed by her. It is averred by the plaintiff, in the petition upon which the judgment, hereinbefore mentioned, was obtained, that the money obtained by Kate Murphy from the association, “ is in her possession as such administratrix, but not as assets of said estate, but only as trustee for the beneficiaries entitled thereto.”

In the view taken by the court, of the law applicable to the case, no other facts need be considered, and only two questions of law decided

First. Are the sureties upon the bond given by Kate Murphy as administratrix, liable for money in her hands for which she receipted as administratrix, but which was not assets of the estate being administered upon but held by her “ only as trustee for the beneficiaries entitled thereto ? ”

Second. Are such sureties so bound by the judgment, hereinbefore mentioned, that they may not defend here, upon the ground that, the obligation assumed by them in the bond did not include any liability for money coming into the hands of the administratrix as this money did?

The condition of the bond executed by these sureties so far as it need be considered here, is in these words:

‘ ‘ The condition of the above obligation is such, that if the above named Kate Murphy, administratrix with the will annexed of all and singular the goods, chattels, rights and credits which were of Dennis E. Murphy deceased * * * shall administer, according to law, all the moneys, goods, chattels, rights and credits of the deceased, and the proceeds of all the real estate that may be sold for the payment of decedent’s debts, which shall at any time come to her possession or the possession of any other person for her.
“ Third. Shall render upon oath, a just and true account of her administration within eighteen months, and at other times when required by the court or the law. * * *
“ Fourth. Shall pay any balance remaining in her hands upon the settlement of her accounts to such persons as said court or the law shall direct, * * * then this obligation shall be void, otherwise it shall remain in full force and value in law.”

Unless the administratrix failed to comply with one or more of these conditions, the obligation was null and void. She was bound to administer according to law, all the property of the deceased, which came to her hands or any other person for her, all such property would be assets of the estate. She was bound to render upon oath a just and true account of her administration, that is, of what was done by her with these assets. She was bound to pay over to the proper parties any balance of the avails of such assets, remaining in her hands upon the settlement of her accounts.

Unless the administratrix has failed in some one of the above named things which she was bound to do, it is difficult to see how any action could originally have been maintained upon this bond.

The money which she received from the benefit society was not assets of the decedent’s estate, this is averred in distinct terms in the petition upon which the judgment sued upon in this action was obtained.

It follows that no judgment rendered in that action could have made this money assets of such estate; and it further follows, that unless the sureties upon the bond of this administratrix can be held for the wrong-doing of the administratrix in connection with some property not assets of the estate, they cannot be held in this action.

Looking to the language of the bond, we find nothing for which the sureties became responsible except for the proper administration and distribution of- the decedent’s estate, and if these sureties may rely upon the general principle that the obligatian of the surety is not to be extended beyond the plain terms of his undertaking, then these sureties cannot be held.

In Gregg v. Currier, 36 N. H. 200, it is said: “ The rule applicable to official bonds in general, that the sureties are liable only for the official acts and defaults of the principal and for funds in his hands in his official capacity, applies also to administrators’ and executors’ bonds.”

In Wattles v. Hyde, 9 Conn. 10, it is held: “ So the principal himself is liable on his bond only for official acts and defaults. Hence as respects any remedy for his misconduct by a proceeding on his bond, his liability and that of his sureties are coextensive.”

In Hobbs v. Middleton, 1 J. J. Marsh, 178, the same proposition is asserted.

In a note in Commonweaith v. Stub, 51 Am. Dec. 515, 519, this language is used :

“This is no doubt, the general rule, but it does not follow that there can always be a recovery on the bond against the sureties whenever there can be a recovery against the principal, for although as respects the act or default which constitutes the cause of action, their liability may be the same, he may, in certain cases, be estopped by some act or admission, from making a defense which isopen to them.”

Givens, Matter of, 34 N. J. Eq. 191. In this case an administrator was ordered to sell certain real estate of the deceased. He did sell, in addition to that ordered to be sold, another tract of land; and it was held that his sureties were not liable for the avails of the sale of the parcel not ordered to be sold. This language is used in the opinion at page 192 :

It is clear that the administrator and his sureties are bound to answer only for the administration of the proceeds of the sale of land sold by the former pursuant to the order of the orphans’ court.”

In Pace v. Pace, 19 Fla. 438, paragraph 6 of the syllabus reads:

The sureties upon the bond of an administrator who has collected moneys, neither assets of the estate, nor subject to distribution by him, and to which as the legal representative of the decedent he was not entitled, are not liable for any appropriation or use of the same by the administrator for his personal benefit.”

