author: Metcalfe, J.

text:
    STATE NOT A PARTY IN INTEREST UNDER A BOND FOR APPEARANCE RUNNING TO CITY.
    Court of Appeals for Cuyahoga County.
    Lilliston et al v. State of Ohio.
    Decided, June 1, 1917.

      Forfeited Recognizance — Action on, Where Running to a■ Municipality —Improperly Brought in "Name of the State.

    The state of Ohio is not “the real party in interest” in an action on a forfeited recognizance running to the- city of Cleveland, taken in a prosecution in the municipal court of such city under a city ordinance.

      G. W. Gurney, for plaintiff in error.

      Samuel Voerfler, Prosecuting Attorney, contra.
   Metcalfe, J.

The plaintiff in error, Eva Lilliston, was arrested by an officer of the Cleveland police department, and under a city ordinance an affidavit was filed against her in the municipal court charging her with street soliciting.

Thereupon she appeared before the clerk of said court, with plaintiff in error G. W. Gurney, and entered into a recognizance for her appearance, the bond running to the city of Cleveland. The plaintiff in error, Eva Lilliston, failed to appear at the time set for trial and the recognizance was forfeited.

This action is brought in the name of the state of Ohio to- recover the penalty. The question' here is, can an action be maintained in the name of the state of Ohio on a recognizance running to the city of Cleveland taken in a prosecution in the municipal court of said city under a munieipál ordinance?

We are clear that such action can not be maintained in the name of the state. The case cited in the brief of counsel for defendant in error as Chandler v. Commissioners, 2 Dec. Re., 112, does not apply. In that case the prosecution was under a state law and the bond was taken in the name of the state of Ohio. Of course, in a prosecution under the law of the state, in a state court, the recognizance would run to the state of Ohio, and the state of Ohio would be the real party in interest in an action to recover the penalty of the bond. Here, however, the case is different. The prosecution was under a municipal ordinance in municipal court and the bond ran to the city of Cleveland.

Before the state can maintain an action on such a bond it would have to show either a statutory right or that it had in some way acquired the interest of the city.

The petition in this case does not show a cause of action in favor of the plaintiff, the defect would not be waived by a failure to demur, and a judgment on such a petition would be void. Weidner et al v. Rankin et al, 26 Ohio St., 522, and Spoors v. Coen, 44 Ohio St., 197.

The judgment is reversed.

Pollock, J., and Farr, j.,’ concur.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    PROSECUTION FOR ADULTERY BASED ON ALLEGED PREVIOUS; COMMON LAW MARRIAGE. ,
    Court of Appeals for Summit County.
    Marc F. Charrier v. State of Ohio.
    Decided, November, 1918.

      Validity of a Marriage — Determined by the Lex Loci where Co'ntrácted— ■ Common Law MarriageNot- Recognized in France — Partiés Thereto Not Subject .to Prosecution for Adultery — Upon Contracting Valid Marriages in-Ohio. ■ • •
    One whohas entered -the marriage relation in -due form in Ohio ;is;nit amenable to a charge of adultery, where -based -on a. showing of. previous relations with a woman in France, meretricious in tha-f country, but which in Ohio 'would -be. treated as a common law marriage.
    ■ Smoyer c§ Clinedinst and W.. II. Webb,.for-plaintiff, .
    . W. A. Spencer, Prosecuting Attorney, contra.
   Grant, J.

Errpr to the Court of .Common Pleas.

.. The plaintiff in error — hereinafter to be designated' as the accused — is a native and citizen of France. .

He was arrested, prosecuted .and convicted in the probate court of this .county for cohabiting, with ,a woman not his wife-constituting, if the, charge was made out, tlié, offense, under our statute,, of adultery.' He was tried, with' his consent, by the court without a jury.His motion for a new trial having been overruled and sentence passed upon him,, he. prosecuted error proceedings in. the court., .of common ple.as,, which thereupon affirmed the judgment. To reverse .that affirmance is the prayer of this petition in error,,

. The accused.offered no evidence.at the trial, his claim,being ■that the state had not proved its case, sufficiently .to work his conviction under law., And such is. still.his contention here.'

The-facts material-to the present question, as ,di§clQsecl/bjr the, record before, us, are-these,. for .substance:.......„ , _ .. ,.

The accused has been domiciled in the United States for some two years. In 1917, in Ohio, in due form of its law, he contracted a marriage with the woman charged in the information as being his paramour in the alleged adulterous commerce.

It is the claim of the state that this relation, although entered into under the forms of lawful wedlock, is in fact meretricious, because the accused had before cohabited in France with another woman, under such circumstances and holdings out as would constitute a so-called common law marriage, as that term is understood and allowed in the courts of many states of our union, including Ohio.

The other woman was the prosecuting witness at the trial of this case. Her name of origin was Valentine Biguet. She seems to have first crossed the path of the accused in Paris, in April of 1905! Their meretricious ' relations appear to have commenced at once, but Charrier — so she says — then told her “he wouldn’t marry her right away,” for reasons he gave; his words of promise at that time were not veria in presentí, but related wholly to the future. In July of the same year she testifies that he said to her: .“You are my wife now. and your daughter Collette is my daughter.” It seems that Collette, although so denominated, really had .a decollete origin. The facts disclosed show that the prosecutrix was at the time she “took up” ■with the accused already the derelict mistress of the Baron cié Cool, according to her story. This man turned out' to be a misnomer at both ends of his name. He was not barren, for she says he begat Collette, and by the same token he could not at that time have been cool, although later he appears to have cooled off.

The statement that Charrier made to the effect that the girl was his daughter, had regard, as is said, to his intention to adopt her — she being then as to status onY one of what, as “the divine Sara” Bernhardt said in her own case, are “the accidents of loye.” As to patronymic, Collette went, and .for aught that appéars, still goes, by the name of her mother — Biguet.

In July, 1905, the claimant says, when Charrier began to call her his wife; she accepted the title by begining to call him husband; and thenceforth" she"say's he "and she1 by mutual eon-sent were held out to the world in which they moved as sustaining that relation. A chLd was born to them. The Baron, - during several years, appears to have been a sort of meal-ticket for the two. He contributed sums of money at intervals, at the instance of the woman, who was undoubtedly instigated in this respect by the accused; as late as 1911, he sent her a thousand franc» at one time and this appears'to have-been a wind-up -of thatlllipit commerce. The woman says that at no time did she expect the baron would marry her; he “was too rich,’? she explains. :

The-money so contributed by the unbarren baron was used;> aa the -woman claims, in the common family fund in part, and a part went to pay Charrier’s debts — he being in a-state of chronic, impecuniosit-y, according to her. - -

In 1913, the pair--emigrated to-Canada, settling upon a farm in New Brunswick. Cm the ship they occupied the same cabin and on shore the hotel bills were rendered to, ,and paid by the accused, the woman -being named in them as his wife and the. children as his children. Inwall these, years she says he was promising her to have the marriage solemonized according-to the rites of the faith-to which they adhered, but put off the fulfillment upon the excuse of financial impotence. In .1915 he abandoned her, or at least-came to the United States, where in 19.17 he contracted the formal marriage-already related.

• The claim of the prosecuting witness -that during her cohabitation with the accused she considered herself .as his lawful wife, or that such a thing as a common-law marriage existed between them, is somewhat shaken 'by- her own admissions. It appears that upon the birth of the second child .the certificate issued from the mayor’s office .at Paris was to the effect that the child had been given the mother’s maiden name and- that the father was unknown.

This, she explains, was because of illness she was unable-to httend to the matter herself, and-that the data upon which -the certificate as made were furnished by her mother and- .sister; they evidently did not understand that she was a married woman.

It is in evidence also, that she tpok leases, paid taxes and gave Receipts in‘her name of .origin.-- At-; one.time,-she. effected-ah insnrajice:on-:6O0J .-francs-worth; of furniture, and- other .chattels^ which the not infertile baron had furnished, in the same name of Biguet.

She accounts for these signatures by saying that Charrier had gotten into trouble by biting a door-man and they were fearing a damage suit, or a fine, thereupon — just which, is uncertain.

