author: PER CURIAM.

text:
    GAS AND OIL.
    [Wood (6th) Circuit Court,
    October 29, 1892.]
    Scribner, Bentley and Haynes, JJ.

      Aerie E. Stahl v. George H. Van Vleck.
    1. Designation oe Pbemises to be Operated eor Oil.
    Where the owner of three adjoining forty-acre tracts of land, leases one acre thereof to he designated by himself, agreeing that if oil or gas he obtained under the lease or on lands adjoining the same premises of which the foregoing acre is a part, lessee shall have the right to operate forty acres of the balance of such premises for oil or gas on the terms before stated, the forty-acre tract out of which the first acre was designated by the owner constitutes the forty acres to be drilled under the contract.
    .2. Plugging Test Well Drilled within Specified Time Does Not Invalidate Lease.
    A test well having been commenced and completed at a designated place within ninety days and the existence of oil ascertained sufficiently complies with the alternative provision of a gas and oil lease requiring lessees “to commence a test oil or gas well’’ at that place in ninety days. The fact that such well was immediately plugged and casing withdrawn and all operations thereon had ceased for several months does not defeat the consideration for the lease.
    C. A. Houston and Dodge & Canary, for plaintiff.
    Cook & Troup, for defendant.

       Affirmed, Stahl v. Van Vleck, 53 Ohio St. 136.

   PER CURIAM.

In this case the plaintiff seeks relief in the alternative. He claims that a certain oil and gas lease which he executed on December 15, 1886, to Manahan & Detwiler has by its own terms ceased and determined, —the assignee, Van Vleck, as it is claimed, not having performed the terms and stipulations to be performed on the part of the grantee in this lease, and he also claims that in the drafting of the lease an error occurred which should be corrected.

Mr. Stahl was the owner of the lands upon which this lease was . given, situate in Wood county, and entered into the contract with Manahan & Detwiler on the date named, viz., December 15, 1886. By the terms of the lease it was stipulated and agreed that the lessees or their assigns should commence a test well within ninety days at Rising Sun or near thereto and in the event of failure to commence a test well within the period stipulated, the lease should be null and void. This instrument is nearly, if not precisely, identical with leases that we have heretofore passed upon in this court. The lessee however as the testimony shows, did commence and sink a well at Rising Sun. The testimony introduced in his behalf shows that about the seventeenth of February they commenced the work of procuring timber and erecting a derrick at the place named, — Rising Sun. It is not disputed by the plaintiff that so much of the work was done. It is shown, also, on the part of the defendants, that the lessees did commence the operation of drilling a well upon the lands which they had leased near Rising Sun. The testimony of the defendants tends to show that that work was commenced within the three months limited.

The testimony on the part of the plaintiff tends to show that the 'drilling did not actually commence until about March 17, 1887, which, would be a day or two subsequent to the expiration of the ninety days provided for in the lease for the sinking of the test well. We are led to the conclusion, however, upon a careful review of all the testimony, that the lessees did, in fact, enter upon the performance of drilling a well at Rising Sun within the period provided for in the lease, and we think, procured the timber for the derrick necessary for the work •of drilling, and erected the derrick, within ninety' days, — within a fair meaning of this contract as to the commencement of the work of drilling within that period of time, and really, we are of the opinion that upon the testimony, the work of actually drilling had commenced before the expiration, but upon that there is some conflict of testimony; but however that may be, in our view of the construction to be given the terms of the contract, we do find that the work of drilling a well ■at Rising Sun was commenced by the lessees within the period of ninety ■days after the execution of this lease. We also think, that while there Vfas no obligatory undertaking on the part of the lessees to do anything, .yet, inasmuch as they did voluntarily proceed to perform stipulation •under that contract, expended their money and performed labor, that the defense that there was a nudum pactum, cannot well apply.

Now the well that was sunk did disclose the existence of oil in that territory, not to any great extent, and the well was closed, and. remained closed for a considerable period of time, but nothing was done ■ on the part of the lessor, the plaintiff, to terminate this contract. Conditions run on about as they were after the sinking of the well until about the month of August, 1891, this suit having been commenced on November 28, 1891, at which time the defendant, Van Vleek, having become the owner of the lease, took steps looking to the drilling of a well upon these lands, and an interview was had by Van Vleek, or his employes, with the plaintiff in regard to that, and as to the place where the well should be sunk, and thereupon a difference arose between them; the defendant claiming that he had a right to drill anywhere on the property described in the lease, and the plaintiff claiming he had only the right to drill on forty acres to be named by him, part of the 120 acres described in the lease. The plaintiff: himself testifies and witnesses on his behalf testified that he expressed to the defendants' that they should drill, provided they should limit their operations to a certain forty acres which, he designated, a certain forty in the northwest corner of the tract, on which they should operate. The defendants understanding that they had a right to drill anywhere upon the tract, nevertheless proceeded to haul their material and tools to the northwest corner, being the corner designated by Mr. Stahl for the drilling of the first well, but the result of the controversy between them was that the plaintiff insisted that they should relinquish their right to drill on the entire 120 acres, and they insisted that the lease embraced the entire 120 acres, and they being about to proceed to drill on the northwest corner, the plaintiff commenced this action to prevent them from proceeding, and to have a reformation of this contract.

Pending this suit there was an amicable talk between the ■ parties, and in a conversation had after the suit was commenced, Mr. Stahl indicated to them that he preferred that they should drill on the southeast rather than the northwest corner as designated by him.

The contract reads:

‘4 That the said first party, for the consideration hereinafter named and agreed upon, do hereby grant to said second parties or their successors and assigns, the right to enter upon the following lands and premises now owned by said first party, and situate in Perry township, Wood county, Ohio, to-wit: A tract to be designated by first party of one acre on the following described premises: The south half of the northwest quarter of section two, in town three, north of range twelve; east, also the northeast quarter of the southwest quarter of said section, township, and range aforesaid, containing forty acres of the within described premises; for the purpose and with the exclusive right in and upon said premises to drill and develop oil, gas and other valuable substances, and the exclusive right of way to said second party or their successors and assigns to convey over, -upon and through said premises, any and all oil, gas and other Valuable substances.”

Then come the written stipulations as to compensation, etc., and further on down is this:

“It is further agreed on the part of the party of the first part that; if oil or gas be obtained by the second party or assigns in and under the provisions of this contract upon said tract or on the lands adjoining the same premises of which the foregoing one acre described embraces a part, said second party shall have the right to operate the balance •of said premises on the same terms as above.”

It is contended on the part of the plaintiff that when this contract was entered into, it was agreed that it should be limited to forty .acres of these premises; this was denied on the part of the defendant .company or the defendants, and one of the principal matters of contention relates to this controversy as to what the terms of the grant were, originally. The plaintiff, it seems, was furnished with a copy of the contract when it was entered into; he cannot produce that copy and we do not know what its terms are; but the original, as produced .on the trial by the defendant, under the compulsory process of this oourt, however shows that there was originally written in this agreement in another line the words “forty acres” and the word “balance” 'is stricken out so that it will read “of which the foregoing one acre described embraces a part, said second party.shall have the right to ■operate forty acres of said premises on the same terms as above. ’ ’

The testimony of the plaintiff is clear and to the point that the .•agreement was made as this agreement shows it to have been reduced to writing, and also that it was agreed that he should designate the .forty acres, and the one acre of that forty acres on which the first well was to be sunk, and the then agent of the lessee testified that that was the agreement between them, and he states that this interlineation is his handwriting and was so written at the time the lease was entered into.

Now without consuming further time, I will say that our conclusion is this, that the lease was made as claimed by the plaintiff. One acre was to be designated by him in the forty to be designated, on which the first well should be sunk; he, it was, who, by the agreement, should point out where the well should be sunk. Then upofi the condition provided for in the lease, the lessee was to have the right to operate upon the forty acres so designated by the plaintiff.

Shortly before the commencement of this suit, he had designated to the lessee the forty acres upon which he wished him to operate. He at that time was willing, entirely willing they should go on, provided they consented to the reformation of the lease. The lease as it was recorded, fails to show this correction as made by pencil interlineation on the lease.

The defendant, the lessee, while insisting that the right to operate upon the whole 120 acres immediately, in case oil or gas should be found was conferred by the lease, nevertheless was taking steps to drill upon the forty in the northwest corner designated by the plaintiff, and hauled material in good faith and was about to proceed with the work. Plaintiff then brought this suit and afterwards told the defendants he preferred they should work in the southeast rather than the northwest corner of the tract. This indicated his willingness that they should •operate upon the lease, but insists that they were not upon the correct quarter which I have referred to. The defendant still claimed the right to operate on the whole tract, and was enjoined by this action from proceeding.

