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    THE MERIT SYSTEM IN THE POLICE DEPARTMENT.
    Circuit Court of Jackson County.
    State of Ohio, ex rel John Herrick et al, v. Henry C. Searcy, as Mayor of the City of Portsmouth, Ohio.
    Decided, January, 1909.

      Municipal Gorporations — Merit System of the Gócle — As Applied to the Police Department — -Sections 129, 152, 167, 186 and 213.
    1. Seniority of employment in the classified service of municipalities entitles incumbents in office thereunder to no preference over others subsequently acquiring positions in such service by virtue of examinations under the merit system, except as provided by Section 165 of the municipal code of 1902 (Revised Statutes, 1536-701) in cases of promotion from one rank to another. Hence, in reducing the number of patrolmen of a city, pursuant to ordinance of its council, the board of public safety may reclassify its police force regardless of the length of service of its members.
    2. Section 227 of the municipal code of 1902 (Revised Statutes, 1536-1005), authorizing municipal councils to fix the number of employes in the department of public safety, gives councils authority to reduce the number of its patrolmen.
    3. Sections 167 and 213 (Revised Statutes, 1536-703, 1536-912), providing that no removals in the civil service list shall be made except for cause, and continuing in office certain municipal employes, aré provisional in their scope and were intended to give incumbents their status under the new code, but they give no higher status or greater right to position than those subsequently placed in employment by examination under the merit system.

      Milner, Miller & Searl, for relators.

      Horace L. Small, City Solicitor, contra.
    Prior to November, 1908, the police force of the city of Portsmouth consisted of a chief and twenty patrolmen, including a turnkey. At that time the city council, by an ordinance repealing a former ordinance, reduced the force of patrolmen from twenty to eleven. Pursuant to the ordinance, the board of public safety again classified its force of police, naming the eleven men who were to constitute the reorganized force of patrolmen from the incumbents and sent their names to the mayor, who notified the nine patrolmen who were not retained on the force that they had been dropped from the pay roll. The eight relators appearing as plaintiffs were among the nine discharged or dropped. Five of the eight were patrolmen when the municipal code took effect, and these five, as well as the three other relators, in point of seniority of service, had been on the force longer than some of the patrolmen retained by the board of public safety in its reorganization of the police force.
    Jones, J.; Walters, J., and Cherrington, J., concur.
   The relators seek, by mandamus, to be restored to their rank and place upon the police force. Inasmuch as five of the relators were incumbents bn the force when the new code went into operation and because they, as well as the other three relators, in length of time of service, had •continuously served longer than some others who were retained by the board after the reduction of the force by the city council, it is urged on their behalf':

1st. That the five incumbents when the code took effect are entitled to preference over other patrolmen later placed on the force of the department.

2d. That in any event, because of continuous seniority of service on the force, these eight relators were entitled to preference over those of lesser rank in that regard, and that the implied intendment of the merit system found in the code is that such seniority of service must be maintained in making removals, when the entire force has been reduced by the city council.

By Section 227 of the code (Revised Statutes, 1536-1005), the city council had authority to determine, by ordinance or resolution, the number of employes in the department of public safety. This the city council did, and fixed the number of patrolmen at eleven, and repealed its former ordinance. It is conceded that the council had this authority. In the drafting of the municipal code while the Legislature had in view the application of the merit system to possible increases of the force and to individual removals therefrom for specific causes, it did not make any provision whatever for -a material reduction of the force of employes by the action of the city council.

In arriving at a proper conclusion, upon an examination of the various provisions of the code, we think that the general power of appointment and removal of .the employes of the police department has been conferred upon the board of public safety by Section 129 of the code (Revised Statutes, 1536-636). Section-158 (Revised Statutes, 1536-694), is not helpful of the question, as that section is provisional and is intended to provide for the operation of the new code by the certification of the names of old incumbents to the mayor. It did not contemplate that, upon the selection of every new board of public safety, a reorganization of the police department should follow ex necessitate. This seems to be the view in State v. Wyman, 71 O. S., 1, 11.

Section 129, supra, provides that the directors of public safety, “subject to the limitations herein prescribed,” shall have the exclusive power of appointment and the sole power of removal of the employes in its department. This power so conferred by this section is explicit, general and broad in its scope; the board’s power is limited -only by such limitations elsewhere found in the act. An examination of the code will show that this limitation is confined to individual removals made for cause and upon hearing. The patrolman is suspended for a specified cause as provided in Section 152 (Revised Statutes, 1536-688), and under Sections 167 and 168 (Revised Statutes, 1536-703, 1536-722), upon the patrolman’s removal, the mayor’s act is certified or appealed, as the case may be, to the board of public safety. This seems -to be the only limitation of the broad power of removal conferred on the board by Section 129; such cases are limited to individual removals for cause. Otherwise the board’s “sole” power of removal is not curtailed. We can not otherwise give effect to the act of council in reducing the police force.

It is urged that five of these relators have an especial right to be retained because they were -on the force when the new code took -effect. The municipal code stipulates that the merit system shall be maintained, and by the provisions of Section 167 and 213 of the code (Revised Statutes, 1536-703, 1536-912), it is provided that no removals shall be made except under the provisions of the act. These sections were provisional, and were intended to give incumbents their status under the new code; the sections did not give them a higher status or a greater right to position than those subsequently placed on the force by examination under the merit system. They are not entitled to. preference under any provision of the code. If this action of the board were being taken at the first organization of the force, following the adoption of the code, and not at a later reorganization, the board could have selected any of the old incumbents it desired, without regard to seniority, under Section 158. See opinion of Summers, J., in State, ex rel, v. Hall, 2 C. C.—N. S., 237.

However, it is impossible to apply seniority as a sine qua non, even if we attempt to enforce the merit system found in the code. And this, for the reason seniority of service is referred to in the code in Section 165 (Revised Statutes, 1536-701), in cases of promotion only. Again, in the scheme of merit adopted by the code, in so far as patrolmen are concerned, they obtained position by an examination upon qualifications in which seniority was not even an element. Once on the force, all of the patrolmen were on an equality. Those retained were all merit men. The older incumbents had no greater right or priority than those subjected to physical and other examination who got on the force later.

It is insisted that the action of the city authorities, if upheld, would tend to destroy-the entire purpose of the merit system. It is undeniable that the police force might be radically changed and new members placed thereon; but after all that may or can be done, the merit idea is not destroyed, for in any event, as in. this case, the patrolmen retained must be merit men — men who passed the requisite examinations.

It is not the province of this court to cast a new merit system, or to lick one into shape to meet new conditions. We leave that to another branch of the government. The merit system devised, was to meet the contingency of increases in the forcp and of individual removals for cause. Farther it does not apply. To meet the contingency that has arisen in this case, where a material reduction has been made in the police force, as is now suggested by counsel for relators by the application of the element of seniority of service, would be to enlarge judicially the scope of the act where the Legislature had failed. The language of the learned judge, in commenting on the merit system in the case of State v. Baldwin, 77 O. S., 552, can well be quoted here:

“But the wisdom of it, or effectiveness of it, is not a matter for our consideration. We have only'to determine what the Legislature in its wisdom has prescribed.”

It might have been well had the 'relators made the members of the board of public safety parties to this suit, since the' acts of. removal were made ;by that board, but since no question of parties was made by counsel, we also have concluded to ignore it, and we decide the'-controversy’ upon its merifs.

While issue has been joined by the petition and its amend-,' ments and the mayor’s answer, the material facts are admitted by those pleadings.

The demurrer to the answer will be overruled, mandamus refused, and petition dismissed with costs.


source: Caselaw Access Project

license: Public Domain

text:
    JURISDICTION TO PUNISH A RECEIVER..
    Hamilton County Circuit Court.
    Eichert et al v. Eichert et al.
    Decided, December 29, 1908.

      Contempt — Receiver Appointed by Nisi Prius Court — Disobeys Order of Appellate Court — Jurisdiction to Punish.

    A receiver can not suspend an order of the court of common pleas by appeal, and tlien defy the order of the appellate court on the ground that .only the court which appointed' him can enforce the order; but in such a case the appellate court has jurisdiction to adjudge the receiver in contempt and to punish him therefor.

      Frecl Herienstein, for the charges.

      Patrick Gaynor, for the receiver,

      Gieken, J.; Swinq, P. J., and Smith,. J., concur.
   Heard on motion to adjudge the receiver appointed in this case to be in contempt for failure to pay over moneys- in accordance with the order of court.

The jurisdiction -of this court over the person of the receiver and the subject-matter on appeal from the order of the common pleas court is conclusively determined by the Supreme Court in affirming the order of this court; but it is claimed that, although the receiver willfully disobeys the order of this court, he can be punished for contempt only by the court appointing him. He himself invoked the jurisdiction of this court by appealing from the order made by the common pleas court, which was thereby suspended; and this court having made a like order against the receiver may enforce obedience with all the power and to the same extent it could if he were appointed by it. He can not by appeal suspend the order of the common pleas court and then ■ defy the order of this court upon the ground that only the court appointing him can enforce -the order.

As said in the case of State v. Johnson, 13 Fla., 33, at 50:

"He is amenable to the court having authority for the time being in the due course of law.”

There is -no excuse for his resistance of the order of the court to pay over the money found in. his hands as receiver. If the money has- been appropriated to his own use, and he is therefore unable to pay as directed the offense is thereby aggravated. Section 6640, Revised Statutes.

We regret to conclude that the receiver is without lawful excuse for his disregard of duty, -of the authority of this court, and of the law of the ease, wherefore he is adjudged to be in contempt.


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    ACTION AGAINST COUNTY COMMISSIONERS FOR. NEGLIGENCE.
    Circuit Court of Sandusky County.
    Maria M. Yunker, Administratrix, v. The Board of County Commissioners of Sandusky County.
    Decided, December, 1907.

      Roads — “Repair” of — Plank Removed from Bridge by Traction Com* pany — Liability of County Commissioners for Resulting Injury to Pedestrian — Negligence—Section 845.