Such are the controlling facts disclosed by the record before ús. The question thence arising is — did the trial court apply to them the law in its judgment of conviction ?

Measured by thé probable intent of the parties at the time when the claimed common-law marriage is said to have been contracted, it is, in our view, éxtremely doubtful whether that relation is made out by the evidence; the fact that there was such a thing as a common-law marriage, or even a common law, probably was not known to either of them prior to their coming to the United States; the claim is clearly an afterthought. •

■From this' it may be argued that, in' an accusation of orime, the accused is entitled to the' benefit of the doubt and so should, go acquit.

But we aré not inclined to acquiesce in that conclusion. If, wittingly or ighórantly, the parties by life and conduct brought themselves within the -rule whereby a common-law marriage is established, or is necessarily tó be inferred, we think the marriage status may be said to be the result. Favoring the judgment attacked, we hold that there is sufficient evidence in this record to justify the inference of a marriage at common law, as that relation is recognized by the courts of Ohio, so far as the form is concerned.

We reach this conclusion upon the following considerations: Marriage, in contemplation of present time law is a civil contract — nothing more. It is a peculiar contract and has elements not shared by ordinary contracts. It gives rise to an annexed social status. In theory at least, it is an irrevocable, a perpetual contract. It can be entered into only between persons of opposite sexes and it can not be entered into by persons within certain prohibited degrees of consanguinity. ’

But these are only incidents, imposed by considerations of necessity or -public jnoyftte or- policy, - Aside ..from- themf the .con-tract of marriage involves only a meeting of the minds — --which may be inferred from the conduct and acts of the contracting parties — and the execution of the agreement by cohabitation, -Unless others are imposed :by positive law, these are the .sufficient ingredients to constitute the relation. And where ethers are so imposed,, the want of them will not exclude the common law form, in countries where that law prevails, unless the statute in terms takes away the common law right. The ‘ presumption always is that the Legislature had no such intent. The statute regulates the mode of entering into the contract; lit does not confer the right to make it.

. From very ancient times — in fact from the introduction of Christianity in England, in the year 605 of our era — the canon law which was brought in with Christianity was .adopted.and .practiced, universally — so universally that it became a part of the common law of England and was probably as venerable .as any other part of that law. In Crump v. Morgan, 10 Am. Dec., 447, the court said:

“It is a mistake to say, that the canon and civil laws, as '•administered in the ecclesiastical courts of England, are not , parts, of the common law. Judge Blackstone, following Lord t Hale, classes them as among the unwritten laws of England and . as parts of the common law,'which, by custom, has been adopted and has its own peculiar jurisdiction.” 1 Blacks. Com., 79; Hale’s History of Laws, 27-32.

The canon law, thus grafted upon the common law, was evidenced by various decrees of the Popes and ecclesiastical councils. It never required -any validation of marriage by way of ceremony or .religious sacrament, from the time it became the common law till the Council of Trent, in 1563. '

Whether in England or on the continent, by -.the canon law - clandestine marriages, without ceremony, while they might subject the delinquents to the censures of the Church, were nevertheless regarded as-valid and were pronounced, by the Council of Trent to be “vera matrimonia.” But that famous council, by its decree of November 11, 1563, changed the canon law .and Jmad'e. mill'every marriage hot .celebrated before.the parish or other priest, or by license of the'.ordinary, ánd'before two ordhieo witnesses. Pursuing this line of inquiry, the court, in Hallett et al v. Collins, 10 How., 174, said:

“But it was not within the power of an ecclesiastical decree, 'proprio ligcre, to affect the status or civil relatioñs of persons These could only be affected by the supreme civil power. The church might punish by her censures those-who disregarded her ordinances; tut, until the decree of the council was adopted and connrmed by the civil power, the offspring of a clandestine marriage, which was ecclesiastically void, would be held as canonically legitimate.”

In England, of course, this decree was never “adopted and confirmed by the civil power.” Before that time Henry the Eighth of England, in his many efforts to be re-wived, had found it convenient to cast off, for his Kingdom, the authority of the See of Rome, and Elizabeth, the fruit of one of his re-wivals, had no .appetite to recognize the decrees óf a church which had denounced herself as a bastard and both her father and herself as beiefcies, so it may safely be said that neither “ ’Andsome ’Arry” nor “redheaded Liz.” as certain uncharitable people have called them, allowed any Council of Trent to interfere with the institution of English marriage as then by English law established. The common law marriage continued to be allowed and recognized in that country until, at the time of our' own separation from it, it became our common law instead of that of England. In England it so continued until the house of Lords, by a tie vote in 1843, in. Queen v. Millis, 10 Cl. and F., 534, the validity of a common law marriage was denied by reason of the marriage act. The judgment in that ease, however, was never drawn in precedent in this country, and its doctrine has been expressly rejected by the courts of Canada; in fact the marriage disallowed by the judgment in that case, was not an English marriage at all, but an Irish marriage. In England the common law doctrine had already been abrogated by Lord Hardwieke’s Act — 36 Geo. II, and 4 Geo. IV — which required publication of banns or an obtained license, as the conditions of a valid marriage in England. But Lord ILardwicke’s act never applied to the English eo’onies and we never inherited that, and before the time of the Fourth George we were an independent nation.

It follows that the common law marriage institution, brought from England by our ancestors, has full standing in the courts of such of the United States today as have not denied it by statute.

"We are next to consider whether that law. is to be allowed to f.x the status of the accused and the prosecuting witness, or not. Otherwise stated, the inquiry is as to whether the common law, as it exists here in this respect, obtained in France, where the marriage was contracted, if at all, or in New Brunswick, where the status established in France, if at all, continued or was resumed. Marriage being a civil contract, is to be governed by the law of the place where it was made; this, we suppose, is not a matter of dispute.

Shall we, then, indulge the presumption that the law of the domicile is also the law of the place of the making of the contrae!- -the record being silent on the point ?

Kitzman v. Kitzman, 162 Wis., 253, was an. action to avoid .a marriage with an epileptic, the marriage having been, celebrated in Minnesota, where it was voidable, .and the parties, having returned to their former residence in Wisconsin. The court say:

“The general proposition that a marriage, valid where the contract is made, is valid everywhere, carries with it as a necessary corollary the further proposition that such a marriage comes into a sister jurisdiction with all its inherent infirmities as well as strength. It can acquire no greater sanctity or impregnability by such removal than where solemnized. When proper.y challenged here, it can have acquired by reason of the parties returning to this state to live, no more immunity from attack than it would have had if they, from the time of the ceremony and thereafter, had lived in Minnesota and the action was there instituted. We shall give it no higher value than it had there”—

the Minnesota prohibition of marriage of epileptics not being contrary to any declared public policy of Wisconsin.

In Thompson v. Thompson, 202 S. W., 175, it is said that—

“The law of the state where a marriage was celebrated generally affords the criterion for testing its validity.”

Gorden v. Gordon, a case decided by the Supreme Court of Illinois within the present year — 119 N. E., 313 — is authority •for holding that proof that the relation between a man and woman, meretricious in its inception and prior to any claim of marriage, raises the presumption that it continues meretricious and casts upon the marriage claimant the burden of showing that the cohabitation has become lawful.

,/. It is proper now to observe upon the state of the law of France upon the subject. We have already noticed the decree of the Council of Trent in 1563, changing the Canon law so as. to require a ceremonial marriage or by license ' of the ordinary, and declaring void all marriages not so celebrated, and that England did not accept the change, but continued its recognition of the common law as then established on the subject. France, however, in common with the rest of -Catholic Europe, acknowledged the binding force of the decree. That canon law obtained among the French to the time of the .revolution succeeding 1789, and later was revived under the ■ modus vivendi between Napoleon and the Pope in form of the -..concordat of that interregnum period. It was finally superseded, but not much changed by the Code Napoleon, which became the paramount law of France in the last year of the Consulate, 180-1. "The latter did not, as is commonly supposed, introduce much new law. It was a composite work, made up of a compromise between the theretofore customary law of the north of France, which was essentially German, and that of the eastern and southern provinces, which was mainly of Roman origin. It . was impossible that it should lay the common-law of England ' under contribution at all; both because of its elementary habitat, just stated, and especially because Bonaparte manifestly -would borrow nothing from a people which, as the severest expression of hatred, he stigmatized as “a nation of shopkeepers.”

