text:
    PARTITION SALES.
    [Circuit Court of Hamilton County.]
    Albert W. Schwartz, Executor of the Estate of Lewis Freeman, Deceased, v. Katurah M. Williamson et al.
    Decided, May 21, 1904.

      Purchaser’s Bight of Possession—Where Property has Been Sold in Partition—Dates from Confirmation—Liability for Bent During the Intervening Period—Liability of Assignee of the Lease—Effect of a Provision in Section C600, Delating to Ejectment.

    A purchaser at a sale in partition is not entitled, under Section 6600, to possession until the sale has been confirmed; and where the purchase is of a part of the title only, and confirmation is delayed, the purchaser can not be compelled to pay rent to the holders of the remainder of the title during the intervening period.
    Giffen, J.; Jelke, J., and Swing, J., concur.
    The original action was commenced to recover quarterly installments o£ rent from the tenant of an undivided one-sixth interest of certain leasehold premises from July 1, 1898, to January 1, 1900. The defense was that in partition proceedings between the tenants in common, of the leasehold premises, the sale was had on June 30, 1898, which was confirmed at the January Term, 1900, and a deed executed by the sheriff in pursuance thereof; that a confirmation of the sale and the deed by relation divested the defendant of all title as of the date of the sale; that having paid the rent up to the day of the sale there was no liability for rent thereafter. The defendant below was in possession, not as an original lessee, but through mean conveyances from him. Judgment was rendered in favor of the plaintiff, and the defendant prosecutes error.
    The liability of the assignee of a lease is limited to the rent accruing during the continuance of his interest, and ceases with his right of possession. The question, therefore, is whether confirmation of the sale and execution of the deed by relation divested the tenant of all interest in' the leasehold estate as of the date of the sale.
    The general rule is that confirmation of a judicial sale relates back to the day of sale and passes title as of that day, and the deed executed pursuant thereto takes effect as of that day. But there would seem to be a modification of this rule by Section 6600 of the Revised Statutes, which provides that a suit in forcible entry and detainer may be brought in case of sale on partition, where any of the parties to the petition were in possession at the commencement of the suit, after such sale, so made on execution or otherwise, shall have been examined by the proper court, and the same by said court adjudged legal.
    It may fairly be implied from this provision that the purchaser at the partition sale is not entitled to possession until the sale is confirmed and that the tenant is entitled to hold possession until that time. It would be manifestly unjust to the purchaser to require him to pay rent when not entitled to possession of the premises, and to relieve the tenant who was entitled to such possession. In the case of Baltimore City v. Peat, 93 Md., 696, relied upon by counsel for plaintiff in error, the sale was confirmed within a few days after made, while the deed was not executed until a long time thereafter. In this case the confirmation of the sale and execution of the deed were about of the same date, both being subsequent to the period for which a recovery of rent is sought. See, also, Thomas v. Connell, 5 Pa. St., 1; Woo'd v. Lessee of Ferguson, 7 O. S., 289 and 292.
    Judgment affirmed.

      A. L. Herrlinger, for plaintiff in error.

      Hartan Cleveland, contra.


source: Caselaw Access Project

license: Public Domain

text:
    INJUNCTION AGAINST ONE CLAIMING BY ADVERSE TITLE.
    [Circuit Court of Hamilton County.]
    George W. Harding v. Lyman Perin, Jr., et al.
    Decided, June 28, 1904.

      Title—One in Possession Entitled to an Injunction—Against an Adverse Claimant, When—Remedy at Law—Trespass Amounting to Waste.

    Where a plaintiff is in possession of property which the defendant claims by adverse title, and the defendant is threatening acts which will tend to the destruction of the estate, the prayer of the plaintiff for an injunction will be granted until such time as the defendant establishes his title by an action at law.

      Giffen, J.; Jelke, P. J., and Swing, J., concur.
    The plaintiff claims to be the owner and in possession of a lot of ground situated in the city of Cincinnati, on which there is a brick building and warehouse, and that the defendants threaten to take possession of the west wall thereof, remove the support of the roof, and thereby cause the entire roof to fall to the ground, all to the great and irreparable injury of the plaintiff. The defendants claim title to the premises, but admit that the plaintiff is in possession. The only question to be determined is whether the plaintiff is entitled to an injunction until the disputed question of title can be determined at law. In High on Injunctions, 698, it is said:
    “Where the party aggrieved is in possession, he will be allowed to restrain such trespasses as would result in irreparable damage in the event of refusing the relief.”
    And in the case of Boss v. Page, 6 O. S., 166, cited by counsel for the defendant, the same doctrine is recognized. The court say:
    “Where the trespass amounts to waste, going to the destruction of the estate, and producing an injury for which pecuniary compensation can not be made, chancery may be called upon for its aid to stay the mischief by injunction.”
    In Lownds v. Bettle, 33 L. J. Ch., 451, the distinction between the acts done by a stranger and by one claiming title is clearly set forth as follows:
    “Where, therefore, the plaintiff is in possession, and the person doing the acts complained of is an utter stranger, not claiming under color of right, the tendency of the court is not to grant an injunction, unless there are special circumstances, but to leave the plaintiff to his remedy at law, though where the acts tend to the destruction of the estate, the court will grant it. But where the party in possession seeks to restrain one who claims by adverse title, there the tendency will be to grant the injunction, at least where the acts done either did or might tend to the destruction of the estate.”
    In the case before us, the plaintiff is in possession; the defendants claim by adverse title, and the acts threatened will tend to the destruction of the estate, The defendants have a remedy by ejectment, and until they establish their title by an action at law, we are of the opinion that the. tearing down of the building and the destruction of the estate should be enjoined.


text:
    TITLE TO PUBLIC OFFICE.
    [Circuit Court of Franklin County.]
    State of Ohio, on Relation of Mark Slater, v. John W. Johnson.
    Decided, September Term, 1906.

      Quo Warranto—Lies on Relation of a Private Individual—Claiming a Public Office, When—Nature of Title which Must be Shown—Appointive Offices—Vacancies—Be Facto and De Jure Officials—Holdovers—State Appointments—Failure of the Senate to Act—Section 6764.
    1. Quo warranto on relation of an individual will lie where the relator claims to be entitled to the office in controversy.
    2. But the relator must show a prima facie right to the office claimed, and such right can not be based on the fact that he is the de facto officer; in such a case the usurper of a state office can be ousted only in an action brought by- the attorney-general.
    Dustin, J.; Wilson, J., and Sullivan. J., concur.
    Heard on demurrer to petition.
    This action was brought under favor of Section 6764, Revised Statutes, and is before the court on a demurrer to the petition. We conclude—
    First. That the case is properly entitled. See, 50 O. S., 120; Encyc. PL and Pr., Vol. 17, page 433, and cases there cited.
    Second. That when an action in quo warranto, on the relation of a private individual, is brought to oust the incumbent from an office to which the relator claims title, the petition must show a prima facie right in the relator to the office claimed. Toney v. Hwrris, 85 Ky., 453; The People, ex rel, v. Perley, 80 N. Y., 624; State, ex rel Rea, v. Hay, Wrights Reports, 96; and numerous citations in Encyclopedia of Law, Vol. 23, page 626.
    Slater sets forth that he was appointed to the office of supervisor of public printing by Governor Nash, June 1, 1903, and re-appointed by Governor Herrick, June 1, 1905; but, 'that the latter appointment (made in vacation) was not confirmed at the next sesión of the Senate, which adjourned April 2, 1906.
    Averring that no other appointment (meaning no other legal appointment) has been made, the relator claims to be a “holdover,” and entitled to continue in possession under Section 8 of the statutes, which provides that—
    “Any person holding an office of public trust shall continue therein until his successor is elected, or appointed and qualified, unless it is otherwise provided in the Constitution or laws.”

    In the case of appointive state offices, (such as supervisor of public printing) it is “otherwise provided,” as follows:
    “Section 12. In case of a vacancy in any office filled by appointment of the governor, by and with the advice of the Senate, occurring by expiration of term, or otherwise, when the Senate is in session, the governor shall appoint a person to fill such vacancy, and forthwith report such appointment to the Senate; and when the Senate is not in session, and no appointment has been made and confirmed, in anticipation of such vacancy, the governor shall fill the vacancy and report the appointment to the next session of the Senate; and if the Senate advise and consent to the same, the person so appointed shall hold the office for the full term; and if the Senate do not so advise and conseivt, a new appointment shall he made.”

    The last clause of the foregoing section applies exactly to the circumstances of this case. The Senate did “not so advise and consent”- to the second appointment; therefore, Slater’s legal incumbency immediately ceased.
    It became the duty of the then governor at once to make a new appointment. Until that'was done Slater was a de facto, but not a de jiire official.
    If the remaining averments of the petition as to Johnson’s usurpation of the office be true (as the demurrer technically admits), it is a ease for action by the attorney-general, not by Slater, since he shows no right to the office in himself.
    The demurrer will be sustained.

      Emmitt Tompkins and James H. Allen, for plaintiff.

      Lentz & Belcher and LeWit't C. Jones, for defendant.


text:
    TESTIMONY IN A CRIMINAL TRIAL AS TO SIMILAR. OFFENSES COMMITTED.
    [Circuit Court of Licking County.]
    Robert C. Lingafelter v. The State of Ohio.

    Decided, June 19, 1906.

      Criminal Law—Trial for Forgery of a Receipt—Evidence as to Other Similar Offenses Competent—Change of Venue—Discretion in Trial Judge to Crant—Discretion not Abused, When.