    Leave was.given to a traction company by the county commissioners to lay tracks on and over a bridge and alon'g a pike, which was formerly a state road but by act of the Legislature had been given to the county to keep open and in repair as a public road, While laying its tracks the traction company removed the plank from the bridge and left an uncovered space into which the de» cedent .fell. Held:

    That an action will not lie in such a case against the county com» missioners for damages, under the provisions of Section 845, Re» vised Statutes.

      Love & GuVberi, for plaintiff.

      Hunt (& Gam, contra.
    Haynes, J.; Parker, J., and Wildman, J., concur.'
   The petition in this case was filed on the 15th of March, 1902, by the plaintiff, Maria Yunker, as administratrix of the estate of David Yunker, deceased, and sets forth, among other things, that the defendants, the county commissioners of this county, had' charge of .the.highways and bridges within the county, and especially the bridge over the Sandusky river in the city of Fremont, on the Maumee & Western Reserve turnpike.

For cause of action the plaintiff sets forth that the commissioners' granted -a franchise and right-of-way along the Western Reserve turnpike and said bridge thereon over the Sandusky river in -the city of Fremont, Ohio, to the'Toledo, Fremont & Norwalk Railroad, for the purpose of constructing and operating thereon, and over said highway, and over and upon the bridge aforesaid an electric railway. That while.said company was engaged in the construction of its electric line, it went upon said bridge for the purpose of repairing and strengthening it, and that the defendants negligently and carelessly allowed said company to take up and remove from said bridge a large part of the floor thereof; and said defendants, on or about the 18th day of March, in violation of their duty, carelessly and negligently failed to require said company to repair the same, or cause the same to be replaced, on the 18th day of March aforesaid.

The petition then sets forth the location of the bridge over the river and the height above the waters, and that the defendants further'carelessly ari.5. negligently failed to keep the bridge in proper repair, by permitting the floor thereof to be torn up and left open and unguarded and unprotected, and without causing the open space to be covered, protected and guarded, vdiere said floor was so removed as aforesaid, ,in a sufficient manner to caution and advise the traveling public, and especially foot passengers, that the floor of said bridge had been thus removed; and that it was impossible to travel over said part of said bridge, or to cross from one side thereof to the other, where the floor had been thus carelessly and negligently removed, as was the custom of pedestrians to do. She then avers that the deceased party had fallen through said bridge, without any fault on his part, etc.

It is a matter of public history that .this Maumee & .Western Reserve road was built first under grant from the government,, and a certain amount of the road was built, and is was after-wards completed by the state of Ohio, and it was a state road, owned and controlled by the state of Ohio down to a certain period, some years ago — I think it was in the ’80’s — when, by an act of the Legislature of the state, the commissioners of this county and the commissioners of Wood county were authorized to take over that part of the road in their respective counties and keep the same open and in repair as a public road, the ohjeet, perhaps, being to do away with it as a toll road, as it had been during the time it was under state control.

The plaintiff relies upon this fact, that the commissioners have control of this road, and are bound to keep it in repair, and keep it open as a public road, for the use of the public and safe for the public, and upon that account it is argued that' the commissioners are liable.

I will not stop to read that act. There is nothing in the act that throws any light on this question, and so far as the liability of 1¿he commissioners is concerned, the plaintiff, if she recovers, must recover by virtue of the act of the Legislature, Section 845 of the Revised Statutes. . ,

At that time, on April 13th, 1894, Section 845 was amended so that there was inserted in it—

“And any such boardrbf county commissioners shall bq,liable in their official capacity; for. any damages' received by reason of the negligence dr carelessness of said commissioners in keeping any such road or bridge in proper repair. ’ ’

In the progress óf the' case, a demurrer' was interposed to plaintiff’s petition. That demurrer was overruled, and the defendants given leave to ansvrer, and they filed an answer, and to that answer a demurrer was interposed. The case had been pending two or -three years, and had run along, and finally the matter was submitted, and I suppose an entry was made by the court. At any rate the judge passing upon the demurrer to the answer, held that the demurrer searched the record and that the plaintiff’s petition did not state a cause of action, and thereupon the petition was dismissed, and judgment rendered against the plaintiff, and error, was prosecuted here to reverse the action of the court.

Now it is argued on behalf of the defendants that this road was not out of repair' at all. No repairs were being made to it; but in pursuance of the power vested in the county commissioners they had granted the electric road the right to pass along this street,'and the right to pass across the bridge, and in order to have the bridge sufficiently strong to sustain the cars passing over it, it became necessary to strengthen the bridge, rather than repair it, and they claim that is one reason why there is no liability on the part of the defendants.

But we have passed that by, and have considered this statute, and its application to this case, and this class of cases. In the case of Board of County Commissioners v. Storage Co., 75 Ohio St., 244, decision by Judge Shauck, and it refers largely to the construction of the statute in question, the syllabus of the case is:

“Consistently with the rule that statutes in derogation of the common law should not be extended beyond the plain meaning of their terms, the amendment of Section 845, Revised Statutes, providing that county commissioners shall be liable for negligence ‘in keeping any such road or bridge in proper repair’ can not be interpreted as creating a liability for ’negligence in the operation of a free ferry.” .

There was a ferry across the Muskingum river, which was-claimed to' -have been built and operated as part of a public" road — public highway — and some person was crossing' with his team, and as he approached the shore on one side his horses went through and were drowned. He sued the county commissioners, claiming that a proper construction of the statute would make that part of the highway. Judge Shauck says:

‘ ‘ The view urged by counsel for the plaintiff is that we should regard the phrase of the amendment ‘any such ro.ad or bridge’ as including a free ferry which the commissioners might see fit to establish and maintain. Since ferries are not mentioned in either the .amendment or the amended section, it is obvious that the suggested interpretation would extend'the section beyond the natural meaning of its terms. If, in contemplation of the Legislature, bridges and ferries are synonyms, it would scarcely have regarded a special section as necessary to authorize the establishment and maintenance of the latter. We need not consider the suggestion that ferries, as well as bridges-, are within the reason of the amendment for interpretation requires o that the meaning of the Legislature be ascertained ■ from what it has enacted. We can not assume that the provision authorizing the establishment of free ferries was absent from the minds of the members of the Legislature when they enacted the amendment, because it was in a different section of the statute, nor are we permitted to indulge in conjecture respecting their action if the provision had been in their minds.. Nor is it a case in which a statute should be construed liberally for the purpose of accomplishing a clearly indicated purpose and to prevent the failure of the statute. If the suggested interpretation is rejected the statute will still operate, and -its operation will be as broad as the appropriately indicated purposes of the Legislature. The argument does not really tend to show that the Legislature has provided for a liability of - the' commissioners, because of their negligence in operating ferries, but rather it is a legislative argument that ferries, as well as bridges, might have been included. To adjudge a liability on that view would be to legislate rather than to adjudicate. These and other like considerations have led to the formulation of the elementary and oft-repeated rule that statutes in derogation of the common law should’not by interpretation be extended beyond their terms. Propriety will be observed, and certainty of interpretation will be promoted, if we assumed that the Legislature acts in view of all legislation relating to the subjects in,hand and with a comprehension of the established rules by'which their intention will be as'certained. ’ ’

Thereupon the Supreme Court reversed the circuit'court and affirmed the common pleas judge, who found in favor of the' commissioners.

The Supreme Court had this statute before them again during this same session, in the case of Ebert v. Commissioners of Pickaway County, 75 Ohio St., 474. The syllabus reads:

“Consistently with the rule that statutes in derogation of the common law should not be extended beyond the natural meaning' of their terms, the amendment of April 13th, 1894, of Section 845 of the Revised Statutes that ‘any such board of county commissioners shall be liable in its official capacity for any damages received by reason of -its negligence or carelessness in keeping any such road or bridge in proper repair’ can not be interpreted as creating a liability for injuries sustained by one whose horse takes fright at stones which commissioners had collected by the road side for the purpose of repairing a road or bridge, there being no defect in either road or bridge contributing to the injury.” (Judge Haynes read .the opinion of Judge Shauck in full.)

Now the statute reads:

“The county commissioners shall be capable of suing and being sued, pleading and being impleaded in any court of judicature, and of bringing, maintaining and defending all suits-either in law or in equity, involving an injury to .any public state or county road, bridge or ditch, drain or water-course established by such board in their county, and for the prevention of injury to the same, and any such board of county commissioners shall be liable in their official capacity for .any damages received by reason of the negligence or carelessness of said commissioners in keeping any such road or bridge in proper repair,” etc.

We think that under these decisions, without discussing the matter at any great length, that a proper construction of that statute is', that county commissioners- should only be liable for the damages incurred by reason -of negligence in not keeping in: repair any bridge established by them. ' -

The statement'of facts that’ I have'made shows the character of this bridge; by whom it was built, and by whom it is occupied ; and the petition of the plaintiff urholly fails to state, in any manner or form, that this bridge was established by ther county' commissioners; it does not do so because as a matter of fact this is not the case.

For this reason, and upon these decisions, we hold that the court of common pleas did not err in sustaining the demurrer to the petition, and dismissing the case. Having decided this point, we do not care 'to discuss further .the others that were raised in'the case.


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    PREFERENTIAL CLAIMS.
    Circuit Court of Hamilton County.
    Elias Bach & Sons et al v. Smith-Pattison Manufacturing Company.
    Decided, February 6, 1909.

      Debtor and Creditor — Loans Entitled to Preference — Assignment of Accounts as Security — Corporations—Insolvency—Distribution.
    A corporation in need of money entered in good faith into an arrangement with parties who were, not creditors apcl were willing, to extend it assistance, whereby a loan, was made, and certain accounts were transferred as security, and as. these were paid other accounts were substituted. The corporation at .a later date went into the hands of a receiver, and upon distribution of the fund arising from a sale of its assets it was held:

    That the contract was valid and the parties making the loan should be preferred over the general creditors.

      Moulinier, Bettman & Hunt, for plaintiffs.