That code, Articles 144-226, lays down the conditions of marriage. It requires a publication of banns and a civil ceremony in the presence of witnesses. It still remains, in substance, the law of France, on the subject, and was so while the parties involved in this cause cohabited in that country. In international law it,is settled.that the lex loci governs. If the marriage is valid-by the lawlof the country where it is celebrated, its validity is recognized everywhere! The converse is triie; if invalid there, it is invalid everywhere. Commenting on this rule, in both aspects, Judge Story said it ‘‘has received the most deliberate sanction of the English and American courts and of foreign jurists.” The important, exceptions are incestuous and polygamous marriages.

"Westlake — Private International Law, Chap. IY — says that an indispensable condition of a valid marriage is that the lex loci must be satisfied in respect of forms, consent of parents qr guardians and capacity of the parties.

In regard to the claimed common law marriage in New Brunswick, our belief is that the claim is without importance. It rests upon alleged promises and announced expectations by Charrier while in that province, to go through the forms of a church marriage, depending on better times for himself financially — the Baron having by that time become really so, so far as paying anything more while his successor in madame’s affections was enjoying what the late Samuel J. Tilden called the ‘ ‘ usufruct. ’ ’ But the words were always in the future tense, while the cohabitation and the holdings out, relied on to establish the marriage, had already produced whatever consequences in the way of fixing the marriage status of the parties could flow from them; their daily repetition could add to that result no new force. At most, they could only ratify a contract already existent and pretty well executed, if it had ever become operative. We are not advised whether the common-law' marriage was ever allowed in New Brunswick or not. If the question were material, the strong probability, historically, is that it never was recognized. Lord Hardwicke’s act was in force in England before the conquest off Canada by that power, and what is now New Brunswick — then a part of Nova Scotia — inherited no more than that law permitted. If this were not so, still by the Quebec act of 1774, which covered the territory now New Brunswick, guaranteed to the inhabitants the administration -of French law in all matters of civil controversy, reserving -to the British crown only the right to apply its own jurisprudence on the criminal side. And this guaranty was peculiarly tender of ecclesiastical rights and laws. A like policy is believed to have there prevailed,-in substance,' operation and effect, down to the time of the -British North America Act of 1867, which is the present Constitution of the Dominion of Canada, including the maritime provinces.

But, as ve have intimated already, in our view no marriage at common law can be predicated on this record, except such as is claimed to have been contracted and to have become effectual while the parties were yet in Paris.

We have then, this state of things: A relation in France which when first established offended the received notions of morality and so was meretricious. . From this arises the presumption that the connection continued to be meretricious until proof is forthcoming that the cohabitation became lawful, the burden of repelling this presumption by proof removing it being cast upon the claimant of a legal relation. We have, further,, the fact of ■history that the common law of England, or its equivalent in jurisprudential value, never was the law of France.

And we have the legal corollary that the relation of this man and this woman, established in Paris, in Ohio stands loaded with whatever legal shortcomings and infirmities existed by virtue of the laws of France at the time it was entered into. If that relation continued to be meretricious up to the time when it was ended, and was not at any time a lawful cohabition, then a lawful marriage of one of the parties to a third party, with its physical consummation, could not be the source of the adulterous intercourse denounced by the statute under which the accused is here prosecuted.

If this were the last word upon the subject, if no more were to be said, then indeed the conclusion of the insufficiency in law of the judgment under review would follow, surely.

•But there is a difficulty lurking in the situation. AH that we have stated in regard to the laws and their history discussed, rests in assumption. The record before us is silent in regard to them all. They are indeed universally well known, but proof of none of them was offered at the trial below. •

The inquiry at once arises, was such proof necessary on the part of tie accused to work exoneration for him from the charges of the information? So far as the law of common-’aw marriages is concerned, no such proof was necessary, as tending to support the conviction here challenged. As a part of our inherited law, allowed and recognized by the courts of Ohio, judicial notice is taken of it, without more.

The dilheulty resides in the question whether the negation of the common law as we have, it, or its non-existence, in France, with the historical basis of its absence from that country, without testimony pro forma produced, can be used to overcome the legal inference that a marriage valid where it was contracted, is valid everywhere, or in aid of the legal presumption that a connection meretricious in origin continues to be so until a lawful relation is shown to have succeeded to it. May we take notice, judicially, of what we know and what the world long has known, at a time when all the witnesses to the matter of fact noticed have long been dead, and who, were they living and in court, could tell us nothing which we did not already know as well as they could know it ?

The fo.lowing propositions are stated in Ruling Case Law, Vol. 15, p. 10(38 et seq., and rest upon undisputed authority:

“The general rule is that matters of history, if sufficiently notorious to be subject to general knowledge, will be judicially noticed. The reason for this recognition has teen, said to be that the facts of history enter into the construction of the laws, and so must be in the knowledge of the court whose duty it is to construe them. * * * But the knowledge of the courts in this country is not limited to events in the history of the United States, or of the several states, but extends also to other historical events which because of their connection with the history of this country, or -because of their general notoriety, may be assumed to ¡be matters of general knowledge.”

As to the last proposition, see Neely v. Henkel, 189 U. S., 109.

In Banco De Sonora v. The Bankers Mut. Casualty Co. et al. 119 Iowa, 450, it is said:

“As to whether the civil law is the foundation of Mexican jurisprudence, the histories are quite as accessible to the court as to the witnesses. Probably judicial notice should be taken of the fact as a matter of history. # #
“Ye know that Mexico was a Spanish province for about three hundred years, and then ¡became, and still is, a repubhc. At no period of its history has it been’under British sovereignty. Tts institutions are Latin and not Anglo Sáxbh, and the common law is not presumed to be in forcé in • any ■ state or country where English institutions have not been established.”

See, also Savage v. O’Neil, 44 N. Y., 298; Norris v. Harris, 15 Cal., 252; Flato v. Mulhall, 72 Mo., 522 Brown v. Wright, 58 Ark., 20; Davis v. Gibson, 56 Fed., 443.

Wigmore, Evi., Section 1597, says:

“The principle of necessity, allowing this class of evidence, is the same as that already examined (1582), namely, the matter as to which the history or other treatise is offered must be an ancient one, or one as to which it would be unlikely that a living witness could be obtained.”

The headline of the next section of the same work is:

“Matter must be of General Interest.”

In Morris v. Lessees, 7 Pet., 588, Judge Story observes:

“Historical facts of general and public interest may indeed be proved by reputation, and that reputation may be established by historical works of known character ' and accuracy. But evidence of this sort is confined * # * to cases where from the nature of the transaction, or the remoteness of the period, or the public and general reception of the facts, a just foundation is laid for the reception of general confidence. ’ ’

In BogarduS v. Trinity Church, 4 Sandf. Ch., 724, it is said:

“The statements of historians of established merit ® # * are from necessity received as evidence of facts to which they relate, * * * restricted to facts of a public and general nature.”

In McKinnon v. Bliss, 21 N. Y., 216, S'elden, J., observes:

“Such evidence is only admissible to prove facts of a general and public nature, and not those which concern individuals and mere local communities. * * * History is admissible only to prove history; that is, such facts as being of interest to a state or nation. ’ ’

Lord Campbell in the Sussex Peerage Case, 11 C. L., and F., 113, said:

“You ask the'witness what the law is. • He may from his recollection, or- on -producing or referring to books, say what it is, or that it is correctly stated in-such a'book.” ...... -

In Pickton’s Trial, 30 Howell, St. Tr., 492, Lord Ellen-borough’s language was:

“The text-writers furnish us with their statements of (foreign) law, and that would be good evidence upon the same principle which renders histories admissible. # * * I shall, therefore, receive any book that purports to he a history of the common law of Spain.”