We think the plaintiff should have a decree so as to limit the right •of the defendant to operate as claimed by this paper here as written in pencil, yet, inasmuch as money has been expended in that work, and inasmuch as the plaintiff has signified that he was willing to have them, go on and operate according to the terms of the lease as it was actually entered into, and inasmuch as they have gone on and taken additional steps towards .prosecuting the work, they are entitled to •that forty acres, and the decree should be so shaped that their right is limited to the forty acres contained in the northwest corner of the tract pointed out by the plaintiff; and in view of the fact that the defendants, although understanding that the lease, by its terms, covered the whole tract, nevertheless were proceeding upon the forty acres, we are of the opinion that the costs of this suit should be divided between the parties.


source: Caselaw Access Project

author: SCRIBNER, J.

license: Public Domain

text:
    EQUITY — GAS AND OIL.
    [Wood (6th) Circuit Court,
    October 29, 1892.]
    Scribner, Bentley and Haynes, JJ.'
    George Hollister v. T. J. Vandergrift et al.
    1. Delay in Completing Well, Although Unfortunate to Lessees, Held not Sufficient to Excuse Noncompletion befobe Expiration of Term.
    Where upon expiration of a gas and oil contract for a term of three years, to be extended so long as gas and oil should be produced in paying quantities, lessees upon consideration were granted an extension of one more year’s time to develop oil and gas upon the premises but failed to commence operations on the first well until within seven days of the expiration of the extended term, lessor has the right to treat the contract as having expired at the end of the year’s extension, and it is no sufficient excuse for delay that lessees had made arrangements with a contractor to commence drilling operations in sufficient time to complete the well before expiration of the extended time but on account of an accident to bis apparatus be was compelled to disappoint them and force them to contract with another operator unable to begin operations until too late to complete the well within the designated time.
    2. Equity will Permit Completion oe Well in Process op Drilling at Expiration op Leash.
    A court of equity in a suit to enjoin further operations and quiet title of the lessor to premises under an expired gas and oil lease and extension thereof, will grant the relief sought; but lessees having made an effort to complete a first well within the terms, although not such excusable delay as to extend the lease upon the whole premises, equity will permit the completion thereof for the purpose of ascertaining the results of the work, and apportion the costs between the parties.
    Appeal from Wood common pleas court.
    B. F. James and Edward Beverstock, Parker & Moore, for plaintiff.-
    Doyle, Scott & Lewis, for defendant.
   SCRIBNER, J.

This is the case of George Hollister against T. J. Vandergrift et al. The substantial parties to this controversy are the plaintiff, George Hollister, and the defendant, the Northwestern Ohio Natural Gas Company.

It appears by the pleadings and proof in this case that on July 12, 1886, the plaintiff and the defendant, T. J. Vandergrift, entered into an agreement in writing, commonly called a gas and oil contract, a copy of which is contained in the petition in this case. By this agreement the plaintiff granted, demised and let unto Vandergrift and his heirs and assigns for the purpose, and with the exclusive right of drilling and operating for petroleum and gas, all that certain tract of' land described in the lease containing 160 acres of land situate in“ Wood county.

It was provided by this contract that the party of the second part, his heirs or assigns, are to have and to hold the said premises for the term of three years from the date hereof and as much longer as oil or gas is produced or found in paying quantities thereon. In consideration of said grant and demise, the said party of the second part agrees to give or pay to the said party of the first part, the full equal one-eighth part of all the petroleum, or rock oil, produced or found on said premises, and to deliver the same free of expense, into tanks or pipe lines to the credit of the first party, — to the lessor, Hollis-ter, — and should gas be found in sufficient quantities to justify marketing, the consideration in full shall be $300 per annum for the-gas from each well so long as it shall be sold therefrom.

Now here comes a very material provision in this contract:

“It is further agreed that the party of the second part shall com-píete a well on the above described premises within six months from, the date hereof, and in case of failure to complete such well within such time, the party of the second part agrees to pay to the party of' the first part for such delay a yearly rental of one dollar per acre on the premises herein leased from the time of completing such well as. above specified, until such well shall be completed, the said yearly rental amounting to one hundred and sixty dollars shall be deposited' to the credit of the first party in the Farmer’s National Bank of Find-lay, or be paid direct to said first party. And a failure to complete-such well, or to make such deposit or payment as above mentioned,, shall render this lease null and void and to remain without effect between the parties hereto.”

Then there are some reservations, not material, and the further-provision that all the conditions between the parties to the agreement, shall extend to their heirs, executors and assigns.

This lease by its terms, it will be perceived, extended from July 12, 1886, to July 12, 1889.

It seems nothing was done under it by either party, until May 23,.. 1889, something less than two months from the date when it would have-expired by its terms and conditions unless gas or oil should be found in paying quantities on the premises within that time.

On May 23, 1889, this arrangement was entered into:

“For and in consideration of the sum of four hundred dollars tome. in hand paid, covering all back rental, also the advance rental in full on my farm of 160 acres in section twenty, Portage township, Wood county, Ohio, and which was leased to T. J. Vandergrift, July 12, 1886, the receipt whereof I hereby acknowledge, I hereby extend the - term of said lease for one year ending July 12, 1890. In witness whereof I hereunto set my hand and seal on this twenty-third day off May, 1889.” Signed, “George Hollister.” There is a certificate off acknowledgment attached to this.

The Northwestern Ohio Natural Gas Company became the owner-of this contract. Matters remained in statu quo until about June 17, 1890, when the lessee or grantee of the rights provided for under this-agreement, gave orders to its employes to proceed with the work of drilling on these premises. Orders were issued to erect a derrick and to make the usual and necessary provisions for prosecuting the work of drilling.

Sometime between the seventeenth of June and fifth of July the derrick was erected and lines were laid for furnishing a supply of fuel in order that the operations, necessary, might be prosecuted. Work was actually commenced — the work of drilling or “spudding” as it is termed, on fifth of July, seven days before the expiration of the term provided for in the lease as extended by arrangement of May 23, 1889.

This work was prosecuted with considerable energy until July 14, 1889, when the plaintiff, Hollister, brought this action to restrain further proceedings under the lease, alleging that he was the owner of these premises, that the time within which work was to be commenced and prosecuted, had expired, — that no oil or gas had been found by the lessee, the Northwestern Ohio Natural Gas Company, and that in violation of the rights of the plaintiff they were proceeding to drill upon the premises in search of oil or gas, and in substance he prayéd the court to quiet his title to these lands and to enjoin the defendants or the Northwestern Ohio Natural Gas Company from further entering, trespassing or proceeding with the work upon which they had entered.

The lease under the terms of the extension terminated on the twelfth of July; that occurred on Saturday. The plaintiff is a nonresident of this county and was residing during the time covered by this contract, about one hundred miles or m,ore from the county of Wood where the lands are located.

About noon on the eleventh of July, according to his testimony, he first learned that the defendant, the gas company, was drilling upon his premises. The suit was commenced on Monday the fourteenth, following. According to his sworn testimony he had no notice whatever that the defendant was proceeding with his work until about noon, Friday, the eleventh. It seems there were men engaged in removing timber from the place, and had been so engaged for some time prior to the commencement of this work under a contract, by the terms of which they became the purchasers of the timber. This contract, as testified to by the plaintiff, would not constitute these contractees as agents or tenants so as to charge him with notice of any knowledge on their part. Whether you regard it as established in this case bj the evidence that the plaintiff had no knowledge of the proceedings complained of until Friday, the eleventh of July, — the lease terminating by its term on the next day, — and the action having been commenced and the papers prepared and the action commenced on the following Monday, and the lease by its terms not expiring until mid-might, it can hardly be charged against the plaintiff that he was guilty of lacbes in ascertaining bis rights, whatever they may be under this contract.

It is shown on the part of the defendant, the gas company, as I have stated, that they had given orders to erect this derrick and proceed with this work as early as the seventeenth of June, and if these orders had been regarded and the work prosecuted from that time forward, there seems to be no reasonable doubt but that the work of drilling this one well would have been completed within the specified time, and these parties advised whether oil or gas could be found in that particular locality. It seems from the testimony that the party upon whom they relied for . doing their drilling, was not an employe of the company, but a contractor, who met with some misfortune in having his drilling tools caught and become fast in a well which he was engaged upon, and they were obliged to make arrangements for drilling with another party, and that other party was not able to get around to work until about the fifth of July.

Now as we have held, and has been announced this morning in the case that has just been decided, Miller v. Vandergrift, 30 O. C. C. 730, as we construe these instruments, they are to be regarded as sales of the substances that oil underneath the surface of the earth, — of the oil or gas that may be found thereunder. The lessee becomes the purchaser of all these substances. As a part of the contract he is licensed to enter and remove these substances and make return to the owner of the land for a certain proportion thereof. This right to remove these substances expires ordinarily with the period limited by the terms of the contract (in this case it was to be three years and in many cases as stipulated in these contracts it would be five years), the time granted for the removal of the oil and gas expires at the time named in the leases, unless within that time oil or gas is found in paying quantities. In that event, as we understand these agreements, the lessee or purchaser of the oil or gas has the time extended for removing the oil or gas so long as it shall be found there in such paying quantities as would justify the marketing of it.

Now according to the strict terms of this contract; — according to the strict legal rights of these parties, this plaintiff has the right to treat the lease as having expired at the end of the period of extension. While it may be true that had this work been prosecuted with due and reasonable diligence from the seventeenth of June, that the test would have been made before the expiration of the extended period, before July 12, 1890, yet, we do not think the reasons given for the delay are entirely sufficient to excuse -the delay.

It may be that men were not to be had; it may be that work was being done to'such an extent in that region as alleged, that it was difficult, if not nearly impossible to employ men; and it is probable' that if the accident had not occurred to the man who was contracted with to do this work, that the work would have been successfully prosecuted within the proper period; but nevertheless, we do not think that either of these misfortunes are of such a character as to excuse-the defendant company for the nonperformance of its contract within the period stipulated, and to be brief, our final conclusion in this-regard is that we are of the opinion that as to all this territory, except that immediately adjacent to this well, the plaintiff is entitled to the-injunction prayed for, and as to the land on which this particular well in question is being drilled, while according to the strict legal rights-of the parties under the terms and conditions of this contract, it would appear that the defendant is justified for the delay and for the status of the work, nevertheless, inasmuch as the plaintiff has appealed to us as a court of equity to interfere in his behalf, and is here standing-upon his strict legal rights under the exact terms of this contract, we are disposed to say to him and to hold that we will give him his. decree as to the lands not occupied by this well, but that as to that particular portion of this territory we will extend the time for a short period to enable the defendant if he chooses, to prosecute the work with a view of ascertaining what may be the result.