    1. A trial judge is not without discretion in the matter of granting a change of venue in a criminal case upon the filing of affidavits that a fair trial can not be had in the county, but he must determine from the affidavits whether or not a change of venue should be granted.
    2. An abuse of discretion on the part of the trial judge in overruling a motion for a change, of venue is not shown, where the record discloses that but one juror was examined on his voir dire, and he was challenged for cause.
    3. Where the crime charged is the making of a false receipt for the payment of money with intent to defraud, evidence of similar offenses or similar transactions by the same defendant is competent as tending to show the motive or intent with which the receipt in question was made, altered or forged, and its use in connection with other instruments forged by the defendant.
    Taggart, J. ■ Donahue, J., and McCarty, J., concur.
    The case of Robert C. Lingafelter against the State of Ohio is a proceeding in error prosecuted in this court to reverse the judgment of the Common Pleas Court of Licking County, wherein Robert C. Lingafelter was convicted of forgery.
    While many of the questions involved in this case were brought in review in a case of this same plaintiff in error against the State of Ohio, at Mt. Yernon, yet at the urgent request of counsel we have again examined the questions involved herein.
    The plaintiff in error was indicted, tried and convicted, and now prosecutes error in this court. The first question presented in the record is the refusal of the trial court to grant a change of venue. The contention of counsel for plaintiff in error is that upon the filing of a motion for a change of venue, supported by affidavits, the court is required to grant the change, and that there was no discretion lodged in the court. To quote from the brief of counsel on this question; they say:
    “We claim under this statute, to-wit, Revised Statutes, 7263, that the court had no discretion about it. The statute is mandatory. It is not necessary to satisfy the court by clear and convincing proof; all that is necessary is to make it appear to the court by affidavits, and thereupon the court is required to order a change of venue. ’ ’
    If this contention is correct the plaintiff in error was deprived of a substantial right, and the action of the court in this regard was erroneous. But, this section of the statute has been recently construed by the Supreme Court, in the case of The Stale, ex rel Hornbeck, Prosecutmg Attorney, v. Durflmger, 73 Ohio State, 154, and in that case the court, in substance, say that the language of the statute is general, and confers this right to a change of venue alike upon the accused and upon the state. If the contention of counsel for plaintiff in error obtains, all that is necessary to be done, either by the accused or by the state, is to file a motion for a change of venue, and support it by affidavits, in which event the first one filing the motion secures a change of venue. We do not think this is the right construction to be placed upon this statute. We think the proper construction is to give to the words of the statute their controlling effect, “unless it appears to the court by affidavits that a fair trial can not be had in the county, ’ ’ a change of venue can only be granted. In this view it vests in the court the duty of determining by affidavit for or against the motion whether or not such a change of venue should be made; and this vests in the court a discretion which can only be reviewed when abused. This was the holding of this court sitting in the Third Circuit, and the case was reported (Judge Yoorhees delivering the opinion) in 4 C. C.—N. S., 409; and this was the holding of this court at the April Term of this year in Muskingum county. The question then arises: Did the court abuse its discretion? Did the affidavits in support thereof make it appear that a fair trial could not be had in this county, so that we can say that the trial court abused its discretion?
    An examination of this record shows that but one juror was examined on his voir dire, and he was challenged peremptorily. Then the record is silent in every respect except that it certifies that twelve jurors were obtained, and we must assume that they were good men and true; for, with this extensive record, bristling with exceptions from beginning to end, and with the counsel who took the cause of the accused in hand and carried him through this trial, we must assume that they took care that a fair jury was secured. If they did not, it is now too late, for no exceptions to the jurors that were secured are now preserved in this record. The action of the court in overruling this motion was not erroneous.
    The next question presented in the record is as to the admission of evidence. The admission of similar transactions to that which the accused was charged in the indictment. The indictment, consisting of but a single count, charged the defendant with the forgery of the following receipt:
    “No. 3219, Newark, Ohio, September 27, 1899. Received of the Homestead Building and Savings Company seventy-five dollars, in full, for one W. D. share No. 18, Sec. No. 1, W. D. Theo. Taylor.”
    Revised Statutes, Section 7091, provides that whoever falsely makes, alters or forges * * * any receipt for money # * * with intent to defraud is guilty of forgery. * * * It is to be observed that there is no count in this indictment for tittering the forged instrument. The question then arises: May similar transactions be shown, and for what purpose?
    In the case of Heed v. The State, 15 Ohio, 223, on the trial of a person charged with passing counterfeit money, it was held that it was competent to prove that he had passed other counterfeit money, for the purpose of proving the scienter, or guilty knowledge; but in the ease of Barton, 18 Ohio, 221, it was held that proof of similar offenses in the case of grand larceny could not be admitted in the trial of the case. The court, in its opinion, thus stated the rule: ‘ ‘ each case must be tried on its own merits and be determined by the circumstances connected with it, without reference to the character of the party charged, or the fact that he may have previously committed similar crimes. ’ ’ In this case it was claimed on behalf of the state that this evidence was introduced for the purpose of showing the intent with which the accused got possession of the property.
    In the case of Farrer v. The State, 2 O. S., 54, the syllabus is as follows:
    “On” an indictment charging the prisoner with poisoning A in December, 1851, it is error to permit evidence in chief to show that she poisoned B in the month of August previous. ’ ’ In this case, the court, consisting of five judges, divided; Corwin (who announced the principal opinion in the case), Caldwell and Thurman, were for reversing the judgment on the ground that it was erroneous to admit evidence of other transactions or other poisonings. Judge Thurman gives the controlling reason for the majority of the court. He says, on page 74:
    “No presumption whatever of guilty knowledge arises from the bare fact of passing a counterfeit coin or note, unless, which is but seldom the case, its baseness is apparent, and the person receiving it is a fit subject for imposition.
    “But how is it with respect to the nature of arsenic? Is it not undeniable that the fact is almost or quite as well known to people generally that arsenic is a deadly poison, as that a dagger or a gun is a deadly weapon ? I think it is. I suppose that there are very few men or women, and but few children, either, except those of tender years, who have not heard of arsenic, and that it is a poison that produces death. ’ ’
    And then he proceeds to say that the presumption obtains at once from the use of the means employed, that there wás guilty knowledge and intent. Judge jRanney says:
    “I think a new trial should have been granted, because of the misconduct of the jury, and for that reason alone I vote to reverse the sentence. ’ ’
    Bartley, C. J., on page 81, quotes, with approval, from Justice Story, in an opinion handed down by him, and claims the rule to be:
    “In most cases of conspiracy and fraud, the question of intent-Of pnrpopet or design in the act, done, whether innocent or illegal, whether honest or fraudulent, rarely admits of direct and positive proof; but it is to be deduced from various circumstances of more or less stringency, and often occurring, not merely between the same parties, but between the party charged with the conspiracy or fraud and third persons. And in all cases, where the guilt of the party depends upon the intent, purpose or design, with which the act is done, or upon his guilty knowledge thereof, I understand it to be a general rule, that collateral facts may be examined into, in which he bore a part, for the purpose of establishing such guilty intent, design, piirpose or knowledge. * * # In short, whenever the intent or guilty knowledge of a party is a material ingredient in the issue of the case, these collateral facts tending to establish such intent or knowledge, are proper evidence.”
    In the case of Brown v. The State, 26 O. S., 176, the syllabus is as follows:
    “1. Testimony otherwise competent, as tending to prove the offense charged in the indictment, is not rendered incompetent by reason of the fact that it tends to prove a separate and distinct offense.”
    This was an indictment for maliciously injuring a mare. The state, in the trial, was permitted to show that a number of other horses were injured in a similar manner; the defendant objecting on the ground that this was in effect.putting him on trial for different offenses at the same time.
    Gilmore, J., on page 181, in respect to this objection says:
    “While the general rule, unquestionably is, that a distinct crime, in no way connected with that upon which the defendant stands indicted, can not be given in evidence against him on the trial, this rule is not applicable to a case in which it is clearly shown that a connection in the mind of the defendant, must have existed between the offense charged in the indictment and others” of a similar nature. When such connection exists, evidence of such other offense is admissible, not for the purpose of raising a presumption of guilt on the hypothesis that a man who commits one crime will probably commit another, but for the purpose of showing a motive or purpose prompting the commission of the offense laid in the indictment; and being competent for this purpose, it could not have been properly excluded on the ground that it tended to prove the commission of other and distinct offenses.”

      In the ease of Lydia Devere v. The State, 5 C. C., 509, Lydia Devere was indicted in the Common Pleas Court of Lucas County for the crime of forgery. There were two counts in the indictment. The first count charged that she unlawfully and falsely made and forged a certain promissory note for the payment of money, setting forth a copy of the note, and that she forged an endorsement on the back of the same. The second charges ■that she falsely and unlawfully did utter and publish as true and genuine this promissory note, being the same instrument.
    In that case the common pleas court permitted the proof of similar transactions as developing and showing a scheme to defraud—a purpose in making and uttering the fraudulent instrument, as showing the guilty knowledge and criminal intent. This was excepted to, and the case went to the'circuit court. Judge Bentley delivered the opinion, holding it was proper to show thfese as evidence of criminal intent.