I .am now to observe upon . what may seem, from these authorities, to be an inferable necessity to have this historical knowledge brought physically before the court in.the shape of the book itself or some expert who derives his expertness from having read the book, instead of letting the. judge or judges, spin the same knowledge out of their own inner-consciousness, where it is known to exist in full vigor and. accuracy. For my own part, I must say that I do not, as I conceive, need to be bound in calf or the covers of buckram, in order-to tell myself what is contained within books so bound or imparted to me by other calves, who at most can be only messenger-boys, bringing me information which I long before had. A -court, I suppose, may take judicial notice of what itself knows, - if of the character and quality to make it competent evidence, no matter how conveyed to him or brought to his attention. In the trial of Spencer Cowper, 13 Howell, St. Tr., 1163, the following dialogue was had — Dr. Crell being on the stand:

“Now, my lord, I will give you the opinion of several ancient authors.
“Baron Ilatzell: Pray, doctor, tell us your own observations.
“Dr. Crell: -My lord,' it'must be reading, as well as a-man’s own experience, that will make any one a.physician; for without the reading of books of that art, the art itself can not he aL tained to; 'besides, my lord, I humbly conceive, that in such a difficult case as this, we ought to have a great deference for'the reports and opinions of learned men: Neither do I see - any-reason why I should not quote the fathers- of my profession in this ease, as well as you gentlemen of the long robe quote Coke anon Littleton,and others. But I shall not trouble the court long: I shall only insist on what Ambrose Parey.relates in hi? chapter- of Renunciations.” '

. Wigmbre — Section 1697 — punctures the fallacy of the distinction, thus:

“But the fiction may well be abandoned. The daily use by judges of foreign law books in our libraries, exposes its untruth. Goldsmith’s Chinese Travel.er would smile to see the judge refuse to listen to a foreign treatise while on the bench, and then retire to his chambers and take down the same •book from the shelves to refresh his judicial memory.”

'In closing our pérhaps over-long' discussion' of the law appertaining to this' cáse, w'e desire to acknowledge our indebtedness to counsel for the able brief which has materially aided our research.

' We feel that there are no moral considerations in' favor of the accusing witness, or sympathy to be mawkishly bestowed in the' ease. She ought to accept the consequences of vagrant amours,’nor ask'the state to aid in her revenge, however natural to her the pursuit of it may be.

.“Heaven has no rage like love to hatred turned, Nor he'll a fury like a woman scorned. ’ ’ •

She did not pursue the baron — except for purposes of revenue, notwithstanding that she was impartial in her 'sufferings for the two — having borne a child to each of them. It is a plain case'of “fifty-fifty.” ' She seems to have applied the wholesome maxim — “Equality is equity.-” What the state is seeking by this prosecution, is not the redress of injured innocence, but the vindication of a really adulterous course of living by punishing one which in the eye. of the law is not so.

Our conclusion is that, within judicial knowledge, as a fact of history, the relations and conduct of the parties in Prance relied on by the state to establish a marriage at common law, were insufficient to operate that effect, in contemplation of the law of that country, by which the validity of the claimed marriage is alone to be measured • and tested. To the benefit of this conclusion the accused was, and is entitled.

.Some errors are alleged.in respect of admission of testimony. We .have- examined- the questions.. Probably th.ey were competent as tending to show “state of'm-ind/’-’-which'sem be the drag-net to sweep in much matter that otherwise would clearly be inadmissible: Even if they were not proper, we can not say that they were prejudicial to any substantial right of the accused.

His conviction is not supported by sufficient evidence and the judgment complained of is contrary to law.

:It follows that' the judgment of the .court of'common pleas, affirming .that of the probate court, should have been one of; reversal instead" of affirmance, and""should itself be reversed: for that reason, which is accordingly done.

• ■ It follows, further, that — the facts being.undisputed and the law being with the accused — this court should proceed to render the judgment in the case which the probate court should have rendered but did not, namely — a judgment of acquittal, which it now does accordingly.

Dunlap,.J., and Lawrence, J., concur.


author: By the Court.

text:
    KEEPING BUTCHER SHOPS OPEN ON SUNDAY.
    Court of Appeals for Hamilton County.
    Charles Derrick v. State of Ohio.

    Decided, March 27, 1918.

      Criminal ■Laic — Prosecution for' Keeping Open on Sunday — Supplying '■ ' Meat to the Tenement Class on the First Day of the Week Not a "Work of Necessity, When.

    The keeping cpen Of a place for the sale of meat on Sunday, iii a •thickly populated district where thé people are of the tenement class, and not financially able to provide themselves with-ice boxes or other means .for preserving meats, where such opening , occurs during that part of the year when, the weather is sufficiently cold to preserve meat and other vegetables, is not a wcrk of necessity and, therefore, does not fall within the exception provided in Section 12045.

      Miller & Foster, for plaintiff in error.

      E. J. Siebenth.aUr and E. S. Morrissey, Assistant Prosecutors, contra.

      In the subsequent case of State v. Besl the court held that keeping open fcr the sale of meat cn Sunday in March was not a work of necessity for the same reason given in the above opinion. Motions to require the Court of Appeals to certify its records in both of these cases were overruled by the Supreme Court July 16, 1918.

   By the Court.

. The ease here presented involves a charge of the violation of Section 13044, General Code, providing against the keeping dpen.of.a :pla.Ce 'for-.the transaction of business, upon the first day of the week commonly called Sunday. .

The specific charge is that the defendant unlawfully and knowingly caused to be open, for the transaction, of- business, to-wit,.th.e sale of meats, a. certain place in the city of Cincinnati, Hamilton county,. Ohio. •

Defendant was tried and convicted in the municipal court of Cincinnati, without the intervention of a jury.

The defendant contends that the keeping open of the place for the sale of meats was. a workjof necessity, and came within the exception provided in Section 13045, General Code; and that it was made such a work of necessity by the fact that the place was located in a thickly populated tenement district of the city where the'-inhabitants were-not able-financially to maintain ice-boxes or other methods of preserving meats.

The evidence discloses that the transaction took place in January, and the court is of the opinion that at that season of the. year-it can not be considered such a work of necessity, as the nature of the.weather is such .that it is not a difficult matter to preserve meats — the court taking judicial notice of the fact that' at that'time, of the year the weather is sufficiently cold to preserve meat and other food' stuffs. We therefore hold that under the • evidence this wag not such a work of necessity as would avoid liability under the statute.

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

Jones, P. J., Gorman, J., and Hamilton, J., .all concur.


author: Farr, J.

text:
    STATUS AS HEIR OF ONE WHOSE LEGITIMACY HAS BEEN ACKNOWLEDGED.
    Court of Appeals for Belmont County.
    Carl S. LaRoche v. William F. LaRoche; and Carl S. LaRoche v. Louis F. LaRoche et al.

    Decided, December 5, 1917.

      Wills — Life Estate — Vested Remainder — When Divested by Death— Deed or Will Conveys No Interest, When — Acknowledgment of Legitimacy Under Favor of Section 8591, General Code, What Is — • Stafois of Heir, Sufficiency of Proof — ■Birth within Lawful Wedlock Raises Presumption of Heirship, When — Right to Take Under Provisions of Will Arises, When.