      Healy, Ferris é McAvoy, contra.
    Swing, P. J.; Smith, J., and Giffen, J., concur.
   This cause is in this court .on error to 'the judgment of the superior court. That court gave judgment on the rights of parties to a fund which was in the hands of the court through a receiver which it had appointed to take charge of the SmithPattison Co. The amount involved is quite large and the trial below occupied a very considerable time, and in this court the case was fully argued orally, and very full and able briefs containing almost a hundred pages, with a great number of authorities cited, have been submitted and considered. In deciding the case we will not attempt to comment on the authorities cited, nor to review .at length the evidence, but simply state our conclusions as to the law and the evidence.

The count below found in fa^or of the claims of E.- M. Pattison and John G. Robinson, and in doing so the general creditors of the insolvent firm of Smith-Pattison Co. claim error was committed. The Smith-Pattison Co. was a firm of $125,000 capital, of which nearly $100,000 had been paid in. The firm was located in Cincinnati, and was engaged in the manufacture and sale of cigars. The evidence tends to show that they expended some $60,000 in advertising -and introducing their brands of cigars-.

In October, 1907, when the panic was at its worst, the company was hard pressed for funds, and the bank at which it was doing business denied it further credit, and demanded payment of l-oans already made, -and refused to honor checks on funds to its credit in the bank. In -order to save .the firm from immediate ruin it became necessary to raise $20,000 from other sources than the bank. This it did by borrowing $15,000 from E. M. Pattison and $5,000 from John G. Robinson. To secure this money the company assigned to Pattison and Robinson certain choses in action, to-wit, certain book accounts. The notes given by the company for these loans were payable on demand. It was provided in the agreement that if .the note was not paid and while the debt existed, that when certain of the accounts were paid instead of paying the different sums -over to Pattison and Robinson, other good accounts which the company had might be substituted from time to time, and this was done. The object of Pattison and Robinson in lending this money to the firm was tp aid the firm in its financial difficulty as well as to secure themselves for the loan. Pattison’s son was -a member of the firm and Robinson himself was a large stockholder as well as an -officer of the firm. They were not seeking -an investment for their funds nor -were they seeking to take advantage of the firm or its creditors, but on the other hand ’were trying to help both. There can be n-o 'question -as to the good faith of any of the parties to this .transaction, and justice requires that it should be carried out unless it -is contrary to well settled principles of the law. The questions that have frequently arisen where an insolvent concern seeks to prefer one creditor over another have n-o relation to this transaction.

Pattison and Robinson were not creditors of this company. They did not seek to get control of this company or any of its property. The company sought Pattison’s and Robinson’s money, which it, the company, sorely need.ed, and to secure repayment to them gave the security referr'ed to. The general creditors were benefited by this and not injured, and it would be manifestly unjust that the general creditors should now take away the money of Pattison and Robinson which was loaned to the company for their benefit. "We think the contract made by the parties was a valid contract and in enforcing it the court below was right.

Later in the same year, to-wit, December 28, the company was pressed for funds to carry on its business, and it sought the same parties for help, and this was given, $5,000 being loaned on that day and $4,000 on January 14,1908. The amount agreed to be loaned the company by Pattison and Robinson was $9,000. The same remarks, supra, in regard to the relations of the parties applies equally here. Pattison and Robinson sought no advantage of the company, but the company needed Pattison’s and Robinson’s money, and all Pattison and Robinson asked was a return of the money and security from the company that it should be returned. This, of course, the company represented to Pattison and Robinson it was anxious and willing to do. In substance the agreement was that it would pledge to Pattison and Robinson any chattel property -that it had and which Patti- • son and Robinson should take.

The company did not act promptly in putting its property in pledge, but in accordance with its agreement it did carry it out by placing certain cigars in the possession, .as we hold, of Pattison and Robinson. The pledge as made fulfilled every requirement of the law, and the court decided rightly in giving effect to the contract of the parties. It would have been a great injustice to have held otherwise.

Judgment affirmed.


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    PROSECUTION FOR. KEEPING OPEN ON SUNDAY.
    Circuit Court of Hamilton County.
    Lutkehaus v. Village of Mt. Healthy.
    Decided, December 19, 1908.

      Criminal Law — Sunday Closing — Failure of Proof as io the Exception Provided in the Statute.

    A conviction of keeping a place where intoxicating liquors were sold open on Sunday will not he set aside because of failure to prove that the place was not a regular drug store, when the testimony offered was to the effect that the place was a saloon in which intoxicating liquors were sold on other days of the week.

      Gog an da Williams, for plaintiff in error.

      Oiuen N. Kinney, contra.
    The plaintiff in error was convicted below of keeping his saloon open on Sunday.
    Smith, J.; Swing, P. J., and G-iffen, J., concur.
   In the trial of this case before the mayor no evidence was-offered by the plaintiff in error in defense, and we can not say that he was not proven guilty beyond a reasonable doubt, unless, as claimed by plaintiff in error, no evidence was offered upon the exception in the affidavit that the room claimed to have been open on Sunday was not a regular drug store.

In the absence of evidence to the contrary, we think the testimony offered by the state tended to prove the exception, as there was direct evidence that the place that was open was a saloon, and plaintiff in error sold intoxicating liquors therein; thereby showing it to be a place where on other days of the week intoxicating liquors are usually sold and thus tending to prove that the place was not a regular drug store.

We can not consider the validity of the ordinance, inasmuch as it does not appear upon the record. Nelson v. Berea, 21 Ct. Ct., 781.

Judgment affirmed.


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    PROSECUTION OF BANK OFFICER FOR EMBEZZLEMENT.
    Circuit Court of Stark County.
    In re Application of Corwin D. Bachtel for a Writ of Habeas Corpus.

    Decided, 1907.

      Constitutional Law — Section 3821-85, Relating to Embezzlement, etc., by Bank Officials — Habeas Corpus — Lies Against the Jurisdiction of a Court, but not Against the Regularity of Its Order of Commitment — Criminal Law — Error—Free Banking Act of March 21, 1851 — Classification.
    1. While errors of the trial court can not be properly brought before a reviewing court by habeas corpus, a petitioner for a writ of habeas corpus who attacks the jurisdiction of the trial court will be heard.
    2. Section 3821-85, providing a penalty for embezzlement, etc., by bank officers, employes and agents, is not unconstitutional because not of uniform operation.
    3. But if it be true that one of the provisions of this act is unconstitutional, it follows that the corresponding section of the original free banking ac.t, passed before the adoption of the present Constitution; is unrepealed and still a valid and constitutional act under the provisions of which an offender may be prosecuted.
    Donahue, J.; Taggart, J., and McCarty, J., concur.

       Affirmed by the Supreme Court of Ohio without report; leave to file a petition in error in the United States Supreme Court refused.

   The petitioner, Corwin D. Bachtel, in his petition in habeas corpus presented to the judges of this court claims that he -is unlawfully restrained of his liberty by the sheriff of Stark county, Ohio, and prays an order discharging him from such im-; prisonment. It appears by the sheriff’s return that the petitioner was indicted by a grand jury of Stark county for a violation of Section 3821-85 of the Revised Statutes of Ohio, and in default of bail was committed to the jail of said county until trial could be had upon said indictment.

The petitioner claims that the indictment is invalid and that the Court of Common Pleas of Stark County has no jurisdiction thereof,- for the reason that the section, under favor of which the state is attempting to prosecute the .petitioner, is unconstitutional and void, because it is in violation of Sections 1 and 2 of Article I of -the Bill of Rights, and of Section 26, Article II of the Constitution of Ohio, and of Section 1 of the Fourteenth Amendment to the Constitution of the United States.

It is contended by -the state that this court ought not to entertain this petition in habeas corpus at -this time, for the reason that it appears' by the return of the sheriff that the prisoner is in the custody of the Common Pleas Court of Stark County in which court said criminal prosecution is pending; that he has already filed a demurrer to said indictment, raising the constitutionality of said sections, upon which demurrer that court has held adversely to his claim, and that he ought to be required to follow in the regular course and prosecute error to this court, when it would appear, if it should ever appear, that the holding óf -the common pleas court upon this demurrer was prejudicial to the rights of. the petitioner. With this contention in -the abstract we are in accord. We think this is the better practice, and one -that ought to be insisted upon by all reviewing courts, for it is not the purpose of habeas corpus to bring before' a reviewing court errors of the trial court. There is another plain and adequate remedy at law provided for that purpose. But when a petitioner files his petition in habeas corpus, averring that he is unlawfully restrained of his liberty and attacks the jurisdiction of the court issuing the warrant or order for his commitment, we think it is the policy of our law that the question of jurisdiction should be heard, although all questions of mere error or irregularity will not be heard upon such petition, but solely and alone the question of jurisdiction of the court issuing the writ or order of commitment.

In determining the question raised, then, upon this petition in habeas corpus, -to-wit, the constitutionality of the act under which prosecution is brought, it is necessary to -determine whether the language of the law itself raises any doubt as to its constitutionality. The three objections urged to the constitutionality of this act are kindred in their nature, and many of the reasons urged by -the petitioner why it is in violation of Section 26 of Article II of the Constitution of Ohio are practically the same reasons urged by him as to why it is in violation of Sections 1 and 2 of Article I of the Bill of Rights, and also Section 1 of the Fourteenth Amendment to the Constitution of the United States. In fact .the questions raised here by counsel for the petitioner are comprised in the contention that the law is not of uniform operation throughout the state, and for that reason violates all of these constitutional provisions.

Turning first- to the law itself we find this comprehensive language used: ‘ ‘ Every president, director, cashier, teller, clerk or agent of -any banking company,” etc. It is insisted by petitioner that this language does not include many other individuals similar^ situated in their business relations to the public, because the words “any banking company” can only refer to banks organized under what is known as the free banking act of this state, passed in 1851, and that such officers of all other banks are not amenable to this law, notwithstanding their occupation and duties are identical with the occupation and duties of the officers of such banks-, and that by reason thereof the law is not uniform in its operation. The presumption, of course, is that this law is constitutional, and it must clearly appear that it is not before a court is authorized to declare it unconstitutional.

