author: By the Court.

text:
    REGULARITY OF PROCEEDINGS FOR PROHIBITION OF LIQUOR TRAFFIC IN A RESIDENCE DISTRICT.
    Court of Appeals for Lucas County.
    In the Matter of the Petition to Prohibit the Sale of Intoxicating Liquors as a Beverage in a Certain Residence District in Toledo, Filed by Certain Qualified Electors with John P. Manton, a Judge of the Court of Common Pleas of Lucas County, Ohio, on October 28, 1916.
    Decided, December 20, 1916.

      Local Option—Procedure Providing for in Residence Districts—Construction of Section 6145, Relating to Precedence of Petitions— Section 6151, Relating to Publication of Notice—And Section 6152, Relating to Rinding of Mayor or Judge—Boundary Lines of the Proposed District—Bill-Boards on Vacant Property do Not Malee it Business Property—Use of the Official Registers of Electors.

    1. The language of Section 6145, General .Code, providing for local option in residence districts and directing that the petition shall be granted which has the greatest number of elector’s signatures, does not require a judge who has commenced the hearing on a petition to suspend the same when a second petition is filed during such hearing containing a greater number of electors’- signatures.
    2. The requirement of Section 6151, General Code, that the notice shall ibe published in two newspapers of opposite politics, is substantially complied with by a publication in the Toledo Blade and in the Toledo News-Bee, the object of tbe publication being to give notice to the public.
    3. The requirement of Section 6152, General Code, that the judge shall cause a certified copy or certificate of his findings, together with the original petition, to be filed with the clerk of the municipal corporation within forty days from the filing of the petition with him is directory only, and not mandatory.
    4. The boundary lines set forth in a local option residence district petition being sufficiently definite to describe the land for purposes of conveyance, the petition is not defective although one line was a prolongation of a street line beyond the terminus of the street.
    5. Vacant property on or in front of which bill boards have been placed by a corporation engaged in out door advertising is not business property within the meaning of the statute.
    6. The official registers of electors of the district are competent evidence and sufficient to make a prima facie case of residence within the district for the requisite statutory period.

      Charles 8. Northup, J. A. White and Cornell Sclvreiber, for the petitioners.

      Smith, Baker, Fffler & Allen, contra.
   By the Court.

Application for leave to file petition in error.

On the hearing of the above matter before the Honorable John P. Mantón, judge of the court of common pleas, it was found and determined that the petition was sufficient. In- . formal written application has been made to this court by certain qualified electors opposing the petition, for leave to file a petition in error to reverse said judgment, under Section 6164, General Code. This written application specifies five claimed grounds of error, .and a copy of the same has been furnished to counsel for the petitioners. We have heard arguments 'from counsel on both sides on the motion for leave to file this petition in error and will briefly announce the conclusions of the court.

First. It appears from the application made herein that after the petition which was heard and decided had been filed with the judge of the court of common pleas, and while the same was on hearing before said judge, a second so-called dry petition was filed with a judge of said court, and it is contended that, by virtue of the language contained in Section 6145, General Code, the judge was obliged to hear and examine said second petition and to decide as to the sufficiency thereof before disposing of, or attempting to dispose of, the first petition. This second petition does in fact contain the names of a greater number of resident electors than the first petition. The judge -before whom the first petition was pending having begun the hearing thereon and the same having proceeded for substantially a week, was not required to suspend the hearing or delay the decision thereof and take up the hearing of the second petition which had been filed. 'There is no evidence in the case of any undue haste in proceeding with the hearing under the first petition. A petition is not pending within the meaning of the above section until it is filed and publication thereof made, and even then the pendency of such second petition will not justify the suspension of the hearing or decision of a prior petition if the hearing thereof was commenced before the second petition was pending.

Second. The second claimed error is that the publication of the first petition was insufficient, notice thereof having been published in the Toledo Blade and in the Toledo News-Bee. The object of the publication is to give notice to the public of the péndency .and prayer of the petition. We hold that the publication in the papers above named was a substantial compliance with the statute.

Third. Section 6152, General Code, provides that the judge shall cause a certified copy, or certificate of his findings, together with the original petition, to be filed with the clerk of the municipal corporation or council in not more than forty days after the filing of the petition with him. By reason of the large number of witnesses to be examined, the trial on this first petition was not completed within the time specified, and it is insisted that after the time had elapsed the judge was without power to render his decision. The statute referred to is intended to expedite the disposition of controversies arising on such petitions, but the requirement for the filing' of a certificate of the decision is directory only .and not mandatory.

Fourth. The fourth contention is that the judge erred in holding the boundary lines given in the petition sufficient, it being claimed that the territory was not in all respects bounded by a street, corporation, or other well recognized lines or boundaries. In one instance the line was a prolongation or projeetion of a street beyond the terminus of sueb street. We hold the petition is not fatally defective in this respect. The boundary as given is sufficiently definite to have conveyed the property if the description given were embraced in a deed thereof.

Under this same heading it is urged that vacant property, on or in front of which were placed bill-boards of a corporation, engaged in outdoor advertising, should be counted as business frontage. The judge before whom the petition was pending held that such frontage could not be considered as business frontage. In so holding he committed no error.

Fifth. The fifth and last specification of error is based on the contention that with respect to substantially one hundred and fifty names on the petition, the only evidence as to the term of residence in the district consisted of the registers of electors. It appears that the registers for that district for the years 1915 and 1916 .were introduced in evidence. The judge before whom the petition was heard held that these registers were competent and sufficient evidence to make a prima facie case of residence within the district for the statutory period. We hold that the judge in so ruling committed no error.

No good cause being shown for granting the motion for leave to file a petition in error, the same will be denied.


source: Caselaw Access Project

author: Richards, J. Kinkade, J..

license: Public Domain

text:
    ACTION BY EXECUTORS FOR. DETERMINATION OF BENEFICIARIES.
    Court of Appeals for Lucas County.
    The Ohio Savings Bank & Trust Company et al, as Executors, v. Jason D. Clark et al.

    Decided, January 15, 1916.

      Wills — When Executors May Maintain Actions to Construe — Actions to Construe Are Actions in Chancery — Codicil- Held to Speak as of the Date of the Testator’s Death — Disposition of Stock Dividends Paid to Executors — Delivery of Estate to Widow to Hold for Life— Rights of Remaindermen.

    1. Executors may maintain an action by virtue of the provisions of Section 10857, General Code, to obtain a construction of a will where the estates devised are uncertain, the classes of beneficiaries in doubt, and the duty of the executors to pay a collateral inheritance tax in controversy.

      2. An. action to construe a will is one in chancery and appeal lies from a decree of the court of common .pleas in such case.
    3. Jos. D. Wolcott executed a will in 1891, devising all his estate to his widow except a bequest of $5,000. In 1899, he executed a codicil in which by apt words he gave his widow all of his property for the term' of her life. The codicil contains in addition, the following provision: “At the death of my said wife all of said property as aforesaid I give and devise absolutely to the -heirs of my mother Caroline B. Cromack the same to go- to said heirs per stirpes.” The testator died in 1900, and his mother in 1884. The testator left surviving him, his widow, who elected to take under -the will, but no lineal descendant. His mother left surviving her, a brother and sister, 'both of whom died in 1885, and the descendants of -six other brothers and sisters, and also her second -husband Joseph C. Cromack, who died before the testator. Held: That the codicil speaks as of the date of testator’s death, and the devise therein to the heirs of his mother means those who were such at his death, and such devise did not lapse nor did the testator die intestate as to any portion of -his estate, but his widow takes an estate for her life with remainder to the descendants of his mother’s brothers and sisters per stirpes.

    4. Dividends remaining in the hands of the executors, paid to them on stock owned by the testator, pass to his widow, whether paid in cash or stock, provided that -the actual value of the stock at the ■time -of testator’s death be not depleted by stock dividends.
    5. It is the -duty of the executors to deliver the entire estate to the widow on the settlement of their final accounts, without security from her, in the absence of evidence showing that the rights -of the remaindermen will be imperiled thereby.

      Tracy, Chapman & Welles, for plaintiffs and defendant, Mary Louise Wolcott.

      Brown, Geddes, Schmettau & Williams, Smith, Baker, Effler & Allen, Brown, Hahn & Sanger, Fritsche, Kruse & Winchester, Geer & Lane, R. W. Kirkley, Pierce J. Phelan, O. B. Snider, A. Van Wagenen, George B. Cole, Kirltbride & McCabe, D. B. Richards and C. L. Wilson, for other defendants.

       Motion to direct the Court of Appeals to certify its record in this ease overruled by the Supreme Court, May 26, 1916.

   Richards, J.

Appeal from the court of common pleas. -

This action is brought by the executors for the purpose of obtaining the direction and judgment of the court as to the true construction of the will of Joseph L. Wolcott, deceased. There are in the case a very large number of defendants and they include all persons who are, or claim to be, beneficiaries under the will and codicil. On the trial of the action in the court of common pleas a decree was rendered, adjudging that the beneficiaries under the codicil were the brothers and sisters of the mother of the testator, and the descendants of such brothers and sisters. From this decree an appeal was taken by the plaintiffs and by Mary L. Wolcott, the widow. The controlling facts are not in dispute, but before proceeding to the merits of the ease, it is proper to dispose'of some preliminary questions raised by counsel.