    The circuit court found that the two constituted but a single offense; that the falsely making and uttering alone constituted forgery, and was not two crimes. Under these counts of the indictment this woman' was convicted and sentenced on each count. The circuit court reversed the court of common pleas, holding it was but a single offense and that she could be sentenced for but a single offense, the crime of forgery.
    “It appears that she has been properly convicted of the crime of forgery, and should be, sentenced to a term as for the one offense of forgery. For the reasons given, this sentence will be reversed, and the cause remanded for a proper sentence upon the verdict as for a single offense.”
    After the circuit court reversed the judgment, and remanded it for a new sentence, the court of common pleas sentenced the defendant for a term of nine and a half years, and that sentence was brought before the circuit court “pro forma” on petition in error, and that sentence was affirmed, and the case taken to the Supreme Court on motion for leave to file a petition in error, which motion was overruled by the Supreme Court.
    In the case of L/mdsey v. The State, 38 O. S., 507, the defendant was indicted for uttering and publishing a forged deed. On the trial the court admitted certain other forged deeds published by the defendant, and others found in his possession. In affirming the judgment of the lower court, Johnson, J., on page 514, says:
    “As guilty knowledge is an essential ingredient of this class of crimes, and as the burden is on the prosecution to prove such knowledge, the reason of the rule is apparent. Without the aid of other acts and conduct of the accused, it would be impossible to prove this allegation. Proof of the single act charged will not of itself warrant the inference of guilty knowledge. Hence this exception to the general rule, that other acts of the accused calculated to raise a presumption of such knowledge are admissible. Other acts which, in their nature, do not aid the jury in determining this question, are not competent, but when such acts or conduct tend to raise a presumption of such knowledge, they are admissible.”
    These are the principal cases in Ohio. Let us now look beyond our own state, and see whether we can ascertain the correct rule in respect to this question.
    The case of Taylor v. The State, reported in the 81 S. W. Rep., 933, is a case from the Court of Criminal Appeals of Texas, decided in 1904. This is the language of the syllabus:
    “On a trial for forgery, evidence of other forgeries by defendant is admissible on the issue of intent, or to show a system.’ ’
    Judge Brooks, delivering the opinion of the court, says:
    “We would not be understood as holding that contemporaneous suspicion against appellant would be admissible, but contemporaneous acts tending to show and make out a prima facie case of forgery or passing a forged instrument are proper and intraducibie in the case. The collateral forgeries are merely intraducibie, and the court should say so, for the purpose of illustrating the motive, system, and intent, if they do so illustrate the motive, purpose and intent of appellant in passing, as true, the forged instrument for which he is on trial.”
    In the ease of The People v. McQlade, 72 Pac. Rep., 600, this being the 139 Cal., decided in 1903, the court says:
    “In a prosecution for forgery, evidence of other forgeries or similar instruments about the same time was admissible, to to show guilty knowledge and intent.” Also, the 34 So. Rep., page 1000.
    It has been called to our attention in the briefs of counsel, that in many of these cases, there are two counts in the indictments, one for forging the instrument, for which the accused is on trial, and one for uttering the same. But it seems that in this case it was simply for forgery. They hold in this case, that evidence of other orders are proper in the case, if the proof shows that they were made about the same time.
    In the 156 Mass., 196, the same question was before that court. This is in the opinion of Judge Barker:
    “It is an established exception to the rule forbidding proof of collateral facts, that, in prosecution for forgery and for uttering forged paper, proof is admissible, in order to show an intent to defraud by the forgery, and also to show knowledge on the part of the accused with reference to the particular document which he is charged with uttering, that at or near the time of committing the alleged offense, he had passed, or had in his possession, other similar forged documents. The admission of such evidence is necessary, because guilty knowledge is a fact not susceptible of proof by direct evidence, and can rarely be shown by explicit admissions, but only by acts and conduct. Intent to defraud often sufficiently appears from the circumstances of the transaction, where its immediate and necessary effect is to defraud; but there are many cases of the false making of instruments which have no such necessary effect, and in which the fraudulent intention must be proved by other and collateral circumstances. Although the introduction of such evidence compels the defendant to meet acts not charged, and may lead the jury to convict of one crime upon proof of another, it is admitted when the occasion arises. This doctrine is a branch of a more general exception, which, when knowledge or intent must be proved, allows evidence of acts not in issue, but which tend to show such knowledge or intent, as in the trial of indictments for passing counterfeit money.”
    But the point that I call attention to particularly is that the intent to defraud often does not sufficiently appeal* from the circumstances of the transaction, and the making of the false instrument may have no such necessary effect. It is a forgery to make an instrument which may be capable of defrauding, although in and of itself, it may be innocent, but in conjunction with other facts and circumstances may constitute the crime of forgery.
    In the celebrated case of People v. Molineux, reported in the 168 N. Y., 298, and in the 61 N. E. Rep., 286, the Court of Appeals of New York followed the Supreme Court, of Ohio in dividing upon the question as to the admission of testimony in the casee of the administration of poison.
    Judge Warner, in speaking for a majority of the court, thus states the rule as to the admission of evidence showing that the accused has been guilty of other similar crimes:'
    “The exception to the rule can not be stated with categorical precision. Generally speaking, evidence of other crimes is competent to prove the specific crime charged, when it tends to establish (1), motive; (2), intent; (3), the absence of mistake or accident; (4), a common scheme related to each other that proof of one tends to establish the others; (5), the identity of the person charged with the commission of the crime on trial.”
    And, on page 296, he thus lays down.the rule:
    ‘ ‘ There are cases in which the intent may be inferred from the nature of the act. There are others where willful intent or guilty knowledge must be proved before a conviction can be had. ’ ’
    And he then says:
    “Familiar illustrations of the latter rule are to be found in cases of passing counterfeit money, forgery, receiving stolen property, and obtaining money under false pretenses. An ■ innocent man may, in a single instance, pass a counterfeit coin or bill. Therefore, intent is of the essence of the crime, and previous offenses of a similar character by the same person, may be proved to show intent.” Citing a number of cases.
    Judge Parker, who delivered a dissenting opinion, thus states the rule, on page 313:
    “Intent is another essential element which must be made out-before there can be a conviction for a crime, and, if the commission of another crime by a defendant tends to establish a guilty intent on his part in the case on a trial, the other crimes may be proved,”

      In the case at bar the crime charged was the false making of a receipt for the payment of money, with intent to defraud. The instrument laid in the indictment might be harmless in and of itself, as has been urged upon our attention. It could not, in and of itself, be capable of defrauding unless in conjunction with some other instruments showing a system, or showing a means or capability whereby it could be used to defraud. And, therefore, we think, under the rule of law clearly deducible from the authorities cited, that similar offenses or similar transactions showing the motive or intent with which this receipt was made, altered, or forged, were proper, and that by using it in conjunction with other -instruments forged by the defendant it was capable of defrauding, and the admission of such evidence was not erroneous. It was proper.
    There were a number of special requests handed to the trial court, some of which were given, and some were refused. Those that were declined by the trial court, we think, are governed by the case of Davis v. The Stale, in the 63 Ohio State, 173, and were properly refused by the trial court'.
    While this record, as I have said, bristles with exceptions from beginning to end, we find no error therein to the prejudice of the plaintiff in error, and the judgment of the court of common pleas will be affirmed with costs, and the cause remanded to the common pleas court for execution. Exceptions will be noted. , .

      Smylhe & Smythe and F. V. Owen, for plaintiff in error.

      J. B. FiizgiFbon, Prosecuting Attorney, and S. M. Ihmter, for defendant in error.

       Leave to file petition in error in the Supreme Court refused, October 2, 1906.


text:
    MANDAMUS AGAINST A CLERK OF COURT.
    [Circuit Court of Muskingum County.]
    State, ex rel Louis Soller, v. James A. Brown, Clerk.
    Decided, April, 1906.

      Order of Court—Dispute as to Interpretation of—Mandamus will not Lie to Compel a Cleric of Court to Comply until—Proper Remedy.