In the case of Slingluff et al v. Weaver et al, 66 Ohio St., page 621, the Supreme Court say:

1 ‘ But the intent of the law-makers is to be sought first of all in the language employed, and -if the words- be free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the law-making body, there is no occasion -to resort to other means of interpretation. The question is not what did the General Assembly intend to enact, but what is the meaning of that which it did enact. That body should be held to mean what it has plainly expressed, and hence no room is left for construction.'”

If that doctrine is to be applied to the question here presented it is an end to this contention, for taking this section alone, without reference to its position in the chapter in which it is found and without* reference to its history, it clearly appears that it comprises all banking companies in the state of Ohio, and, therefore, the objections urged by the petitioner do not obtain.

But upon the theory that each section of the law must be construed in pari materia with other sections applying to the same subject-matter, then it'might fairly be said, in contemplation of the whole chapter, that there is a doubt appearing as to whether it includes all banking companies, or simply the banking companies-organized under the free banking act, and, therefore, it may become -necessary to investigate the history of this legislation for the purpose of determining -to what character of banks the act does apply.

Coming, then; to -these considerations, we find that on the 24th day of April, 1879, there was in force and effect what was then known as the free banking -act, passed March 21; 1851, Section 30 of which was substantially in the language of Section 3821-85 of the Revised-Statutes of Ohio, except as to the omission in the later act of various provisions of that section relating to putting in circulation notes and' circulating bills of such banks provided for in this act; and upon said date the Legislature of Ohio passed an act entitled “An act further to amend the act entitled an act to authorize free banking, passed March 21, 1851 (49 Ohio Laws, 41), and the acts amendatory and supplementary thereto.” And Section 6 of this amendatory act is an amendment of Section 30 of the original act and such amendment is now Section 3821-85 of the Revised Statutes of Ohio. Counsel, however, insist that these sections relating to the free banking act never became a part of the Revised Statutes .of Ohio, and we use that term for convenience at this time, and for the further purpose of designating where they can be found conveniently, and not intending to determine whether they are a part of the Revised'Statutes or not. They are at least part and parcel of the statute law of Ohio and as such we are now dealing with them, .

To determine whether the phrase in the amended Section 30, “any banking company,” applies to all banking companies of the state, or only banking companies organized tinder the free banking act, it is necessary to refer only to the title to this act, which distinctly avers that it is an act further to amend the act entitled an act to authorize free banking, passed March 21, 1851 (49 Ohio Laws, 41), and the acts amendatory and supplementary thereto; so that the conclusion necessarily follows that the Legislature at this time had not. in contemplation any other kind or character of a banking institution except those contemplated in the act of March 21, 1851, and that nothing contained in this amendatory act was intended by the Legislature, or by any fair construction thereof, could be held to include any other banking company, except the ones provided for in the original act, including those in existence or any that might come into existence under the provisions thefieof during the time that said act might remain the law of Ohio.

It appearing then that Section 6 of this amendatory act, which is now found under the sectional numbering 3821-85, must be held.to include only banking companies organized under the provisions of the original act which this act amended, or sought to amend, the next question arises as to whether or not- the classification therein attempted is imperfect, false or unnatural, and that such classification is resorted to by the Legislature for the purpose of giving a special law the appearance of a general law, to evade these constitutional limitations of the power oC the Legislature.

The Supreme Court has repeatedly held that the Legislature has the power to classify, and that the legislative authority of this state is vested in -the General Assembly in the broadest terms, by Section 1 of Article I of the Constitution, subject only to the limitations elsewhere found in the Constitution. It is, therefore, not within the province of any court to declare void, and annid, a statute by reason of a supposed violation of the principles of justice and common reason, if it be within the bounds of constitutional power. The courts have nothing whatever to do with the policy, the justice, or the wisdom of a statute so long as it can not be said that it contravenes some constitutional provision.

Again onr Supreme Court has said in the case of Railway Company v. Horstman, 72 Ohio St., 93, at page 107:

“We do not accept without qualification the postulate of the court below, that ‘classification can not be made arbitrarily by the General Assembly by seizing upon any incident or characterfistic that may suit its purpose.’ And again at the bottom of the same page, ‘where a false and unnatural classification has been resorted to that courts will interfere. ’ ’ ’

As a premise to the petitioner’s contention here we are asked to take judicial notice of the fact that there are only a very few such banks in Ohio that come within the contemplation of this section, but it is very doubtful to us whether this contention is correct or not. Certain it is not of universal knowledge, for it is doubtful if óne man in a hundred or even in a thousand of the population of Ohio has such knowledge. But though it may not be of common knowledge, yet if it is a matter that may be of common knowledge by reason of authorized statistics within the reach of every man who cares to investigate, then it is a matter of which courts will take judicial notice. That does not so clearly appear in this case; yet conceding all that counsel claim for it in that behalf, what is the result? That there are some .such banks existing is admitted. That there may be tomorrow, next year or the year after a great many more is also within the contemplation of this statute, and was necessarily and properly within the contemplation of the Legislature at the time it passed this act and, therefore, having conferred privileges in this very banking act it had a right to impose penalties and restrictions and to classify them as a distinct and separate organization, distinguished from other banks and differing from other banks in their relation to the state and to the public at large. The first inquiry is whether or not there is such a class existing in Ohio. The number within that class is to our minds of little or no importance. If there is such a class, that is sufficient for the purposes of this ease. If there are banks organized under this particular act, if other banks may be organized under it, if the privilege of organizing banks thereunder is and has been open to the people of the state, and there is an entire chapter of our laws devoted to the rights, liabilities and obligations of this character of bank and penal statutes in reference to misconduct of officers thereof, how can it be said that such a bank and such officers are not a distinct and separate class of banking institutions? There are undoubtedly a great many reasons that may be urged why all banking companies in Ohio should-be included within the -provisions of this section. In fact, to our minds, there is no valid objection thereto and every argument that presents itself to our consideration is in favor thereof, but we are not the Legislature, and as has been said by the Supreme Court in the 52d Ohio St., at page 99, “that if the Legislature has erred in not including what has been excepted from the operation of the law, it is simply an error of judgment in the exercise.of its authority and can not be reviewed by the courts.” So that the remedy must be sought in the Legislature itself. In order that a law of a general nature shall -have uniform operation throughout, the state, it must apply, first, territorially to the entire state; second, to all individuals coming within the class designated by the Legislature. And the power to make this' classification is not only expressly but of necessity lodged in the General Assembly of the state, for there are few laws upon our statute books that necessarily affect every individual, but rather the great majority of our laws .applies to individuals of a certain class.

On page 99 of the 52d Ohio St., in the case of State v. Nelson, Judge Burket, who announced the opinion in that case, says:

“Very few statutes apply equally to every person in the state. Some apply only to males, some to females, some to minors, some to persons of unsound mind, some to office holders and some to criminals. As pointed out by Minshall, J., in Alder v. Whitbeck, 44 Ohio St., 539, such classes are arbitrarily formed by the General Assembly, and ‘if the Legislature has erred in not including what has been expected from the operation of the law, it is simply an error of judgment in the exercise of its authority, and can not be reviewed by the courts. ’ ’ ’

Again, on page 100, quoting 70 N. Y., page 351, Judge Burket says:

“And does the validity of a law which is required to be general, and which is general in its terms,, depend upon the number of subjects upon which it can operate, or upon the size of a class to which it applies? These questions must be answered in the negative. ’ ’

We are of the opinion, from the reading of these authorities, that the Legislature has a right to make such classification, and it is only when it appears that the classification attempted by the Legislature is false and unnatural that courts ought to interfere, and if there is doubt in this behalf it must be'resolved in favor o| the constitutionality of the act. We are, therefore, of the opinion that the act in question does not violate any of the provisions contended for by the petitioner.

But even if we' are mistaken about that, if this Section 6 of the amendatory act of April 24, 1879, is unconstitutional, it does not necessarily follow that the petitioner is entitled to a discharge. The original 'act of March 21, T851, was passed before the adoption of the Constitution of 1851, and, therefore, át the time of the adoption of such Constitution was a valid and subsisting law of the state of Ohio, and it remained the law of Ohio and is still the law of Ohio, unless it has been .repealed by a valid act of the Legislature. This original Section 30 prohibited the acts complained of in this indictment, and but for Section 6 of the amendatory act an indictment could be returned and prosecuted under the original act for the commission of acts therein charged. So that if the contention of the petitioner that this Section 6 of this amendatory act is unconstitutional, then it follows as a corollary that original Section 30 is still in force, haying never been repealed by a valid act of the Legislature. We think the question is no longer an open one in Ohio, that where the Legislature have enacted an unconstitutional amendment and in the same act repealed the original constitutional law, that the repealing clause must fall with the attempted amendment, and to all intents and purposes the law remains the same as if no such, amendment "had been attempted by the Legislature.

In the case of State of Ohio, ex rel The Attorney-General, v. Hall, 67 Ohio St., page 303, the Supreme Court in the second paragraph of the syllabus declares, “The repealing section of said act is also void,” and on page 306 the court say, and this opinion is rendered by the court: ‘ ‘ The ¡amending act of April 3.0, 1902, including its repealing section, is wholly void, and Section 1210, Revised Statutes, stands as though such ¡amendment had not been attempted.” This is but following a long line of decisions in Ohio upon this subject.

In the 66 Ohio St., pages 482 and 483, Judge Shauck announcing the opinion of the court, in the case of State, ex rel Knisely et al, v. Jones et al, says:

“Applying to the ease a doctriné with which the lawyers of the state are quite familiar, the repealing section of-the present act is inoperative, unless its provisions. for reorganization of the board are valid. ,The system provided by the former legislation being still in full operation, it should continue, unless by a valid act a system to succeed it has been provided.”