Certain of the defendants contend that the executors are not authorized by law to bring an action for the purpose of obtaining a construction of this will and the codicils thereto, and that the action is prematurely brought. They insist that such action can not be maintained during the lifetime of the widow of Joseph L. Wolcott. 'The record shows that the debts of the estate have been fully paid and that the executors have on hand and under their control a large estate, consisting of non-ancestral property and aggregating probably more than half a million dollars, and that it is necessary for the court to fix and adjudge the true construction to be placed on this will before the executors can properly conclude the administration of the trust reposed in them and make distribution of the estate, and no sufficient reason is perceived why this adjudication can not be had during the lifetime of the widow. Furthermore, the widow contends that she is entitled to the estate in fee, while other defendants claim interests therein. If her claim prevails, no duty to pay a collateral inheritance tax under G. 0., Section 5331, is imposed on the executors; while if the claims asserted by other defendants should prevail, then such duty rests on them. We hold that the action is maintainable alike under Section 10857, General Code, and under the general principles of equity jurisprudence.

It is further insisted that the action is one which can not be appealed to this court. Long before, the passage of the original statute now known as Section 10857, General Code, courts of chancery were called on to, and did, adjudicate cases for the construction of wills, and the section cited is only declaratory of that early practice. Indeed, the statute itself provides for the remedy “as fully as formerly was entertained in courts of equity.” We hold, therefore, that the action is one which may properly be brought into this court by appeal.

We reach, therefore, the merits of the case and are required to place a construction on the will and codicils left by Joseph L. Wolcott, and to determine who are the beneficiaries thereunder. The will bears date of July 10, 1891, and makes a bequest of five thousand dollars, which is not in dispute, and gives all the remainder of his property, after the payment of his debts, to his widow, Mary Louise Wolcott, and names her as one of the executors of his will. On December 11, 1899, Joseph L. Wolcott added a first codicil to his will, which codicil reads as follows, omitting the execution:

“Whereas I, Joseph L. Wolcott, of Toledo, Ohio, did on the 10th day of July in the year 1891, make my last will and testament as of that day I do hereby declare the following to be a codicil to the same. After the payment of all my just and lawful debts I do hereby give and bequeath to my wife, Mary L. Wolcott, for her use, for and during the term of her natural life, all my property real, personal ,and mixed of whatsoever character and wheresoever located, it being my intention thereby to insure to her the income of and from my property as aforesaid during her natural life.
“At the death of my said wife all of said property as aforesaid I give and devise absolutely to the heirs of my mother, Caroline B. Cromaek, the same to go to said heirs per stirpes.”

On August 11, 1900, he made a second codicil, revoking the previous appointment of executors and appointing the plaintiffs in this action as executors of his last will and testament. The entire controversy in this action centers around the following language contained in the first codicil:

“At the death of my said wife all of said property as aforesaid I give and devise absolutely to the heirs of my mother, Caroline B. Cromaek, the same to go to said heirs per Stirpes.”

As stated in the brief of counsel for plaintiffs, the precise question involved is, Who are the heirs of Caroline B. Cromaek within the meaning of this provision in the first codicil? Before reaching a solution of this question, it is necessary to consider not only the language used by the testator in his will and codicil, but his situation at the time of their execution. The terms of the codicil are such that, before any construction can be given the same, the practical necessity arises of ascertaining such facts as will place the court in the position of the testator.

As has 'been said, the first codicil was executed on December 11, 1899. The testator, Joseph L. Wolcott, died on December 1, 1900, leaving surviving him his widow, Mary L. Wolcott, but no lineal descendants, he never having had issue born to him. He did leave, however, surviving him one half-brother and the descendants of other half-brothers and half-sisters, these half-brothers and half-sisters being the children of his father by a former wife. The widow, Mary L. Wolcott, duly elected to take under the will. 'The facts necessary to put the court in the situation of the testator at the time of the execution of this codicil are as follows:

Caroline B. Cromaek, his mother, died in 1884. Her will was duly admitted to probate and in this will she referred to “my .adopted daughter Carrie Davis Clark,” and named her as one of her beneficiaries, but there is no evidence that Carrie Davis Clark was ever legally adopted as a daughter of Mrs. Cromaek. Joseph L. Wolcott was the only child ever born to Caroline B. Cromaek, and he and his mother’s second husband, Joseph C. Cromaek, survived her. Joseph C. Cromaek died about May 12, 1900, after the execution of the first codicil but before the testator’s death. Caroline B. Cromaek was also survived by a brother and sister, both of whom died in 1885, and also by the lineal descendants of three other brothers and three other sisters. These last named brothers ,and sisters died prior to her death. While there are a large number of defendants, probably more than one hundred, claiming interests in the estate, they may all be grouped into foúr classes as is so well and concisely done in the brief of counsel for ^plaintiffs. These four classes of elaimantSj as set forth in that brief, are the following:

a. Descendants of Joseph. C. Cromack, surviving husband of Caroline B. Cromack, deceased.

b. Descendants of Carrie Davis Clark, the alleged adopted daughter of Caroline B. Cromack, deceased.

c. Descendants of the brothers and sisters of Caroline B. Cromack, deceased.

d. Descendants of the half-brother and half-sisters of Joseph L. Wolcott.

With these facts established, the eourt is, in a large measure, able to place itself in the situation of Joseph L. Wolcott when he executed his first codicil on December 11, 1899, and from that vantage point determine the beneficiaries he meant to include when he used in his first codicil the following language:

“At the death of my said wife all of said property as aforesaid I give and devise absolutely to the heirs of my mother, Caroline B. Cromack, the same to go to said heirs per stirpes.”

The most patent fact which at once suggests itself is that he himself was the only heir of his mother, but, of course, it is unthinkable that he meant to will his property to himself under the designation of heir of his mother. Neither the language of the codicil nor the circumstances surrounding the testator point to the conclusion, that he meant his estate to go to his step-father, Joseph C. Cromack. If Joseph C. Cromack had been intended, the expression “per stirpes” would not have been used, and the natural method would have been to designate Joseph C. Cromack by name. Furthermore, the share which Joseph C. Cromack would take as husband of Caroline B. Cromack, he would not at least as to the real estate take as heir. Clearly we must look elsewhere to ascertain the persons intended by the testator by the expression “heirs of my mother * * * per stirpes.”

The argument is made, and has much force, that the heirs of his mother were fixed and determined at the dato of her death which was in 1884, more than fifteen years before the first codicil was made. The rule is one of the most ancient known to the law, but it is equally well settled that the word “heirs,” when used in wills, is a word which is flexible, and has often been held by the courts to have been used in a sense other than in its strict technical meaning. A good illustration of such use of the word “heirs” may be found in Jones v. Lloyd, 33 O. S., 572, but such holdings have been so frequently made that it is unnecessary to cite other cases illustrating the proposition. We have to determine, from the language used by the testator and the circumstances surrounding him, in what sense he used it. He knew that his will would not take effect until his death and that it would speak from a time subsequent to its date. It would be, until his death, ambulatory.

It is clear that when Joseph L. Wolcott referred in his will to the heirs of his mother as the ones who should succeed to his estate, he meant those who were such heirs at the time his will should take effect. He was the one whose estate was being disposed of and that disposition could only become effective at his death. That was the important date he had in mind in making his will, and those who were then the heirs of his mother were to be the recipients of his bounty and should receive his estate, postponing the time of enjoyment thereof for such time as his widow, who was given a life estate, should survive him. This, we think to be the fair intent and meaning of the language he used, under the circumstances and in the situation in which he was placed at the - time he signed the first codicil to his will. The result would follow that the remainder of his estate, after the interest given to his widow in this codicil, would pass to and vest in the descendants of the brothers and sisters of his mother, per stirpes. Those persons would be her heirs at the time the will became effective. They would be her next of kin and the descendants of such next of kin.

It may be noted that the first will gave to the widow his entire estate absolutely, excepting a minor bequest. The evident purpose of making the first codicil was to revoke that portion of the will and to give her, in lieu thereof, the estate named in this codicil, and the right was taken from her in a later codicil to be one of the executors of the estate. In the light of these facts, it is apparent that she is not given any greater rights than those specifically provided in the first codicil. The important limitation on her estate, therein mentioned, manifests an intent which to fail to follow would amount to making a will for the testator. In view of the manifest purpose of the testator, on the date of the first codicil, to make a codicil which should dispose of his entire estate, and in view of the fact that his mother had heirs, we can not reach a conclusion, as contended by plaintiffs, that the devises intended for those heirs lapsed, and that the widow would succeed to the estate as his heir. Neither can we find that the codicil is of such doubtful import as to be invalid. On the contrary, a majority of the court are of the opinion that the entire estate which the widow receives under the will is that, and that only, which is specifically provided for her in the language of this first codicil, and that Joseph J. Wolcott did not die intestate as to any portion of his property. We reach this conclusion the more readily in view of the well known presumption against intestacy where a will is executed evidently intending to dispose of the entire estate.