    1. Where by will a testator devises all of his real estate to his wife for the remainder of her natural life, or so long as she remains unmarried, and provides that' in the event of her remarriage that she should have such portion of the estate as the law fixes for a surviving widow, and that the remainder be equally divided among his four children named in said will, and further that if any of them be deceased at the time of such remarriage, leaving no issue, that such share or shares be equally divided among his other children, and further that at the death of his said wife, should she remain unmarried until that time, all of his estate real and personal should be then equally divided among his sons aforesaid” and in the event that any were deceased at the death of his said wife, then the share of such deceased son should go to his children and if no children living, then such share should be equally divided among his remaining children,- or their heirs — such will vested in each child his proportionate share to said estate at the death of •the testator, subject to being divested by the death of such child before the death of the widow, and a deed or will made by such child for his share in said estate and prior to the death of the widow-will not convey any title or interest in and to such share.
    2. Where a man marries a pregnant woman who has preferred a bastardy charge against him, and later a child is born in lawful wed-’o-'h and the putative father visits the mother and child soon after birth and afterwards makes a bequest to said child in his last will and testament, such recognition is a sufficient acknowledgment under favor of Section 8591, General Code, to render such son legitimate.
    3. To establish status as heir or heirship of one begotten out of but born in lawful wedlock, it is not required that the proof be clear ■and convincing; such claim need be shown affirmatively only; that is, by a preponderance of the evidence, the burden being upon the one asserting such claim.
    4. Where a man marries a woman having a son born out of lawful wedlock and such son is taken into their home and treated as one of the family, is given and known by the family name, is referred to in the last will and testament of the husband as one of his children, and as his soil, and such will further provides that if, at the death of his surviving widow, who is bequeathed a life estate in Ms realty, any of his sons shall be deceased the children of such son are to have his share, such recognition and testamentary provision are sufficient to entitle the son of such person born out of lawful wedlock, his father being dead, to take directly under the provisions of said will.
    5. Proof of birth within lawful wedlock raises the presumption of the right to inherit through the father.

      O. G. Sedgwick and Ueinlein, Spriggs & James, for plaintiff.

      Kennon & Kennon, contra.

      Motion to require the Court of Appeals to certify its- record in this case overruled by the -Supreme Court, October 22, 1918,

   Farr, J.

Heard on appeal.

The cases of Carl S'. LaRoche against William F. LaRoche, and Carl S. LaRoche against Lonis F. LaRoche et al, were actions in partition filed concurrently on the 26th day of September, A. D. 1916, in the eourt'of common pleas of this county. In the first ease the plaintiff seeks the partition of lots numbered 19 and 73 in Harris ’ addition to the city of Bellaire. In the second action partition is sought of certain real estate of whieh John LaRoche, Jr., died seized. To each petition an answer was filed denying that the plaintiff had any right, title or interest in and to the premises sought to be partitioned and that title vested in defendants, and in the first ease it is sought by cross-petition to quiet the title to the premises described in the petition.

Partition was ordered in the court below, from which order and judgment an appeal was taken to this court. Said causes, were heard together here and will be decided in like manner.

In the first case the plaintiff, Carl S. LaRoche, claims an undivided one-third interest in and to said lots above mentioned which the defendant denies and alleges that he is the sole owner of said premises in fee simple. The plaintiff claims title by certain provisions of the last will and testament of John LaRoche, Sr. The defendant claims title by provisions of said will and the last will and testament of Fred LaRoche, deceased, and by reason of a certain deed made and delivered by said Fred La-Roche to him on or about the 8th day of October, A. D. 1888.

John LaRoche, Sr., died testate June 9, A. D. 1884, and his last will and testament was duly admitted to probate in this county June 30, A. D. 1884. Fred LaRoche died testate on or about October 21, A. D. 1888. John LaRoche, Jr., died intestate and without issue in A. D. 1890. Charlotte Schumacher La-Roche, widow of John LaRoche, S'r., died June 21, A. D. 1908. John LaRoche, Sr., and Charlotte Schumacher were married in Germany in A. D. 3852. At the time of said marriage Charlotte 'Schumacher had a son, Fred, about two years of age, born out of wedlock who, ever after said marriage, made his home in the home of John LaRoche, Sr., until at the time of his- (Fred’s) death, on said 8th day of October, A. D. 1888. A few days prior to his death, Fred LaRoche, so known in the community, made a last will and testament and a deed of conveyance devising and conveying all of his estate to said John LaRoche, Jr., including any interest he might have in and todhe estate of John LaRoche, Sr. Fred LaRoche, in A. D. 1879 was charged by one Samantha Roofer with being the father of her unborn child; their marriage followed at St. Clairsville on March 18th of that year, and on May 16th following; about two months later, this plaintiff Carl S'. LaRoche, was born, and he bases his right to partition herein upon the claim that he is the son of Fred LaRoche, deceased, but claims not herein from Fred LaRoche, but directly from said John LaRoche, Sr., and under favor of the third fourth and fifth items of the said last will and testament of John LaRoehe, Sr„ deceased, which read as follows:

‘ ‘ Item 3. I give and devise to my said wife all my real estate during her natural life or so long as she remains unmarried, she to have all the rents ¡and profits, keep the same in repair and pay all taxes.
“Item 4. In case my said wife shall marry again she shall then only have such share or portion of my estate as the law allows and the remainder shall be equally divided among my four children, Fred., Louis, John and 'William LaRoehe, and'in case either or any of them should be deceased at such time leaving no children, the share of such one shall be equally divided among my other children.
“Item 5. At the death of my said wife, should she remain unmarried until that time, it is my will that all my ’estate real and personal, be then equally divided among my four sons aforesaid, and in ease any shall be deceased at that time his children are to have his share, and if he has no children living the same shall ¡be equally divided among the remaining ones or their heirs. ’ ’

The determination of the issue here involves the construction of the foregoing items, and is simply this: did the interest or share of Fred LaRoehe under said will vest in him absolutely during his life time so that he might devise it by will or convey it by deed? If so Carl &. LaRoehe has no interest and is not entitled to partition herein • because Fred LaRoehe, whom he claims was his father, sought to devise by will and convey by deed to defendant herein the property sought to be partitioned. If on the other hand said interest did not vest or vested subject to being divested upon the death of Fred LaRoehe before the death of his mother, Charlotte LaRoehe, then Fred LaRoehe had no interest to convey to John LaRoehe, Jr., which he attempted to do by will and deed, as above stated.

In order that subsequent discussion may be better understood, the relation of the parties will be here considered.

It is urged in argument that Fred LaRoehe, so called, was not the son of John LaRoehe, SL, and therefore, Carl S. La-Roche, even though he be the son of Fred LaRoehe, could not take directly from John LaRoehe, Sr. It must be noted that said testator in Item Four provides as follows, “The remainder shall be equally divided among my four children; Fred, Louis, John and William LaRoehe, ’ ’ and again in Item Fifth the testator provides among other things that “all my estate real and personal be then equally divided among my sons aforesaid.”

It will be observed that in the foregoing said testator designates, Fred as one of his “children,” also as his “son.” And having so provided, it must be so considered no matter whose son he was; though he be the son of a neighbor the testator might elect to include him in his will with his children born in lawful wedlock; and he further provided, that if Fred be deceased, at the date of the death of his testator’s wife that his, Fred’s, children, should have his share. In any event Carl LaRoehe must take under said will if he is Fr,ed LaRoehe’s son, which will be discussed later.

However, the record discloses that the boy Fred was taken into the home of John LaRoehe, Sr., upon his intermarriage with the mother, and there reared and treated as one of the children until the time of his (Fred’s) death, when his body was laid in the family lot in Rose Hill Cemetery, and his name inscribed on the “LaRoehe” family monument, and so paternal was the conduct of Johm LaRoehe, Sr., toward Fred, that Louis LaRoehe says that until he (Louis) reached the age of 15 years he considered Fred his older brother and John LaRoehe, Sr., by and in that solemn instrument, his last will and testament, designates Fred as one of his “children” and as one of his “sons aforesaid.” Maybe the testator and his wife brought a secret from Germany, which they prudently and properly enough saw fit not to impart to others; but be that as it may, it is tó the credit of John LaRoehe, Sk., that whether or not he was the natural father of Fred, he did his full duty by him and fittingly and fully acknowledged’him as one of the rightful objects .of his bounty, and so far as the provisions of this will are concerned he may be treated as a son.

Objection is made to the testimony of William and Louis F. LaRoehe in this and the court below, which it is claimed is admissible under the last clause of Section 11945, O. C. Without taking time to discuss the issue fully, suffice it to say that said testimony is found to be incompetent in view of the provisions of said section, and therefore, it must be eliminated from the consideration of this case.