    Where a court has ordered one of the parties to an action then pending to deliver to the clerk of the court a good and sufficient warranty deed to certain property, and has directed the clerk to pay over to the said party the purchase price of the property ill question, then in the hands of the clerk, such party can not, by suit in mandamus, compel the clerk to comply with the order on tender of a deed, where a dispute has arisen as to the sufficiency of, the deed under the order. The proper remedy is to secure a determination of the dispute by filing a motion in the original case.
    McCarty, J.; Donahue, J., and Taggart, J., concur.
    Mandamus.
    This is a mandamus proceeding, the nature of which can not be better stated than by reading the pleadings:
    ‘1 The relator says that the defendant is the Clerk of the Courts of Muskingum County, Ohio, and duly qualified and acting as such; that at the September term of the Court of Common Pleas of Muskingum County, Ohio, a certain action was pending in said courts, wherein Louis Soller was the plaintiff and Andrew Arnold was the defendant; and at said term, to-wit, on the 9th day of September, A. D., 1905, it was ordered by said court that Louis Soller, the plaintiff in said action, should within the days execute and deliver to said defendant a good and sufficient deed for certain real estate therein described. Said order was made by said court upon the answer and cross-petition of said Andrew Arnold, praying for specific performance, and it was further ordered by said court that, upon said deed being executed and delivered as therein directed, said clerk of courts pay to plaintiff in-said action, and being the relator in this action, the sum of $3,037.50, the said sum being then in the custody and control of said court, being the amount of the purchase money for said place that was found by said court to be due from said Andrew Arnold to said Louis Soller, as purchase money for said premises in said petition described.
    ‘1 The relator further says that within ten days from the ninth day of September, said deed was tendered by relator to said clerk of courts and' payment of said money demanded and said clerk refused and still refuses to make payment to relator of said sum of money as ordered by the court as aforesaid.
    “Wherefore, your relator prays that a writ of mandamus be issued commanding said defendant as clerk of said common pleas court to pay to the said relator the amount found due to him and ordered to be paid to him by said court of common pleas. ’ ’
    To that petition an answer has been interposed as follows:
    ‘ ‘ The defendant for answer to the petition herein filed, admits that he is the Clerk of the Courts of Muskingum County, Ohio, and duly qualified and acting as -such, and that at the September term of the Court of Common Pleas of Muskingum County, Ohio, a certain action was pending in said courts, wherein Louis Soller was the plaintiff and Andrew Arnold was the defendant.
    “Defendant further answering says that it is not true that on or about September 9, A. D., 1905, it was ordered by said court that Louis Soller, the plaintiff in said action, should within ten days execute and deliver to said defendant a good and sufficient deed for the real estate therein described, but on the other hand that , on said date it was ordered by said court that Louis Soller, the plaintiff in said action, should within ten days execute and deliver to said defendant a good and sufficient warranty deed for the real estate therein described; that it is not true that said order was made by said court upon the answer and cross-petition of said Andrew Arnold praying for specific performance, but that said order was made upon the amended answer and cross-petition of said Andrew Arnold.
    “Defendant further answering says that it was, by the court, further ordered that upon a good and sufficient warranty deed being executed and delivered to the said Andrew Arnold, as therein directed, this defendant was to pay to the said Louis Soller the sum of $3,037.50, and this answering defendant admits that said sum was then and there in the custody and control of said court, the same being the amount of the purchase money for said premises that was found by said court to be due from said Andrew Arnold to said Louis Soller as and for purchase money for said premises in the petition described. This answering defendant says that it is not true that within ten days from September 9 a good and sufficient warranty deed was tendered him by the relator herein, but admits that the relator herein, through his attorney, tendered him a deed signed only by Louis Soller, who was at that time a married man, and whose wife was then and there living, which fact was known to this defendant, and that said deed was only signed by Louis Soller, which deed this defendant refused and still refuses to accept for the reason that the same is not a good and sufficient warranty 'deed, as was ordered by the court to be made.
    “Wherefore, this defendant prays that this writ of mandamus be dismissed at the cost of relator herein and for all other relief that is just, equitable, and proper.”
    These are all the pleadings in this ease, and the question propounded to us is whether or not the plaintiff relator is entitled to the specific remedy of mandamus.
    We have been referred to some authorities, one of which is Peoples’ Sav. Bank Go. v. Parisette, 68 Ohio St., 450:
    “Where a vendor of land has obligated himself by written contract to convey ‘by good warranty deed and abstract of title from organization of county,’ but the contract contains no stipulation for a deed containing a covenant against incumbrances generally and none against any inchoate dower right, it is not essential to the performance of the contract by the vendor that-his wife should join in the deed and release her right of dower.
    “Where, in an action brought in a court of equity to enforce the specific performance of a contract for the sale of land by the purchaser against a married man, the owner of the fee, who alone signed the contract, it appears by the contract itself that some one other than the husband was expected to sign it but has not done so, and the contract contains a stipulation to convey by a good warranty deed, but contains no agreement for a covenant against incumbrances, and it appears further that the wife has not agreed to sign such contract or in any way release her inchoate right of dower in the land, and that the purchaser at the time knew that the vendor had a wife who would, under the law, be entitled to a right of dower, and there is no collusion between the husband and wife relating to the contract or deed, the court will not decree specific performance against the husband with an abatement in the contract price of the land of the estimated value of the prospective dower óf the wife. ’ ’

      The claim of the defendant is that the money is now in court, the clerk, as the officer of the court, being in custody of the same, and, this dispute having arisen, all that remains for the plaintiff to do is to ask that the court order and direct payment thereof, and that he, as such clerk, is not authorized or empowered to settle the dispute between the parties, but that the plaintiff may have full relief simply by filing a motion in the original case, asking the court to find that he has complied with its order and directing the clerk to make payment thereof, and thereupon, there being full and adequate remedy at law, mandamus will not lie. We think this claim is correct. There is no reason for making the extraordinary remedy of mandamus. Plaintiff can have full and adequate remedy from such a motion, and therefore, by the very terms of the statute mandamus will not lie or is not necessary. The peremptory writ is refused and costs taxed against the plaintiff. Motion for new trial overruled. Exceptions. Execution awarded.

      F. S. Gales, for plaintiff.

      G. G. Lemert, for defendant.


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    JUDGMENTS FOR. ALIMONY.
    [Circuit Court of Cuyahoga County.]
    Carl M. Hoffman v. Minnie Hoffman.
    Decided, October 29, 1906.

      Divorce and Alimony—Order that Alimony be Paid in Installments— Husband not Absolved from Payment by a Second Marriage—Enforcement of Payment by Contempt Proceedings.

    Where a wife obtains a decree for divorce, with an order that the husband pay to her alimony in a stipulated sum per month until th“ gross amount allowed has been paid, the judgment for alimony ca” not be defeated, or a commitment to jail for failure to pay avoided, by the subsequent marriage of the defendant to another woman and the setting up by him of the claim that ail of his meager salary is required to support his new family.

      Marvin, J.; Winch, J., and Henry, J., concur.
    Error to the court of common pleas.
    In November, 1903, Minnie Hoffman was granted a divorce from Carl M. Hoffman, and a decree entered that Carl, pay her as alimony, the sum of $15 per month until the aggregate amount paid should be $750. He paid the monthly installments up to the month of April, 1906, when he was in default, and proceedings in contempt were brought against him, and on the 21st day of April, 1906, he was found guilty and ordered to pay to Minnie Hoffman $15 on or before the 10th day of May, 1906, and in default of such payment that he be committed to jail until payment should be made, or until he be otherwise discharged by due course of law.
    Error is prosecuted to this order, because it is said the facts show that Mr. Hoffman had a good and lawful reason for not paying. This reason was that, less than two weeks after the divorce was obtained against him, he married another woman, whereby he became a husband living with his wife. He is a resident of Ohio, and neither he nor his wife is the owner of a homestead. His earnings are but $15 per week and it takes it all, he says, to support himself and his new family.
    It is manifest that if this decree for alimony were an ordinary debt, nothing could be collected upon it except as he saw fit to pay. But it is not a debt in the ordinary sense; it is not a judgment in the ordinary sense. See The State, on Complaint of Cook v. Cook, 66 O. S., 566. The second clause of the syllabus reads:
    “A final decree for alimony is not a debt within the purview of the constitutional inhibition against imprisonment for debt, but it is such an order that, under favor of Sectioin 5640, R. S., punshment as for a contempt may follow a willful failure to comply with it. ’ ’
    And in the opinion in the same case, at page 572, speaking of the obigation to pay alimony, Judge Spear says:
    ‘ ‘ It seems manifest that so far as the obligation of the husband enters into the consideration and affords a basis for the court’s action, it is not a debt in the sense of a pecuniary obligation; it arises from a duty which, the husband owes as well to the public, as to the wife. * ® * The liability originates in the wrongful act of the husband.”
    Again he says, on page 573:
    “The withholding of this allowance, therefore, by the husband, when able to respond, is a refusal to abide by and perform the order and decree of the court, and it is difficult to see why such refusal should not be punished as a contempt, for the same reason and upon the same grounds that orders and decrees of courts of equity, in injunction and the like, are in like manner enforced. ’ ’
    The only remaining question is, whether this plaintiff in error was unable to perform the order made.
    He gets but $60 per month, or at most $15 per week. He goes into detail somewhat about his expenses and shows that he is expending this amount in the support of himself and his present wife, but his evidence fails to show that, by close economy, he could not get on with less. It needs no going into details to show that it would require close economy, very close economy, to support his present family and pay this alimony, but no reason appears why he and his present wife should not be required to exercise the closest economy that this alimony should be paid.
    With the order upon him to pay the alimony he saw fit to marry another woman. She, presumably knowing that his treatment of his former wife had been such as to entitle her to a divorce and to this alimony, both of them knowing this, they chose to marry one another; they must abide the consequences. It would be a travesty to allow this husband to defeat the order of the court by voluntarily taking upon himself new obligations, and then have them treated as superior to the' obligations already incurred by him to his former wife and to the public as determined by the court.
    Judgment affirmed.

      Miller & Linder, for plaintiff in error..

      Kerruitfv c& Kerruish, for defendant in error,


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    EXTENSION OF PERIOD FOR PAYMENT OF TAXES.
    [Circuit Court of Cuyahoga County.]
    The State of Ohio, ex rel Frederick C. Beyer, v. James P. Madigan, as Treasurer of Cuyahoga County.

    Decided, October 29, 1906.

      Constitutional Law—Taxation-—CoTleotion of Taxes—Statutory Provisions Which are not of Uniform Operation—Section 1365-25— Mandamus—County Commissioners—County Treasurer.