In view of this decision that the widow does not receive the entire estate, it becomes important to decide another question raised on the record. The petition sets out that the testator was the owner at his death of five hundred and one shares of the capital stock of The National Supply Company of the par value of one hundred dollars each, which stock was then of the actual value of two hundred and fifteen dollars per share. On this stock large dividends have been paid since the death of the testator, some of them in cash and some in stock, the dividends aggregating perhaps eighty thousand dollars or more. A portion of this stock was used in the payment of debts of the estate, and the executors are in doubt and ask the opinion of the court as to what disposition to make of certain of these dividends. Under the facts and circumstances existing in this case, and upon an. examination of the authorities cited by counsel, the court holds that the widow is entitled to receive all of the dividends declared and paid, whether in stock or cash, provided that the original actual value of the stock remaining, after such portion as was legitimately used in the payment of debts, shall not be depleted by stock dividends, below the actual value, at the time of the death of the testator, of the stock not used in the payment of debts.

The petition of the executors asks the instructions of the court with regard to the delivery of the estate in their hands. Having determined that the widow is entitled to the estate for her use during the term of her natural life, it being the intention of the testator, according to the language of the codicil, thereby to insure to her the income from the property during her life, we know of no sufficient reason why the executors, upon filing their final accounts and having the same approved, should not turn the entire estate over to her to hold under and pursuant to the right given her by the language of this codicil. The evidence does not disclose danger or insecurity to the remaindermen if this be done without bond. The rules applicable under such circumstances seem to be clearly stated in 16 Cyc., 641, and are, in substance, that, in the absence of a showing of actual danger, an inventory is the only protection to which a remainderman is entitled, and that the tenant for life of personal property is usually entitled to its possession without giving security for the forthcoming of the property at the termination of the life estate. If, however, the widow should so desire, the court will allow the continuance in office of the plaintiffs, as trustees, they being the ones designated in the last codicil of the testator.

A decree may be drawn in accordance with the views expressed in this opinion.

Chittenden, J., concurs.

Kinkade, J..

(dissenting).

I can not concur in the views of the majority of the court with respect to the effect of the first codicil, in so far as it makes a disposition of the remainder of the estate over and .above the life estate to Mrs. Wolcott. It is an ingenious and helpful aid, in ascertaining the intention of a testator, to first supplement the will and then look for his intention as indicated by the will thus supplemented. It is far easier to find the intention by this method than it is to find authority in the law for pursuing this course. I think the first codicil of the will fails, by reason of its uncertainty and for the reason that no one designated in this codicil as taker survived the testator, and he, therefore, died intestate as to this portion of his estate and the same must go to his wife as his sole heir.


author: Jones (Oliver B.), J.

text:
    GENERAL AND SPECIAL ELECTIONS DISTINGUISHED.
    Court of Appeals for Hamilton County.
    Walter M. Yeatman et al v. State of Ohio, ex rel Stieringer.
    Decided, March, 1914.

      Elections — Per Diem of Judges and Clerics — Vote on Constitutional Amendments Constitutes a Special Election — Unless Held on the Date of the Regular November Election.

    1. The term “general election” is applicable, under the provisions of the Constitution and statutes of Ohio, to elections only which are held on the first Tuesday after the first Monday in November.
    2. The election held on September 3, 1912, for the purpose of adopting or rejecting certain amendments to the Constitution, although statewide and of the utmost importance, was nevertheless a special as distinguished from a general or regular election; and while the labor may have been as arduous as that required at a general election, payment to judges and clerhs for their services on that day must be fixed in accordance with the schedule provided for such services at special elections.

      John A. Deasy, Assistant Attorney-General, for plaintiff in error.

      William Thorndyke, contra.
   Jones (Oliver B.), J.

'The question to be determined in this case is whether the election held September 3, 1912, at which certain proposed amendments to the Constitution of Ohio were submitted to a vote of the people of the state, was a general election, or a special election within the terms used in Section 4944 of the General Code of Ohio, which fixed the amount of compensation to be allowed to the judges and clerks of election.

• An act to provide for the election and assembling of the convention to amend the Constitution, found in 102 O. L., 298, in Section 4, conferred upon the constitutional convention authority to fix and prescribe the time, form and manner of submitting the proposed amendments, and in Section 5 provided how the election should be held and the returns made and canvassed.

Under the authority conferred by this act the constitutional convention, by resolution, fixed the third day of September, 1912, as the date of the election, and provided in its schedule in that resolution under the head of “Method of Submission” that the separate proposed amendments should be submitted “at ,a special election to be held” on that date. This resolution further provided “said special election shall be held pursuant to all provisions of law applicable thereto, including special registration” and provided for the carrying on of said election, and prescribed a form for an official ballot headed as follows: “Official Ballot. Special Election Tuesday, September 3, 1912. Amendments to the Constitution.”

The Constitution as it stood prior to this election provided in Article XVII, Section 1, for the election of state and county officers on the first Tuesday after the first Monday in November in the even numbered years, and for election of all other elective officers on the same day in the odd numbered years; and in the latter part of Section 2 of this article in providing for the filling of vacancies “by election at the first general election for the office which is vacant” it evidently refers to the November election provided for in this article as “a general election.”

In the provisions found in Article XVI of the Constitution as it existed prior to this election, Section 1 provided for the submission of the proposed amendments “at the next election for senators and representatives. ’ ’ Section 2 of the same article provided for the submission of the question as to whether it is necessary to call a constitutional convention “at the next election for members of the General Assembly”; and Section 3 provided for the submission of the question as to whether a constitutional convention shall be held “at the general election” to be 'held in the year 1871 and in each twentieth year thereafter.

Article II, Section 2, fixes the date for the election of senators and representatives, and Article III, Section 1, fixes the date for the election of executive officers. The Constitution of 1851 originally fixes this date as the second Tuesday in October, and afterwards, October 18, 1885, it was changed by amendment to the first Tuesday after the first Monday in November.

Title 14 of the General Code is devoted to public elections, Chapter 2 therein providing for the time and notice of elections. Section 4826 therein provides for “all general elections” for the governor and other state and county officers, fixing it on the day provided by the Constitution — the first Tuesday after the first Monday in November in the even numbered years.

Sections 4831, 4835, 4836 and 4838 fix the time of elections of township and municipal officers and members of the board of education, all being as fixed by the constitutional provision the first Tuesday after the first Monday in November in the odd numbered years.

In Section 4832 the “regular election” for township officers is referred to.

Section 4829 provides for a “special election” to fill a vacancy in the office of congressman or member of the General Assembly. Such election may be held and conducted as in ease of a “regular election.”

Section 4840 distinguishes between the submission of a question at a “special” election or at a “regular” election. And Section 4870 uses the phrase “at any general or special election.”

Section 4941 makes full provision for special elections in registration cities.

The term “November election” is repeatedly used in the statutes. It is referred to in Sections 4845 and 4846 with reference to the fixing of election precincts, and in Sections 4893, 4915, 4917, 4919, 4920, 4921 and 4925 with reference to registration.

In Chapter 6, relating to primary elections, Section 4948 specifies that words and phrases in that chapter shall be construed as follows:

“The words ‘November election,’ the election held on the first Tuesday after the first Monday in November in any year.
“The words 'general election,’ the November election in the years when state and county officers are to be elected.”

Sections 4949, 4967 and 4980, relating to primary elections, use the term “general election”; and Section 4980 provides that “Affiliation shall be determined by a vote of the electors making application to vote, at the last general election held in even numbered years.”

It therefore appears that the provisions of the Constitution and the General Code recognize “.regular” elections and “primary” elections, and “general” elections and “special” elections. The term “regular election” seems to be used in the same way and to mean the same thing as the term ‘ ‘ general election.”

The Legislature has, in Section 4948, construed the term ‘' general election, ’ ’ limiting it to the November election in even numbered years, while the language used in Section 4980 would seem to indicate there might be a general election held in odd numbered years.

A careful consideration of all the constitutional provisions and statutes cited above compel the court to the opinion that the term “general election” was intended to apply only to the elections held on the first Tuesday after the first Monday of November both in the even and in the odd numbered years, and that all other elections would be special elections except the “primary elections,” which are another class and otherwise provided for. A general election is one held throughout the state at regularly recurring intervals for the purpose of electing public officers and possibly at the same time voting upon such public questions as might be then legally submitted, while a special election is one held at some other time to vote upon public questions or to elect officers to fill vacancies.

It has been argued that the term “general” would necessarily be applied to every election that was state-wide and held at every polling place at the same time, but it can be readily seen that an election might be held on one question, such as the issue of state bonds for some public purpose or any other public question that might require a vote of the entire people of the state. Such question, while general with respect to the state-wide interest, would not necessarily require such an election to be classed as a ‘ ‘ general election. ’ ’ The election of September 3, 1912, like any election held to amend or modify the provisions of the Constitution, was of the utmost importance to all the citizens of the state and involved matters of the greatest general interest to its voters. This particular election was denominated as a special election by the constitutional convention that provided for it, and it certainly was special in that it was fixed for a day when no other question would engage the attention of the voters and each proposed amendment submitted might receive the special and undivided consideration of every voter.

We must therefore hold that this election was, in the meaning of the statute, a special election, and while the labor required of the judges and clerks in receiving and canvassing the votes may have been even more arduous than that of a general election, the question of payment for the full value of the services, rendered is one that is not addressed to the court, and the court can only determine what has been provided by statute for such service.

The judgment below is reversed.

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


author: Houck, J.

text:
    PRESUMPTION OF INNOCENCE IN A CONTEMPT PROCEEDING.
    Court of Appeals for Knox County.
    Judson Loney et al v. J. C. Hall.
    Decided, October 25, 1917.

      Finding of a Trial Judge on the Evidence — Will Not be Disturbed by a Reviewing Court, When^-Degree of Proof Required to Convict of Contempt.