In this case, money was paid to an administrator upon a life insurance policy held by the decedent.

Under a statute of the state of Florida the money to be paid upon this policy was not liable for the payment of the debts of the decedent. And the court say, in reference to the policy, that—

“ Under this statute and under this policy, unquestionably upon the death of the assured, no creditors had a right to participate in the proceeds of this policy. It enured exclusively to the benefit of his child surviving him, the plaintiff in this case, and even if the contract was with the assured, and his executors, administrators, and assigns, (as to which the bill is silent), the administrator would not hold it as general assets in his hands liable to the payment of debts, or to distribution according to the laws of the domicile of the intestate. He would hold it as trustee, coupled with the single duty of payment.”

On page 453, the court further say:

“ With this construction of the policy, the necessary result is that upon the death of the assured, the child became entitled to its proceeds, had title thereto, and that the administrator, the legal representative, had no title, and was in no way entitled to the possession or control thereof.
“ The infant, therefore, does not here claim as heir or distributee-His claim is like that which a stranger would make if he were the beneficiary. The necessary result of this is, that the sureties of the administrator are not responsible for the management of this fund by Pace. - The fact that he did, as administrator, receipt for the property of the child, cannot bind his sureties.”

From .these and many other authorities we hold that the sureties upon the bond of Kate Murphy, as the administratrix of the estate of Dennis E- Murphy, were not liable for the moneys received from thé benefit association.

As to the other question, of whether by reason of the judgment obtained against Kate Murphy as administratrix, these sureties are' estopped, we hold in the negative.

It is true that, in the absence of fraud, the settlement made by the probate court of administrators, guardians and the like, bind the sureties) yet they áre so bound because those accounts show the balance of assets' remaining in the hands of the trustee for distribution ; but, in this case, the judgment itself which is tlie foundation of the present actibn, was upon a petition showing that the money was not assets of the aecedérit’s estate The judgment, therefore, as has already been said, in that casé, was not a finding that this money was such ’ ¿ssets. There has been, then, no finding that there were assets in the hands of Kate Murphy, as’ such administratrix which she has failed to pay óvéf. 'That being true, there is no breach of the condition of her bond. /

The judgment of the court of common pleas is affirmed.


author: ^MARVIN, J.

text:
    HOMESTEAD — LIFE ESTATES.
    [Cuyahoga (8th) Circuit Court,
    November 11, 1901.]
    Caldwell, Hale and Marvin, JJ.
    T. I. Kerns v. Augusta F. Linden et al.
    1 Purpose oe Sec. 5438, Rev. Stat.
    The purpose of Sec. 5438, Rev. Stat., exempting from execution a homestead) not exceeding in value $1,000, is to save to unfortunate debtors who have families, a place where they may live. The property set off is not thereby relieved from being subjected to the payment of a judgment to the extent that it never can be so used, but is relieved only while occupied by debtor’s family as a homestead.
    2. Allowance Out op Life Estate.
    The purpose of Sec. 5438, Rev. Stat., providing for homestead exemption not exceeding in value $1,000, is as well subserved to one holding a life estate in the whole property by setting off r.n amount the fee simple title to which is worth $1,000, as it would be if the debtor owned a fee simple in the property. In neither case could any benefit be derived by the debtor beyond_his own life.
    Appeal.
    V. R. Andrew and F. A. Shepherd, for plaintiff.
    J. T. Sullivan, for defendants.
   ^MARVIN, J.

This action comes into this court by appeal from the court of common pleas.

The facts are, that the plaintiff obtained a judgment in the court of common pleas against the defendants, Augusta F. Linden and her husband, John Linden, and that an execution upon such judgment was levied upon about fifty-seven acres of land in this county, in which the defendant, Augusta Linden, has a life estate. On this laud is the dwelling house occupied by the two Lindens, husband and wife, and their childien, as a family homestead.

There is another judgment lien upon the same property, and the purpose of the present action is to have the liens marshalled and this property subjected to the payment of the claims of the lienholders. Augusta Linden claims a homestead exemption, and to this she is clearly entitled. The only question is, as to the manner of ascertaining such homestead.