However, to maintain his right to partition herein, Carl S. La-Roche must be found to be the son of Fred LaRoche, deceased. Under pressure of circumstances, Fred LaRoche married Samantha Roofer in A. D. 1879. A little less than two months later, Carl was born in lawful wedlock, and although Fred LaRoche never lived with his wife or family, yet having been born in lawful wedlock a strong presumption obtains in favor of his legitimacy, and it is so observed in Powell v. State, 84 O. S., 164, by Donahue, J., at page 168 as follows:

“ * * * a strong presumption always obtains that a child either born in lawful wedlock, or within the competent time after its termination is legitimate.”

And in Miller v. Anderson, 43 O. S., 474, in the 2nd paragraph of the syllabus it was held:

“2. By such marriage the man so marrying consents to stand in loco parentis to such child and is presumed in law to be the father of the child, and this presumption is conclusive. ’ ’

The foregoing is sustained by Tiogo Co. v. South Creek Tp., 75 Pa. St., 453; State v. Romaine, 58 Iowa, 46, 48; State v. Hermann, 35 N. C. (3 Ired.), 502; Parker v. Way, 15 N. H., 45; Page v. Dennison, 29 Pa. St., 420; Wigmore on Evidence, 134.

In addition to this presumption, a lady by the name of Mrs. Kate Naylor testified upon the trial below that within about one hour after the birth of Carl, Fred LaRoche was at the bedside of his wife. His presence there would seem to indicate a friendly interest at least in both mother and child. The record does not clearly disclose that he ever disowned the boy, but on the contrary, provided in his last will and testament a legacy of five dollars; though he tried to alien from the child all of the remainder of his estate by said will and deed.

Section 8591, G. C.,.provides in part as follows:

“When, by a woman a man has one or more children, and afterwards intermarries with her, such issue, if acknowledged by him as his child or children, will be legitimate.”

The record, therefore, fairly discloses that Fred LaRoehe recognized Carl as his son, and by the required quantum of proof that Carl S. LaRoehe is the son of Fred LaRoehe, deceased.

Coming now to construe said will, it is fundamental that the controlling principle in its construction is to ascertain from the whole will the intention of the testator as therein expressed. Linton v. Laycock, 33 O. S., 128; Barr v. Denny et al, 79 O. S., 358.

However, no specific rule or rules can be declared for the construction of wills, because each must be construed largely in the light of its own provisions.

Governed by these principles, it is clear that the testator desired his wife to have a life estate in his estate during her natural life, or so long as she remained unmarried.

In the event that she remarried she should have the portion of his estate provided by law, and the remainder be equally divided among his four children, including Fred, and in ease any of them should be deceased at such time, without issue, such share should be equally divided among the surviving children. In the event that said widow should die, without remarriage, then the estate should be divided equally among his “sons aforesaid,” and in case any were deceased, at the time of the wife’s decease, and such deceased son left children, then such children should have the deceased parent’s share, and if no children survived then such share should be equally divided among the remaining children or their heirs. Clearly it was the desire of the testator that his “next of kin” should, in any event, be the beneficiaries of his estate; but can it be so held under the provisions of said will?

That depends, as above stated, whether said interest vested absolutely in Fred LaRoehe at the death of testator, or whether it vested subject to being divested by the death of Fred before his mother. The mother did not remarry and Fred preceded her in death by about ten years. He left his son Carl; therefore, it is clear that it was the intention of testator as expressed in item five*that the son Fred being deceased at the time of his mother’s death, that the son Carl should have his father’s share; that is to say, that the grandson should have the son’s share, and which one would receive that share could only be determined by the situation at the time of the widow’s death.

The issue must be determined, therefore, by determining whether the estate vested absolutely in Fred LaRoche, or whether it vested subject to being divested by his death before that of his mother. The distinction between a vested and contingent interest is clearly made in Richey v. Johnson, 30 O. S., 294, and need not b.e here discussed. While it is true that under the common law, it was impossible to limit any estate after a fee, yet by the enactment of the “statute of wills” the doctrine of executory devises has been adopted, and it is now the law that there may be created by a will a vested estate in fee simple, liable to be divested in favor of another estate. The controlling authority in this jurisdiction is Collins v. Collins, 40 O. S., 353. In this case the testator devised his real and personal estate to his wife during her natural life with the remainder over to his two sons and their heirs. In the event of the death of either without issue, the estate should go to the survivor. It was held in the first paragraph of the syllabus as follows:

“1. That by the will of their father each took a vested remainder in fee-simple in one undivided half of the lands, defeasible upon the contingency of the death of either, leaving no children at his decease, and ieaving the other brother to survive him.”

The foregoing is supported in principle by: Jeffers v. Lampson, 10 O. S., 101; 24 Am. & Eng. Ency. of L., 2nd Ed., 431; 2nd Cooley’s Blackstone, 172; Tiffany on Real Property, Section 134; Tiedman on Real Prop., Section 530.

It is urged that the law favors the vesting of estates in Ohio, and so it is held in Linton v. Laycock, 33 O. S., 128, as follows:

“3. The law favors the vesting of estates, and in the construction of devises of real .estate, the estate wnl be held to be vested m the devise at the death of the testator, unless a condition precedent to such vesting is so Cxearly expressed that the estate can not be regarded as so vested, witñout directly opposing the terms of the wnl. To this end, words of seeming condition will, if they can bear that construction, be held to have the effect of postponing the right of possession on±y, and not the present right to the estate.”

The foregoing is supported by the strong weight of authority in this and numerous other jurisdictions, notable among which are the following cases: McArthur v. Scott, 113 U. S., 380; 28 L. Ed., 1027; 5 Sup. Ct. Rep., 652; Own v. Eaton, 56 Mo. App., 569; Wooley v. Paxen, 46 O. S., 318; 21 B., 307; Bolton v. Bank, 50 O. S., 293; 29 B., 330; Johnson v. Johnson, 51 O. S., 540; Canfield v. Kallon, 26 Miss., 352; 57 N. Y. Supp., 149.

A case well in point is McCarthy v. Hansel et al, 4 App., 425; 25 C.C.(N.S.), 283. The first paragraph of the syllabus reads as follows:

“1. The will of a testator contained a provision devising his estate to his widow for life and the following: ‘After the death of my wife, I give, devise and bequeath unto my children all of my estate, real or personal, of whatsoever kind and wheresoever situated, share and share alike; if any of my children should die previous to that time, leaving heirs of their body, then and in that case such heirs to take the share or shares, which would have been due to their parent or parents, if living.’ That the estate devised to each child was a vested remainder, subject to be divested by his death during the continuance of the life estate, and a deed made by such child during such time conveyed no interest in the property.”

The foregoing can scarcely be differentiated in any way or manner from the instant case, and especially as to the facts which need not be discussed here.

In full accord with the above case and the case at bar is that of Camp v. Cronkright et al, 13 N. Y. Supp., 307, the syllabus of which reads as follows:

“A testator devised to his wife certain property during ‘her natural life, and upon her death then I give and devise the same to my children share and share alike absolutely. and forever, the child or children of any deceased child of mine to take the share which his, her or their parent would have taken if -living.’ After testator’s death, but during the life time of his widow, 0., one of his five children, conveyed an undivided fifth interest in the premises, and his grantee conveyed the same to defendant. Thereafter, and during the life time of testator’s widow, C. died leaving three children, surviving him. That the will vested an undivided fifth interest in remainder in the premises in C., subject, however, to be divested by his death in the life time of his mother; that defendant’s title therein was subject to be divested by the same contingencies; and that upon the death of O. said fifth interest became vested in his surviving children. ’ ’

It is urged, however, that Anderson v. Realty Co., 79 O. S., 24, is at variance with the foregoing. The second paragraph of the syllabus reads as follows:

“2. Where, in a will, there is a devise to a son, and if he dies without lineal descendants, living at the time of his decease, then over, these words are not, by themselves, without assistance from other parts of the will, sufficient to create an estate by implication in the lineal descendants, but the son takes a fee defeasible upon his death without lineal descendants, living at the time of his decease, and in the event of lineal descendants living at the time of the son’s decease his fee becomes absolute and such descendants have no interest under the will as against his grantee.”