    1. Tbe judgment of a trial judge who has passed upon tbe sufficiency and weight of the evidence will not be disturbed, where the evidence is such that different minds might reach different conclusions.

      2. A proceeding for contempt is_ gMasi^criminal in its nature with, the presumption in favor of the innocence of the defendant, and conviction can be had only on an affirmative showing of guilt.

      F. O. Levering and R. L. Carr, for plaintiff in error.

      L. C. Stillwell and Greer & Cromley, contra.
   Houck, J.

Error is here prosecuted in which it is sought to reverse the finding and judgment of Hon. Park B. Blair, judge of the Common Pleas Court of Knox County, Ohio, in his dismissal of contempt proceedings filed by plaintiffs herein against defendant for alleged violation of a judgment heretofore rendered in the common pleas court in which said J. C. Hall was enjoined and restrained from engaging in the hardware business in Danville or Buckeye City, Ohio.

The proceedings in -contempt were heard by the trial judge upon the evidence offered, which is now before us in the form of a bill of exceptions. The trial court dismissed the action in contempt and held the accused J. C. Hall guiltless. By this proceeding in error it is sought to reverse the judgment of the court below.

It is claimed by counsel for plaintiffs in error that the defendant violated the injunction heretofore granted 'by the common pleas court and that he is now engaged in the hardware business. Counsel for defendant in error insist that said Hall is not engaged in the -hardware business, but is conducting what is known as a racket store.

The only question to be determined in this ease is one of fact, namely: Is J. C. Hall now engaged in the hardware business in the villages of Danville or Buckeye City, Ohio? This question was submitted to the trial judge. It was a question of fact, and he was called upon and did pass upon not only the sufficiency but the weight of the evidence.

The rule of law is well known that a reviewing court will not reverse a judgment on the weight of the evidence unless it manifestly appears that the judgment is against the weight thereof. We have read the testimony of all the witnesses, as embodied in the bill of exceptions, and we find the evidence to be conflicting; different minds might arrive at different conclusions therefrom, and as a matter of fact it took this court some time to be unanimous in its conclusion as to whether or not the defendant had violated the former order and judgment of the common pleas court.

Thus it follows that where different minds might arrive at different conclusions or different results, from the same evidence, and the case having been tried to a trial judge who has the same power, authority and right to determine as to the sufficiency as well as" the weight of the evidence as a jury, and having done so, a reviewing court has no authority to reverse such judgment, unless upon the whole record it is clearly manifest that a different judgment should have (been rendered — and this we do not find.

We are of the opinion that this being a gwasi-eriminal case the evidence should be clear, positive and convincing that the one charged with contempt is guilty, before a court so finds. We think the rule of evidence in cases such as the one now under review requires stronger proof in order to find one guilty of contempt than simply a preponderance. In fact, in a quasi-criminal proceeding such as the one at bar the presumption is all in favor of the person charged with the offense, namely, in favor of innocence. In such a case it must affirmatively appear in the record that the person so charged with contempt is guilty.

Applying this rule of law to the facts as established by the evidence in the bill of exceptions, and after a careful examination of the entire record in this case, we are bound to and do arrive at the conclusion that the judgment of the trial judge in the present ease is right and should be affirmed.

Judgment affirmed.

Powell, J., and Shields, J., concur.


author: Chittenden, J.

text:
    DEGREE OF CARE DUE FROM A MOTORMAN TOWARD A CHILD OF TENDER. YEARS.
    Court of Appeals for Lucas County.
    The Maumee Valley Railway & Light Company v. Kenneth Hanaway, a Minor.

    Decided, December 6, 1915.

      Negligence — Child Three Years of Age Struelc by Electric Car — Greater Care Required Toward Child Than an Adult — Can be No Inference as to What Child Will Do — Instructions to Jury Must be Construed With Reference to the Facts of the Case — Special Findings May be Signed by Nine Jurors Only — Misconduct Must be Drought Upon the Record.

    1. Where a child of immature years and incapable of- realizing and appreciating the proximity of danger is threatened with injury by an electric car, the electric railway company, in order to discharge its duty of exercising ordinary care, is required to use greater care than in a case where an adult is so threatened.
    2. A charge of the court is to he read with reference to the facts in the case on trial, and the words “near the track” are not indefinite where the jury could not have understood .them to mean other than close proximity to the track.
    3. With a child of very 'tender years there is no inference that it will either run in front of a car or away from it, and a motorman should operate his car with knowledge that a child of that age may do either, and it is his duty to use ordinary care to avoid injuring it.
    4. Where a general verdict is signed by twelve jurors, special findings of fact signed by nine jurors are properly received by the trial court.
    5. Alleged misconduct occurring during the trial in the presence of the court should be brought upon the record by bill of exceptions certified by the trial judge, and may not be shown by affidavit.

      Tracy, Chapman & Welles, for plaintiff in error.

      S. S. Burtsfield and John L. Zimmerman, contra.

      Motion to direct the Court of Appeals to certify its record in this case overruled February 15, 1916, and motion to dismiss petition in error sustained.

   Chittenden, J.

Error to the court of common pleas.

The plaintiff, in .the common pleas court, recovered a verdict and judgment against the defendant in the sum of $10,000 because of personal injuries sustained by the plaintiff. The plaintiff, who sued by his next friend, was at the time of the accident a minor slightly under three years of age.

On or about the 16th day of June, 1914, he, with some other children, was playing near the corner of Utah and Fassett streets in the city of Toledo. 'The defendant was operating an electric ear upon the tracks of the Toledo Railways & Light Company on Fassett street. At the time in question the car stopped on Fassett street just west of the intersection of Utah street, for the purpose of taking on a passenger. After the car started, and at about the time it crossed the easterly side of Utah street, it is claimed that the plaintiff was struck by the ear and after being carried or dragged some distance -the wheels ran over his left leg at about the ankle, so crushing the ankle iand foot as to necessitate an amputation at about the shoe top.

It is claimed by the plaintiff that while the car was standing at the point where it stopped to take on a passenger the plaintiff, with some other children, started to go across Fassett street from the north side to the south side thereof, and that .they' were in plain view of the motorman and conductor, and that when the plaintiff was about sixty feet in front of the car the motorman and conductor, without any notice or warning of the plaintiff who was then, crossing Fassett street and about to cross the railway tracks, carelessly and negligently started the ear forward and that while the plaintiff was on the tracks of the railway company in front of the car and in plain view of the motormian and conductor operating the same, the car was so negligently and carelessly operated as to run over the plaintiff’s left foot and leg, although there was ample time to stop the car before it struck the plaintiff. Evidence was introduced on the part of the plaintiff tending to prove these allegations.

Several claims of error are made in this court. It is claimed that the court erred in its charge to the jury upon the subject of the amount of care required of the defendant company and complaint is especially m,ade as to the following language:

“A street railway company in the operation of its cars is required to exercise a much higher degree of care toward a child who, owing to its immature years, is incapable of realizing and appreciating the proximity of danger and the necessity of care and caution to avoid injury, than is required toward an adult whose age, knowledge and experience better enable him to look out for himself. A motorman operating a car on a street where he has reason to expect the presence of children must exercise a high degree of watchfulness and if he sees, or by the exercise of ordinary care could see a child of tender years on or near the track, he is not entitled to act on the assumption that such child will get off or stay off the track, but must at once use ordinary care to avoid injuring him, and if by the exercise of ordinary care he might have discovered the child in time to have avoided injuring him and fails to do so, the company is liable for the resulting injuries.”

Just previous to using the language above quoted the court had charged the jury that the plaintiff could only recover in ease he proved by a preponderance of the evidence the negligence charged in the petition, and the court carefully defined the legal meaning of the term negligence. He had also defined ordinary care at considerable length and with accuracy. He had charged the jury, in substance, that' the amount of care that was to be exercised to comply with the definition of ordinary care varied according to the circumstances of particular cases. He had made use of the following language:

“The court instructs you that if the necessity of using ordinary care is called into existence under circumstances of particular peril a greater amount of care is required than when the circumstances are less perilous.”

Following immediately upon the discussion of this subject he used the language first above quoted. Construing the language first above referred to, in connection with what preceded it in the charge, it is evident that what the judge intended to charge the jury was that where a child of immature years, incapable of realizing and appreciating the proximity of danger, was threatened with injury by an electric railway company, the railway company, in order to discharge its duty of exercising ordinary care, was required to use greater care than in a ease where an adult was so threatened. The language of the court in saying that an electric railway company “is required to exercise a much higher degree of care toward a child” was not an accurate statement. He should have said that an electric railway company, in the exercise of ordinary care under such circumstances, was required to use more care with reference to a child than toward an adult. The charge, however, could not have misled the jury in view of all that had been said by the court upon the subject of the degree of care required of the defendant. "We think that the charge states the" law substantially as required under the authority of Rolling Mill Company v. Corrigan, 46 O. S., 283. The court, on page 291, makes use of the following language:

“The almost universally accepted doctrine is, that the care to be observed to avoid injuries to children, is greater than that in respect to adults. That course of conduct, which would be ordinary care when applied to persons of mature judgment and discertion, might be gross, and even criminal negligence, toward children of tender years. The same discernment and foresight, in discovering defects and dangers, can not be reasonably expected of them, that older and experienced persons habitually employ; and therefore the greater precaution should be taken, where children are exposed to them. ’ ’

It is also claimed that the court erred in charging the jury that a motorman operating a car on a street where he has reason to expect the presence of children must exercise a high dedegree of watchfulness, and if he sees or by the exercise of ordinary care could see a child of tender years on or near the track, he is not entitled to act on the assumption that such child will get off or stay off the track, hut must at once use ordinary care to avoid injuring him, and if by the exercise of ordinary care he might have discovered the child in time to avoid injuring him and fails to do so, the company is liable for the resulting injuries.” It is claimed that the words “near the track” are so indefinite as not to indicate any definite situation to the jury, and that the child might be said to be near the track if he were at any point in the street. Every charge must be read with reference to the facts in the case under consideration. It is evident that the jury could not have understood this term to mean anything other than that if the child was in close proximity to the track, and we think that the phrase was sufficiently definite in that respect.