In 60 Ohio St., at page 273, State, ex rel Wilmot et al, v. Buckley et al, the court say:

“The said section being inoperative, the repealing section contained in the same act is also inoperative, and this leaves said Section 29266, as amended April 28, 1890, in force.”

In the 48 Ohio St., page 211, the case of The State, ex rel, v. Smith et al, at page 219, in the opinion of the court we find the following language:

“We see no other valid objection to the law. And as the act itself is invalid, the repealing clause must also be held inoperative, as we can-not suppose that the Legislature would have repealed the act creating the board of city improvements, without providing any substitute therefor.”

Counsel for petitioner make -the contention that, under this doctrine announced in the 48 Ohio State, there would be no reason for reinstating an act, when the old law in all material respects is just like the new one; that there would be neither sense nor justice in reinstating old Section 30 with its archaic provisions- as to- paper money after the power to issue it had been taken away. There is, no doubt, much logic in this reasoning, but it does not apply to the principle involved here. The question is not as to the reasons and purposes for reinstating such law, but the principle underlying this question is that the invalid act did not affect the valid one that it attempted to repeal, and the court is not now reinstating this act, but would be simply finding that there was no valid act that effected its repeal and that it remains the law of Ohio, because it has not been repealed by any valid enactment of the repealing power of the state. So that we are not concerned as to the reasons why it should or should not be reinstated, for we are not reinstating it, but .merely determining that no law- of the state is repealed by an unconstitutional enactment of the Legislature of Ohio purporting to repeal the same. For this reason, even though all the other contentions of counsel for petitioner be correct, the Common pleas -court has jurisdiction of the cause, and there is a valid constitutional law under which -this prosecution is proceeding, and the petitioner is not unlawfully deprived of his liberty, and must be remanded -to the custody of the sheriff, and such order is accordingly made at the costs of the petitioner and his exceptions are here noted.


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    APPOINTMENT OF MEMBERS OF THE OHIO RAILROAD COMMISSION.
    Circuit Court of Franklin County.
    The State of Ohio, ex rel John Sullivan, v. James C. Morris.
    Decided, February 23, 1909.

      Railroad Commission — Appointment of Members of — Authority to Appoint Vested in an Incoming Rather than an Outgoing Governor— “Recess” Appointments Valid only when the General Assembly has Adjowrned Sine Die — Section
    1. The Legislature, in providing that members of the Ohio Railroad Commission shall be appointed in January for terms of office beginning February 1, intended that in years when a new Governor takes his seat on the second Monday in January, the rule- that-an outgoing official can not appoint for a term to begin'-after his own has expired shall be operative.
    2. The adjournment of the Legislature referred to in this act is the sine die adjournment of the session" whether regular or extraordinary, and not a mere re'Cess for a specified period; and a “recess appointment” has no validity unless made after final adjournment of the session.
    Dustin, J.; Sullivan, J., and Allread, J., concur.
   This is an action in quo warranto brought to determine, whether John Sullivan or James C. Morris, or either of them, has been legally appointed to the office of Railroad Commissioner of Ohio.

January 4, 1909, Andrew L. Harris, then Governor of Ohio, •pursuant to “An act to regulate railroads, * * * create a board of railroad commissioners,” etc.,-passed April 2, 1906 (98 Ohio Laws, page 342), appointed James C. Morris as one of the commissioners provided for by said act, for the term of six years beginning February 1, 1909. The Ohio Senate being then in session, on the same day confirmed said appointment. January 29, 1909, said Morris took and subscribed his oath of office,- as provided for in the statute.

The term of Andrew L. Harris as Governor expired at noon, January 11, 1909, and Judson Harmon reigned in his stead.

On the 21st day of January, 1909, Governor Harmon assumed to appoint the relator to the same office, and for the same term as Governor Harris had appointed Morris, and sent his name to the Senate for confirmation. Without acting upon the said appointment of Governor Harmon, the Senate pursuant to a joint resolution adopted by it and the House of Representatives adjourned January 22d until February 15th.

On the 1st day of February, Governor Harmon, assuming to act under the power granted by the same law, to appoint a railroad commissioner during an adjournment of the Senate without action upon his previous selection, again appointed the relator, who forthwith took and subscribed his oath of office.

The question is, which of these two appointments, if either, is. valid?

The'first section of the act in question reads as follows:

“A railroad commission is hereby created to be composed of three commissioners. Within sixty days after the passage of this act the Governor shall, by and with the advice and consent of the Senate, appoint such commissioners, but no commissioner so appointed shall be qualified to ac't until so confirmed, unless appointed during the adjournment of said Senate. The term of one such appointee shall terminate on the first Monday in February, 1909; the term of the second such appointee shall terminate on the first Monday in February, 1911; and the term of the third such appointee shall terminate on the first Monday in February, 1913. In January, 1909, and bienially thereafter, there shall be appointed and confirmed, in the same manner, one commissioner for the term of six years from the first Monday in February of such year. Each commissioner so appointed shall hold his office until his successor is appointed and qualified. Any vacancy shall be filled by appointment by the Governor for the unexpired term, subject to confirmation of the Senate, but any such appointment shall be in full force until acted upon by the Senate.”

It is conceded to be the general rule, that an outgoing official can not appoint for a term to begin after the expiration of his own.

But there is a recognized exception to this rule, which is stated in State, ex rel, v. Ermston, 14 C. C. Rep., 614 (affirmed in 65 O. S., 665), as follows:

“But when the statute expressly provides that the appointment shall be made on a certain day, or as soon thereafter as practicable, the appointment may be made, notwithstanding that the term of such appointee would commence after the expiration of the term of the appointing officer.”

It is claimed that the appointment of Morris is valid, because within the above exception, since the law in question provides that the appointment for the term to begin February 1, 1909, shall be made in January, 1909.

It must be presumed .that the Legislature contemplated that the term of one Governor would expire. January 11, 1909, and the term of his successor begin on the same day; and that a literal construction of the statute would allow either Governor to make the appointment in that month.

But it is also to be presumed that the Legislature did not intend to leave the matter open to doubt, or to a race and contest between the two Governors as to which one should make the appointment.

In our view the only way to harmonize these presumptions with the apparent uncertainty of the appointing power arising from a literal construction of the statute, is to hold that the Legislature intended (not having otherwise provided) that the general rule above noted should govern.

The familiar principle that the common law prevails, except when abrogated by statute, needs no citation.

We conclude, therefore, that the appointment of Morris by the moribund Governor, was invalid.

The next question is, was the appointment of Sullivan, February 1st, legal.

It is based upon the right of the Governor to appoint during an adjournment of the Senate without action by that body upon his appointment.

The so-called resolution of adjournment is as follows:

“Be It Resolved, By the General Assembly of the State of Ohio, that the House and Senate recess from January 22d, 1909, to convene on February 15th, 1909, at 1:30 p. m. ; that during said recess the committees of the House and Senate respectively shall consider such matters as may properly be before them, or may pertain to their duties, and that the extraordinary session of the 78th General Assembly adjourn sine die on March 12th, 1909, at 4:00 p. m.”

The Senate journal of January 22d states that:

“On motion of Mr. Mather, the Senate adjourned until 1:30 p. m., February 15th, 1909, in accordance with Senate Joint Resolution No. 7.”

It will bo observed that the joint resolution uses the word “recess,” and provides for the ad interim work of committees, and for the adjournment sine die on the 12th of March; and the Senate journal, referring to the same action as the joint resolution, uses the word “adjourned.”

It is claimed on behalf of the relator that the words “adjourn” and ‘ ‘ recess ’ ’ are synonymous and used interchangeably in legislativé records. Authorities seem to sustain that view, but we think the adjournment referred to in the act in question is a sine die adjournment of the session, whether regular or extraordinary.

If a recess for three weeks is such an adjournment as the law contemplates, why would not an adjournment for a week or even a day do as well? An adjournment from Friday to Monday would allow a lively Governor to do a lot of things on Saturday without “the advice and consent of the Senate,” and perhaps greatly to the latter’s embarrassment. It is inconceivable that the Senate when it passed the bill providing for a railroad commission contemplated any such, possible treatment. In providing for its own “advice and consent”'in the matter of appointments, it undoubtedly meqnt to give itself reasonable time in Avhich to consider the same. For the consideration of Governor Harmon’s appointment it had had only one day prior to the recess. Committees were instructed to proceed with the consideration of matters before them. So that nothing but legislative action was in abeyance. All matters were carried over to be acted upon or not, at a later date, before final.adjournment.

We think it was the legislative 'intent in passing the act in question to give the Senate the entire session, if necessary, in which to consider appointments, as well as all other matters before it. If it should adjourn the session without action, then the Governor may appoint.

Entertaining these views, we, therefore, hold that the appointment of the relator by Governor Harmon February 1st was invalid, the Senate not having rejected his appointment of January 21st, and not having adjourned the session sine die.

The defendant, Mr. Morris, of course, holds over as a Railroad Commissioner, but neither he nor Mr. Sullivan has been legally appointed to the office for the term beginning February 1st, 1909.

Decree accordingly.


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    INJURY FROM STEPPING INTO AN UNGUARDED STAIRWAY.
    Circuit Court of Hamilton County.
    Slicer v. The Koch & Braunstein Co.
    Decided, January 23, 1909.

      Negligence — Pleading—Presumption—Findings 6y the Jury — Customer in a Store Falls Down an Unguarded Stairway.

    The averment that a customer of a store, having no knowledge of the existence of an open stairway, stepped backwards into the entrance of said stairway and was violently precipitated to the basement below, raises a presumption that she was .herself negligent, and where in such a case a general verdict in favor of the proprietors of the store is consistent with special findings by the jury, it will not be disturbed.

      Jas. B. Jordan and Walter M. Locke, for plaintiff in error.

      Kelley & Haiick and W. G. Boberts, contra.