It will be observed that the principle issue under discussion in Anderson v. Realty Co. is estates by “implication” which is not involved here. In the above case the son took a fee defeasible upon his death without lineal descendants, which indicates a similar view to that held in the above case of McCarty v. Hansel, 4 App., 425, 25 C.C.(N.S.), 283, and so it is further disclosed by the discussion of the cause by Summers, J., at page 50. It follows, therefore, that said case is not particularly helpful in determining the issue here, which however is practically determined by the cases above mentioned, and it must be held that the share or interest of Fred LaRoche vested in him at the death of testator John LaRoche, Sr., subject to being divested by the death of Fred before his mother, which so happened; therefore, Carl S. LaRoehe, plaintiff, being the son of Fred LaRoehe and who survived him, also the widow, Charlotte LaRoehe, the plaintiff fakes his father’s share but directly under the will of John LaRoehe, Sr. Therefore, the will and deed made by Fred LaRoehe to defendant William F. LaRoehe were ineffective to convey title to his interest in the estate of John LaRoehe, Sr.

An order of partition will be granted and the same commissioners named as appointed by the court below unless some change is desired.

The answer and cross-petition filed by defendant William F. LaRoehe in the court below asked the reformation of said deed because it recites incorrect lot numbers. In view of the finding herein, reformation will not be necessary so far as the property here involved is concerned; yet if it be considered advisable or desirable to direct such reformation in order to remove any possible inference or suspicion of cloud from the property of such person or persons as may hold title to the lots numbered in said deed, a proper decree may be entered for that purpose.

In the nest case partition is sought by plaintiff of an estate by purchase owned by John LaRoehe, Jr., at the time of his decease intestate and without issue, in A. D. 1890). The plaintiff’s right to partition in this case is based upon his claim that Fred LaRoehe was the brother of John LaRoehe, Jr., and that he, plaintiff, is the son of said Fred LaRoehe.

It is urged that since the legitimacy of the said Carl S. LaRoehe is raised here, that proof of his right to inherit through his alleged father Fred LaRoehe must be clear and convincing because it is claimed that the rule as to the presumption of legitimacy arising from the marriage of Fred LaRoehe and Samantha Roofer prior to the birth of the boy, while applicable under the bastardy statute, is not applicable to actions where questions of heirship and inheritance are involved, and so it is held in Miller v. Anderson, 43 O. S., 474, third paragraph of the syllabus; which ease can be easily distinguished, however, from the case at bar since the facts are quite different. In the above case Emiline Miller was married to one Riddlemoser while enciente, said marriage occurring about six months after pregnancy, and of which Riddlemoser was fully aware but married her with a full knowledge of her condition. The child was born in their home and was eared for by them jointly during some two and a half years until Riddlemoser’s death. Another child was born to them and about sixteen years after the birth of the first child and some thirteen years after Riddlemoser’s death, _ Emiline Miller filed a complaint in • bastardy against one James M. Anderson charging him with the paternity of the first chhd. The court held, and quite properly, that all the facts being known to Riddlemoser at the time of marriage that he had consented to stand in loco parentis to said child which, having been born in lawful wedlock, was conclusively presumed to be legitimate, but as above stated, this presumption was held to have no application to actions where questions of heirship and inheritance are involved and the reason is obvious; another child had been born whose rights as an heir-at-law could not be aliened by the father’s election to stand in loco parentis to the unborn child of the woman whom he married and whose condition he well knew at the time. It is somewhat interesting to contemplate the paragraph of the syllabus under discussion here in view of the fact that but a single statement is made in relation thereto in the opinion by Atherton, J., at page 48Q, as follows:

“As recognized in that case, we do not affirm this rule holds good on questions of heirship. There the rights of- others are involved -outside of the husband and the alleged bastard child. ’ ’

In the foregoing discussion reference is made to the case of State v. Shoemaker, 62 Iowa, 343, which is quite similar to said case of Miller v. Anderson and in the latter case Judge Atherton observes at page 479 as follows:

“He chose to marry her and thus legitimate her issue and make it his own; the act would have made the child heir to his estate, and, being made so by his act, can the inhuman mother, by her uncorroborated testimony, make it a bastard ? ’ ’

And again as follows:

“Can they be bastardized by proving somebody else begat them, and especially can their mother bastardize them and take from them the rights they acquired by the marriage of their mother with the man that acknowledged them to be his own ? ’ ’

It is true that the syllabus is the law of the case but it is very difficult here to harmonize the dictum with the third paragraph of the syllabus. However, it must be noted that said paragraph does not sustain the contention here, that where the claim of heirship is made in such case that the proof must be clear and convincing; far from it; it merely holds that a presumption of legitimacy arising from birth within lawful wedlock has no relation to actions where questions of heirship and inheritance are involved; that is, such presumption could not obtain in such cases conclusively against facts to the contrary. However, the modern tendency of courts is to relax this rule somewhat, as stated in Wilson v. Wilson et al, 39 C. D., 393 (28 O. C. A., 309), a well considered case, the first paragraph of the syllabus of which reads as follows:.

“1. A decree of divorce between parents of an unborn child does not affect the legitimacy of the child, even though such legitimacy was effected by the parents marrying after this child was conceived. S'uch child, therefore, is an heir at law of the father and as such has an interest to contest his will.”

Kunkle, J., in discussing the above case of Miller v. Anderson, observes at page 396 as follows:

“We think this discussion applies to heirship and the right of inheritance, although the issue in that case was limited to proceedings under the bastardy statutes.”

The most, therefore, that can be said for the above case of Miller v. Anderson is that it holds in effect that in such cases, proof of heirship or the right to inherit must be proven as any other fact; that is, affirmatively or by a preponderance of the evidence, the burden being upon one asserting such claim, and so it is held in Hall v. Wilson, 14 Ala., 295, Payne v. Payne, 29 Vt., 172, 70 Am. Dec., 40, 4 Ency. of E., 576. In the case at bar, Fred LaRoche charged with the paternity of the son Carl, married the mother, S'amantha Roofer, who declared in court upon the trial of this cause that Fred LaRoche was the father of Carl; about two months after the marriage the child was born; within about one hour Fred LaRoche was at the bedside, so Mrs. Naylor states, and it is not denied; a strange and most unusual place for an innocent man, especially if compelled to marry the woman against his will and convinced of his own innocence. Careful examination of the record fails to disclose that he 'ever expressly denied the paternity of the child, while in some ways, at least, his conduct betokens the fact that he recognized his share of the responsibility for this boy. True, he tried to alien the greater part of his property by deed and will to his brother William, all but a bequest of $5 to Carl, and thereby deprive this boy of any interest in his estate; however this is not conclusive of a refusal to acknowledge him as a son because it is by no means unusual for a parent for some real or fancied grievance to disinherit or deprive a natural child of acknowledged legitimacy, of any share or portion in such parent’s estate. Therefore, adopting here the discussion of these matters in the first case, so far as it may be of value, it follows that it must be held that Fred LaRoche was the brother of John LaRoche, Jr., and that the record shows affirmatively and by a fair preponderance of the evidence, as above stated, that Carl S. LaRoche is the son of Fred LaRoche, deceased, and is therefore entitled to partition in this cause, and the same order will be made as to the appointment of commissioners as made in the court below. An accounting as to rents and profits was made in the court below, and that issue is certified back for determination in said court. Partition ordered in both cases.

Pollock, J., and Metcalfe, J., concur.


author: Lawrence, J.

text:
    APPEALS FROM JUSTICES OF THE PEACE.
    Court of Appeals for Cuyahoga County.
    William Enger v. George King.
    Decided, June 10, 1918.

      Bond — On Appeal from a Justice of the Peace — Executed, Within Time, When — Sections 10216 and 1038.
    The provisions of Section 10216, fixing the manner of computing the •time within which an act is required by law to be done, applies to practice in courts of justices of the peace, and an appeal bond perfected before a justice of the peace in accordance therewith is not open to attack on the ground that it was not perfected within the time required by law.