This portion of the charge is said to be in conflict with a special instruction given before argument at the request of the defendant, being request number six, in which the jury were instructed that those engaged in the operation of the street car were not required to assume that children on the streets would run suddenly into the path of such car and they were not required to so operate their oars as to be able to stop them' instantly if a child should do so. We are unable to find that the general charge'contradicts or modifies the special instruction. The special instruction was an abstract proposition of law and was certainly as favorable to the defendant as it could have been made. The word children used therein covers a considerable range in age, and it is certainly true that the railway company is not required to stop its ears instantly if a child should suddenly and without warning run in front of the car. With a child of the age of the plaintiff we think that the motorman is not to infer either that the child will run in front of the car or run away from the car. At such an age a child is likely to do either one of these things, and a motorman should operate his car with the knowledge that children of that age are not appreciative of the dangers that are threatening them and that they are likely to act ill-advisedly under such circumstances as otherwise. The jury were instructed that it was the duty of the motorman in case of a child of such tender years being on or near the track — that is, in close proximity to the track — to at once use ordinary care to avoid injuring it. Wé think that the charge in this respect was a correct statement of the law.

There are some other criticisms made upon the general charge, but what we have stated we think sufficiently covers the other objections presented.

The general verdict was signed by twelve jurors. The defendant requested a special finding of fact, and the same was submitted to the jury and was answered by them, the answer being signed by nine only of the twelve jurors. The special finding of fact was as follows:

“Did Kenneth-Hanaway get on the street car track in front of the car and in plain view of the motorman operating said car and so far ahead of the car that the motorman, in the exercise of ordinary care, had time to stop the car before it struck him?” Answer: “Yes.”

The plaintiff in error contends that it was entitled to have this interrogatory answered by the unanimous vote of the jury, and that the court erred in accepting an answer signed by only nine of the twelve jurors. The plaintiff in error claims that an interrogatory of this character can only be answered by the unanimous action of the jury. Section 11455, General Code, passed in pursuance of the constitutional amendment permitting such legislation, provides that in all civil actions a jury shall render a verdict upon the concurrence of three-fourths of their number. The answering of special interrogatories by the jury is covered by Section 11463, General Code, which provides as follows:

“When either party requests it, the court shall instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal ,and filed with the clerk.”

The latter section does not by its terms require any given number of jurors to determine the question of fact, nor does it require the answering of the interrogatory unless the jury shall render a general verdict. The provision is that if a general verdict is rendered then the jury shall make a written finding upon the interrogatories. Thus, it will be seen that the general verdict and the interrogatories were placed upon the same basis and that only when the general verdict was agreed upon were the special interrogatories to be determined. When the Constitution and statute required the unanimous vote of the jury to render a general verdict it was no doubt the law that the special interrogatories could only be answered by unanimous vote of the jury. It required the same number to answer the special interrogatories that was required to render the general verdict. When the constitution and statutes were so amended as to permit a verdict by the concurrence of three-fourths of the jury, it would seem to follow from a fair interpretation of Section-11463, that the special interrogatories which were to be answered in case a general verdict was returned might be answered by three-fourths of the jury. Clearly if the jury are entitled under the Constitution and laws, as they are, to determine by a three-fourths vote, in a general verdict, all the issues involved, it must follow that they are entitled to determine by a three-fourths vote every particular ultimate fact submitted by an interrogatory.

The answer to this question could not be prejudicial in any event because the interrogatory submitted, if not answer of if answered in the negative, would not necessarily require any different judgment. We think that the pleadings and the evidence did not make it necessary that the jury find that the plaintiff was on the street ear track and in front of the ear in order to establish a liability upon the part of the defendant.

Misconduct upon the part of the plaintiff is charged, and it is claimed that such misconduct consisted in either the next friend of the plaintiff or his attorneys permitting the plaintiff to be upon the floor, immediately in front of the jury, during the argument of counsel for the plaintiff, walking upon one foot and one knee or upon both knees, and that such conduct upon the part of the plaintiff, so acquiesced in by the next friend of the plaintiff and his counsel, unduly aroused the sympathies of the jury. This alleged misconduct is not made manifest 'by the bill of exceptions, but was sought to be shown by affidavits of two jurors presented to the trial court upon the. hearing of the motion for a new trial, which affidavits are attached to the bill of exceptions and constitute all the evidence upon the subject presented to the trial judge. The affidavits contain nothing more than a recital of the fact that they saw the plaintiff move around as above indicated. They do not undertake to state what, if any, effect such action upon the part of the plaintiff had upon them or the jury generally. It is, of course, .apparent that affidavits of jurors can not be received for the purpose of impeaching or explaining their own verdict. It does not appear in the record of the trial that there was such conduct as is set forth in these affidavits, and we hold that under the .authority of State v. Young, 77 O. S., 529, the question here sought to be raised can not be properly brought into the record by affidavits as was attempted in this case.

Finally, it is claimed that the verdict is excessive and is not sustained by sufficient evidence. We are not prepared to say that the verdict is excessive in view of the suffering endured by the plaintiff and the fact that he will be deprived of his left foot during his entire lifetime. At the plaintiff’s age, three years, his expectancy of life, according to the Carlisle tables of mortality, was substantially fifty years. At no age is the expectancy of life materially greater than at the age of three years. 'This is almost the maximum period of expectancy.

The plaintiff presented three witnesses who claimed to have seen the accident. Two of these were employees of the Big Four Railroad 'Company, one being an engineer and the other his fireman. They were men of experience and appeared to be intelligent and fair witnesses and their evidence is wholly unimpeached. Both testify that when approximately two hundred feet in front of this car they saw it strike the child and that they immediately ran toward the car, one of them swinging his cap to indicate, as a railroad man would, a stop signal, .and both yelling to attract the attention of the motorman, and both testify that the motorman was looking back toward the rear of the ear, and not forward, and that they were unable to attract his attention until they were nearly to the car; that during this time the child was under the fender, either holding on or being dragged by reason of having its clothing caught, and that it was screaming and struggling apparently to escape from its position; that when they had almost reached the car the child had been released from its position and the wheels of the forward truck ran over its left foot. Another witness, a girl about seventeen years of age, in many respects corroborates the testimony of these two witnesses. The only witness on behalf of the railway company who was in position to know much about the facts was the motorman himself, whose evidence is contradictory to that of the three witnesses just mentioned. It is evident that the jury gave little credit to the testimony of the motorman.

We think that the case was fairly tried and that the rights of the plaintiff in error were at .all times fully protected. The charge of the court, tooth before and after argument, was certainly as favorable to the company as it had the right to expect.

A careful examination of the record discloses that there was no error committed during the trial sufficiently prejudicial to justify a reversal of the judgment, and that the judgment accomplished substantial justice.

Judgment affirmed.

Richards, J., and Kinkade, J., concur.


author: Grant, J.

text:
    GOVERNMENTAL FUNCTIONS EXERCISED BY A MUNICIPALITY.
    Court of Appeals for Cuyahoga County.
    Sebastiano Russo, Administrator, v. City of Cleveland.
    Decided, November 12, 1917.

      Collecting Garbage — Not a Governmental Function — ■Negligence of a Garbage Collector the Negligence of the City Employing Him.

    The collection of garbage by a municipality is not a governmental function, and in an action against a municipality for damages on an account of the death of the plaintiff’s intestate through the negligence of a garbage collector employed by the municipality, it is error to direct a verdict for the defendant.

      G. E. Morgan and B. D. Nicola, for plaintiff in error.

      Jas. T. Cassidy, contra.
   Grant, J.

Error to the court of common pleas.

'The plaintiff — ¡both here and below — brought suit for the death of his intestate, caused, as he said, by the wrongfully negligent act and omission of the defendant, the city of Cleveland.

Upon the case being brought to trial before a jury, it was made to appear that the deceased came to his death from a collision between himself while lawfully on a public street or way and a wagon engaged at the time in collecting garbage and being operated by, and under control of the servants of the defendant city.

The case was arrested from the jury at the end of the plaintiff’s evidence and a judgment rendered for the defendant, by the court, on the single ground, it is said, that the city’s servants in doing or omitting to do what they did or should have done, whereby the intestate came to his death, were exercising a part of the sovereignty of the state and performing a governmental function, for the untoward result of which the defendant could not in law be held to an account, nor its1 delinquencies in that respect challenged or called in question in the courts. And this is the only question presented by the record and argued in the case.