In so doing we simply exercise the power which we have as a. court of equity not to refuse relief unless it be shown that some equitable-consideration shall be extended to the party who is being proceeded against, namely here, the Northwestern Ohio Natural Gas Company. It would seem, for example, that if a man had bought timber upon a certain premises, or stone, and was engaged in the act of removing it at the hour when the period stipulated for within which the timber or stone was to be removed, and he had not quite gotten off his timber or stone, and the owner of the land should come into court and ask equitable relief, that the court in granting it would do-so upon some condition such as we have in this case.

The decree will be that the plaintiff shall be quieted in his title as to all his lands except one acre or thereabouts immediately adjacent to this well as being drilled. As to that the defendant shall have a period of twenty days from the entering of this decree in which to complete the well. The plaintiff shall pay one-third of the costs and the defendant two-thirds of the same.

For this extension the defendant, the gas company, shall pay as compensation the further sum of $20. Our recollection of the testimony being that the year’s compensation was $240. . The defendant to be permitted within this period of twenty days to ascertain whether :gas or oil shall be found in paying quantities in the region where the well is being drilled; in case that it shall be found, then the defendant shall be permitted to proceed with the work of extracting and disposing of the oil or gas according to the terms of the contract, and to have .such facilities in removing it as are ordinarily used in such cases.

Bentley and Haynes, JJ., concur.


author: MOONEY, J. DAY, J.,

text:
    ELECTIONS.
    [Delaware (5th) Circuit Court.]
    Day, Sullivan and Mooney, JJ.
    Emmet Wickham v. George Coyner.
    1. Temporary Change of Residence as Affecting Right to Vote.
    Presence for a temporary purpose does not secure the right to vote, and absence for a temporary purpose does not forfeit the right.
    [For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 21-23. — Ed.]
    :2. Right of Voter to have Vote Counted.
    The right to have a legal ballot counted is the right of the voter who casts it and after it has been deposited in the box, the act or omission to act of no officer can deprive the voter of this right, so long as it is reasonably certain that the ballot remains unchanged.
    '3. Affiliation with a Party as Evidence of Vote for Particular Office.
    The fact that a voter affiliates with a particular party cannot be considered as sufficient evidence of how he cast his ballot for any particular office, when the matter is in issue in an election contest.
    ■4. Proof of Nationality and Age as Determining Right to Vote.
    A contestant having proved that a certain voter who was an alien could not have been naturalized on account of minority under the general provisions of the naturalization laws within one year before the contested election, is not bound to negative the exceptional circumstances under which the naturalization of such voter might have been effected at an earlier time.
    ’[For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 17, 18. — Ed.]

      %. Rule Determining Residence of Students.
    There is no special rule for determining the residence of students for election purposes; the same rules that determine the domicile of other persons apply to them.
    [For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 21-23. — Ed.]
    >6. Presumptions as to Legality of Vote.
    The fact that a student voted raises a presumption of the legality of his ballot and of his innocence in casting the ballot, which presumption overcomes the presumption that the domicile given on the matriculation card of such student continues until affirmative evidence of a change is given.

      7. Time Necessary to Gain Residence after Majority.
    A person during minority has not the capacity to change his domicile and a student domiciled outside the state must remain in Ohio one year after attaining his majority in addition to the necessary intent to 'change his domicile to acquire a residence for voting purposes.
    8. Right of Legislature to Impose an Educational Test for Voting.
    Under the constitution the legislature has no right to require voters to possess an educational qualification, and any act of the legislature which, has such effect, or which would prevent the judges of election from assisting other than those afflicted with blindness, paralysis, the feebleness of extreme old age, or other physical infirmity, is a limitation upon the constitutional right of the voter. Semble.

   MOONEY, J.

This is a proceeding to contest an election of a common pleas judge, brought under act 89 O. L. 363 (Lan. Rev. Stat. 4615; B. 3014-1), etc. Emmet M. Wickham, the contestor, in his petition, states that the first subdivision of the sixth common pleas judicial district of Ohio is composed of the counties of Delaware, Knox and ¡Licking; that the said county of Licking at the last federal census had the largest population of all the counties of said subdivision; that at the general election, held on November 5, 1901, there were four candidates in said subdivision for the office of judge of the court of common pleas in said judicial district, two of whom were to be elected; that one Charles W. Seward and the said George Coyner, wlm is a resident of said county of Delaware, were such candidates on the Republican ticket, and one John Davis Jones and said Emmet M. Wick-ham were such candidates on the Democratic ticket; that on November 12, 1901, the canvassing board of said Licking county found and certified that the said Charles W. Seward had received for said office 12,527 votes; that the said George Coyner had received for said office 12,274 votes; that the said Emmet M. Wickham had received for said office 12,206 votes, and that the said John Davis Jones had received for said office 12,129 votes; and said canvassing board then found and declared as the result of said election that the said Charles W. Seward and the said George Coyner were elected such judges as aforesaid.

■ Emmet M. Wickham appeals from the finding and decision of said canvassing board and contests the election of said George Coyner to said office and avers that the said George Coyner did not receive the number of legal votes, so found by said canvassing board, but a much less number; that said Emmet M. Wickham received a much larger number of legal votes than the number so found by said canvassing board and a much larger number of legal votes than was received by the contestee, the said George.Coyner, and that, therefore, the contestor was and is duly and legally elected to said office of judge of the court of common pleas instead of the said George Coyner; and for grounds of such contest the contestor alleges the following facts:

First. In Scioto township and in Berlin township, Delaware county, there were cast for said contestor and not for said contestee, twenty-five legal votes, which votes the judges of election of said township failed and refused to count for said contestor.

Second. In each and every of the following precincts, townships and wards there were cast and counted for said George Coyner, none of which were counted for said Emmet M. Wickham, fifty illegal votes by persons who then and there did not possess the qualifications of legal voters at said election, viz.: In the townships of Brown, Orange, Radnor, Delaware county; in the first, second, third, fourth, fifth and sixth wards of the city of Delaware, Delaware county; in the township of Granville and in the village of Granville, Licking county; in the townships of College, Hilliar and Liberty, in Knox county.

Third. In Galena precinct, in Berkshire township, Delaware county, there was counted for the contestee and not for contestor one mutilated and fraudulent ballot.

Fourth. In the township of Brown, Delaware county, the judges of election conspired together to assist the inmates of the county infirmary to cast their ballots; that said inmates were not, under the law, entitled to be so assisted; that notwithstanding said fact, assistance in the marking of ballots was rendered by said judges, pursuant to their said conspiracy, and that all said inmates had their ballots marked and counted by said judges for said contestee and not for said contestor; that in said township said contestee had counted for him 172 votes; that said action of said judges rendered the election in -said township illegal and void, and that that number of votes should be deducted from the votes cast for the contestee, or that, if said election in said township was not rendered wholly illegal and void, each ballot marked by the judges for said infirmary inmates was fraudulent and illegal, and that forty votes should be deducted from the total vote cast for said con-testee.

Fifth. That there was a large number of disputed ballots returned in each of the three counties to the deputy state supervisors of elections, which should be counted for said contestor and not for said contestee, and were not so counted for contestor.

To this petition the contestee answers and denies all grounds of ■ contest set out in the petition and further answering says:

First. That the legal qualifications of all persons voting at said • election in the several precincts named in the petition were passed upon by the judges of election and that the right of said persons to vote is, therefore, res adjudicatei.

Second. That in Orange township, Delaware county, there were ■ cast and counted for said contestor twenty illegal votes.

Third. That in the first, second, third, fourth and sixth wards in the city of Delaware, Delaware county; in the township of Granville, and in the village of Granville, Liberty, Union, Jersey, Newark, Licking and Hopewell townships; in the first, second, fourth and seventh wards -of the city of Newark, Licking county; in the townships of College and Liberty, in Knox county, each, there were cast and counted for said ■contestor twenty illegal votes.

The contestor by reply, denies all the affirmative allegations contained in the answer of the contestee.

The rights of the parties to this proceeding require an examination of the law of the state as to the qualifications of electors; the preparation, reception and counting of ballots; the proceedings incident to the preservation of disputed or doubtful ballots, and the rules of procedure in contests of elections.

First, as to the qualifications of electors, Section 1, Art. 5 of the ■ constitution of the state provides :

“Every white male citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township or ward, in which he resides, such time as may be provided by law, shall have the ■ qualifications of an elector and be entitled to vote at all elections. ’ ’

And by Sec. 6 of the same article,

“No idiot, or insane person, sháll be entitled to the privileges of an elector.” • .

The color qualification is now abrogated by the fourteenth and fifteenth amendments to the federal constitution.

The qualification of residence is the one most frequently questioned in the case at bar. From the constitutional provision quoted, it appears that while the term of residence within the state is fixed by fundamental law, and the term within the counties, wards or townships is left for legislative regulation, yet the character of the residence within the state is in no manner distinguished from the residence within the several ■subdivisions of the state.