On the part of the Lindens it is urged that since the only estate which they or either of them have in the premises is the life estate of Augusta, there should be set off and assigned to her an amount of this property such that her life estate in the amount so set off shall be worth one thousand dollars, and it is said that this will take the entire property-

On the other hand, it is urged that without reference to what estate Augusta holds in the property, there should only be set off to her an amount the fee simple to which is wtirth one thousand dollars, and that the balance of her life estate be sold for the purpose of satisfying these liens.

The language of Sec. 5438, Rev. Stat., is : “ The officer executing any writ of execution founded on a judgment or order shall, on application of the debtor, his wife, agent, or attorney, at any time before sale, if such debtor has a family, and if the lands or tenements about to be levied upon, or any part or parcel thereof, constitute the homestead thereof, cause the inquest of appraisers, upon their oaths, to set off to such debtor, by metes and bounds, a homestead not exceeding one thou sand dollars in value.”

The purpose of the statute is to save to the unfortunate debtor who has a family, a place where he and such family may live. The property set off is not thereby relieved from being subjected to the payment of the judgment in such wise that it can never be so used, but is relieved only from being so subjected while it is occupied as a homestead for the family.

It is manifest that this purpose will be subserved as well to set off an amount the fee simple title to which is worth one thousand dollars, to one who only has a life estate, as it would be if the debtor owned the fee simple in the property, for, in neither case, could any benefit be derived by the debtor beyond his own life, and that he may have as well where he has a life estate as where he has the fee simple.

Statutes similar to ours and enacted for the same purpose, have been construed in other states, and this view has been sustained. See Brown v. Starr, 21 Pac. Rep. 973 [79 Cal. 608 ; 12 Am. St. Rep. 180] ; Yates v. McGibbon, 66 Iowa, 357 [23 N. W. Rep. 752] ; France v. Lucas, 14 Bush (Ky.) 395; Arnold v. Jones, 77 Tenn. 545, and Crigler v. Connor, 11 S. W. Rep. 202 [10 Ken. L. Rep. 957].

The order will require the appraisers to set off and assign to Augusta F. Rinden land including the house, an amount the fee simple of which is worth one thousand dollars; and the life estate of Augusta in the remainder will be sold. In case such an assignment cannot be made by metes and bounds, then the order will be in the usual form, providing for ascertaining the rental value of the property and the application of so much of such rental value as exceeds one hundred dollars a year to the payment of the liens.


author: HALE, J.

text:
    FOREIGN CORPORATIONS^-GARNISHMENT — SERVICE.
    [Cuyahoga (8th) Circuit Court,
    November 11, 1901.]
    Caldwell, Hale aud Marvin, JJ.
    Riter-Conley Manufacturing Co. v. John Mzik.
    1. Nature of Garnishment — When In Personam.
    In so far as the proceedings by garnishment, to reach a debt due by one foreign corporation to another, involve a summons to the garnishee, requiring him to appear and answer, and provide for further proceedings against him upon his answer or in default of his answer, which may result in a judgment against him, it is a proceeding in personam.

    2.,Ruee as to Jurisdiction in Proceedings In Personam.
    In so far as a proceeding is in personam against a foreign corporation, no jurisdiction can be acquired unless the situation of the foreign corporation within a domestic state, is such that an ordinary action in personam could be prosecuted against it in the domestic tribunal.
    3. Ruee Appeied.
    A nonresident corporation exercising no corporate powers or franchise within the state (aud entirely nonresident) is not liable to garnishee process in an action by a resident of this state against a foreign corporation, to reach a debt due from one corporation to the other, but where the garnishee is a foreign corporation, having complied with Sec. 148c, Rev Stat , is prosecuting its business within the state and is capable of suing and being sued in the state courts, it is subject to garnishment in -any action against its creditors against whom attachment may rightfully issue.
    4. Ruee as to Tangibee Property.
    Tangible property within the jurisdiction of the court may be reached in attachment and by garnishee process, notwithstanding it is in the custody of a nonresident corporation : nor will the fact that the debtor and creditor are both nonresident corporations prevent attachment proceedings in such case.
    5. Service upon Agent oe Corporation Sustained.
    An attachment by garnishee process of a credit owing by one foreign corporation to another will not be discharged for defective service, upon motion o the latter, where the return of the sheriff shows that service was made upon the garnishee company by leaving a copy of the order and notice to appear and answer, “ in the form provided by law at the office aud usual place of business of said company with * *' * the assistant district manager in charge thereof,” it appearing that such assistant occupied the same office as the general manager of the corporation at the usual place of business thereo1, the latter being the authorized agent upon whom legal service could be made, and that service thereof came to his knowledge prior to the filing of the motion to discharge.
    Heard on Error.
    Gilbert & Hills and J. H. Van Derveer, for plaintiff in error.
    Noble, Piriney & Willard and H. F. Payer, for defendant in error.
   HALE, J.