We do not propose to discuss the decisions ¡brought to our attention from courts outside of Ohio, as we do not regard them in point when the facts of each are examined, or applicable in point of law when brought to the test of some obvious principles which we do consider as settled in this state and which we are inclined to allow in determining our conclusion in this case. Nothing could concretely be more at variance with one’s natural notions as to the office and dignity of sovereignty, than the gathering of garbage as it is commonly done on the streets. Nothing could well be further from our innate ideas of the power and dignity of the state than the collectors of garbage, whom we are .asked to recognize and protect as legally inerrant as the representatives of the supreme commonwealth and of the one who can in the law’s eye do no wrong. But that is, perhaps, a matter of sentiment; sovereignty in legal contemplation is not to ¡be identified by the smell of the thing, but by what the smell stands for and legally means.'

In this ease the immediate sovereign, the image and superscription of the state, is the defendant, a municipal corporation, to which, as the judgment we are considering says has been par-celled the supreme power, to be deemed saeresanct in this case.

Speaking of that entity, a muneiipal corporation, in the respect we are now considering, our Supreme Court, in Cincinnati v. Cameron, 33 O. S., 336, at 367, say:

“In its governmental or public character, it represents the state, while in the other it is a mere private corporation. As a political institution, the municipality occupies a different position, and is subject to different liabilities from those which are imposed upon the private corporation. But because the two characters are united in the same legal entity, it does not follow that the shield which covers the political equally protects the private corporation.
“The power given a city to construct sewers, is not a power given for governmental purposes; nor is it a public municipal duty imposed upon the city, like that of keeping streets in repair, but it is a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city; the corporation and its corporators — its citizens — are alone interested in them; the outside public, as people of the state at large, have no interest in them, as they have in the streets of the city, which are public highways. Detroit v. Corey, 9 Mich., 165.”

'The test thus furnished is easily applied to the case at bar. The people of the state at large have no interest in the disposal of garbage in Cleveland. That is for the convenience and health of a part only of the inhabitants even of the city — its householders. No distinction in principle is perceived between sewer service and garbage collection; if there is any, we think the former comes nearer to being a governmental function than the' latter, as it answers a wider purpose and is for the advantage of a larger portion of the public. And the distinction becomes more marked, we think, upon the consideration that the municipality derives, or may derive, a revenue from its garbage, in which manifestly the people of Ohio outside of Cleveland can not share.

After some further discussion of what constitutes the dividing line between governmental agencies and municipal enterprises, the case last cited goes on to say:

“With regard to the liability of a municipal corporation for the acts of its officers, the distinction is, between an exercise of those legislative powers which it holds for public purposes, and, as a part of the government of the country, and those private franchises which belong to it as a creature of the law ; within the sphere of the former, it enjoys the exemption of government, from responsibility of its own acts, and for the acts of those who are independent corporate officers, deriving their rights and duties from the sovereign power. But in regard to the latter, it is responsible for the acts of those who are in law its agents, though they may not be appointed by itself. Commissioners v. Duckett, 20 Md., 476.”

Here again we have a standard easily brought to bear upon the present case; the power exercised which carries with it immunity from liability must be one held “for public purposes, and, as a part of the government of the country.” To spread the immunity over all the subordinates of a government and thus to clothe all .alike with an exemption which amounts to an attribute of sovereignty, seems to confound all just notions of what sovereignty means and to put a tide-waiter on a par with its president, assimilating the office of the one to that of the other and surrounding each with equal dignity and importance.

If' the line between an agency of government, carrying with it exemption from liability for the torts of the agent, and persons whom the law does make responsible for their wrongdoings, can not be drawn higher then a collector of garbage, it is hard to see that it can be drawn anywhere. All city employees will alike be clothed with legal immunity and will be safeguarded in their acts, whatever they may do or omit. This result would push the doctrine to ,a perilous consequence, as seems to us, but if the court below was right in taking this case from the jury, we see no escape from the view that such a conclusion must be accepted as law.

We think the case already discussed — Cincinnati v. Cameron, supra — points out the rational and true line of cleavage to be observed, namely, that “the .public of Ohio,” as people of the state at large, have no interest in the work in which the city of Cleveland was engaged when the plaintiff’s intestate came to his death in consequence of the city’s negligence while so engaged, and that, as a consequence, the city can not escape any just liability thus caused and occasioned.

We reach this conclusion notwithstanding the arguments of counsel to the contrary and the cases marshalled to support them, believing that none of the latter are of authority compelling a different consequence. Most, if not all, of the cases can, we think, be differentiated from the case in hand, but we shall not take the time to do so; we have, however, examined them with suitable attention.

For error of law in arresting the case from the jury and rendering judgment, thereupon, for the defendant, the court below was in error, as we find. For that error the judgment is reversed and the cause is remanded to that court for further proceedings not at variance with law.


text:
    FAILURE TO DELIVER. CARS BECAUSE OF AN EMBARGO DOES NOT PREVENT THE RUNNING OF DEMURRAGE.
    Court of Appeals for Lucas County.
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Fred Mayer et al.
    Decided, July 22, 1916.

      Carriers — Cars Held for Delivery Within a Sioitching District — Delivery Prevented by Reason of Disability of the Consignee to Receive Them.

    When a railroad company notifies a consignee of the arrival of cars containing grain and upon receiving switching instructions immediately gives notice to such consignee of inability to make delivery because of an embargo duly promulgated and notice of which had been given tbe various railroads, and no further order for the disposition of the grain is given by the consignee and the railroad holds the cars until the embargo is lifted and then delivers -them in accordance with the switching instructions, the consignee is liable for demurrage charges.

      Doyle, Lewis, Lewis & Emery, for plaintiff in error.

      Marshall & Fraser, contra.
   Chittenden, J.

Error to the court of common pleas.

This action originated in the city and justice court of the city of Toledo and was for the recovery of twenty-one dollars, the amount alleged to be due for demurrage on five cars of grain. In that court judgment was rendered in favor of the plaintiff for the full amount claimed. Upon appeal to the common pleas court a jury was waived and the cause was submitted to the court and a judgment was rendered in favor of the plaintiff for the sum of five dollars. The railroad company now seeks to reverse this judgment.

There is no dispute as to the five-dollar demurrage charge upon one of the five cars. The other four cars were consigned to Toledo with instructions to give notice to the J. F. Zahn Company, of which firm the defendants were the constituent members. These cars arrived on July 17th and notice of their arrival was given to the J. F. Zahn Company on July 18th, whereupon that company notified the plaintiff to deliver the cars to the National Milling Company which was located on the tracks of the Wheeling & Lake Erie Railroad Company. It appears that because of an accumulation of cars upon the tracks of the National Milling Company, the Wheeling & Lake Erie Railroad Company had promulgated an embargo upon grain destined to that company, notice of which embargo had been given to the various railroad companies on July 18th. After receiving the switching instructions from the J. F. Zahn Company, the plaintiff notified that company of the embargo and of its inability to deliver cars to the Wheeling & Lake Erie Railroad Company for the National Milling Company, because of the same. No further orders for the disposition of the grain were given the plaintiff and the ears were held until July 25th when the embargo was lifted and delivery was made in accordance with the instructions.

The legal question presented is, whether under such state of facts, the defendant is subject to the demurrage charge. It appears from the evidence that the rule under which the demurrage charges in question accrued was on file with the Interstate Commerce Commission and the Railroad Commission of Ohio, now the Public Utilities Commission, and was as follows:

“When ears are held by a road for delivery within a switching district and can not be received by the switching line owing to the disability of the consignee, notice must be promptly given by the switching line to the road holding the ears in order that it may give notice to the consignees.”
“The agent of the holding road will give prompt notice .as per car demurrage rule 2-b-l, and explanations thereto.”

It is shown by the evidence that the notice required by this rule was given. It is claimed that this rule is to be read in the light of the American Railway Association interpretations. It is claimed by the defendants that the evidence fails to show that these interpretations were on file with the state commission and the interstate commission. We find, however, that under the stipulation with reference to the evidence of R. R. Harris, superintendent of freight transportation, and the letters signed by him in pursuance of such stipulation, it fairly appears that the interpretations were on file with both commissions. What the effect of the interpretations would be if they were not on file need not be considered in view of our finding from the evidence that they were on file. Having been approved by both commissions and being on file with them, we find that they are to 'be read with the rules as the law governing the ease. The interpretation provides:

‘ It also applies to cars held on a carrier line within a switching district, consigned to a point on the switching line within such district, which can not be received on account of disability of consignee. The carrier line must in all cases give notice in writing to the consignee of all cars so held. Time will be 'computed in accordance with Rule 3 (b) following.”

No question is made in the ease as to the computation of the time of the demurrage at the rate of one dollar per day for each day after the expiration of the free time allowance.

We think that these rules and the interpretations cover this qase and that the plaintiff is entitled to recover. The demurrage is not to be looked upon entirely as a penalty, but it is rather in the nature of a rental for the use of cars for storage during the time that consignee is unable to care for their contents. . This is not only a just provision but it has a tendency to make consignees diligent in unloading and releasing cars for use. As was said in the case of B. & O. R. R. Co. v. Luella Coal & Coke Co., 81 S. E., 1044:

‘ ‘ The law imposes upon railroad companies the duty of supplying the shipping public with prompt and proper service. They are bound to furnish cars and if the owner of goods shipped does not perform his duty in unloading within a reasonable time the public, as well as the carrier, may be greatly inconvenienced.”