The legislature is not authorized to require .another or different 'character of residence within the subdivisions than is required by the ■constitution within the state.

In Sturgeon v. Korte, 34 Ohio St. 525, this article of the constitution was under consideration by our Supreme Court.

Boynton, J., at page 534, says:

“The word ‘residence,’ as used in the constitution, has substantially the meaning of habitation, domicile, or place of abode. The law •ascribes a domicile to every person, and no person can be without one.
“In Bell v. Kennedy, L. R. 1, H. L. 320, it was said by Lord West-bury, that domicile is the relation which the law creates between an Individual and a particular locality or country., And by Judge Story, In his commentary on the Conflict of Laws, that it is of three sorts: .domicile of birth, domicile of choice, and that which results from the .operation of law. Section 46.
“Domicile of birth remains until another is chosen, or where a person is incapable of choosing, until one results by operation of law. 'To acquire a new residence or domicile, where one is under no disability to choose, two things must concur, the fact of removal and an intention to remain. The old domicile is not lost nor gone until the new .one is acquired, facto et animo. It is not, however, necessary that the purpose to acquire a new residence should exist at the time of removal. It may be formed afterward. A residence may be acquired by one who lias removed to a place for temporary purposes only, by a change of purpose, and an election of the new habitation or place of abode as his place ■of future domicile or home. * * *
“ ‘In a strict legal sense, that is properly the domicile of a person where he has his true, fixed, permanent home and principal establishment, and -to which, whenever he is absent, he has the intention of returning.’ ” Story, Conflict of Laws Sec. 41.
“It is not, however, necessary, that he should intend to remain •there for all time. If he lives in a place, with the intention of remaining for an indefinite period of time, as a place of fixed present domicile, •and not as a place of temporary establishment, or for mere transient objects, it is to all intents, and for all purposes, his residence. Story, Conflict of Laws Sec. 46. Bruce v. Bruce, 2 Bos. & Pul. N. R. 228; Sears v. Boston, 42 Mass. (1 Metc.) 250.
“These are well-settled rules relating to the selection or change ■of residence, existing when the constitution was adopted, and consequently apply in all cases where a change of residence results from, or depends upon choice. * * * Residence resulting from’ the operation of law supervenes upon a disability to make choice. Minors being incapable of acquiring a domicile, retain that of their parents. * * * A person under the power and authority of' another * # * is incapacitated to choose a residence.” '

To a majority of the court, Judge Sullivan dissenting, it seems that the rules here laid down are so clear in their statements and so well supported by both reason and authority outside the state, that any investigation of cases in other states, however interesting it may be as a matter of legal study, is quite unnecessary to determine what the rules in Ohio' are, determining whether a particular person has or has not a right to vote at a particular poll. There is no special rule as to students. Their residence is to be determined by the same rule as other persons.

It would be an endless task to state here at length the particular1 facts, which we concluded to be of controlling effect in the case of each person whose right to vote has been called to the attention of the court.

Wé need only say that from all the evidence bearing upon the right of each person to vote, his right has been separately considered and determined. The statement of a feiv typical cases will sufficiently indicate the application of the rules of law to the cases in general:

Stanley C. Roettinger came from his parent’s home in Hamilton county to pursue his studies at the Ohio Wesleyan University. At the date of his matriculation he was a minor. He spends his vacations not • at Delaware, but, in the main, at his parent’s home. When he leaves Delaware at the close of each school year, he intends to return at the beginning of the next school year to continue his studies. He has no business nor occupation other than student and limits his stay in Delaware each year to the time school is in session.

He has formed no plans for the future. We are -not informed as to the source from which his support is derived. When he arrived at his majority, his residence was at the home of his parents. To change this residence required an active intent upon his part. This intent is not shown by the facts in evidence. His attendance at school since attaining his majority is not different in any respect from what it was within his minority at Delaware. We are of opinion that his residence on. November 5, 1901, was at Wyoming, Hamilton county, Ohio, and not at Delaware, and that his vote at Delaware was illegal.

John Eddy Austin attained his majority in July, 1901. More than one year prior to that time he came to Delaware from his father’s home at Chattanooga, Tennessee. The father maintained his residence in Tennessee continuously until the time of this trial. During the minority of the son his residence continued in Tennessee by operation of law.He had not legal capacity to change from this residence to a new one of his choice. He did not become vested with capacity to choose a residence until July, 1901. •

If he then selected Delaware, Ohio, as his home, less than one-year intervened before the election at which he voted. Hence he did not possess the qualifications of residence, required by the terms of the-constitution and his vote was illegal.

Frank Whitehouse states, in his matriculation card, that his native-country is England. He was born in September, 1879. On or before-November 5, 1901, he could not have been naturalized under either See-2165 or 2167 U. S. Rev. Stat. for defect of age.

Upon this showing, unexplained by him or by some one testifying to an exceptional state of facts, Mr. Whitehouse was neither an American-citizen nor a legal voter when he cast his ballot. There- are exceptional' circumstances recognized by the statutes of the United States under-which he could have been naturalized, but these exceptional- circumstances are in the nature of provisos to the general section of the naturalization act; and it is not necessary that the contestor here should negative the existence of facts which would bring Mr. Whitehouse within, any proviso outside the ordinary provisions of the law.

C. M. Shaft came to Delaware from Napoleon, Ohio¡ for the sole-purpose of completing the business course. This, he- believes, will re-quire about seven months attendance at the university. His stay at Delaware is without intent as to change of residence. His domicile thus-clearly appears to have been at Napoleon in November, and his vote was-illegal.

Richard Roe came to Delaware from Illinois and voted at Delaware-in November. By action of the faculty in December he was requested!' to sever his connection with the school. He returned to Illinois to his; parent’s home and in correspondence claims that place his home and; spoke of his returning to Illinois as an unexpected home-coming. We-find on these facts that his vote at Delaware was illegal.

E. A. Hotchkiss is self-supporting. He came to Delaware intending: to complete a course and work there mainly to increase his resources.. Hé has an arrangement .to stay in Delaware after completing his college' course. He has an intention not to return to the place- of his former residence. His vote was legal.

Henry Graphius came to Delaware in September, 1901, from his-.parent’s home in Cincinnati. While at Cincinnati and living with hiss-parents he paid them board. He is self-supporting and came.-to-Dela— ware to work his way through and testifies that since September, 1901, he has regarded Delaware as his only home. In September he formed an intention, after coming to Delaware, not to return to Cincinnati. He had attained his majority long before September, 1901. His vote was legal.

John Poland is married, not separated from his wife, and prior to September, 1901, resided in Franklin county, Ohio. Intending to move .his family to Delaware county, he broke up housekeeping in Franklin ■county in September; went to Delaware county in that month, worked there, procured a dwelling for his family, and on October 11, 1901, he .moved his family from Franklin county to Delaware county. His family was in transit until October, 1901, and until that date the change of .his residence to Delaware county was not complete. His vote was illegal.

Banny Stull resided with his family in Knox county more than •eight months prior to November, 1901. He surrendered the farm upon which he was living in the spring of 1901 with no intent to return to the farm. He took a cropper’s lease on a farm in Licking county and moved there with the then intention to remain only until the fall of 1901, and then to return to Centerburg, Knox county.

He did return to Centerburg, Knox county, on October 15, 1901, •and voted in Knox county. His going to Licking county was for temporary purposes f only. His surrender of the house in which he resided in- Knox county did. not forfeit his residence in that county. He was ■a- legal, qualified voter in Knox county. Under the facts as disclosed lie would have been qualified to vote in Knox county, even though his .family had not returned there before election. Presence for a temporary ■purpose does not secure the right to vote, and absence for a temporary ¡purpose does not forfeit the right.

For the same reasons Lem. A. Brandebury is legally qualified to vote in his “old ward” in Delaware.

The persons who were employed in the construction of the electric railway in Orange township, Delaware county, were present in that township only for the purpose of railway construction. The tents in which they were housed were of a character to indicate conclusively the temporary purpose of their stay in Delaware county.

None of these persons, so far as shown by the evidence in this ease, were legal voters in Delaware county.

We find no defect in residence of any inmate of the Delaware ■county infirmary,, and we are of opinion that Jacob Lumbert was domiciled in Brown township and properly voted there.

From the evidence we- find affirmatively that the following students were legal, qualified electors: In-Delaware, [forty-two were named] * * *; Granville, [eleven] * # *; Gambeir, [six] * * *.

The following named students voted for neither or for both of the parties litigant here, and for that reason their several qualifications were not considered by the court:

In Delaware: [six were named] * * *; Granville, [two] * * *.

Many persons whose residence is in question claimed their privilege as witnesses not to answer questions with reference to that fact. As to these1 persons, we have the evidence of their matriculation cards, which, contain a statement of the former home of each matriculent, and the fact appearing,, from the evidence, that these persons are all students, at the place at which they voted.

For the contestor it is claimed that from the fact that these voters are students, and from the presumption' that the place of domicile shown continues until affirmative evidence of a change is given, that this evidence is sufficient to show that these voters were not residents of' the wards and precincts in which they voted.

We are of opinion that the fact that a person voted raises a presumption of the legality of his ballot and of his innocence in casting-the ballot. It thus appears that the presumption of the continuance-of domicile is in conflict with the presumption of the innocence of the voter.