The defendant in error commenced an action in the court of common pleas against the plaintiff i-u error to recover compensation for injuries which he alleges were caused by the negligence of the plaintiff in error while in its employment. At the commencement of the action he procured an attachment to issue and garnishee process to be served upon the American Steel & Wire Company.

The plaintiff in error is a Pennsylvania corporation having its domicile in that state.

The garnishee, The American Wire & Steel Company, is a New Jersey corporation and domiciled in that state, but, by compliance with the laws of Ohio relating to foreign corporations, its business is prosecuted, in part, in this state. It has also appointed and keeps' an agent in Ohio, (see Secs. 148c and 5046, Rev. Stat.) upon whom service of process in all legal proceedings can be made. The defendant in error is a resident of Ohio.

Before the garnishee had answered, a bond for the release of the property was given in accordance with the terms of Sec. 5545, Rev. S‘at. That bond was not signed by the plaintiff in error.

It appear that the only property reached by the garnishee process,if any, was a debt owing by the garnishee to the plaintiff in error. Subsequently to the giving of the bond, a motion was made to discharge from the attachment the credit owing by the American Steel & Wire Company to the plaintiff in error. That motion reads:

“ The defendant, The Riter-Conley Manufacturing Company, appears here for the purposes of this motion only and moves the court to discharge from the attachment in this case the credit owing to it by the American Steel & Wire Company sought to be attached herein, on the ground that this defendant is a nonresident of Ohio and the American Steel & Wire Company is likewise a nonresident .of Ohio and the credit sought to be attached beyond the jurisdiction of the court.”

At the time the defendant in error sustained the injuries of which he complains, the plaintiff in error was constructing for the Americán Steel & Wire Company under contract a blast furnace in the city of Cleveland.

The motion to discharge the attached property was overruled, and error proceedings are now prosecuted to reverse that order of the court.

In support of the petition in error, it is argued that the courts of this state have no jurisdiction of property of anj' kind not within the state, and since the garnishee and its creditor both reside without the state the sihis of the debt is without the state and not subject to the jurisdiction of the court in which the principal action is pending, and, therefore, the motion should have been sustained, and the court erred in deciding otherwise.

In proceedings by garnishment for the attachment of a debt, it may be conceded that a corporation nonresident of this state, exercising no corporate powers or franchise within the state (and entirely nonresident) is not liable to garnishee process in an action by a resident of this state against a foreign corporation. Reimers v. Seatco Mfg. Co., 70 Fed. Rep. 573 [37 U. S. App. 426]; Louisville R. R. Co. v. Dooley, 78 Ala. 527; The Alabama R. R. Co. v. Chumley, 9 So. Rep. 317 [92 Ala. 317]; Everett v. Insurance Co., 4 Colo. 509; National Bank v. Furtick, 2 Mar. (Del.) 35; Associated Press v. United Press, 29 S. E. Rep. 869 [104 Ga. 51]; Illinois Central Ry. Co. v. Smithy 12 So. Rep. 461 [70 Miss. 344; 19 L. R. A. 577; 35 Am. St. Rep. 651]; American Central Ins. Co. v. Hettler., 56 N. W. Rep. 711 [37 Neb 849]; Douglas v. Insurance Co., 33 N. E. Rep. 938 [138 N. Y. 209; 20 L. R. A. 209; 34 Am. St. Rep. 448]; Towle v. Wilder, 57 Ver. 622; Moraweitz v. Sun Ins. Office, 71 N. W. Rep. 109 [96 Wis. 175; 65 Am. St. Rep. 43],

But if, as in this case, the garnishee is a foreign corporation, but by virtue of the statute of this state and by a compliance therewith is prosecuting its business within the state and is capable of suing and being sued in the courts of the state, it is subject to garnishee process in any action against its creditor in which an attachment may rightfully issue. See Secs. 148c, 5046 and 5521, Rev. Stat.; Lancashire Ins. Co. v. Corbetts, 46 N. E. Rep. 631 [165 Ill. 592 ; 36 L. R. A. 640; 56 Am. St. Rep. 275]; German Bank v. American Fire Ins. Co., 50 N. W. Rep. 53 [83 Iowa, 491; 32 Am. St. Rep. 316]; Nat. Fire Ins. Co. v. Chambers, 32 Atl. Rep. 663 [53 N. J. Eq. 468]; Burlington Ry. Co. v. Thompson, 1 Pac. Rep. 622 [31 Cas. 180; 47 Am. Rep. 497]; Railway Co. v. Barnhill, 19 S. W. Rep. 21 [91 Tenn. 395; 30 Am. St. Rep. 889] ; Cross v. Brown, 33 Atl. Rep. 147 [19 R. I. 220]; Neufelder v. Insurance Co., 33 Pac. Rep 870 [6 Wash. 336; 6 Am. St. Rep. 166; 22 L. R. A. 287].