      Gifkgn, J.; Swing, P. J., and Smith, J.',. concur.
   The negligence charged in the petition consists in maintaining an open stairway in defendant’s storeroom without any guard-gate or light, and placing a table so as to guide customers into the stairway. The manner in which the plaintiff was injured is averred as folows:

“When directly in front of the entrance to said stairway she, finding the articles she desired to purchase, turned to notify the clerk of her desire to purchase, when, without ariy carelessness or negligence on her part, having no knowledge',of the existence of said stairway, and by reason of the carelessness and negligence of said defendant as aforesaid, she stepped backwards into the entrance to said stairway and was suddenly and violently precipitated down the stairs into said basement. ’ ’ ■

Aside from the question whether this averment chargesi that the negligence of defendant caused plaintiff to be precipitated down the stairs, it raises -a presumption that she herself was not, as averred, free from fault, which presumption is, by the jury in special findings returned with the general verdict, con, clusively found as a fact, and that the same was the cause of her' injury. The errors alleged ih giving certain special instructions and refusing others are not therefore material or prejudicial.

We think the plat was sufficiently verified, and properly received as evidence.

The testimony of the architect as an expert was incompetent; but in view of the special findings was not prejudicial.

No other evidence is embodied in the bill of exceptions, and the general verdict being consistent with the special findings thq judgment will be affirmed.


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    ACTION FOR RECOVERY OF A STOCK DIVIDEND.
    Circuit Court of Hamilton County.
    George H. Stearns v. John H. Hibben Dry Goods Company.
    Decided, December 19, 1908.

      Dividends — nature of Obligation Incurred by Declaration of-~Sloclc Dividend Distributed to Holders of First Issue of Stoclc — ~Was a-Trust Created — Concealment and Fraud — Demand—Application of the Statute of Limitations — Decisions by Appellate Oowrts.

    1. Where an appellate court is abolished by the Legislature, and its jurisdiction transferred to the circuit court, a decision by such appellate court in a case afterward coming to the circuit court will be followed • by that court, unless clearly erroneous.
    2. Where it appears that no misrepresentation was made by the board of directors upon which a stockholder relied to his prejudice, nor any concealment by them of facts not recorded in the minutes, an action by the stockholder for recovery on the ground of fraud and concealment will not lie.
    3. If a trust was created by the resolution of the board of directors adopted in this case, it terminated on or before June 30th, 1899, and an action thereon is barred by the six year statute of-limitation. (
    4. Although a demand by a stockholder for his pro rata share of a stock dividend is necessary before the beginning of an action by him for the recovery of such dividend, failure to make such demand does not suspend the operation of the statute of limitations.

      Peck, Shaffer & Peck, for plaintiff in error.

      Walter A. DeCanvp, contra.

    The Hibben Dry Goods Company having determined .to increase its capital stock from $100,000 to $200,000, it was furr ther .decided that a stock dividend of $25 per share should be distributed to the holders of the old stock who had borne the burden of founding the business. This was done and thereafter the new stock was sold. The plaintiff was a purchaser of a block of the new stock, and subsequently learning of the distribution of a stock dividend, he filed an action in the Superior Court of Cincinnati for recovery of his pro rata share thereof. His petition was as follows:
    “Plaintiff says that the defendant, the John H. Hibben Dry Goods Company, is a corporation created and existing tinder the laws of Ohio for the purpose of buying and selling dry goods, notions and furnishings, and is engaged in said business in the city of Cincinnati. That by the terms of its articles of incorporation said company has an authorized capital stock of -$350,000 common stock, and $150,000 preferred stock. That all of the preferred stools has been issued and is- outstanding, but that of the authorized common stock only $282,000 has been issued, and said company has $68,000 of such common stock still unissued.
    “Plaintiff further says .that prior to the first day of July, 1897, he subscribed for 100 shares of the common stock of said company, and paid therefor to said company the sum of $10,000, and in consideration thereof said company issued to him its certificate of stock dated July 1, 1897, showing that plaintiff was the owner of 100 shares of .the capital common stock of said company; and plaintiff then became, and ever since has been, the .owner and holder of said 100 shares.
    “Plaintiff further says that on the 6th day of October, 1897, he likewise subscribed and paid $5,000 for fifty additional shares of the common capital stock of said company, and received a certificate of that date showing likewise that he was the owner of said fifty-additional shares; and plaintiff has ever since been, and now is, the owner and holder .of said fifty shares of capital stock.
    “By reason of his-ownership of said 150 shares of common stock of the said defendant company plaintiff became, and ever since has been, entitled .to share pro rata with all the other holders of common stock in any dividend or distribution of proceeds or assets made by the company.
    “But plaintiff says that notwithstanding the premises, the directors of said company, on or about -the 10th day of January, 1898, finding that the company had on hand a surplus arising from the earnings of the company, without the knowledge or consent of the plaintiff, who is not, and never was, a member of the board of directors of said company, adopted a resolution directing the sum of $26,900 of said surplus be ‘divided among the stockholders holding stock prior to the last issue of stock to the $200,000 limit,’ which included the plaintiff, all of whose stock was issued to him ‘prior to the last issue of stock to the $200,000 limit,’ and further ordering that ‘said amount, while belonging to said stockholders, and bearing six per cent, interest, yet remain in said corporation or company as working capital, until such amount is voted free to the holders of said amount by the board of directors.’
    “And thereafter said directors on the 30th day of June, 1899, without the knowledge or consent of plaintiff, received from a committee a report -that said amount of $26,900, amounting fo $25 per share pro rata to each stockholder of record January 1, 1898, "with six per cent, interest to June 30th, .1899, had been distributed to said stockholders, which said report was fraudulent and untrue, in -that plaintiff was a stockholder of record to the extent of 150 shares prior to January 1, 1898, but no part of said $26,900 was distributed to him.
    “Plaintiff further says that as matter of fact no money other than the interest on the $26,900 mentioned in said orders was distributed to any of the stockholders, but that a stock dividend of twenty-five per cent, of the common stock was by said directors made, and the certificate thereof issued to nearly all holders of the common stock at that time, each of such persons receiving a number of shares equal to twenty-five per cent, of the shares previously held by him, and said defendant has regularly paid dividends upon the stock so issued to the holders thereof.
    “Plaintiff further says that instead of distributing said stock dividend of twenty-five per cent, equally to all the common stockholders of said company, the defendant, by its said board of directors, wrongfully and fraudulently excluded this plaintiff from any participation in the same, and issued to plaintiff no shares of stock by way of dividend, and never paid him any dividends other than the regular cash dividends upon the original stock purchased by him as aforesaid, nor permitted him to share in the distribution of said surplus in any manner whatever.
    “Plaintiff further'says that he had no knowledge of the proceedings of said -directors as to said twenty-five per cent, stock dividend, or of the issue of the certificates of said stock, or the payment of any dividend thereon, or of the fraudulent distribution of said surplus or any information whatever concerning the same, until the month of September in the year 1902, since which time plaintiff has frequently requested .the president and directors of s-aid company -to correct the wrong so done him, and has demanded that they shall issue to him as they did to the other stockholders the twenty-five per cent, additional stock on the 150 shares so as aforesaid held by him, and to pay the dividends upon such stock as have been paid to other holders of the same since the making of said stock dividend, with interest upon such dividends since the time .they became due and payable, but plaintiff says that the defendant has refused, and still refuses, to take any steps or do anything towards issuing to him any additional stock as and for said dividend, or to make any payment of said dividend, or in any way compensate him for the same.
    - “Plaintiff further says that the defendant has on hand an ample surplus of earnings, and lawful power, by reason of the fact hereinbefore stated, to issue to the plaintiff a twenty-five per cent, stock dividend upon the 150 shares of stock held by him. .
    “Plaintiff further says that the defendant threatens to, and will, unless restrained by this court, sell and issue all the remaining unissued common stock of said company, which -it is authorized to issue by virtue of its charter, and thereby deprive itself of power to issue to plaintiff the 37% shares to which he is entitled.
    “Wherefore, plaintiff prays that the defendant be restrained and enjoined by the order of this court from issuing any further or common stock until after it shall have issued to plaintiff the 37% shares aforesaid, or from taking any steps to deprive itself of the lawful power to issue the same; and farther that the defendant be required by mandatory order of this court to issue and deliver to plaintiff its certificate for 37% shares of common stock of the defendant company, and to pay to plaintiff the dividends or the interest on the same of the same amount as the dividends and interest paid the other common stockholders since the first day of January, 1898, with interest upon such dividends from the date when they were declared. Plaintiff further-prays that if, for any reason, it is found impracticable to order the issue of stock as aforesaid, that the court order an account to be taken .to ascertain the value of the said shares of stock to which plaintiff is entitled as aforesaid, and the amount of the dividends paid since the first day of January, 1898, with interest on each of said dividends from the time when due and payable, and that the court order and decree ,the payment of the aggregate shares,'dividends and interest to the plaintiff by the defendant and for such other and farther relief as the n'afare of the case and equity may require.”
    The defendant interposed a demurrer to the petition, claiming that the action was barred by the statute of limitations. This demurrer was overruled in 1906, and after trial the plaintiff wms given a decree,