    While the subject of taxation is general in its nature, requiring uniformity of operation throughout the state, the provision in Section 1365-25 giving to county commissioners power to extend for thirty days, at their discretion, the time for the payment of taxes, although limited to “counties containing a city of the second grade of the first class,” must be regarded as a provision suited to certain localities and merely regulative of the mode of receiving taxes in such localities, and is therefore constitutional.
    Henry, J.; Winch, J., and Marvin, J., concur.
    This mandamus proceeding involves but one question, viz., the constitutionality of the last clause of Revised Statutes, Section 13G5-25. This section was originally part of an act fixing the salaries of county officers in Cuyahoga county; and, so far as that subject-matter is concerned, it is confessedly unconstitutional, under recent rulings of the Supreme Court, particularly State, ex rel, v. Yates. Auditor, 66 O. S., 546,’ as being an act of a general nature not of uniform operation throughout the state. The section here in controversy reads:
    “It shall be the duty of the county commissioners.to see that the provisions of this act are faithfully complied with, and that the county commissioners shall also have power to extend at their discretion for thirty days, the time for the payment of taxes. ’ ’
    The petition here alleges that the commissioners have passed a resolution extending the time for the payment of the first half of the taxes for the current year from December 20, 1906, to January 19, 1907; but that the defendant, as county treasurer, has publicly and officially declared that he will insist upon the payment of said taxes by the former date, and that he will not be governed by said resolution. The petition further alleges that, the relator, as a tax-payer of said county, and all others in like case, will incur a penalty should they erroneously rely upon the right of said county commissioners to direct and control the conduct of the treasurer in that respect. To this petition the defendant has demurred.
    It is, of course, true, that if the commissioners’ resolution and the statutory provision on which it is founded are invalid, the treasurer in pursuance of his duty to collect taxes due, may, after December 20, 1906, resort to distress or other summary remedy prescribed by law to collect taxes payable on that date together with a five per cent, penalty thereon.
    The sole contention made by the defendant here is that the section referred to is unconstitutional. In its present form this section was enacted May 12, 1902 (95 O. L., 573) as “An act to amend Section 1365-25 of the Revised Statutes of Ohio.” It was originally enacted April 12, 1889 (86 O. L., 64),.as part of “An act relating to the duties and compensation of certain county officers and their assistants, in counties containing a city of the second grade of the first class. ’ ’
    It is admitted that Cuyahoga county is embraced within these descriptive words and that the act applies to no other county. It is true, also, that the constitutionality of that part of the act which relates to the time of paying taxes in Cuyahoga county is not necessarily involved in the fate of that portion which relates to the subject of salaries of county officers in this county, and which was passed upon in a former decision of this court. Nor is the style and form of this act, as distingtdshed from its subject-matter, conclusive against it. Slate, ex rel, v. Bloch, 65 St., 370.
    As is well known, the recent decisions of the Supreme Court have revolutionized the principles of constitutional interpretation, as applied to the judicial construction of the meaning and, application of the expressions “general laws,” “laws of a general nature” and “special acts” as contained in the Constitution of this state. In State, ex rel, v. Spellmire el al, 67 O. S., 77, the rule is laid down in the first paragraph of the syllabus §s( follows; '

      “Whenever a law of a general nature having a uniform operation throughout the state, can be made fully to cover and provide for any given subject-matter, the legislation, as to such subject-matter, must be governed by general laws, and local or special laws can not be constitutionally enacted as to such subject-matter-. ’ ’
    In that case the subject-matter of schools and school districts was declared to be of a general nature. In a previous decision, that of Hixson v. Burs on-, 54. O. S., 470, roads and highways had been declared to be a subject-matter of a general nature.

      Gentsch v. State, 71 O. S., 151, presents serious difficulties. There an act was held valid prescribing a time for keeping the polls open at elections in cities with a population of 300,000, or more, different from that prescribed by the same act for other parts of the state. It was held that the subject-matter of the act, to-wit, elections, was of a general nature, but that the uniformity of its operation was not negatived by the special provision for cities above a certain size. The act was, indeed, in “operation throughout the state,” and it was held to be “of uniform operation throughout the state. ’ ’
    It is argued that this decision, though correct as to the result, might better have been put on another basis. . For mere regulative details with respect to the conduct of elections in different localities to meet special conditions, may well be considered a subject local in its nature, and hence a proper subject of local or special legislation, though the elective franchise and substantive laws governing its exercise are of a general nature and must, therefore, be of uniform operation throughout the state. Thus it is claimed that the provision of law under consideration in State v. Gentsch, might well be deemed to be of a local nature, and hence not required to be of uniform operation throughout tbe state.
    And it is, indeed, upon a precisely similar distinction that the decision in Silberman v. Hay, 59 O. S., 582, is discriminated from that of McGilli v. Stale, 34 O. S., 228. The one case held invalid the law prescribing restrictions upon the right of jury trial in Cuyahoga county different from those obtaining elsewhere. The other ease upheld a haw prescribing a method of selecting persons for jury duty in this county different from that provided fop other counties. Superficially the subject-matter .of both acts would seem to be the same, to-wit, juries, a subject manifestly of a general nature. Actually, however, there are two subjects, to-wit, the right of jury trial and the selection of persons for jury duty. The former is clearly of a general nature; the latter, a matter solely for administration, to be regulated according to local exigencies. And it was so held. The second paragraph of the syllabus of McGill v. Stale is as follows:

      “The act of May 7, 1877, (74 Ohio L., 218), regulating the selection of jurors for the county of Cuyahoga, is not a law of a general nature within the meaning of Section 26, Article II, of the Constitution.”
    In Bilberman el al v. Hay, 59 O. S., 589, it was said by Min-shall, J., at page 589 :
    “The law here in question affects the right of trial by jury—a subject of general interest throughout the state; the law considered in the McGill ease simply affects the mode of selecting electors for jury service; and in this regard, local circumstances may, in the interests of the integrity of the system, require special legislation.”
    In the case before us, if the subject-matter of this portion of the act be deemed to be taxation, it is, of course, of a general nature, requiring uniform operation throughout the state. But if the subject-matter here be deemed to be the regulation of the mode and time of receiving payment of taxes,, it is not clearly of a general nature. May it not be true that the times and methods of selecting persons for jury service, and of receiving payment of taxes, are matters of regulative detail capable of being fixed and determined by reasonable local or special laws suited to the exigencies of each case and the real needs of each locality as the Legislature shall determine? True, the ease of Genlsch v. Slate, supra, is apparently put by the Supreme Court on a different footing; and the case of McGill v. Stale, supra, is severely criticized in Slate, ex rel, v. SpeUmire, supra. But when Bilberman v. Hay, supra, was decided, the Supreme Court had already announced the doctrine of Hixson v. Burson, supra, and there was a clear opportunity, nay a clear duty, to reverse McGill v; State, if such reversal were ever contemplated,

      It is evident from tbe foregoing that tbe law now under consideration is far from being clearly an act of general nature; and hence the want of universal operation territorially throughout the state is not manifestly fatal to its validity. The Legislature may well have been actuated in passing this law by considerations of local conditions which require a longer time for the preparation of the duplicate and the receipt of taxes in a county containing a city of the magnitude of Cleveland. Revised Statutes, Section 2863, also recognizing this situation, gives the auditor forty days more in this county for the delivery to the treasurer of his duplicate, than is given in other counties. Revised Statutes, Section 2864, gives him a fortnight longer to prepare and publish his delinquent land list. The statutes abound in other like exceptions. Much and grievous harm might easily result not only to the local tax-payers and to this community generally, but even to the integrity of the taxation system in the state, if the courts were to declare as a matter of law, that the Legislature could and should have passed adequate general laws of' uniform operation throughout the state on the subject of the time and manner of- receiving payment of taxes in each and every county, great and small alike. No inconvenience can result to the public from a judicial recognition of the sound discretion of the Legislature in thus interpreting its own constitutional duty in this behalf.
    The rule of interpretation laid down for the courts is that expressed by Spear, J., in Marmet v. State, 45 O. S., 63, at page 64:
    "If the law; as to the provisions involved in this inquiry, is shown to be clearly, palpably in conflict with the Constitution, so that there is no doubt or hesitancy -in the mind of the court, it should be so held. But if there be any doubt upon the subject, that should be solved in favor of the law, and the court should decline to interfere.” ,
    Holding the views thus expressed, we are of the opinion that the demurrer to the petition should be overruled, and it will be overruled, and a mandatory writ will be issued as prayed for, provided the plaintiff cares to avail himself of the right to amend his petition by interlineation, so as to include an express allegation of the admitted fact that Cuyahoga county was a county containing a city of the first class, second grade, at the time this law was made.

      R. A. Wilbur, for plaintiffs.

      Blandin, Rice & Ginn, for defendant.

       Reversed by the Supreme Court November 27, 1906.


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    TAXATION OF LAND APPROPRIATED FOR. STREETS.
    [Circuit Court of Hamilton County.]
    The Commissioners of Hamilton County, Ohio, v. George F. Albers et al.
    Decided, June 11, 1906.

      Refunder—To the Owner of a Subdivision—For Land Included in the Streets—Erroneous Direction by Auditor to Assessor—As to 'Valuation to be Placed on Lots—Presumption as to Valuation Made by Assessor—Section 1038.
    1. There is a presumption that in valuing the lots of a newly platted subdivision for the purpose of taxation, the valuation returned by the assessor covers the lots only, and not the land dedicated for street purposes, and without a showing to the contrary the subsequent allowance of a refunder on account of land embraced in the streets is erroneous.
    2. A direction given by a county auditor to an assessor as to the minimum aggregate valuation at which he shall return the lots of a new subdivision is without authority, and the return of the assessor may be corrected under the provisions of Section 1038 in so far as the assessor was influenced in his valuations by the direction of the auditor; but where it is left to inference only as to whether the direction was followed by the assessor or served to influence his valuations, relief can not be granted by the courts to the lot owners.
    Giffen, J.; Jelke, P. J., and Swing, J., concur.
    The defendants in error, George F. Albors and Henry W. Kahle, were the owners of a tract of land of ten and one-half acres, the decennial appraisement of which was $11,860. August 14,1891, they presented to the county auditor a plat, subdividing this tract into fifty-seven lots. The auditor referred the same to the annual assessor and directed him to appraise the lots so that the aggregate tax valuation of said lots should not fall below $U8,860.