The cases announcing a contrary doctrine hold that the situs of the debt is with the creditor and with his domicile, and if the creditor be a nonresident, the debt is not within the jurisdiction of the court.

This may be the rule where specific tangible property is sought by proceedings in garnishment, but does not apply by proceedings in garnishment for the attachment of a debt. The law, we believe, to be correctly stated in 6 Thompson’s Corporations, Sec. 870. Speaking of the jurisdiction to reach a debt due by one foreign corporation to another foreign corporation, he says:

“ In so far as the proceeding involves a summons to the garnishee, requiring him to appear and answer, and provides for further proceedings against him upon his answer, or in default of his answer, which may result in a judgment against him, it is a proceeding in personam. Now, in so far as it is a proceeding in personam against the foreign corporation, no jurisdiction can be acquired unless the situation of the foreign corporation within a domestic state is such that an ordinary action in personam could be prosecuted against it in the domestic tribunal. It follows from these considerations that a foreign corporation which is entirely nonresident, is not subject to garnishment, and cannot be made, so, for the states have no power to extend their judicial process into other states ; but if it is resident in the domestic state in such ásense as makes it amenable to the ordinary judicial process of such state, then it is amenable to process of garnishment, unless the statute governing the question is so framed as to exclude such a conclusion. There is certainly no principle of public policy or justice upon which an intention can be imputed to the legislature to distinguish between actions brought directly against a foreign corporation for the recovery of a debt, and those in which they are indirectly brought before the court fot the purpose of satisfying the demand of some third person.”

In such case the garnishee can only be held to answer in the jurisdiction where proper service can be had upon him.

If, in this case, the situs of the debt alone governs and that is at the domicile of either the debtor or creditor, the debt is not within the jurisdiction of the court out of which the attachment issued.

That tangible property within the jurisdiction of the court, although in the custody of a nonresident corporation, may be reached in attachment and by garnishee process, is not disputed.

If the American Steel & Wire Company had under its 'control tangible property, it could in these proceedings be attached or reached by process of garnishment. In such case, the fact that both debtor and creditor are nonresidents of the state, would not prevent attachment proceedings. Instead of having in its custody, property, the American Steel & Wire Company is indebted to the plaintiff in error.

Indebtedness is a thing of substance and of value. It can be sold and assigned, its payment enforced by the creditor in an action in any court in whose jurisdiction legal service of process can be served on the debtor.

It is not controverted that the plaintiff in error could enforce its claim against the American Steel & Wire Company in the court of which this attachment issued. Then, for what reason cannot this debt as well as tangible property of the plaintiff in error be reached by attachment? The right in respect to it can be enforced by the plaintiff in error in an action at law in the tribunals of this state. He may enforce its collection, receive payment in full and take the proceeds beyond the jurisdiction of the court.

We know of no good reason for denying the defendant in error the right to reach this claim, this property, by garnishment in attachment proceedings, nor for sustaining the plea of either the plaintiff in error or the garnishee that this property is not subject to attachment in this state.

The defendant in error, on the hearing, suggested that the trial court had no jurisdiction to entertain the motion to discharge this property after the giving of the release bond.

Coming to the conclusion we do upon the other proposition in the case, it is unnecessary to pass upon this claim.

It is suggested by counsel for plaintiff that no legal service was made upon the garnishee. The return of the sheriff reads: “ I served the foregoing on the American Steel & Wire Company, garnishee, by leaving a true and certified copy thereof, and also a norice to appear and answer as such garnishee in the court of common pleas of Cuyahoga county, in the form provided by law, at the office, the usual place of business of said company, with J. H. Early, assistant district manager in charge thereof.”