      The case was then taken on error to the general term of the superior court, where the cause was argued in October, 1907, and the judgment below reversed in November, 1907, in an opinion delivered by Judge Ferris, Judges Hoffheimer and Woodmansee concurring, and it was held that the cause of action stated in the petition was barred by ,the statute of limitations, and that the trial court should have sustained the demurrer to the petition on that ground. The general term also found other errors in the record, and remanded the cause to special term for further proceedings.
    When the cause again came on to be heard in the superior court in special term, that court, in obedience ,to the judgment of the general term, sustained the demurrer to the petition, and the plaintiff not desiring to plead further, judgment was entered for the defendant.
    The plaintiff below then prosecuted error to the circuit court (which has recently been authorized to review special term decisions), and alleged that the special term committed error when it sustained the demurrer in obedience to the opinion- of the general term.
    Peck, Shaffer & Peck argued in the circuit court for the plaintiff in error
    that a dividend when declared by a company immediate.ly raises an obligation on the part of the company to pay each stockholder his pro rata share upon demand, and, upon demand and refusal to pay, an action can be maintained, but an action can not be maintained until after demand has been made. Larwell v. Burke, 19 O. C. C., 449, 513, 526 and 532; Fuller v. Railway Company, 8 N. P., 605; State v. B. & O. Railroad, 6 Gill, 364; Bank v. Gray, 84 Ky., 566; Hager v. Bank, 63 Maine, 509; Cadogan v. Jackson Iron Company, 76 Mich., 498; Bedford, v. Ashville, 14 Lea, 525; Scott v. Central Railroad Company, 52 Barber, 45.
    When a cause of action does not arise until a demand is made upon a claim, it necessarily follows that the statute of limitations does not begin to run until after the demand is made. State v. Newman’s Executor, 2 O. S., 567; King v. Nichols, 16 O. S., 80; Keithler v. Foster, 22 O. S., 27; Townsend v. Eichelberger, 51 O. S., 215.
    When a dividend is made by any corporation, the ordinary practice and duty of the company is to give notice to the stockholders1, but no notice was given to the plaintiff of any of these proceedings or this distribution, and, therefore, the action is not barréd by the statute of limitations, but is an action for relief on the ground of fraud in the misappropriation and distribution of a fund held in trust for the corporation. Bank v. McIntyre, 40 O. S., 538; Carlisle v. Foster, 10 O. S., 198.
    Notice of the making of dividends, or in fact of any of the proceedings of the directors, is not to be inferred from the fact that the party is a stockholder. King v. Railroad Co., 29 N. J. Law, 92.
    The omission to disclose what it has become a particular duty to do, is fraudulent concealment. Kelly v. Nealy, 76 Maine, 71; Massachusetts Bank v. Perry, 144 Mass., 313; Atlas National Bank v. Harris, 118 Mass., 147; St. Romer v. Levee Press, 20 La. An., 381; Philadelphia Railroad Company v. Cowell, 28 Penn. State, 329.
    The statute of limitations applies “in the case of a continuing and subsisting trust.” The trust in the action at bar continues and subsists until it is discharged by due performance, as do other trusts. Where the directors of a company set aside a fund to be subsequently distributed, it constitutes a trust fund in the hands of the company. Re Le Blanc, 14 Hun. (affirmed in Re Le Blanc, 75 N. Y., 598); LeRoay v. Insurance Co., 2 Edwards Chancery, 657; Hunt v. O’Shea, 69 N. H., 600; Hagan v. Union Bank, 63 Maine, 509.
    Mr. Walter A. DeCamp argued for .the defendant in error,
    that the action is barred by the six year statute of limitation (R. S., 4981). It being upon a contract not in writing, and the relation of stockholder to a corporation, with respect to a dividend, being that of debtor and creditor. After the dividend has been declared the company owes the stockholder his pro rata share as a debt, and if it is not paid, the stockholder has a right of action in assumpsit for its recovery, and such a right is barred within six years, under Section 4981. Citing, Clark & Marshall on Corporations, Sections 517c and 522; Jackson v. Plank Road Co., 31 N. J. L., 277; 2 Keener’s Cases, 1418; Ellis v. Bridge Co., 19 Mass., 243; Chaffee v. Railroad, 55 Vt., 110; Railroad v. Jackson, 77 Penn. St., 321; Cook on Stockholders, Section 542; Thompson on Corporations, Section 2173; Cook on Stockholders, Sections 527-9; Re Severn Ry. Co., 74 Law T. (N. S.), 219; Turnpike Co. v. Wicliffe, 100 Ky., 531; Hunt v. O’Shea, 69 N. H., 600; Kane v. Bloodgood, 7 Johns Ch., 90; Bills v. Mining Co., 106 Cal., 9.
    The fact that a plaintiff was not aware that he had a right to bring suit does not extend the time. State v. Standard Oil Co., 49 O. S., 188; Howk v. Minnick, 19 O. S., 462; Williams v. Coal Co., 37 O. S., 533.
    The mere reference to fraudulent transactions in the petition, does not, of necessity, give character to an action as one grounded upon fraud. Mass v. Miller, 58 O. S., 483; Mosher v. Butler, 31 O. S., 188; Evans v. Alberts, 6 O. Dec. (Reprint), 820.
    In Ohio, equitable as well as legal causes of action, are barred by the same statute of limitations. Carpenter v. Canal Co., 35 O. S., 307; Loffland v. Buch, 26 O. S., 559; Zieverink et al v. Kemper, Rec., 50 O. S., 208; Combs v. Watson, 32 O. S., 228; Longworth v. Hunt et al, 11 O. S., 194; Yearly v. Long, 40 O. S., 34.
    Mr. DeCamp also urged that the exact point involved in this case was decided adversely to this plaintiff in error by the decision of the general term rendered in 1907 by unanimous court. This second writ of error in the same ease is brought before this court because the Legislature abolished the general term in the spring of 1908, and conferred upon this court the power to review the special term decision. If this present petition in error raising, a point already decided by the general term had- come before the general term the second time, the judgment below would undoubtedly have been affirmed; and while this court, of course, is not bound by a decision of the general term, nor bound by the decisions of other circuit courts in the state, yet for the sake of harmony in the -decisions this court might well take into consideration the fact that the former appellate court which reviewed special term decisions had pronounced its judgment upon this point of law. In other words, this ease coming by successive appeals- to different tribunals, each of which was authorized to review the special term decision, the point which was adjudged in the first apppeal should receive the same construction on the second appeal for the sake of consistency and harmony of decision, if for no other reason.
    Giefen, J.; Swing, P. J., and Smith, J., concur.
   The ruling -of the Superior Court in General Term upon a demurrer should, when the case is transferred to this court, be followed unless clearly erroneous.

The petition discloses no misrepresentation by the board of directors upon which the pl-aintiff relied to his prejudice, nor the concealment by them of any fact not recorded in the minutes, which, -on demand, were open to inspection by the plaintiff as a stockholder. - '

Whatever be the nature of the trust created by the resolution of the board of directors -on January 10th, 1898, it terminated on or before June 30th, 1899, more than six years before the commencement of the action.

Although a demand was necessary before beginning the action, the failure to make demand did not suspend the operation of the statute of limitations. Hawk v. Minnick, 19 O. S., 462; Douglass v. Corry, 46 O. S., 349; Townsend v. Eichelberger, 51 O. S., 213.

Judgment affirmed.


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    PRESUMPTION AS TO RESCISSION OF CONTRACT FOR SALE OF LAND.
    Circuit Court of Harrison County.
    William S. Rogers and Bertha Rogers v. Wilber E. Simpson.
    Decided, November Term, 1908.

      Contract — For Sale of Land — Failure of Performance by Both Parties —Rescission by Mutual Consent Presumed — Right of Vendee to Recover Money Paid.

    Under a contract for the sale of land where a vendor is unable to make " a deed at the time stipulated or within a reasonable time thereafter, and the vendee does not waive such default, -but neglects ' to tender performance on his part for an unreasonable time, the rescission of the contrast may be presumed by mutual consent, and in such case the vendee may maintain an action to recover the money advanced upon the contract.

      A. O. Barnes and J. B. Busty, for plaintiffs in error.

      Perry <& Rowland, contra.
    Cook, J.; Burrows, J., and Laubie, J., concur.
   The action of defendant in error, plaintiff below, was to recover on two causes of action; one for five hundred dollars damages for breach of contract in the sale of land, and the other to recover back the sum of two hundred dollars .paid on -the sale attire time of the execution of the contract. There was a general denial to both causes of action, and also a claim of -offset by the defendant for fraud claimed in the sale of some personal property. There was a verdict and judgment in favor of defendant in error.

August 1, 1906, William S. Rogers and wife, by contract in Writing, sold to Wilber E. Simpson a tract -of land for the sum of thirty-one hundred dollars, upon which sale Simpson paid two hundred dollars when the contract was executed. By the terms of the contract Rogers and wife were on the 1st day of April, 1907, to execute to Simpson a quit-claim deed in fee simple for the premises, at which time delivery of -possession of the premises was to be made; and upon the delivery of the deed and possession Simpson was to pay eight hundred dollars and execute notes and mortgage upon the premises for twenty-one hundred dollars, the balance of the purchase money.

On the 1st day of April, 1907, nothing was done by either party respecting the contract, but several days thereafter Simpson demanded of Rogers his deed, but at the time of the demand Simpson made no tender of the eight hundred dollars, or of the notes and mortgage duly executed as required by the contract, and in fact the evidence shows that at the time of the demand he did not have eight hundred dollars or the notes and mortgage. Simpson made several subsequent demands of Rogers for the deed, but at no time upon making the demand does the evidence show that he had the eight hundred dollars or the notes and mortgage duly executed, or that he informed Rogers that he had the money and the notes and mortgage ready to be delivered, but as a matter of fact he did not have the eight hundred dollars and the notes and mortgage duly executed at the time he made such demands for the deed, or any of them.

Under the undisputed evidence therefore Simpson could make no claim for damages for breach of contract, and his ease must necessarily fail upon that cause of action. This is distinctly held in the case of Rondabaugh v. Hart, 61 O. S., 73.

The next question that is made is: Could Simpson recover back the two hundred dollars paid upon the contract set up in his other cause of action?

The agreement of Rogers and wife was that they were to convey the land by a quit-claim deed in fee simple on the first day of April, 1907, when possession was to be delivered. On the first day of April, 1907, Rogers' and wife did not have a com: píete title for the land; they only had title for the undivided one-third part of the land. They were aware of the defect in their title and endeavored to perfect it by obtaining quit-claim deeds from the owners of the other interest, but up to the time of the trial of the case they did not have a complete title. This amounted to a rescission of the contract upon their part. Demand had been made upon them under the contract for a deed in accordance with the contract; this they refused for the reason they could not execute such deed and as Simpson was also not in position to perform the terms of the contract on his part, he is presumed to consent to the rescission. Such consent, however, did not deprive him of the right to be placed in the same position as before the contract was made. He should not be' a loser by the mutual rescission of the contract.