In such cases, the presumption of innocence overcomes the presumption of continuance. Lawson, Presumptive Evidence 665, Rule 122, Subsec. D. And on such state of proof, we must find in accordance with the presumption of innocence, that such persons are legal residents of the precincts in which their several ballots were cast.

The fact that these students claimed their privilege is, for a reason hereinafter stated, not a matter of evidence tending to prove that the witness claiming the' privilege was a nonresident; nor is the fact that the occupation of the voter is that of a student sufficient to overcome this presumption of innocence, for a student may have a domicile at the seat of a university.

The students who, in accordance with this rule, are held to be legal-residents of the precincts in which they voted are the following:

In Delaware, [twenty-eight were named] # * *; Granville, [eleven] * # *; Gambier, [eight] * * *.

The students who voted and whose right was questioned by either party, other than those above named,' we find to have voted without legal qualification so to do. But, by reason of defect of evidence to the point, we are not able in many eases to find for whom many of them ■voted. There is some evidence as to the politics of nearly all of these voters and nearly all of them claimed their privilege when asked to ■testify as to their political affiliations in general or as to the candidates for whom they voted for common pleas judge.

The privilege not to answer is the privilege of the witness. With ■the exercise of this privilege neither of the parties litigant have, in legal contemplation, anything to do. When a voter is called as a witness by •the contestor and claims his privilege not to answer concerning his polities, it cannot be inferred from that fact alone that such witness is a Republican; nor can the refusal of a witness to answer the same question put by the contestee give rise to the presumption or to an inference that .such witness is a Democrat.

“If a witness declines to answer a question on the ground that his ■.answer might criminate him, no inference of the truth of the matter inquired of may be drawn from that circumstance.” 1 Greenleaf, Evidence Sec. 451; Rose v. Blackmore, R. & M. 383; Ohelin v. Kenderdine, 20 Pa. St. 354; Rex v. Watson, 3 E. C. L. 357.

And these witnesses not being parties, no inference can arise from ■their failure or refusal to explain.

Nor, it seems to a majority of the court, Judge Day dissenting, can •the fact that a voter affiliates with a particular party be considered as sufficient evidence of how the voter east his ballot for any particular -office, when the matter is in issue in an election contest.

It seems to a majority of us that something more than political .■affiliation is necessary to be shown in such case. Political activity, enthusiasm for a political party at a particular election, declarations of the voter attending the act of voting, or other circumstances, are necessary to be shown before a court can hold as a matter of fact that a voter supported a particular candidate; and this should be more particularly the case, when, as in the case at bar, it seems that there was quite a ■degree of independence manifested by the voters in their support of the candidates for common pleas judge.

We do find from the evidence that the following disqualified voters cast their ballots for George Coyner and not for Emmet M. Wickham:

In Delaware, [fourteen were named] * # *; Granville, [seven] * '* *; Gambier, [fifteen] * * *; three employes on the electric railway.

We find, too, that William Palmer, an inmate of the Delaware •county infirmary, was insane,, and was not qualified to vote, and that lie voted for George Coyner, and not for Emmet M. Wickham.

The following students voted for Emmet M. Wickham and not for George Coyner, and each of said voters were without legal qualifications :

In Delaware, [seven were named] * * *; Granville, [two] •« * *

We further find that the following persons, other than students, voted for George Coyner and not for Emmet M. Wickham, and that the .said voters were each of them nonresidents of the precincts in which they voted: [four] * * *.

We find that C. W. Shotboldt was insane when he voted, but from the evidence we are not able to find to whom his vote was cast for common pleas judge. This disposes of all eases of importance in this contest ■so far as the legal qualifications of the persons voting are concerned.

As to doubtful ballots certified to the board of deputy supervisors of elections: The purpose of the Australian ballot is to promote the purity of elections by securing absolute secrecy of the ballot, and such uniformity in the marking of tickets as will render it impossible for corrupt persons to discover, from an inspection of a ballot during the ■count, that any deal made has been carried out.

It is held practically by all the courts that when the statute prescribes a method for marking the ballot, the observance of such method •is mandatory upon the voter, and that any ballot not complying with the law must be rejected. In Ohio it is provided that, where a ballot is marked so that the intention 'of the voter may be ascertained, technical irregularities in marking it shall not vitiate'the ballot; but it is believed that the ticket must be so marked and the intention of the voter be so manifested, that the ticket upon inspection will not be so different in marking from tickets properly voted that one, by prearrangement with voters, could ascertain that an understanding with reference to the manner of voting had been carried out.

Of the “doubtful ballots” in Delaware county, the one ballot in Delaware precinct, Delaware township, should not be counted; the one ballot in Oxford precinct, Delaware county, should not be counted; the •one ballot in Eadnor precinct should be counted for George Coyner; the two ballots in Sunbury precinct, Berkshire township, should not be counted; the one ballot in Trenton precinct, Trenton township, should not be counted; ballot No. 1, in Marlborough precinct, Delaware county, should not be counted; No. 2 is so marked as to be readily recognized by anyone as different in marking from that required by the statute. 'The ballot should not be counted. It was, however, counted for Coyner and should be deducted from his vote. The Genoa ballots are all unmarked and cannot, therefore, be counted. The Scioto ballot was counted for Wickham, but by reason of a mark after the name of Overturf was,, in our opinion, mutilated, and should not be counted.

Ballot No. 2 does not vote for any candidate for common pleas judge, and cannot be counted.

Harlan ballot No. 1, both tickets marked, should not be counted.

The nine Liberty township ballots, which were not counted for anyone, should be disposed of as follows:

Number 1 should not be counted for any candidate for judge.

Number 2 should be counted for Wickham and not for Coyner.

Number 3 should not be counted.

Number 4 should be counted for Wickham and not for Coyner.

Number 5 should not be counted.

Number 6 should be counted for Wickham and not for Coyner.

Number 7 should not be counted.

Number 8 should be counted for Wickham and not for Coyner.

Number 9 should be counted for Wickham and not for Coyner.

As to Knox county: The doubtful ballots in this county, after reaching the hands of the board of deputy state supervisors of election properly sealed up, were, through the desire of the board to add to their information, improperly opened. It is in evidence that the ballots, as attached to the depositions in this case, are in the same condition that they were when thus improperly opened.-

While the case is not free from doubt, we are of opinion in such state of proof that the ballots should be counted. The right, after all, to have the ballots counted, is the right of the voters who cast the ballots,, and after a legal ballot has been deposited in the box the act of no officer, or his omission to act, should deprive the voter of the right to-have the ballot counted, so long as it is reasonably certain that the ballot, remains unchanged and so can be counted for the candidates for whom it was cast. We think the evidence here fairly shows that these ballots-have not been tampered with.

Exhibit A, ballot No. 1, should not be counted; the ballot is mutilated.

Number 2 should not be counted; it bears a distinguishing mark, a double X.

Number 3 is not voted for any candidate for common pleas* judge.

Number 4 bears a distinguishing mark in that an X is marked-before a blank space on one of the third party tickets. This ballot was-counted for Coyner and should be deducted. -

Ballot No. 5 is mutilated and should not be counted.

Ballot No.' 6 should not be counted; the ballot bears a distinguishing mark the same as No. 4.

Ballot No. 7 is mutilated; the name of the democratic candidate for representative is written in the space devoted to that office on the republican ticket and the name of the republican candidate for representa-. tive is erased, and the ballot is otherwise mutilated. This ballot was counted for Coyner and should be deducted from his vote.

Ballot No. 8 bears a distinguishing mark, the same as No. 4, and should not be counted. It was counted for Coyner, and should be deducted from his vote.

Ballots Nos. 9 and 10 should not be and were not counted.

Ballot No. 11 bears a distinguishing mark, the same as No. 4. It was counted for Coyner and should be deducted from his vote.

It is not certain to us whether ballot No. 12 was counted or not. In such state of the proof, it must be presumed that the election officers did their duty and, because the ballot is mutilated, rejected it.

We find upon the evidence that the Galena ticket referred .to in the evidence bears a distinguishing mark; that it was counted for Coyner and Should be deducted from his vote.

In Berlin township the. claim is made by the contestor that certain tickets were marked for Seward and ^ickham, and had an X mark in the circle at the head of the republican ticket; that these ballots were counted for Coyner alone.

This is disputed by the contestee and evidence is adduced by each party in support of his contention. The question is one to be determined upon the weight of the evidence, and inasmuch as Judge Sullivan was not present when this testimony was received, the conclusion reached with reference to this matter is not participated in by him. Owing largely to the fact that the qualified denial of the witness called to impeach the testimony of Delbert Mooney — and the general conduct of this witness upon the stand does tend to the impeachment of Mr. Mooney —to the fact that an equal number of witnesses testified in behalf of the contestor and that the credit of none of these witnesses is called in question,' and to the fact that the correctness of the count in Berlin township seems to have been since the election under discussion, for which, it would seem, there was no reason unless the contestor’s claim has some existence in point of fact, we arrive at the conclusion that in this township certain ballots were improperly counted for George Coyner when they should have been counted for Emmet M. Wickham, and upon the evidence adduced to the point bearing upon the number, we conclude that eight ballots were so counted.

Those eight ballots should be added to-the total vote of Emmet M. Wickham, and should be deducted from the total vote of George Coyner.

As to the conduct of the election in Brown township: We are -satisfied from the evidence that the judges of election in Brown town'ship assisted certain inmates of the infirmary in marking their ballots. One of these inmates testified on the trial in this case. It seems that he was upward of eighty years of age. He was not able to read, and while he was able, unassisted, to mark his ballot to vote a straight ticket, would require some assistance in marking a scratched ticket.