It appears from the bill of exceptions that Albert T. DeForest was the authorized agent of the garnishee, upon whom legal service could be made with in the state, and he was also the general manager of the corporation. J. H. Early was his assistant, and both occupied the same office at the usual place of business of the' corporation. It further appears from the affidavit of Mr. DeForest, made part of the bill of exceptions, that the notice to the garnishee came to his possession and knowledge prior to the filing of this motion, and we are, therefore, of the opinion that the motion should not be sustained upon this ground.

Our conclusion is, that there was no error in overruling the motion to discharge from the attachment the debt due from the American Steel & Wire Company to the plaintiff in error. And the judgment of the court of common pleas is affirmed.


author: VOORHEES, J.

text:
    NEGLIGENCE — AVERMENTS AND PROOF.
    [Licking (5th) Circuit Court,
    March Term, 1901.]
    Douglass, Voorhees and Donahue, JJ.

       Andrew Beard, Admr., v. Toledo & Ohio Central Railway Co.
    Negligence — Necessary Averments and Proof.
    In an action to recover from a railroad company for personal injuries received by a brakeman in consequence of negligence in the loading of cars, which negligence was the proximate cause of the injury, the plaintiff must aver and prove: (1) That the loading was negligently done. (2) That the company had, or should have had knowledge thereof. (3) That the employe did not know of the negligence. And if these propositions are not affirmatively established in such a way that the record will show that there is evidence tending to establish them, it is the duty of the court to instruct the jury to return a verdict for the defendant. .
    Heard on Error.
    S. M. Hunter and Flory & Flory, for plaintiff in error.
    Kibler & Kibler, for defendant in error,
    cited:
    1. The servant cannot recover for injuries received, when the danger is obvious, and can be understood by the servant as well as the master. Eothrop v. Ry. Co., 41 Am. & Eng. Railway Cas. 327; Williams v. Churchill, 137 Mass. 243 [50 Am. Rep. 304]; Moulton v. Gage, 138 Mass. 390; Eeary v. Railway Co., 2 N. E. .Rep. 115 [139 Mass. 580; 52 Am. Rep. 733 ; 23 Am. & Eng. R. R. Cas. 383]; Russell v. Tillotson, 4 N. E. Rep. 231 [140 Mass. 201]; Haley v. Case, 7 N..E. Rep. 877 [142 Mass. 316]; Einch v. Manufacturing Co., 9 N. E. Rep. 728 [143 Mass. 206]; Ciriack v. Merchants’ Woolen Co., 15 N. E. Rep. 579 [146 Mass. 182]; Scanlon v. Railway Co., 18N. E. Rep. 209 [147 Mass. 483; 9 Am. St. Rep. 733 ; 38 Am. & Eng. Ry. Cas. 48]; Wood v. Locke, 18 N. E. Rep. 578 [147 Mass. 604]; Dunlap v. Manufacturing Co., 18 N. E. Rep. 599 [148 Mass. 51]; Crowley v. Pacific Mills, 19 N. E. Rep. 344 [148 Mass. 228]; Probert v. Phillips, 21 N. E. Rep. 370 [149 Mass. 258]; Hathaway v. Railway Co., 16 N. W. Rep. 634 [51 Mich. 253; 47 Am. Rep. 569 ; 12 Am. & Eng. R. R. Cas. 249]; Northern- Cent. Ry. Co. v. Hus-son, 101 Pa. St. 1; [12 Am. & Eng. Ry. Cas. 241]; Louisville & N. Rd. Co. v. Gower, 1 Pickle (Tenn.) 465; [31 Am. & Eng. Ry. Cas. 168] ; Scott v. Oregon R. & N. Co., 13 Pac. Rep. 98 [14 Ore. 211; 28 Am. & Eng. R. R. Cas. 414]; Day v. Railway Co., 4 N. W. Rep. 203 [42 Mich. 523; 2 Am. & Fag. R. R. Cas. 126]; Walsh v. Whitely, L. R. 19, Q. B. Div. 647; Thomas v. Quartermaine, L- R. 18, Q. B. Div. 685; Doyle v. Railway Co., 41 Am. & Eng. Ry. Cas. 377.
    2. Assumption of risks. Circleville v. Throne, 1 Circ. Dec. 200 (1 R. 359); Smith v. Powell, 10 Re. 799 (23 B. 436); Lake Shore & M. S. R. R. v. Knittal, 33 Ohio St. 468; Railroad v. Morey, 47 Ohio St. 207 [24 N. E. Rep. 269]; Weaver v. Railway, 1 Dayt. 29; Pittsburg & W. Railway Co. v. Ackworth, 6 Circ. Dec. 622 (10 R. 583) ; O’Maleyv. Gaslight Co., 47 D. R. A. 161n., especially Davis v. Forbes, subdivision 7, p. 172, and subdivision 8, p. 193; Clark v. Railway, 92 Ill. 43; Lemberg v. Lumber Co., 49 L. R. A. 33n., especially subdivision 2, p. 51.
    3. Questions before the court for decision and by the court decided as essential to a final judgment are conclusively and finally adjudicated. The law as declared cannot be changed upon a subsequent appeal. Elliott App. Proced., Sec: 517; Wells Res Adjudicata and Stare Decisis, Sec. 613; Herman Estoppel, Secs. 115, 116, 117.