      Subsequently, the assessor returned said subdivision to the county auditor, and valued said fifty-seven lots separately, the valuation aggregating $21,410.
    An application was made to the county commissioners for a refunder of taxes paid on the decennial valuation of that part of land dedicated to the public for street purposes, amounting to $2,970, and upon the amount of $7,000, being the difference between the decennial appraisement as shown by the record, and that given by the auditor to the annual assessor. The claim was rejected by the county commissioners, and upon appeal to the court of common pleas, the taxes paid on that part of the land dedicated was allowed and the balance disallowed. The commissioners have filed their petition in error, and Albers et al a cross-petition in error.
    In addition to the questions this day decided in the case of Davis and Cassatt v. The Commissioners, anle, one is presented by the petition in error, to-wit: Whether the value of the land dedicated for street purposes should be deducted from the decennial valuation, and a refunder be allowed of the proportionate amount of the taxes paid on the whole? The other by the cross-petition, to-wit: Whether the error of the auditor in directing the assessor to return a valuation of not less than $18,860 while the decennial valuation was only $11,860, was such an error as could be corrected, under Section 1038, Revised Statutes ?
    There is no authority under Section 2797 to return the land embraced in the streets for taxation, but the lots shall be entered on the tax list in lieu of the land. There is no finding of fact that the defendants in error paid taxes upon any of the land dedicated, although, under its conclusions of law, the court states that the appellants paid taxes on the property embraced in the streets. We understand the contention of counsel to be that upon filing the plat with the auditor, it was his duty to deduct from the decennial valuation of the tract of land a proportionate value of the land dedicated to public use.
    If our conclusion in the case of Davis et al v. The Commissioners, is correct, the valuation of the lots in the subdivision is left to the judgment of the assessor, subject to the limitation that he have regard to the next preceding decennial valuation of real estate.

      The purpose of subdividing land into lots and dedicating the streets, and the result which usually follows, is to add value to the lots abutting on such streets, and if the assessor should so find, it would be his duty to assess and return the valuation accordingly.
    We are of opinion, therefore, that the court erred in allowing the claim for taxes paid on land embraced in the streets. The direction given by the auditor to the assessor to return a valuation of not less than $18,860 was clearly erroneous, and if it fully entered into the judgment of the assessor in fixing a valuation upon the several lots, it would be such an error as was contemplated under Section 1038, but there is no finding of fact showing that the assessor followed the directions given except as may be inferred from the valuation returned. The total valuation returned was $21,410, which is $2,550 in excess of the sum below which the assessor was directed not to value the lots.
    While we have no doubt that the instructions given influenced to some extent the judgment of the assessor, it would be impossible to determine to what extent or in what amount the Valuaion was thereby increased. Judgment will therefore be affirmed in part and reversed in part.
    Ampt, Ireton é Collins, for plaintiffs in error.

      Cobb, Howard <& Bailey, for defendants in error.


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    MUNICIPAL FRONTAGE ON STREET RAILWAY ROUTES.
    [Circuit Court of Cuyahoga County.]
    Taylor Emerson v. The Forest City Railway Company.

    Decided, October 29, 1906.

      Street Railways—Consents of Abutting Ovmers to Construction of— Legality of Consent of Municipality as Abutting Owner—Public Officials Acting in a Dual Capacity—Sections 1536-185 and 3439— Jurisdiction of Council.

    The consent of a municipality to the construction of a street railway along a street upon which the municipality is an abutting owner may, when legally granted, be counted in ascertaining whether a majority of the frontage has consented to the granting of the franchise,

      Henry, J.; Winch, J., and Marvin, J., concur.
    This is an appeal from the judgment of the common pleas court denying a permanent injunction against the exercise by the defendant of its alleged street railway franchise on East Fourteenth street for want of the necessary majority of abutting owners’ consents. It is admitted that the production of sufficient consents is jurisdictional and that without them the council is without power to grant a franchise. If the Fourteenth street frontage of the Erie Street Cemetery property owned by the city is to be included in estimating the total frontage, and if the city’s consent given pursuant to ordinance of its council can be counted to make a -majority, then the injunction should be denied.
    The sole issue is thus-one of law depending upon the construction of R. S., Sections 1536-185 and 3439, the latter of which reads in part as' follows:
    “No such grant shall be made until there is produced to council, or the commissioners, as the case may be, the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way, along which it is proposed to construct such railway or extension thereof,” etc.
    And in part of the other section referred to is substantially the same provision. The literal reading of these sections is against plaintiff’s contention. But it is urged that since the privilege of abutters to give or withhold their consents is a personal right given to them for their protection against the granting of the right to operate a street railway in front of their premises, contrary to their desire and interest, it is against public policy for the city, in its adversary and dual capacity as both landowner and grantor of the franchise, to confer upon itself jurisdiction to act in derogation of their rights.
    There is of course a suggestion of anomaly in this situation. Various analogies of action by public officers in dual capacities have been instanced, but we have found none which precisely meets this situation.
    It is not easy to see wThy the city as landowner should be deprived of the privilege enjoyed by landowners generally of favoring the establishment of a street railway by giving consent where a street railway is deemed to be beneficial to the abutting property. And it is apparent that the denial of that privilege might hinder or prevent the establishment of a street railway along a street bordered largely or wholly by property belonging to the city, and that, too, when ease of access to such property by the public is peculiarly desirable, as in-the case of city parks.
    It is, indeed, conceivably true that the interest of the city as a whole may be favorable to the construction of a street railway along a street where its own and other abutting lands would be depreciated thereby, and that it may thus force the establishment of a street railway against the interests of the owners of abutting private property. But the same argument, in some degree, would lie against the right of any other public corporation, owning abutting city lands, to give or withhold consent to the construction of a city street railway in front of its property. Yet the right of the federal, or state government, or of a county or school district, in this behalf is, we believe, unchallenged. This privilege being personal to the owners of abutting lands, may be exercised even to the manifest detriment of the land itself, if they so please. Can it be doubted that a street railway company may, as owner of abutting lands, yield the decisive consent to the grant of a franchise to itself? It having been decided that consents may be purchased, can it be seriously claimed that any abutting owner who refuses to yield his consent can invoke high considerations of public policy against the contrary exercise of the same privilege by any owner, though it be the city itself, upon the ground of biased judgment, impure motive, conflicting duties, or cross-interests. Can supposed public policy of so doubtful a nature operate to vary the plain letter of the law? We think not.
    Viewing the question from another standpoint and considering the history of this legislation, the rule of majority consents was formerly founded on assessed valuations of abutting property, so that the owners of property exempt from taxation had no power to further a street railway project by their consents. When the Legislature changed this basis to that of foot frontage, it obviously had this fact in view. It could hardly have escaped attention that the change thus made would affect property owned by the city. Yet the Legislature made no exception of city property. If it had expressly conferred upon municipalities the privilege of giving consent in respect of their property abutting on proposed street railway routes, it can hardly be claimed that considerations of public policy would defeat such provision. And the same conclusion results from the reasonable presumption that the Legislature must have had in contemplation the plain application and natural meaning in this behalf of-the language it did employ.
    If abuses arise from the literal interpretation of the law, it is much better that the Legislature should amend the law than that the courts by judicial legislation should attempt to do so.
    The injunction will be denied, as upon'final hearing, and the petition dismissed at the plaintiff’s costs.

      Squire, Sanders & Dempsey, for plaintiff.

      Garfield, Howe & Westenhaven, for defendant.

      Affirming Emerson v. Forest City Railway Co., 4 N. P.—N. S., 493.


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    EVIDENCE AS TO CONCEALMENT OF PROPERTY.
    [Circuit Court of Cuyahoga County.]
    The Ravenna National Bank v. Jay E. Latimer.
    Decided, October 29, 1906.

      Attachment—Burden of Proving Concealment of Property—Offers to sell at Low Figure—Weight of Evidence Presented by Affidavits— Reviewing Court in Same Position as Trial Court—Evidence Sufficiently Establishing Concealment of Property.

    1.. Where a case is heard on affidavits, the reviewing court has the • same means of judging as to the weight of the testimony or the credibility of the witnesses as the trial court, and should treat such testimony as though it were presented in the reviewing court for the first time.
    2. An offer by a debtor to sell a piece of property at a low figure, and to accept notes and mortgage for all or a large part of the purchase price, it is not sufficient when standing alone to establish a purpose on the part of the debtor of placing his property beyond the reach of creditors.
    3. But a charge of concealment of property will be regarded as sufficiently proven, where sustained by the testimony of a number of witnesses as to declarations made by the debtor at different times that he was execution proof and that his property had all been placed beyond the reach of creditors.

      Marvin, J.; Winch, J., and Henry, J., concur.
    Error to the court of common pleas.
    Suit was brought by the bank against Latimer on a promissory note, and an order of attachment was issued against the defendant upon an affidavit filed by the plaintiff’s attorney, charging as grounds therefor that the defendant was about to sell and convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors, and that said defendant had property or rights in action which he concealed.
    The defendant moved to discharge the attachment on various grounds, none of which need here be' considered except the third and fourth grounds. These read:
    “3. It is untrue that defendant is about to sell and convert his property or a part thereof into money for the purpose of placing it beyond the reach of his creditors.
    “4. It is untrue that defendant has property or rights in action which he conceals. ’ ’
    In support of this motion the defendant filed his own afifi- ■ davit, asserting that these matters contained in-the affidavit upon which the order was granted, and mentioned in the third and fourth grounds of the motion, were untrue. This put upon the plaintiff the burden of sustaining the allegations in this regard.
    The matter was heard in the court below upon affidavits, with • the result that the court ordered the attachment discharged. To reverse this order error is prosecuted here.
    We have before us in a bill of exceptions all the evidence on which the court acted, and this, as already said', is in the form of affidavits. It is true there are depositions in the bill, but these bear upon the ownership of the note sued on, and there is no question that the plaintiff was such owner, so that all we need consider is the weight of the evidence as appears by the affidavits.
    It differs from the ordinary case in which we are called upon to determine in proceedings in error the weight of the evidence, in this, that whereas usually the trial court and the jury see the witnesses and can note their manner and bearing and so have better means of judging what weight should be given to their testimony than a reviewing court. In this case the trial court did not have the witnesses before it, and had no better means of judging than this court has. In this respect the language used by Judge Gholson in the opinion in the case of Harrison v. King, 9 O. S., 397, does not apply. That language is:
    “But there was offered on both sides what the code declares to be proper evidence, and we are called upon to review the decision of the court below as to the credibility of the witnesses and the weight to be given to their statements. We may very reasonably conclude from the different phases of the complicated controversy bringing the parties so frequently before the court, that the judge who decided the motion had advantages in forming an opinion which we do not possess.1 ’
    There is nothing in this case to show or to make probable that the court below possessed any means of judging of these affiants not possessed by us. We are therefore to judge the matter as though the motion to discharge was addressed to us. So judging of it, we reach a different conclusion from that reached below on one phase of the case.
    We do not think that the evidence was sufficient to show that the defendant was about to sell his property or convert it or a part of it into money for the purpose of placing it beyond the reach of his creditors. True, he offered to sell his farm at what was apparently a very low figure and to accept notes and mortgages for all or a large part of the purchase price, but this one who is in debt may do for the very purpose of getting means to pay his debts.
    On the other question we think the court should have found \hat the defendant had property, which he concealed.
    ■ Jas. W. Holcomb makes affidavit that the defendant told him, on the 10th day of March, 1906—the affidavit for attachment was made on the 24th day of the same month—that he had no property that cordd be found on which to levy if judgment should be recovered against him; that he could pay the debt if he wanted to, but that his property was beyond the reach of his creditors. He says that again, on the 15th day of the same month, Latimer told him that he could pay a certain judgment which had been rendered against him if he wanted to, but that he would not; that he had no property that any one could find; that his property was out of the reach of his creditors.