It is also in evidence that a blind man wa§ assisted, and that one •suffering from paralysis was assisted by the judges, and in general that no one asked for assistance in marking his ballot in Brown township, who.was not given such assistance.

It seems that the judges, one from each political party, assisted in marking, but all the judges in this township were friendly to the election of George Coyner as common pleas judge.

It is not in evidence that all the persons who asked assistance were persons who, in accordance with the provisions of the statute, would be •entitled to demand it. Nor does it appear that anyone who -was actually assisted was a person who, under the statute, was not entitled to receive ■such assistance.

We are not unmindful of the provisions of Sec 22, 98 O. L. ■223 (Lan. Rev. Stat. 4536; B. 2966-37) :

“Any elector who declares to the presiding judge of election that he is unable to mark his ballot by reason of blindness, paralysis, extreme old age or other physical infirmity, and such physical infirmity is apparent to the judges to be sufficient to incapacitate the voter from marking his ballot properly, may, upon request, receive the assistance, in the marking thereof, of two of the judges of election belonging to •different political parties,' and they shall thereafter give no information in regard to the matter; but such assistance shall not be rendered for .any other cause which the voter may specify and a presiding judge may require such declaration of disability to be made by the elector under oath before him.”

Under the constitution of the state, electors are not required to possess an educational qualification, and the legislature has no power .to require qualifications in addition to those named in the constitution.

It is the right of the elector to vote a straight party ticket, and any ‘legislation which has the necessary effect to require an elector to satisfy himself by casting a straight party ticket, and prevent or greatly hinder the casting a scratched ticket, would be such an invasion of bis rights as an elector as would render the enactment invalid.

Under the Australian ballot law an elector is handed a ticket with the names of all duly nominated candidates printed upon it. To select and vote for the different candidates without assistance requires at least the ability to read the names of the candidates; and to vote for any person for any office unless such person is a duly nominated candidate for such office, requires the added ability to write.

To place such a ticket in the hands of an electór, to compel him to retire to a booth and prepare his ballot, without assistance, cannot be considered in any light other than a direction to him to read party emblems, to vote a straight ticket, and to deprive him of all opportunity to vote for any candidate not upon the one ticket or the other.

In harmony with these views we are of the opinion that if the case required it, we .would hold that the direction that the judges should not render assistance to voters other than those afflicted with blindness, paralysis, the feebleness off extreme old age, or other physical infirmity, is a limitation upon the right of an elector to cast his ballot not warranted by the constitution of the state.

But while the number of voters assisted in Brown township seems to have been large — the precise number from the evidence we are not able to determine — yet there is no proof that any elector not within the terms of the statute was assisted, or that any elector was in any way impeded or controlled in the casting of his ballot; but that all ballots were marked and counted for the candidate for common pleas judge for whom the several electors desired to vote.

Under these circumstances we find that there was no fraud nor irregularity in the conduct of the election in this township that should cause the rejection either of the entire poll of the township or of any of the votes cast for George Coyner.

It will appear from the foregoing that there should be deducted from the vote of George Coyner, student votes; fourteen in Delaware, seven in Granville, fifteen in Gambier, three employes on the electric railway, the votes of William Palmer, John Polan, T. N. Dickson and Frank and Able Wilson; total fourty-four votes.

There should be also deducted ticket No. 2, returned as doubtful from Marlborough precinct, and ballots Nos. 4. 7, 8 and 11 in Knox county, and the Galena ticket, and eight votes improperly counted for Coyner in Berlin township;■ total deductions, fifty-eight; and that there should be added to Coyner’s vote the Radnor township ballot, one vote, making the net deduction from the Coyner vote, fifty-seven.

The total vote as declared by the canvassing board is 12,274; deduct fifty-seven votes, equals 12,217, the true legal vote cast for George Coyner so far as the votes adduced on this hearing shows.

There should be deducted from the vote cast for Emmet M. Wick-ham, student votes, as follows: Delaware, seven votes; Granville, two-votes ; and the Scioto township ticket. Total deductions ten votes.

There should be added to the vote for Emniet M. Wickham, ballots Nos. 2, 4, 6, 8 and 9, Liberty township, and the eight votes in Berlin township cast for Wickham and improperly counted for Coyner. Total additions thirteen, and the net additions three.

The total vote for Wickham, as found by the canvassing board is 12,206; add three, equals 12,209; the true number of legal votes cast for Emmet M. Wiekhani, as far as the evidence shows. Thus, the net majority for George Coyner over Emmit M. Wickham,' for the office of common pleas judge was eight votes, and we so find.

If the eleven votes referred to in the dissenting opinion be charged to the contestee, then, by a parity of reasoning, the vote of Long, the railroad employe, should also be so charged. This would make twelve illegal votes to be deducted from Coyner’s vote. In all fairness, the seven employes of the railway should then be charged to contestor, and should be deducted from Wickham’s vote. This would change Coyner’s majority, but would not change the result.

The five votes referred to in the dissenting opinion were not charged to Coyner for the reason that as to these for want of evidence it could not be determined that these persons were illegal voters.

As to the entire sixteen votes referred to, the majority of the court simply hold, as we believe, in accordance with all the authorities, that the claim of privilege and the consequent refusal of a witness, not a party, to testify, is not in any manner or for any purpose to be taken as proof for or against either party to any litigation.

It is manifest that very many, republicans, on account of the known fitness and enviable record of Judge Wickham, voted for him for common pleas judge, and so, in the case at bar, mere proof of politics is more than ordinarily unsatisfactory as proof that the republicans of the subdivision, and particularly of Delaware, voted for the republican candidate, who was then without judicial experience.

Coming now to adjudge the costs in this proceeding, we are of the-opinion that the questions here raised and now decided are of such public importance that the state should pay a large part of the costs incurred.

To us it seems just and equitable, under all the circumstances in this case, that the costs of the clerk and sheriff of Delaware county should be paid by the eontestor in this proceeding, and that all other •costs incurred should be paid from the state treasury, and it is so •ordered.

Sullivan, J., concurs.

DAY, J.,

dissenting.

I do not concur in the general finding of the court in favor of the •contestee. I am entirely satisfied, from careful consideration of such •evidence and data, as the obstructive and suppressive methods pursued by many of the witnesses allowed the court to obtain, that the eontestor received a clear majority of the votes cast by voters having a legal domicile in the common pleas subdivision, composed of the counties of Delaware, Knox and Licking.

In addition to the illegal votes eliminated from the count, the court found eleven other persons who had cast illegal ballots, they not being legally domiciled in the township, precinct or ward where the ballot was cast, each one of whom, on being afforded an opportunity, refused to enlighten the court or to give any testimony concerning the material facts, if he voted at the November election, for whom he voted or even to advise the court of the fact to which, if either, of the two political parties, presenting candidates for the office of common pleas judge, he was a member of, or affiliated with.

The refusal was based upon the ground — the alleged ground — that •a truthful answer would have a tendency to incriminate.

It was clearly shown that each of them voted in the subdivision, at the election of November 5, 1901. It was also made to appear, by undisputed and competent evidence, that all of them were affiliated with .and were classed and regarded by their fellows and persons interested in polities and keeping watch over the political field/ as undoubted members of the party whose candidate the contestee was.

This fact standing alone, possibly, was insufficient and did not, to .•an absolute certainty, point to the candidate for whom the votes were ■cast; but in view of the fact that each of these persons, who alone'knew the exact truth, and who, contrary to the good and wholesome advice given them by the chief officials of the university, to tell the truth and the whole truth, without fear, as there was no danger of prosecution, deliberately and persistently refused to aid the court to a right decision, in view of the presumptions arising from certain established facts, and •of other facts appearing, including the conduct and demeanor of each ■of them in the presence of the court, • and of their manifest desire to say only that which would benefit the contestee; I am of the opinion the-evidence was of such consistence, significance and weight, as to justify and make imperative a finding that each and all of them voted for the contestee.

Five other persons voted, it was clearly made to1 appear, for the contestee; and I am of opinion that the evidence adduced concerning their former domiciles and the temporary character of their presence in the judicial subdivision warranted and required the finding that neither of them was legally domiciled in the township or ward where the votes were cast.

These sixteen votes, all of them, I think, should have been deducted from the total vote of the contestee.

In each case, however, the court was of opinion the evidence was-not sufficient to establish the fact claimed, and the vote as canvassed and returned by the supervisors of election, was, so far as these votes-are concerned, not disturbed but allowed to stand; and upon these-grounds I base a dissent to the general finding in favor of the contestee.

In all other respects, I fully concur in the rulings and judgments announced.


author: HURIN, J.

text:
    CONTRACTS — LANDLORD AND TENANT.
    [Putnam (3rd) Circuit Court,
    1905.]
    Norris, Hurin and Vollrath, JJ.
    Christ Diehl Brewing Co. v. Louis A. Konst.
    1. Construction of Lease of Saloon Building.
    Provisions of a lease of premises for saloon purposes, wherein tile lessee-covenants not to sell any beer other than that manufactured by the lessor, extend' to an adjoining room rented by the lessee, and, with lessor’s consent, used in ■ connection with the saloon as originally operated; and the lessee cannot, after the lessor has installed new bar fixtures in the new room, at request of the lessee, tear out the same and repudiate his lease.
    [For other cases in point, see 2 Cyc. Dig., “Contracts,” §§ 651-695. — Ed.]
    2. Enforcement of Lease bv Injunction.
    The lessee of premises leased on condition that only beer manufactured by the lessor be sold on the premises has no adequate remedy at law for a threatened breach of such conditions, and injunction will lie to restrain same. " N 1
    [For other cases in point, see 5 Cyc. Dig., “Injunction,” §■§ 203-497. — Ed.]
    3. Validity of Saloon Lease Restricting the Sale of Beer.
    A provision in a lease whereby the lessee limits himself to the selling of only beer made by the lessor, on the leased premises, in no wise affects the public and is not invalid as a restraint on trade, or in violation of Valentine antitrust law.