       Affirmed by Supreme Court without report, November 20, 1901, 46 W. L. B. page 250.

   VOORHEES, J.

This action is for damages in causing the death of plaintiff’s intestate, Henry Wesley, on June 7, 1893. At the time of his death, said Henry Wesley was in the employ of defendant company as a brakeman on one of its freight trains. The accident occurred in this county. Tne grounds of recovery are :

First. That the conductor in charge of the train negligently took on and attached to said train two fiat cars, which were negligently and carelessly loaded with stone; that the loading of the said cars with said stone was done in a careless and negligent manner.

Second. That said cars were defective in attachments, in that neither of them was provided with any end boards, or side boards, and were not provided with the proper standards along the edges of the platforms of said cars. That there were no means provided or used to prevent said stone from sliding or jolting off from said cars.

Third. That the defendant and said conductor negligently and carelessly took on and attached said cars, so defective and loaded as aforesaid, to said train, and negligently used and operated said cars in said train from a station called Fulton on said road in a southerly direction ; and, while so operated, and by reason of the high, careless and negligent rate of speed, between the stations of Hartford and Johnstown, said stone were carelessly and negligently jolted from said car, and falling on the track, the car on which the decedent was riding was thrown from the track, causing his death.

Fourth. That said Wesley did not know of said defect in said cars, and did not know and was ignorant of the defective and negligent manner in which said cars were loaded.

The petition then sets forth the next of kin of the deceased, and prays judgment.

The defendant company answers by denying carelessness on the part of said company and said conductor, and avers that the death of Wesley was caused by his own carelessness.

The cause was tried, and, at the close of plaintiff’s testimony, the court directed a verdict for the defendant; and this is the error assigned and complained of in this court.

The question of defect in the cars and their appliances are eliminated from the case by reason of the former holding of the circuit court, which was affirmed by the Supreme Court, wherein this court held that this case does not fall within the purview of Sec. 2 of the act of April 2, 1890, 87 O. L. 149 ; that the use of such a flat car is not the use of a defective car or one with defective appliances within the meaning of the statute. Toledo & O. Cent. Ry. Co. v. Beard, 11 Circ. Dec. 406 (20 R. 682).

Affirmed by the Supreme Court without report, December 13, 1898, Beard v. Railway Co., 59 Ohio St. 615.

The question here presented is upon the issue of carelessness; that these cars were negligently loaded with the stone and placed in the train on which the deceased was a brakeman ; and, by reason of the careless manner in which the stone were placed upon the cars, and the condition of the cars, in not being properly protected in the loading, that the negligence of the company resulted in the death of plaintiff’s intestate. The contention is : That the defendant company was negligent in taking these cars into the train, loaded in this manner, that is, that there were no guards at the ends of the cars, nor at the sides, and the train, running at a high rate of speed, jolted or jarred the stone so that one, at least, dropped upon the track, throwing the car off that the deceased was on, and properly on, causing his death.

We will consider whether the plaintiff has made out a case showing that the company was negligent, and that he was without fault, and, by reason of the negligence of the company, it being the proximate cause of his death, the company would be liable. It would be neceessary then for the plaintiff to show :

1. Knowledge on the part of the company. That is, that the company had knowledge of this defect, or negligence with which it is charged, in the loading of the stone upon the car.

2. That the plaintiff’s intestate did not know; and that this negligence was the proximate cause of his death.

Taking that view of the case then, how stands the record, or the evidence, as to establishing affirmatively these two propositions, which it would be necessary for the plaintiff to establish in order that the company would be liable? We have carefully examined the record. We regard this as an important case, and one that calls upon the court to give the record a careful examination as to whether or not the court, in taking it lrom the jury, was warranted and justified in so doing on the ground that there was no evidence in the record that would call upon the court to submit the question of negligence as a question of fact for the determination of the jury.