The extent to which the Interstate Commerce Commission and the courts as well have upheld the demurrage charge is illustrated by the case of Swift & Co. v. Hocking Valley Railway Co., 93 O. S., 104, and the cases cited in the 'opinion in that ease. A ease very much in point is that of New Jersey Zinc Co. v. Central Railroad Company of New Jersey, 36 Interstate Commerce Commission Reports, 289, decided October 12, 1915.

We hold that the court was in error in finding for the defendants upon the four cars in question, and the judgment of the count of common pleas will therefore be reversed. Upon the undisputed facts disclosed by the evidence this court will proceed to enter the judgment that should have been entered in the common pleas court, in favor of the plaintiff and against the defendants for the full amount of the claim.

Richards, J., and Kinkade, J., concur.


author: Pollock, J.

text:
    HOLDER. OF AN EQUITABLE TITLE NOT PROTECTED AGAINST PRIOR EQUITIES.
    Court of Appeals for Mahoning County.
    James L. Sause v. Catherine Ward.
    Decided, October Term, 1917.

      Option to Sell Real Estate — Holder of, not Protected Against a Bona Fide Purchaser Without Notice — Specific Performance May be Enforced by the Holder of the Senior Equitable Title, But not Against a Junior Holder of Such Title — When Holder of an Option Acquires the Equitable Title.

    1. A party having an equitable title to real estate, and not the legal title, is not protected as a bona fide purchaser without notice of prior equities. In order to be protected against prior equities he must have acquired the legal title and parted with the consideration therefor prior to notice.
    2. The senior equitable owner of real estate, by virtue of a binding contract for the conveyance to him of such property, may enforce the specific performance of his contract in a court of equity against both the party having the legal title and a party holding a like junior equitable title, although the latter was acquired without notice of the prior equitable title.
    3. A written optional contract for a nominal consideration given by the owner to sell his real estate is not a sale thereof, but only a standing offer to sell to the person and at the price named within the time stated in the contract, and the optionee does not acquire any title to the real estate unless he accepts the offer prior to its expiration.

      4. After the offer has been accepted by the optionee the contract is binding upon both parties, and he has the equitable title thereto.

      Henderson, Wickham & Maiden, for plaintiff.

      Fillius & Fillius, contra.
   Pollock, J.

This .action comes into this court on appeal. The plaintiff ola.ims that he entered into a contract with the defendant, Catherine Ward, for the sale to him of a certain tract of real . estate which is described in the petition; that upon demand she refused to convey this property to him as the contract required; that afterwards she conveyed the property to her co-defendants, said defendants accepting said deed with full knowledge of the equities of plaintiff, and he asks that the defendants be required to reconvey the property to him.

On November 15th, 1916, it is alleged Catherine Ward was the owner of the tract of land described in the petition; that on that date she entered into a written contract with the plaintiff by which, for the consideration of one dollar, she gave'to plaintiff the right to sell this property as her agent for the sum of ten thousand dollars. 'This contract was to continue for six months from its date, and for such further period as might elapse prior to a revocation in writing by said first., party. The contract also contained the provision that Sause should have the option to purchase said property, at the price above stated, at any time during the life of the contract.

After entering into this contract, Sause endeavored to sell the property until about the 13th day of February, 1917, on which date Catherine Ward, through her co-defendant, G. R. Purdun, as her agent, sold the property to the other eo-defendant, Isaac R. Howells, and entered into a written agreement therefor; said Howells paying upon the purchase price $1,000.

The testimony shows that Purdun had knowledge of the contract with Sause, but there is no testimony showing that Purdun had any other interest in the sale of this property except to act as agent for Miss Ward; and the testimony does not show that Howells had any notice or knowledge of the contract with Sause at the time he entered into this written contract with Miss Ward.

Afterwards, on March 20th, 1917, Miss Ward conveyed this property by warranty deed, in accordance with her contract, to Howells. After February 13th, and before March 20th, 1917, Sause elected to become the purchaser of this property under the option contained in his contract with Miss Ward, and notified her of that fact. She refused to convey the property to Sause.

The testimony shows that Sause at that time knew that she had entered into a contract for the sale of this property with Howells. At that time he notified Miss Ward that he was ready and willing to comply with the conditions of the contract, and demanded that she convey the property to him by proper deed. Sause did not make any tender of the purchase money for the reason that Miss Ward positively refused to carry out the agreement.

After electing to purchase this property and notifying Miss Ward, and before the deed was made conveying the property to Howells, Sause notified Howells, of his interest in the property, by showing 'him his contract with Miss Ward, and informing him that he had elected to purchase the property under the option in the contract.

Under these facts the question arises whether Sause has a right to a decree of specific performance, and an order requiring Howells to convey .this property to him, the purchase money to be used to protect the rights of Howells.

Howells, at the time he was notified of the optional contract of Sause, had a written contract of sale of this property, and had paid thereon $1,000, but did not have the legal title, only a written contract capable of being enforced in a court of equity compelling specific performance.

A party having only an equitable title to real estate, and not the legal title, is not protected as a Iona fide purchaser without notice of prior equities. In order to be protected against prior equities he must have acquired the legal title and parted with the consideration therefor prior to notice. Elstner v. Fife, 32 O. S., 358; Brinton v. Scull & Johnson, 55 N. J. Eq., 3 (5 Atl., 843); Dean v. Anderson, 34 N. J. Eq., 496.

Between parties 'holding equitable titles to real estate, the one having the prior equity can enforce in a court of equity the specific performance of the contract by his grantor, against the party holding the junior equitable title. Woods et al v. Dille et al, 11 Ohio, 455; Anketel et al v. Converse et al, 17 O. S., 21.

Whether Sause or Howells has the prior equity to this land depends upon when Sause first acquired an equitable interest.

The written contract entered into between Miss Ward and Sause is as follows, so far as it refers to the question now before us:

“* * * for and in consideration of the sum of $1, the receipt of which is hereby acknowledged by said party, the said first party has this day placed in the hands of the said second party the property described in the reverse side hereof, and does hereby constitute and appoint the said'second party, her agent, with the exclusive right to sell said property for the sum of $10,000, or such sums of money as may hereafter be agreed upon, the purchase price to be paid as follows:
“* # * this agreement shall be in force for six months from its date and- for such further period as may elapse prior to revocation in writing by said first party; the said second party shall have the option to purchase said property at the price above stated at any time during the life of this contract.”

This is a contract of agency with the further provision that the agent at his option may become the purchaser. Before Sause had made a sale of this property to anyone or had elected to become the purchaser himself, Howells acquired an equitable interest in the property. Whether Sause had a prior equitable title in this property depends upon the legal effect of his optional contract given by Miss Ward to him to purchase the real estate within the life of the contract at the price named therein.

A written optional contract for a nominal consideration given by the owner to sell his real estate, is not a sale thereof, but only a standing offer to sell to the person and at the price named therein, if accepted within the time stated in the optional contract. The option confers no right to the optionee in the real estate but it is only a sale of a right to him to become the purchaser upon the acceptance thereof within the time stated. Until the acceptance of the offer according to the terms thereof, it does not ripen into a sale of the real estate or become a completed contract for the sale thereof between the parties. It is only after the optionee has accepted the option that he becomes the equitable owner of the property, and can compel specific performance of the contract in a court of equity. Bostwick et al v. Hess et al, 80 Ill., 138; Willard v. Taylor, U. S., 74-77 (19 L. Ed., 5010); Barnes v. Rea et al, 119 Pa., 279 (68 Atl., 836); Hopwood v. McCausland, 94 N. W., 469; Knott v. Thomas, 180 S. W., 1114; Western Security Co. v. Atlee, 151 N. W., 56.

'This contract gave Sause the right to convey the equitable title to some one else, or to become the equitable owner himself, but it did not convey any title to the land. The contract was not a sale of the land, but an agency to Sause to sell the property and an option to him to become the purchaser of it. After his election to become the purchaser under this option, he had the equitable title, and either he or Miss Ward could have asserted it against the other in an action for specific performance.

As Howells’ equitable ownership is prior to the time that Sause notified Miss Ward of his election to purchase the property under the option, it follows that Sause is not entitled to specific performance in this action, and his petition is dismissed.

Exceptions noted.

Metcalfe, J., and Farr, J., concur.


text:
    INSURANCE IN FOREIGN COMPANIES FAILING TO COMPLY WITH STATUTORY PROVISIONS.
    Court of Appeals for Lucas County.
    Adolph Brand v. Michael Murray.
    Decided, December 23, 1916.

      Insurance — Contracts of, Not Rendered Void¡ — Where in Foreign Companies Failing to Comply With Statutory Regulations.

    Although, foreign insurance corporations doing, business in this state, before complying with certain regulations designated in the statutes, are subjected to certain penalties, a contract of insurance effected by them is not void.

      C. S. Curtis, for plaintiff in error.

      Lawton & Saalfield and J. I. O’Connor, contra.
   Chittenden, J.

■ This action was begun in the city and justice count by the defendants in error to recover a judgment against Adolph Brand because of moneys advanced by them for insurance premiums upon certain policies of accident and life insurance. The amount claimed was $207.92, for which sum judgment was rendered. Error was prosecuted to the common pleas court where the judgment was affirmed; whereupon proceedings in error were prosecuted in this court. ■ This action has been considered heretofore by this court upon certain features of the case that were then disposed of.

The policies' were issued by the General Accident & Assurance Corporation, Limited, of Perth, Scotland.