      Appeal from Putnam common pleas court.
    B. F. Enos and Risser & Smith, for plaintiff.
    Bailey & Leasure, for defendant.
   HURIN, J.

This action involves the validity of a contract between a brewing-company and a saloon keeper, whereby the latter has agreed for a term of years to sell no other beer on certain premises than that furnished by the former. The case was heard by us on appeal; the essential facts being agreed upon.

A somewhat lengthy statement of the facts will be necessary in order to make the issues plain:

Plaintiff, the brewing company, is the owner of a brick building,, the first story of which has been occupied for some years by defendant, as a saloon. Formerly he occupied this saloon under a lease from month-to month, but on October 10, 1904, he entered into a written agreement of lease for a period of five years, agreeing to pay for the premises-, leased the sum of $360 per year in monthly installments.

By the terms of this lease the defendant was to have the use of all. saloon furniture and fixtures then in said building, free of cost.

The lease contains the following covenant, which is the bone of contention in the case at bar:

“Said second party further covenants and agrees as a part of the consideration for said leased premises and use of said furniture and fixtures, to deal exclusively in the beer manufactured by said party of the first part and not to in any manner sell or expose for sale in said premises any beer not manufactured by said first party during the full period of this lease, and that any alterations or changes made in said building shall be made at the sole expense of said party of the second part and no such alteration or change shall be made until after first obtaining the written consent of said first party therefor, in writing.”

Defendant continued to occupy said property as a saloon under this lease for about two years until May 1906, when he also rented of one Laura E. Andrews, a business room adjoining that formerly used by him; but continued to occupy both rooms, using the Andrews’ room as a billiard and lunch room and plaintiff’s room as a saloon. For the first three months plaintiff paid a part of the rent of the Andrews’ room and by agreement between plaintiff and defendant a doorway was cut in the wall between the two rooms, which door was used by defendant in the operation of the two branches of his business.

Soon afterwards defendant, by consent of plaintiff, moved tbe saloon fixtures info tbe Andrews’ room and the billiard tables and lunch ■counter into plaintiff’s room, tbe latter being a larger room and more ■convenient for this purpose.

Plaintiff assented to this agreement and at defendant’s request, plaintiff later on put larger saloon fixtures in tbe Andrews’ room in place of those removed thither from the plaintiff’s room.

Afterwards defendant, with plaintiff’s consent, sold the billiard and lunch part of his business to one Diehl Richards, who operated it for a short time, but subsequently resold it to defendant, who from that time to the commencement of this suit continued to operate the business of both rooms as at first.

Both- at the time of the cutting of the connecting door and of the ■sale of the billiard and lunch room business to Richards, plaintiff’s consent was given to these arrangements with the mutual understanding that the terms of defendant’s lease should be in no way affected thereby.

Plaintiff at all. times furnished to defendant all beer ordered by him and at the same price as that first agreed upon.

Immediately prior to the commencement of this suit defendant notified plaintiff that he intended to purchase other beer than plaintiff’s, ■and defendant about the same time tore down the saloon furniture and fixtures installed by plaintiff and secured other furniture in their place which he is now using.

Plaintiff by this action seeks to enjoin the sale by defendant in ■either of said rooms of any beer other than that manufactured by plaintiff.

Defendant by its answer admits the lease of plaintiff’s room and the terms of the lease as to rental and fixtures, but pleads that the covenant to deal exclusively in beer manufactured by plaintiff and not to :sell other beer in said premises is void as in violation of the antitrust laws of Ohio, and as in restraint of trade and against public policy.

We have not been favored with any brief by counsel for defendant, but in oral argument it is claimed that the sale of beer other than that manufactured by plaintiff is not a violation of the lease, if such beer is sold in the AndrewsJ room and not in plaintiff’s room, and that the lease has therefore been strictly complied with.

Second. That the covenant not to sell other beer than plaintiff’s is contrary to law and public policy and therefore void; and

Third. That injunction is not the proper remedy of plaintiff, who must sue, if at all, in an action at law for damages for breach of contract.

Defendant’s whole reliance as to the law of the case seems to be on two cases decided by the circuit courts of Lucas and Cuyahoga counties: The cases of Huebner-Toledo Breweries Co. v. Singlar, 28 O. C. C. 329, and Cleveland & S. Brew. Co. v. Demko, 29 O. C. C. 102.

We have not been able to find a perfect report of the latter case, as the report published in the Law Reporter seems to be strangely mixed with another case, and we are unable to determine what was intended to be said by the court in its opinion.

The facts disclosed in the former case are so different from those in the case at bar that that decision is only valuable in our discussion, for the evident ability with which the authorities are therein reviewed.

As to the first defense suggested, we have no hesitancy in saying that it rests upon the thinnest of technicalities, unworthy of consideration by a court of equity.

As long as the saloon fixtures remained in plaintiff’s room, even after the two rooms were connected and’ became practically one, no question was raised. Defendant had recognized plaintiff’s rights under the lease by asking and obtaining its consent to cutting the door connecting the two rooms, and this with the express agreement that the terms of the lease should not be thereby affected. Again -defendant recognized plaintiff’s rights under the lease when he asked and obtained from plaintiff its consent to make the exchange in the use of the two rooms, removing the saloon business to the Andrews’ room. And again, when the billiard and lunch business was sold temporarily to Richards by defendant, he did so under an express agreement that the terms of the lease should be in no way affected thereby. Again, it was at defendant’s request that larger and better saloon fixtures were by plaintiff installed in the Andrews ’ room.

By all of these actions defendant impliedly, and by some of them ■expressly and for valuable considerations, agreed that plaintiff’s lease should be considered as extended over the enlarged quarters. It is unquestioned that in the use of the two rooms, defendant was operating simply an enlargement of his former business, not a separate saloon business, but the same saloon business, and especially is this shown by his express agreement made with plaintiff (when he sold out the restaurant and billiard business to Richards) that the sale of that part of his business should in no way affect the lease although he was thereafter to operate his saloon business in the Andrews’ room and not in plaintiff’s room.

Having thus recognized plaintiff’s rights under the lease in the business conducted in the Andrews’ room he cannot at will and in his; own time and without plaintiff’s consent repudiate those acknowledged rights.

To say that the sale of another brewer’s beer in the Andrews’ room’ is not a sale of it in plaintiff’s room, may be literally true; but since the rooms have been so connected as now to be used conveniently together in carrying on defendant’s business and that too by the mutual agreement of plaintiff and defendant, and with the express agreement that the terms of the lease shall not be affected thereby; and in view of the continuous course of conduct of defendant in conducting his business in the two rooms and in recognizing plaintiff’s rights under his. lease in the Andrews’ room, defendant is now estopped from denying those rights.

The covenants of the lease provided not only that defendant should not sell other beer than plaintiff’s in plaintiff’s room, but also that he, the defendant, during the full period of five years and in consideration of said lease and the use of plaintiff’s furniture and fixtures, should deal exclusively in the beer manufactured by plaintiff. He cannot avoid this agreement by any such flimsy pretext as that now raised.

Passing the second defense for a moment and coming to the third! defense, i. e., that the proper remedy of plaintiff is by action for damages and not by injunction, we have even less difficulty.

- Plaintiff has definité rights under his contract and has the right, if the contract is lawful, to insist that it shall be lived up to. The possession and use of plaintiff’s property is involved.

Plaintiff rented that property for a definite purpose — the sale of its beer — not for the sale of a rival’s beer; not to be shut up while a rival is doing a rushing business next door; and not, in the expressive language of plaintiff’s counsel, to be used as a Sunday school or T. M. C. A. It was rented for a saloon to be run in plaintiff’s interest and in plaintiff’s interest only.

Whatever we may think of the liquor business as a business, it has-certain recognized rights under the laws of Ohio, and those rights must be recognized by courts as long as the legislature continues to grant them.

A beer contract, if not invalid on constitutional grounds or on grounds of public policy, must be enforced like any other contract, and where, as in this case, the conflict is not between the liquor dealer and the public, but is between two or more liquor dealers, their rights must be determined in reliance on the same legal principles as in any other analogous case.'

It is evident that in the case at bar an action for damages would, have afforded no adequate remedy and that plaintiff’s interests can only be protected by preventing a continuous violation of his lease.

While an action for damages might afford a remedy for past violations of plaintiff’s rights under the lease, there is here a case of threatened, continuous future misuse of plaintiff’s property in violation of a written contract and to the continuous injury of plaintiff’s property rights. This future abuse plaintiff now seeks to prevent. To do this, injunction is the proper remedy. See opinion of Judge White im Stines v. Dorman, 25 Ohio St. 580, 584.