As to the first proposition : As to the knowledge of the company of the condition of the car that is complained of:

There is no evidence in the record to show that the company, or any of its authorized agents, had anything to do with the loading of the car. The car was taken into the train, but there is no evidence that the conductor knew of the condition of this car, as to how it was loaded with these stone. The proof tends to show that they were heavy stone, weighing perhaps from six to eight hundred pounds; and the proof tends to show that, with stone of that character and that size, it is the customary way, and the ordinary way, to load them without having these end boards or standards to prevent them from sliding or jolting from the car.

It devolved upon the plaintiff to establish the proposition, that the company was negligent in that regard; that they were guilty of negligence in the loading of the car, or receiving it into the train ; that it was loaded under their direction, and in such a way that they would be responsible for it. As we have remarked, there is no evidence that we have been able to find that even tends to show any knowledge on the part of the company.

As to the second proposition : It is not only necessary for the plaintiff to show that there was negligence on the part of the company in this regard, but that he was without fault; or, in other words, that he had no knowledge of the condition of these cars, and how they were loaded. There is no evidence whatever in the record as to whether he knew it or not; and, therefore, he having the burden on him to show that he did not know, and it standing without evidence, he would fail in the second proposition, or the second branch of the case, which it was necessary for him to establish before he could recover.

This is the situation as the case presents itself without the aid of the statute ; and, as we have already observed, the Supreme Court has taken this case out oí the provisions of the statute.

But, suppose the case comes within the statute, how does it stand upon the record? Considering the case as one coming within its provisions, the contention of plaintiff in error is that, from additional evidence brought into the record since the first trial, this court will be justified in holding, from this additional proof the case comes within the rule prescribed by the statute.

In the case of Hesse v. Railroad Co., 58 Ohio St. 167 [50 N. E. Rep 854], the effect of the statute and its office in an action of this character, is clearly defined. Judge Shauck, on. page 170, says :

“ The act by its terms affects the rules of evidence.
“ It does not affect the duty of the employe, nor the rules of pleading with respect to it. In the cases to which it applies it raises against the corporation a prima facie presumption of negligence from evidence showing that the employe received an injury by reason of a defect in the car or locomotive, or the machinery or attachments thereto belonging. In Coal & Car Co. v. Norman, 49 Ohio St. 598, 607, [32 N. E. Rep. 857], the general rule governing cases of this character is stated :
“ ‘ The servant in order to recover for defects in appliances, must establish three propositions : 1. That the appliance was defective. 2. That the master had or should have had notice thereof. 3. That the servant did not know of the defect.’ ”

When we get a proper construction of the statute and its true office, it affects the rules of evidence, but it does not change the necessity of the party alleging and proving these three propositions that are here stated.

Judge Shauck further says: “The force of the statute under consideration is wholly expended in relieving the servant of the duty of establishing the second of these propositions,” namely : “ That the master had or should have had notice thereof. ”

That would be the only change that there would be, and the only-burden that the plaintiff in this action would be relieved from, if this were a case of a defective car — defective machinery — bringing the case within the provisions of the statute. His duty with respect to the first and third remains wholly unaffected, viz : that the appliance was defective, and third, that the servant did not know of the defect. If the plaintiff fails to establish either one'of these propositions, the action can not be maintained.

In this record there is no evidence whatever, that the company knew of the condition, or, that there was any defect in the -loading of these cars. Therefore, there are two essential facts that the plaintiff in this action must establish before he can recover, viz: that there was this defect or this negligence in the loading of the car, and the compáhy had knowledge of it; and the deceased did not know of its condition.

The plaintiff must affirmatively establish these facts, either by circumstances, or by direct evidence, or the record must show that there was evidence tending to establish these two propositions, to warrant the submitting of the issue to a jury.

Where there is no evidence tending to establish these tacts, then the court has nothing to submit to the jury. If there had been some evidence, or the testimony was conflicting, the facts uncertain or the proper inference to be drawn therefrom doubtful, then it would be error for the court to withdraw the case from the jury, or direct them to return a particular verdict.

But, these essential facts or propositions the plaintiff failed to establish, either with or without the aid of the statute ; and, the question of negligence being one of law, it was the duty of the court to take it from the jury. Therefore, the court did not err, when the plaintiff rested his case, in saying to the jury that they should return a verdict for the defendant.

Judgment affirmed.