In the case of Money v. Kirk & Cheever, 19 O. S., 379 it is held:

“The delinquency of the vendee in failure to tender payment for a week after the contract was made, gave rise to the conclusive presumption as against him, of his assent to a rescission of the contract, and authorized the vendor to act on that presumption. ’ ’

In the case of Lewis v. White, 16 O. S., 444, it is held:

“Generally, in contracts of this kind, the parties being free by mutual consent to enter into them, they are, by like mutual consent, free to rescind them; and where the vendor by reason of an outstanding incumbrance, is unable, for more than two weeks after the time fixed by the contract, to convey the ‘perfect title’ which he was bound to furnish; and the vendee then demands from the vendor such conveyance, and offer to perform the stipulations of the contract on his part; and then, on the failure of the vendor to comply with such demand, notifies him that he rescinds the contract, and thereafter treats the same as rescinded, and the vendor remains delinquent for an unreasonable time thereafter, his consent to a rescission of the contract is conclusively presumed from his delinquency.”

On page 454 in the opinion it is said:

“Now, these parties were free, by mutual consent, to enter into this contract; and they were as free, by like mutual consent, to rescind it. On the 8th of May, and from thence forward, the vendee actually and in terms consented to its rescission; and the vendor, by a delinquency on his part unwaived by the vendee, and unreasonable in itself, is conclusively presumed to have given like consent and such is the doctrine of the books. Parsons on Contracts, 677, et seq., says:
“ ‘ Generally, as a contract can be made only by the consent of all the contracting parties, it can be rescinded only by the eon-sent of all.. But this consent need not be expressed as an agreement. If either party, without right, claims to rescind the contract, the other party need not object, and if he permit it to be rescinded, it will be done by mutual consent. Nor need this purpose of rescinding bo expressly declared by the one party, in order to give the other the right of consenting and so rescinding. There may be many acts from which the opposite party has a right to infer that the party doing them would rescind; and generally where one fails to perform his part of the contract, or disables himself from performing it, the other party may treat the contract as rescinded.’ s:< * *
“And we can see no reason why, on the facts assumed, the vendee has not a right, under his cross-petition, to recover back the money paid in hand by him on the making of the contract of sale. ’ ’

We arc therefore of opinion that the cause of action of plaintiff’s petition wherein he sought to recover back the amount he «,bad -paid on the contract is well founded and as he recovered no greater sum than he was clearly entitled to, the judgment must be affirmed.


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    DEFECTIVE CHATTEL MORTGAGE AND CONDITIONAL SALE LIENS.
    Circuit Court of Miami County.
    Boyer et al v. Howland et al.
    Decided, 1908.

      Chattel Mortgages — Failure to Beflle — Subsequent Seizure of Property by Mortgages — Bights of General Creditors — Conditional Sales— Stringent Compliance Required with Statutory Provisions — Sections J¡15,r> and J/1S6-Z.

    1. Where a chattel mortgage expires without payment having been made and it is not refiled with hi thirty days pursuant to the statute, the lien becomes dead, and it can not be revived to the injury of creditors by the mortgagee tailing possession of the property.
    2. The policy of this state requires literal compliance with statutory provisions with reference to conditional sales, and omission by the vendee to file an affidavit with his claim in the office of the county recorder renders the lien of the vendor under the conditional contract invalid.
    Dustin, J. (orally); Sullivan, J., concurs; Wilson, J., not sitting.
   William ITowlancl absconded from the city of Piqua, leaving his business and family... Certain creditors, who had been, and considered themselves still, mortgagees of some machinery, undertook to take possession thereof, and brought proceedings for the appointment of a receiver to continue the business for a time and wind it up. Certain machinery not included in the chattel mortgage had been sold to TIowland upon conditional terms of sale, title to pass when the payments were completed. This machinery was sold by parties in New York where the contract was made.

The parties who claim to have a chattel mortgage on the machinery had allowed the chattel mortgage to expire without refiling, pursuant to the statute. The parties in New York, who sold the machinery upon conditional - terms as to title, had filed the conditional contract, but bad n-ot complied with the statute of Ohio in this, that there was no affidavit on the part of the vendor as to how much was due to the vendee.

The receiver by the consent of all parties sold the premises, including the machinery involved here, -and the proceeds are for distribution. The abandoned wife of Howland put in a claim for homestead.-

Tlie common pleas court upon the facts presented, and they are not disputed, allowed the claim of the mortgagees as against general creditors, upon the theory that, by taking possession of the goods, a lien was effected which was good as against all others, notwithstanding the time for refiling the chattel mortgage had expired.

The common pleas court also held that the conditional sale was invalid as against creditors, both general and specific, and appeal was taken to this court by the dissatisfied parties. It has been quite an important and interesting case.

On the part of tbe receiver, as against these mortgagees, we have the argument, founded chiefly upon the- case of Cooper v. Koppes, 45th Ohio State Reports, page 625, that this mortgage was not renewed and was dead and inoperative and ineffective as to all persons, excepting of course as to the mortgagor.

The case of Cooper v. Koppes held as follows:

“1. A chattel mortgage which is not reverified and refiled within thirty days next preceding the expiration of one year from the filing thereof, in pursuance of Section 4155 of the Revised Statutes, is void as against creditors and bona fide purchasers and mortgagees; nor is it revived as to them by being reverified and refiled after the expiration of one year from the former filing.
“2. Such mortgage, so refiled four days after the expiration of the' one year, creates no lien upon the mortgaged property as against a levy in favor of an execution creditor made after such refiling. ”

The argument on the behalf of the mortgagees is that although the statute, Section 4155, says in case of no refiling within thirty days next preceding the expiration of one year from the filing thereof, it shall be void as against creditors, mortgagees and innocent and bona fide purchasers, that what is meant is creditors who have obtained an attachment or judgment or otherwise fastened their liens upon the property, and not general creditors, although that is the phrase used. The language is as follows:

‘ ‘ Every mortgage so filed shall be void as against the creditors of the person making the same, after the expiration of one year from the filing thereof, unless within thirty days,” etc.

ITow are we to get around that? It says “creditors.” After the expiration of a chattel mortgage that was not refiled, all creditors have the right to presume, and are so notified by the condition of the record, that it has been settled. Why, if that is not to secure such creditors, áre they included? It would be an injustice, it seems to us, and very grossly inequitable, to allow a mortgagee who had allowed his mortgage to expire to come in thereafter and take possession of the goods or refile his mortgage, as referred to in the case of Cooper v. Koppes — gross injustice to those who in the meantime had given the debtor credit upon the state of the record. The reasoning of the learned judge in the common pleas court, as against his own declared ideas, is based on a series of decisions which in.his view confirm the theory of the defense on behalf of the mortgagees, that they can, by taking possession, accomplish the same thing as by a new mortgage, or that they would have accomplished by the refiling of their mortgage. We do not hold to the same view — we can not reconcile our ideas to that theory; neither can we reconcile the decision in Cooper v. Koppes with that theory and the language of the court. Judge Owen, in the decision of -that case, says:

‘ ‘ That the continuity of the lien was broken, and the mortgage was void * * * -as to creditors. Here then, by common concession was as to creditors a dead lien. Where in the statute do we find authority to resurrect or revive it? There is none. The contract originally entered into between the parties was forever at -an end, so far as it could affect creditors', and bona fide purchasers and mortgagees. He held it free from all liens as against creditors. It was not in the power -of the mortgagor, by his own act, to create such' a lien. ' Such lien could only have been created through convention of the parties. The possession by the mortgagor of the property presumed his ownership of it, ’ ’ etc.

We think that is the proper view of the matter, and we can not reconcile our ideas in this case to the theory of the court below, in which, as I have said, he decided against his own views, but presumedly in accordance with the authorities. '

The lien was dead and it could not be revived so as to injure creditors — that means all creditors.

Now as to the other question, the conditional sale. We have examined that but not -to our satisfaction; we do not propose to pass upon that quiestion now; we have indicated our view upon the other matter, and I may add here that the homestead claim will be allowed as against the general creditors and against the mortgagees, but as to the other we would like to have further light. It does not seem -to us justice or equity to allow the general creditors the advantage of having this machinery, which sold for much more than the lien of the vendor and yet had never been paid for. For, even after the vendor has been satisfied, it is beneficial to the creditors. To cut out the mortgagees for the reason that the affidavit was not signed by the vendor does not strike us favorably, and we want -to see our way out of so holding. Would it not be inequitable to allow that .technicality to stand in the way of their receiving the value of their property? Nobody was deceived in the matter, the chattel mortgage or conditional contract of sale was on file, and the amount of the claim was stated there. We will not pass on that question now, but reserve it'until later.

The general' entry need not go on until we have more light.

Later, the court held that the lien of the vendor under the conditional contract was invalid. The policy of the state requires literal compliance with the statute, although seemingly working injustice in this case.


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    LANDLORD AND TENANT — QUITTING PREMISES WHICH HAVE DETERIORATED.
    Circuit Court of Hamilton County.
    Grau et al v. Longworth.
    Decided, January 23, 1909.
    The fact that premises have deterioated does not afford a tenant sufficient reason for quitting them, unless it appears that they have become unfit for occupancy for the purposes for which they were leased.

      Colon Schoit, for plaintiff in error.

      Ernst c& Cassatt, contra.
    Swing, P. J.; Giefen, J., and Smith, J., concur.
   The evidence in this case does not tend to show that the building leased by Grau from Longworth ivas destroyed or so injured by the elements or other cause so as to be unfit for occupancy; and the court was right in instructing a verdict for the plaintiff. The evidence tends to show that the repairs made on the building made the premises less desirable for the business that plaintiff in error was engaged in, but this is not sufficient ground under the statute to authorize the tenant to quit the premises.- The premises must be made unfit for occhpaney and there was no evidence which tends to show this.

Judgment affirmed.