      B. B. Patterson makes affidavit that on the 20th of March, 1906, Latimer told him that he had plenty of property to pay any of his outstanding indebtedness, but that he could not be forced into paying anything he did not want to.
    Jerome F. Patterson makes affidavit that on the 16th of March, 1906, Latimer told him that he had plenty of property with which to pay this note if he wanted to pay it, but that he was execution proof. He says this was repeated in his hearing March 20, 21 and 22, 1906, and that he heard him say to B. B. Patterson what said B. B. Patterson sweai’s to in his affidavit.
    He says, too, that on the 24th day of March, 1906, Latimer said to him that if he sued this note he could get nothing, but that his property would all be beyond the reach of his creditors. These conversations are denied and explained by Latimer, but it seems clear that the weight is decidedly with the plaintiff, that the statements were^made and that they clearly show that the defendant was concealing his property to evade the payment of certain of his debts.
    Remembering that there was nothing known of the appearance and character of the witnesses which is not known to us, and the fact being that two of the affiants are well known and reputable members of this bar, we reach the conclusion that these statements were made. If they were made and their truth is now denied, what is said in Harilcs v. Andrews, 13 S. W., 1103, is decidedly in point. The language is:
    “If his representations as to his assets were false, the falsehood does not increase confidence in his intention to make an honest disposition of them. ’ ’
    Finding as we do that the plaintiff sustained its allegation that the defendant had property which he concealed, the order discharging the attachment is reversed and the case remanded.

      J. F. Patterson, for plaintiff in error.

      Smith, Taft <& Arler, for defendant in error.


text:
    THE COUNTY DEPOSITORIES ACT.
    [Circuit Court of Summit County.]
    The State of Ohio, ex rel Alexander, v. L. H. Oviatt et al.

    Decided, October, 1906.

      Situs of Corporations—Where Banks Having Branches in Different Counties are “Situated,”—Constitutionality of the County Depositories Act—Mandamus—Injunction.

    The county depository act is constitutional, and under its provisions only banks which have their situs in the county are eligible as bidders for the public funds of that county.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Appeal from the Court of Common Pleas of Summit County.
    We have examined this ease with care, and have read the opinion of Judge Wanamaker of the court of common pleas when the ease was tried before him. We do not think we can improve upon that opinion, and we reach the conclusion reached by him. The same order will be made here as ivas made in the court below.
    This disposes of the proceeding in mandamus brought against the county commissioners and treasurer. We think it is clear that the statute under which bids were received for the public moneys, confines the bidders to those banking corporations which have their situs in the county, and that the Cleveland Trust Company is situate, not in this county, though it has a bank here, but the corporation is located elsewhere.
    Upon the opinion announced by Judge Wanamaker in the court of common pleas we pronounce the judgment that the injunction prayed for in the suit by Alexander be allowed, and the mandamus brought by the trust company be dismissed.

      Slabaugh & Seiberling, for plaintiff.

      H. M. Eagelbarger, for defendants.

      Affirming, State, ex rel Alvin D. Alexander, v. L. H. Oviatt et al, 4 N. P. —N. S., 481.


author: By The Court.

text:
    INJUNCTION AGAINST LEVY ON JUDGMENT.
    [Circuit Court of Knox County.]
    Edwin W. Howard v. E. T. Kinney Company.
    Decided, October 12, 1906.

      Cognovit Note—Judgment upon, in Defendant’s Absence—Pleading— Injunction Against Levy of Execution•—Jurisdiction.

    Tn the absence of a showing of lack of jurisdiction to enter the judgment complained of, injunction will not lie to prevent the levy of execution on a foreign judgment.

      Hugh Neal and L. B. Ilouck, for plaintiff in error.

      F. V. Owen, for defendant in error.
   By The Court.

In this case the petition shows that judgment was rendered against the plaintiff in the Common Pleas Court of Fulton county on a cognovit note. The allegation that he did not have opportunity to appear and make a defense is not important, because the averment that it was rendered on a cognovit, implies that his appearance was there entered under the terms of that cognovit, and that being true he was in court to all intents and purposes, and if he has a defense to that action, that is the court in which he must make application for relief. It is only where a judgment is void for want of jurisdiction that an injunction will lie to restrain a levy of an execution issued upon that judgment. Finding and decree for defendant; petition of plaintiff dismissed at the costs of plaintiff. Remanded for execution. Motion for new trial overruled and exceptions noted.


text:
    INDUCEMENT TO PEDESTRIANS TO WALK THROUGH A SWITCH YARD.
    [Circuit Court of Cuyahoga County.]
    Baltimore & Ohio Railroad Company v. John Campbell.
    Decided, October 29, 1906.

      Negligence—Habitual Use of Tracks by Pedestrians—Liability of Company to One Struck by Locomotive—Running without Light or ■ Warning on a Dark Night.