But the main reliance of defendant is apparently on his second defense; that is, that the covenant in the lease that plaintiff’s beer alone shall be sold on the leased premises or by defendant, is in violation of the Valentine antitrust law, 93 O. L. 143 (Lan. 7586 et seq.; B. 4427-1 et seq.), as in restraint of trade and is against public policy and void. This raises a more difficult question of law.

Defendant’s counsel relies strongly on the case of Huebner-Toledo Breweries Co. v. Singlar, supra.

The court in that case holds that “A covenant in a lease of certain premises by which the lessee agrees to sell only the lessor’s beer thereon -or within a radius of one mile for a period of five years is in restraint of trade and void as against public policy if there is no conveyance to> him of a good will attaching thereto,” and that

“A contract by the vendor of a certain business not to thereafter enter into competition with the vendee in that locality is enforcible at law; but a contract, based upon no matter how valuable a consideration, by a lessee of property not to enter into competition with the lessor in other localities is void as against public policy, and unenforcible. ”

In that case a brewing company leased property to two tenants, Joseph and Annie Singlar, with the stipulation that they should sell no other beer than that supplied by the lessor, either in the building so leased or within a radius of a mile thereof. These tenants owned another piece of property within a mile of the leased property; in fact, within one hundred feet of it, but unconnected with it, and they attempted to sell other beer than plaintiff’s in the property owned by them. The court held that the contract insofar as it restricted such sale in property not connected with the leased property was invalid as against public policy. That case has no bearing upon the question before us.

As we view the case at bar, the two rooms operated by defendant were by defendant himself practically made one. He occupied them both in connection, and had for various valid considerations bound himself repeatedly to extend the covenants of the lease over both rooms. This is a very different case from one involving pieces of property, not iised for one and the same business and located far apart, even though the business of each was of the same kind and run by different members of the same family.

In what respect then is the contract in question a contract in restraint ¿>f trade or against public policy? The fact that this contract relates io liquor cannot vary the principles by which it must be governed.

It must be presumed that this defendant has paid his tax under the Aiken law, or he would not be doing business at all. Having paid this tax, he is not to be molested, under the provisions of the law in the sale of liquor of any kind, unless he can, by his own acts, limit his rights to sell. He has attempted by private contract' and for a valuable consideration so to limit his rights. Had he not so contracted, he would not have obtained control of the property which he now enjoys.

Suppose a miller owns a storeroom and rents that storeroom to a •grocer with the stipulation that the grocer may sell what he pleases there ■except only that he shall sell no other brand of flour than that made by his lessor, the miller. Suppose a manufacturer of boots and shoes rents a room to a man in the retail shoe business with the stipulation that he shall sell only the line of shoes made by his lessor. Suppose a newspaper press agency rents its facilities for gathering news to a newspaper company, under the stipulation that no other press agency’s service shall be employed for a certain period of time — five years. Suppose a newspaper manager employs an editor for the period of five years at a stipulated salary with the proviso that all of his time and' talents are to be employed in the service of his employer.

In all of these cases there is a restriction in the free use of property and services and ability; but are they in restraint of trade? Is any monopoly created thereby? Is the public prevented thereby from buying other flour or another make of shoes, or from reading other newspapers supplied with news from other sources, or from reading the effusions of other gifted editors ?

The theory on which an act or contract in restraint of trade is prohibited by law is, as. we understand, it, based on the supposed injury to the public by the restraint of its powers of free trade. It is contrary to a wise public policy that the public should be prevented from freely buying and selling merchandise wherever it can do so to the best advantage. Such a policy does not extend so far as to prohibit a man from agreeing to devote his attention to particular lines of activity, unless such a limitation of his powers can be shown to amount to public, injury. . •

It has been held in Michigan, Maryland, Massachusetts and other states that where the restraint contracted for appears to have been for a just and honest purpose, for the protection of the legitimate interest of the party in whose favor it is imposed, reasonable as between the parties and not especially injurious to the public, the restraint will be held valid. Hubbard v. Miller, 27 Mich. 15; Guerand v. Dandelet, 32 Md. 561 [3 Am. Rep. 164]; Pierce v. Woodward, 23 Mass. (6 Pick.) 206.

An agreement not to engage in a particular trade or business in a certain place within a specified time is valid. Arnold v. Kreutzer, 67 Ia. 214 [25 N. W. Rep. 138], And if this is so, if a man can lawfully bind himself not to engage in business at all, why can he not also lawfully bind himself not to engage in a part of a business, or not to use lessor’s premises for the purpose of engaging in the sale of a rival’s. product?

Cases are numerous where parties have contracted not to engage for a number of years in the practice of law or of medicine in a certain place, and such contracts have generally been held valid. Usually m such cases there has been a sale of the good will of the practice but that is only a form of consideration for the contract and other considerations would doubtless be equally valid.

In a New Jersey case a rule was laid down, which seems to be fair and sound, viz.:

“The test to be applied in determining whether a restraint is reasonable or not is to consider whether it is only such as is necessary to afford a fair protection to the interest of- the party in whose favor it is' given and not so large as to interfere with the interest of the public.” Mandeville v. Harman, 42 N. J. Eq. 185 [5 Cent. Rep. 629].

In the case at bar we have no evidence that the interest of the public will be in any degree interfered -yith by the performance of the contract in question. It does appear that the interest of the brewing company requires some such protection as it had contracted for — the violation of the contract by defendant and his attempt to favor a rival of plaintiff at plaintiff’s expense is sufficient proof of that necessity.

We are unable to find that any sound public policy requires the. annulling of this contract or that the 'contract is to any unreasonable extent a contract in restraint of trade, but we do find that equity and fair' dealing on the other hand require its enforcement.

There will therefore be a finding and decree for the plaintiff; an ' injunction will be granted as prayed for; judgment against defendant for costs, execution for costs awarded and cause for execution.

Norris and Vollrath, JJ., concur.


author: SMITH, J.

text:
    ERROR.
    [Hamilton (1st) Circuit Court,
    July 13, 1908.]
    Swing, Giffen and Smith, JJ.
    Houston v. Cincinnati, M. & L. Trac. Co.
    1. TffxscONnucT or Counsel Must be Shown by the Record.
    Misconduct oí counsel for the prevailing party in his remarks to the jury cannot he considered as ground of error, unless it has been properly brought into the record.
    .2. Ereok cannot be Predicated upon Testimony that Could Have Been Anticipated.
    .Error cannot be predicated upon accident or surprise with reference to testimony offered by the opposite side, where a. fair interpretation of the testimony complained of discloses nothing which could not have been -anticipated.
    ‘ERROR to Hamilton common pleas.
    A. A. Ferris, for plaintiff in error.
    Thorne Baker, for defendant in error.
   SMITH, J.

The grounds of error relied upon by counsel for plaintiff in error are:

First. Misconduct of counsel of the prevailing party in his remarks while addressing the jury.

Second. Accident and surprise which ordinary prudence could not guard against.

Third. ■ That the verdict was against the weight of the evidence.

Fourth.' That the charge of the court was such as to mislead or confuse the jury.

As to the first ground of error, if there was misconduct of counsel of the prevailing party in his remarks to the jury, such ground cannot he considered by this court under the case of State v. Young, 77 Ohio St. 529 [83 N. E. Rep. 898], 'as the same is not properly brought upon the record.

The accident or surprise complained of relates to the claim of the' plaintiff in error that the testimony of the motorman tended to show that there were curtains on the sides of his vestibule which he had down, when as a matter of fact upon investigation the vestibule had no side •curtains.

We do not think this ground of error is well taken, as the motorman in describing the vestibule of his car on the night of the accident says: “It was a closed vestibule car. I had my curtains down, center and sides, and my right hand door was open as I had just turned the switch at Sixth and Broadway. ’ ’ This answer is very plain and can only refer to the curtain in the center of the car at the door opening into his vestibule, and the two curtains on each side of the center door.

As to the claim that the verdict and judgment is against the weight ■of the evidence, this was for the jury to determine, and we cannot say that the verdict is wrong on this account.

We see no error in the general charge of the court as complained of by plaintiff in error, whereby the jury was misled or confused on the question of negligence or contributory negligence, and- there being no •errors in the record, the judgment of the trial court is affirmed.

Swing and Giffin, JJ., concur.


author: ADAMS, J.

text:
    FRAUD — JUDGMENTS—PLEADINGS.
    [Stark (5th) Circuit Court,
    1898.]
    Pomerene, Adams and Douglass, JJ.

      Ulman, Einstein & Co. v. Effinger.
    N. J. and J. S. McLean, for plaintiff in error.
    P. J. Collins, for defendant in error.

       Affirmed by the Supreme Court, 'without report, Einstein & Co. v Efinger, 60 Ohio St. 579.

   ADAMS, J.

First. A judgment may be set aside for fraud notwithstanding •the fact that no defense was made at the time it' was rendered, although the defendant was properly served with summons by copy thereof left at her usual place of residence.

Second. A judgment procured against a party on an account which she never owed, nor,became either directly or indirectly liable for its payment, constitutes a fraud on the court -rendering such judgment, which should be set aside in a proper proceeding brought for that purpose.

Third. An averment in a petition that goods or merchandise were' sold to a husband, and that afterwards and before suit is brought to recover the price thereof, the plaintiffs inserted the name of the wife of such husband in said account, and without her knowledge or consent, is a sufficient averment of fraud to constitute a cause of action and a demurrer to such petition and pertinent interrogatories attached thereto is properly overruled.

Pomerene and Douglass, JJ., concur.