The principal error urged before this court is that the plaintiffs failed to make proof of compliance by the insurance company with the laws of Ohio regulating the transaction of business in this state by foreign insurance corporations. It is also claimed that there was a failure to prove that the plaintiffs were properly authorized to act as insurance .agents for this company. The bill of exceptions is in narrative form and it is not entirely clear whether the plaintiffs, in all respects, had complied with the law providing for the authorization of insurance agents to act for foreign insurance companies. The only evidence as to whether or not the insurance company had complied with the laws of the state is a letter received by the attorney for the defendant, from the Secretary of State, in which it is stated that' a search of the records of that office failed to disclose a corporation of the name of the General Accident, Fire & Assurance Corporation, Limited.

The defense is based, necessarily, upon the proposition that if the insurance company had not complied with the laws of the state, any policies issued by it would be void and that, therefore, there was no obligation upon the part of the assured to pay premiums. The premiums for which suit is brought accrued during the years 1911, 1912, 1913 and 1914, and aggregate $352.50. Payments were made upon the premiums at various times during those years, amounting to $175., leaving a balance of $177.50, which, with interest, is claimed to amount to the sum sued for. . The policies for which these premiums were charged had all expired by their own limitation, except perhaps the last policies, and those had substantially run the length of time for which they were written.

Our attention has been called to no statute which provides that policies shall be void that are written by foreign insurance companies that have not complied with the laws of this state. The Generally Assembly seems to have relied upon the enforcement of the laws by the imposition of the penalties provided for a violation thereof.

The general rule of law applied throughout this country seems to be that, although foreign corporations doing business in the state, except after complying with certain regulations designated in the statutes, are subjected to certain penalties, a contract of insurance effected by them is not. ordinarily void. 14 R. C. L., p. 866, Section 37. And we think that is the rule that the Supreme Court of this state has adopted. Union Mutual Life Insurance Co. v. McMillen, 24 Ohio St., 67; Newburg Petroleum Co. v. Weare, 27 Ohio St., 343. See also, 22 Cyc., 1391; Toledo Traction, L. & P. Co. v. Smith, 205 Fed., 643, 652.

During all the time that these policies were in force had the insured met with a loss covered by the terms of the policy, he might have recovered in an action against the company and that company would not be permitted to set up as a defense to such action that it had not complied with the laws of this state. Having had valid insurance, therefore, under these policies, notwithstanding the failure of the company to comply with the laws of this state, the insured, after having accepted the insurance provided by the policies and retained the same during their life, will not be permitted to set up a defense of a failure on the part of the company to comply with the requirements of the statute, to defeat an action brought to recover the premiums earned.

The bill of exceptions does not perhaps show express authority granted by the defendant to the plaintiffs to pay the amount of the premiums to the insurance company, but it is fairly inferable from the evidence that the defendant acquiesced in such payments and from time to time paid to the plaintiffs various sums to be credited upon the amounts so advanced by them to the insurance company. The evidence is ample to show the right of the plaintiffs to maintain this action. 'The partnership name of the plaintiffs containing therein the names of all the individual partners, there is not shown to have been any violation of law upon their part in failing to have their partnership registered in the office of the clerk of courts.

The plaintiff in error also complains that the court erred in the admission of evidence upon certain items of account not set forth in the bill of particulars. "We are unable to find from the record that the justice committed any prejudicial error in the reception of evidence.

Finding no prejudicial error apparent in the record, the judgment will be affirmed.

Richards, J., and Kinkade, J., concur.


author: Richards, J.

text:
    TITLE PASSED BY DELIVERY TO CARRIER.
    Court of Appeals for Erie County.
    The Independent Silo Company v. Milton A. Hess et al.
    Decided, April 7, 1917.

      Sales' — Determination as to When Property in Goods Passed to the Buyer — Delivery to Common Carrier, Consigned to Buyer Pursuant to Written Contract, Passed Title, When.

    A written order given >by a purchaser on a printed blank, for a certain described silo at a fixed price with three per cent, discount for cash within fifteen days after arrival of silo, or settlement to be made by a bankable note, and directing that the goods be delivered by the seller to a common carrier, constitutes, on the acceptance of the order, a completed contract of sale; and, on delivery of the goods by the seller, to the common carrier, consigned to the purchaser at his address, the title passes to the purchaser.

      H. L. Peeke, for plaintiff in error.

      Malcolm Kelly, contra.
   Richards, J.

Error to the court of common pleas.

The controversy in this case arises over the.claims of the respective parties to the proceeds of a certain silo, and is to be resolved by a determination as to whether the title to the same had passed from the plaintiff to one Frank Lowry. The defendants, Milton A. Hess and Mary A. King, are attaching creditors of said Lowry, and the defendant, George Hasenpflug, is the, receiver of said Lowry.

On May 12, 1916, Frank Lowry gaye an order on a printed blank of the plaintiff company, which directed said company to ship to him a,s purchaser a certain described Independent Silo complete with anchors and roof frame, for which he agreed to pay $201, less agent’s commission of ten per cent., and on the following terms: Three per cent, discount allowed for cash with* in fifteen days after arrival of silo, or settlement to be made by bankable note due September 1, 1917, bearing interest at six per cent, from September 1, 1916. The contract of purchase also provided that certain provisions on the back thereof were made part of the contract, and 'among the provisions on the back is the following:

“The Independent Silo Company agrees to deliver the goods to a common carrier, with reasonable promptness after receipt of this order in the regular course of business, but will not be responsible for loss or delay occasioned by strikes, fires, accidents or causes of any character beyond its control.”

Pursuant to this order'the plaintiff shipped the several parts constituting the silo as described in the contract, from its factory in Minnesota, consigned to Frank Lowry at Berlin Heights, Ohio, delivering the same to a common carrier by which they were transported to Berlin Heights, and the goods were received by Lowry and remained,'in his possession until seized in attachment by the attaching creditors already named. The claims of the attaching creditors exceed very largely the value of the attached property, the judgment in favor of Mary A. King being in excess of $2,300, and the judgment in favor of Milton A. Hess being in excess of $1,000.

The transaction 'between Lowry and the plaintiff constitutes an ordinary bargain and sale and comes within the plain language of General Code, Section 8399, which prescribes the rules for ascertaining the intention of parties as to the time at which the property in goods shall pass to the buyer when a different intention does not appear in the contract of the parties. Rule 4, sub-divisions 1 and 2 of that section reads as follows:

“Rule 4. (1) When there is a contract to sell unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made.
“ (2) When in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee, whether named by the buyer or not, for the purpose of transmission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except in the cases provided for in the next rule and in the next following section. This presumption is applicable, although by the terms of the contract the buyer is to pay the price before receiving delivery of the goods, and the goods are marked with the words collect on delivery or their equivalents.”

It will be noticed that the last subdivision provides certain exceptions which are stated in the next rule and in the section of the General Code next following, hut those exceptions are not applicable to the case at bar for the reason that subdivision 1 of Section 8400, General Code, only provides for eases where the seller expressly reserves the right of possession of property sold until the conditions have been fulfilled, and no such reservation existed in the case at bar. Subdivision 2 of the section last cited is applicable only to cases where the bill of lading is made to the order of the seller or his agent, which is' not this case. And subdivision 3 is applicable to cases where the seller retains possession of the bill of lading, which is not this case. Neither are the provisions of Subdivision 4 of the General Code just cited applicable to the case under consideration.

.It is insisted, however, by counsel for the Independent Silo Company that the provisions of Section 8422, General Code, are controlling in this case. That section provides substantially that unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions. The difficulty with applying that statute to the case under consideration is that the parties did otherwise agree as evidenced by the written order. Under the terms of that order a delivery of the various parts constituting the silo to the common carrier in Minnesota, the goods being consigned to the purchaser, constituted a delivery to him, and the title thereupon passed to the purchaser. It was in effect a sale on credit and the purchaser had from the time the goods were delivered to the common carrier until they actually arrived in Berlin Heights and had been inspected by him and found to' be in accordance with the order, in which to execute and deliver to the plaintiff a bankable note, or if the purchaser chose to pay cash, he was entitled to .a discount of three per cent, and fifteen days in which to make that payment. We must, therefore, hold the sale to be in effect a sale on credit. The silo company trusted the purchaser to furnish either a bankable note or to make payment within fifteen days, and made an unconditional and absolute delivery of the goods when the same were delivered to the common carrier in Minnesota. There was then neither a condition precedent nor a concurrent condition which would prevent the immediate passing of the title to the purchaser on delivery of the goods to the common carrier.

Our attention is called to the case of Bonham v. Hamilton, 66 O. S., 82, and an argument "is made, based on the authority of this case, that the title had not passed from the silo company. This case was decided before the adoption of the uniform sales law; but we find nothing in the conclusion which we have reached that is inconsistent with the law as announced in the ease just cited. That case was a sale by an administrator and there had been no delivery of the goods sold, and there was an express stipulation that the transaction was not to be a sale until the sureties had been approved by the administrator. This, of course, was, under the law, no sale until the conditions expressly stipulated for had been complied with, and, the administrator declining to approve the sureties, the title remained in the administrator.

On the trial of the case in the court of common pleas a jury was waived and the judge, after due consideration, rendered judgment for the defendants. For the reasons given, the judgment so rendered will be affirmed.

Chittenden, J., and Kinkade, J., concur.