    Where a railroad company maintains yards and switch-tracks along docks and near to á much traveled thoroughfare of a city, and persons have been in the habit for a long time of walking along these tracks and up' to this thoroughfare to the knowledge and with the acquiescence of the company and without notice or warning to the contrary, a person who, while walking carefully along these tracks at a point near the thoroughfare on a dark night, is struck by a locomotive backing down upon him without warning, may recover from the company for his injuries thus sustained. Harriman v. Railway, 45 O. S., 11, followed.
    Winch, J.; Marvin, J., and Henry, J., concur.
    This was a personal injury damage case, with verdict and judgment for the plaintiff below. Tbe petition alleges that:
    “On the 24th day of November, 1903, the defendant was the owner of, and engaged in operating, a line of railway, extending to the village of Fairport, in the state of Ohio; that said line of railway, together with two or three side-tracks, extended along the easterly side of Grand river, and the space between Grand river and said tracks was taken up and occupied by docks, used chiefly for unloading ore from vessels and loading the same into cars on defendant’s tracks; that at the point about opposite the center of said village of Fairport, a street called Third street, extending in a westerly direction, intersects said tracks at about right angles, and leading directly to the business portion of said ore docks; that there are no other streets nearby, leading to or from that portion of said ore docks, by reason of which said Third street was, and for many years had been, a very busy thoroughfare, used at all hours of the day and until late at night, by large numbers of men employed at said docks, and by fie m« piraría oflloei'S id; [icwte in asitl fiYtTi tiw-t tt bUffe ijuIi of the men so employed on boats and on said docks, and many other persons having business in the neighborhood of said docks, were obliged to, and did for many years past, use and walk upon the tracks of the defendant from both directions to the point intersected by said Third street, which was the chief and principal outlet from said docks, leading to the center of said village.
    “Plaintiff alleges that the tracks of the defendant had been used in the manner aforesaid, by persons going to and from their work at said docks, for more than ten years preceding said 24th day of November, 1903, and that the defendant acquiesced in and consented to the use of its tracks in the manner aforesaid and made no objections thereto.
    “On said 24th day of November, 1903, plaintiff was an employe of the ‘ Hartnell ’ a vessel- plying the waters of the Great Lakes, and then lying at said docks; that at about six o’clock in the evening of said day, he left his boat to go to the post-office, and entering upon the tracks of the defendant, walked in a northerly direction, toward the point of intersection of said Third street; that while thus walking, in a careful, safe and proper manner, between two of said tracks, along and upon a well-beaten path, suddenly and instantly, without any notice or warning to him whatsoever, and when he was at a point within one hundred and fifty feet from said Third street, a switching engine of the defendant, under the charge and control of its employes, silently backed down upon him from behind, and struck him upon the back, below the left shoulder, suddenly throwing him forward in such a manner that he fell with his left arm across the rail, so that the same was then and there run -over by said locomotive, and so badly crushed and mangled that the same had to be immediately thereafter amputated near the shoulder.
    “Plaintiff further says that said locomotive was without a headlight and that no signal of its approach was given by the ringing of its bell or otherwise; that had there been a headlight on the rear of said engine, its reflection would have given him notice and warning; and no headlight being thereon, he was deceived and misled and induced to believe that he was in safety, and that no train or locomotive was approaching.
    “That said injuries were received in the manner aforesaid, without, any fault on his part, but solely by and on account of the gross negligence of the defendant through its servants and agents in charge of said locomotive; that said negligence consisted chiefly in the failure of the servants of defendant in charge of said locomotive to carry a headlight, and in failing to give any signal or warning of the approach of said locomotive; said servants and agents of defendant were also negligent in failing to see plaintiff before striking him, and in failing to stop said locomotive or slacking speed so as to avoid the injuries plaintiff complains of.”
    The bill of exceptions shows that such evidence was introduced to establish the allegations of the petition that the jury might well have found that the accident occurred in the manner and under the circumstances claimed in the petition. The night was dark; the plaintiff testified that as he proceeded along the beaten path between the tracks, he looked back frequently and listened, but saw and heard nothing until he was struck. Nobody saw him struck and the train crew did not know they had injured anybody until some time after the accident.
    No prejudicial errors appear to have occurred on the trial. The sole question which has given us concern is whether, under the law, the plaintiff was entitled to recover at all.
    ITis counsel rely upon two cases in this state, Railroad <Jompav/y v: Snyder, 18 Q. S., 399, and Harriman v. Rmlway Company, 45 O. S., 11.
    Part of the syllabus of the Snyder case reads as follows:
    “It is the duty of persons in charge of cars passing along streets or other frequented places to exercise great caution; and if, by failure to do so, a child of tender years is injured, the company represented is liable in an action by the child.”
    The first paragraph of the syllabus in the Harriman case reads:
    “Where a railroad company has for a long time permitted the public, including children, to travel and pass habitually over its road at a given point, without objection or hindrance, it should, in the operation of its trains and management of its road, so long as it acquiesces in such use, be held to anticipate the continuance thereof, and is bound to exercise care, having due regard to such probable use, and proportioned to the probable danger to persons so using its road.”
    Counsel for railroad company insists that the liability of the railroad company in the Snyder case grew out of its negligently running down a child on its tracks, after it saw the child in a place of danger and could have stopped or warned the child off the track.
    The true test in the ITarriman case is claimed to be the negligent keeping on its premises, at a place where it knew the public was accustomed to go, of a thing dangerous in itself, to-wit, a torpedo, attractive to children, and which the plaintiff, by childish instincts, was led to explode.
    It is said that the Baltimore & Ohio Railroad Company was operating its switch engine in its own yards, and in its usual and customary manner, on the night that Campbell was injured, and that, at best, Campbell was a mere licensee, without invitation or inducement, and that his permitted use of the track was subject to all risks incident to the ordinary use of the track by the company.
    Our attention has been called to four cases later than the Ilarriman case in which it is claimed that the doctrine of that case is modified, but our examination of said cases leads us to believe that the Supreme Court has not departed from the rule stated by it in the Ilarriman case, so far as the same applies to duties of the company to the public upon its tracks at places known by it to be frequented by the public without objection by it.
    The case of Bcuilroad Company v. Marsh, 63 O. S., 236, was also a torpedo case, but the boy, Marsh, had been employed by the station agent without authority and without the knowledge of the company, to attend to switch lamps,- and was on his way about that business when injured. The fourth paragraph of the syllabus reads:
    “While a railroad company owes a duty to 'the public to keep its tracks free from unnecessary danger along where the public are allowed to use such tracks as a way for travel, one who is not using such tracks as such way can not be heard to complain of the breach of such duty, and in ease of injury to him can not bring the breach of such duty to his aid in attempting to recover for an injury caused by reason of some other alleged negligence oE the company.”
    In the ease of Railroad1 Gompmy v. Aller, 64 O. S., 183, it appears -that Aher departed from the path used by the public and was so injured. Judge Shauck, in delivering the opinion (page 193), says of the Harriman case:
    “The doctrine of the case is that when the company became aware that persons were using the road for purposes of 'their own, it became its duty, not to alter the construction of its road, but to operate it consistently with the facts thus known to it.”
    The case of Railway Company v. Workman, 66 O. S., 509, involved the duties of the company toward one of its own employes, using a “speeder” upon the main track, “without any invitation or inducement therefor by the company, but with no objection on the part of the company.” Judge Davis, on page 541 of the opinion, says:
    “The doctrine of Sa¡'iimao% v. Railway Company, 45 Ohio St., 11, does not apply here, because there is in this ease no pretense of acquiesence in the public use of the railway track in the way in which it was used by the deceased, nor was there any invitation or inducement held out to the deceased to so use it. ’ ’
    The case of Railroad Company v. Kins, 68 O. S., 210, cites the Harriman case, and suggests that that decision was bottomed upon the sound principle that the railroad company maintained an attractive and dangerous thing upon its premises. It does not suggest that the first paragraph of the syllabus of the Harriman case, which has been heretofore quoted, is not good law, but shows that the law as so stated is not applicable to the facts in the Kinz ease.
    Finally, no Ohio case has been cited to us which holds a doctrine contrary to that quoted from the Harriman case. The only suggestion of counsel has been that the ruling was not necessary to a decision of said case and that the Supreme Court has found it inapplicable to the facts of the other cases cited.
    Nor do we believe that the facts of this case show -that Campbell was upon the path between the tracks as a mere licensee, without invitation or inducement. To use the language on page 243 of the Marsh case, his being upon the path between the tracks at the time was induced by the fact that said path had been used for years as a line of travel by the public,

      The company must be held to care commensurate with this inducement, so long as it permits the same to continue, without signs or other warning to keep the public off. To back down upon said path and upon a person walking carefully thereon, in the night season, without warning, as the jury found in this case, is actionable negligence.
    Judgment affirmed.

      Kline, Tolies & Goff, for plaintiff in error.
    IP. II. Boyd and McGrath & Stern, for defendant in error.


text:
    REVIEW OF PROCEEDINGS UNDER THE JONES LAW.
    [Circuit Court of Franklin County.]
    In The Rehearing Of A Petition On File Under What Is Known As The Jones Local Option Law.
    Decided, October, 1906.

      Liquor Laws■—Proceedings in Error—Proper Title—For Review in Circuit Court—Under the Jones Local Option Law—Granting Leave to File Petition in Error in Chambers—Uncertain Features of the Law.

    1. Where a review is desired of proceedings under the Jones local option law (98 O. L., 68), the qualified elector who feels aggrieved should appear as plaintiff and the mayor of the municipality in question as the defendant in error.
    2. Inasmuch as no express authority is given the judges of the circuit court in this statute or in any statute to grant leave to file a petition in error in vacation at chambers, a petition filed at such a time and by such leave must be stricken from the files.
    3. Whether the provisions for review under this statute are defective and void for uncertainty, and what effect that would have upon the law itself—Quaere?

    Wilson, J.; Sullivan, J., and Dustin, J., concur.
    In these cases it is sought to obtain a review in this court of the proceedings before the officers with whom the petitions were filed, and by whom the order was made in pursuance to the, provisions of the act popularly known as the J ones Local Option Law, 98 O. L., 68.. The provisions for review are found in Section 12 of that act. It is therein provided that:
    ‘ ‘ Any person being a qualified elector of any residence district of any municipal corporation, wherein a petition shall have been presented and held sufficient by a mayor or judge as provided for in this act, may prosecute error from such finding by first filing a motion for leave to file a petition in error with the circuit court of the county in which such residence district is situated. The motion shall not be granted unless for good cause shown. If such motion is granted, a petition in error shall be filed within fifteen days after the finding or decision of the mayor or judge, setting forth the errors complained of. The circuit court, upon the filing of suchpetition, shall forthwith issue a summons addressed to the mayor of such municipal corporation, notifying him of the filing of the petition in error and directing him to appear in said court on behalf of said residence district at the time mentioned in the summons, which time shall not be more than thirty days after the finding or decision of the mayor or judge, nor less than ten days after the filing of such petition. The circuit court shall have final jurisdiction to hear and determine the merits of the proceedings, and there shall be no appeal or error proceedings allowed from such decision.”
    The cases are all submitted upon the question as to whether they are properly in court, and for a determination of the character of the proceedings here, if the petitions in error are found to be properly filed.
    As preliminary to the conclusion we have evolved out of the obscurity of the statute, it may be said that the proceedings are not properly entitled in this court. The qualified elector who feels aggrieved should appear as the plaintiff in error, and the mayor of the municipality in question as the defendant in error.
    In each of the cases the leave to file the petition in error was granted by two of the judges of the circuit court sitting at chambers. ,The Circuit Court of Franklin County was in vacation at the time, and no term of the court was to be holden until long after the expiration of the fifteen days in which the petition in error must be filed. Did the judges of the court have power at chambers to grant the leave to file the petition -in error ? The Constitution provides, “The judges of the Supreme Court, of the common pleas and such other courts as may be created, shall respectively have and exercise such power and jurisdiction at chambers or otherwise, as may be directed by law.” Constitution of Ohio, Article IY, Section 18.
    “The general doctrine is that all judicial business must be transacted in court, whether there be any express direction to that effect or not; and that such business as may be transacted out of court is exceptional and must find express authority in statute.” 4 Enc. Pleadings & Practice, 337, and authorities there cited.
    “It is a fundamental principle that courts can exercise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no order in vacation except such as are expressly authorized by statute.” Blair v. Beading et al, 99 111., 600.
    No express authority is given the judges in the statute in question, or in any statute, to grant the leave to file the petition in error in vacation at chambers. The petitions in error were, therefore, filed without authority of law and will be stricken from the files.
    The other questions raised must be reserved until a proceeding in error, has been properly instituted. The question whether the provisions for review are defective and void for uncertainty, and what effect that would have upon the law itself must await such a proceeding.
    The existence of the .jurisdictional facts which must underlie the order to give it vitality and validity, may be challenged in another forum.

      Addison & Addison, Gumble c6 Gamble and C. G. Williams. for plaintiff in error.

      Wayne B. Wheeler, for defendant in error.