      A. L. Steuer, for plaintiff in error.

      A. J. Armbruster, contra.
   Lawrence, J.

This is a proceeding in error to reverse a judgment rendered by the court of common pleas in an action brought there on appeal from the court of a justice of the peace. Enger, plaintiff in error, was defendant in both the lower courts.

In the court of common pleas' a motion was made to dismiss the appeal for the reason that the appeal bond was not signed within the time required by law; this motion-was sustained, and error is now prosecuted in this court to reverse the judgment of the court of common pleas thereon.

From the transcript of the justice of the peace it appears that the judgment was rendered September 6, 1917, and the appeal bond was given and approved September 17, 1917, and the sole question now presented for our consideration and determination is, was the appeal perfected within the time required by law.

The court takes judicial notice that the 16th day of September, 1917, fell on a Sunday. Section 10383 of the General Code provides :

“Within ten days from the time a justice renders judgment, the party appealing therefrom must give a bond to the adverse party, though he need not sign it, with at least one sufficient surety to be approved by such justice, in a sum not less than fifty dollars in any ease, nor less than double the amount of the judgment and costs.” * * *

The General Code has been the law in Ohio since its approval by the Governor in 1910.

Section 10216 of the General Code provides:

“Unless otherwise specifically provided, the time within which an act is required by law to be done shall be computed by excluding the first-day and including the last; except that the last shall be excluded if it-be Sunday.”

One object of the Legislature in creating the codifying commission, if not its chief purpose, was to do away with different statutes relating to the same condition.

Before the General Code became effective, Section 4951 of the Revised Statutes, now Section 10216 of the General Code, did not apply to practice in the justices’ courts.

Part Third of the General Code covers the Remedial Legislation of the state, and is divided into nine subdivision or titles: Title I, “Preliminary,” contains general provisions applicable to all the courts, and included therein is Section 10216 quoted above; Title II, “Procedure in Justices’ Court;” Title III, “Procedure in Probate Court, ’ ’ followed by titles, applicable to common -pleas and court of appeals respectively, which clearly demonstrates to -our minds that Section 10216 must be construed as extending to acts in all the courts. We can see no reason why it should not so apply, and we hold that- it does and a bond given in accordance therewith is sufficient.

This being true, ile judgment of the-court of common pleas is reversed, and ihe case remanded to that court for further proceedings.

Grant, J., and Dunlap, J., concur.


author: Liegíhley, J.

text:
    CONTRACT RENDERED VOID THROUGH FAILURE TO ADVERTISE.
    Court of Appeals for Cuyahoga County.
    The City of East Cleveland v. The Frisbie Company.

    Decided, July 1, 1917.

      Water Works — Strict Compliance 'unth Statutory Provisions Required in Construction of — Competitive Bidding Not Avoided by Fact that Streets Upon Which Pipes Are to be Laid Nave Not Been Dedicated —Contract to Lay Pipes Rendered Invalid by Failure to Advertise for Bids — Liability Not Created by Usage or Custom — Use of Pipes Does Not Constitute Conversion.

    An action does not lie against a municipality on a contract entered into hy water works trustees for the laying of pipe in streets not yet dedicated, payment therefor not to he made until such time as the earnings from said pipes reach ten per cent, per annum of the cost of installation, where bids for said work were not solicited by advertisement in accordance with the statutory requirement.

      E. A. Binyon, for plaintiff in error.

      Glum & Marty, contra.

       Affirmed, Frisbie Company v. City of East Cleveland, 98 Ohio State.

   Liegíhley, J.

The parties were in reverse order in the court below, and for convenience will be so mentioned herein.

The plaintiff, the Frisbie Company, filed its petition in the court of common pleas, declaring in three causes of action that in three different allotments it installed water pipes under contract with the defendant to repay when the water rentals on each particular street should amount to ten per cent, of the cost of installation in any one year. The amount claimed in the three causes of action is $19,815.78. It bases its express contract upon resolutions passed by the water board of East Cleveland to the effect that proposal on the part of plaintiff to install water pipe on the several streets by the plaintiff be accepted, provided the cost does not exceed the village engineer’s estimate and the work is done subject to the approval of the engineer and inspectors of East Cleveland village. It was further provided by resolution that when the water rentals of any line of pipe on any street thus constructed shall equal ten per cent, of the cost of construction, the board will, if in funds, repay the Frisbie Company the cost of construction; that in pursuance of these resolutions and permission granted, pipes were laid on a number of streets in the years 190)2 and 1903 at a cost in amount above stated; that in the year ending March 1, 1915, the water rentals received by the city from each of the separate systems aggregated a sum in excess of ten per cent, of the cost of installation; that the plaintiff duly tendered to the defendant a deed conveying to the city all its interest in the said water systems so installed 'by it and requested payment as per resolutions of 1901 and 1902; that the city council refused to pay them.

In the fourth cause of action it is claimed that the city has Converted to its own use the water systems above referred to, installed by plaintiff on various streets in said city, and claims the right of recovery on the ground of conversion.

Trial was had below, a jury waived and the trial resulted in judgment for plaintiff for the amount above stated, from which judgment error is prosecuted to this court to reverse the same.

The first three causes of action are predicated upon an express contract with the city, as claimed, to pay for the .installation of said water system when the rentals should amount to ten per cent, of the cost.

The powers of the board of trustees of the water works of villages are derived from and limited by 'Sections 2407 to 2435, Revised Statutes of 1900, inclusive. The defendant was a village at all times covered by the series of the transactions involved in this lawsuit. Section 2415, R. S'., provides and grants power to the board of trustees to make contracts, and reads as follows:

“Section 2415. The trustees or board shall be authorized to make contracts for the building of machinery, water-works, ■buildings, reservoirs, and the enlargement and repair thereof, and the manufacture and laying down of pipe, and the furnishing and supplying with connections all necessary fire hydrants for fire department purposes, and keeping the same in repair, and for all other necessary purposes to the full and efficient management and construction of water works.”

Section 2419 provides the rules and the manner and method Avhere'by the trustees may enter into contracts, which reads as follows:

“Section 2419. The trustees or board, before entering into any contract for work to be done, the estimated cost of which exceeds five hundred dollars, shall cause at least two weeks’ notice to be given, in one or more daily newspapers of general circulation in the corporation, that proposals will he received by the trustees, for the performing of the work specified in such notice; and the trustees shall contract with the lowest bidder, if in their opinion he can be depended on to do the work Avith ability, promptness and fidelity; and if such be not the case, the trustees may aAvard the contract to the next lowest 'bidder, or decline to contract, and advertise again. ’ ’

As we understand it, the board, of trustees has only such power to make and' enter into contracts, and may only enter into contracts in such manner, as the statute gives and provides.

Quoting from Ravenna v. Penna. Co., 45 O. S., 118:

“Municipal corporations in their public capacity possess such powers and only such as are 'expressly granted by statute, and such as may be implied as essential to carry into effect those which are expressly granted.”

To the same effect is Board of Health v. Greenville, 86 O. S., 24.

At the time the resolutions were passed by the village the streets through which and into which the plaintiff sought permission to- extend water pipes had not yet been dedicated to the village and were at the time the uroperty of the plaintiff. It is claimed that, therefore, Section 2419 did not apply, for the reason that said section has reference only to cases in which the municipality is doing the work. It is urged that the streets 'being the property of plaintiff at the time avoided the necessity of competitive bidding. A number of cases are cited by counsel in which the necessity of competitive bidding was obviated, but an examination of these authorities will disclose the fact that the reasons assigned therefor were either that the subject-matter of the work was such that competitive 'bidding was impossible, or impracticable because of its artistic nature, or was monopolistic, or rested upon the use of some exclusive patent or franchise or sole source of supply. "We do not think this doctrine has any application to the situation in the case at bar, for the laying of water pipes is not included within either of the actions referred to.

We are of the opinion that express contracts for the doing of work and the payment therefor under such circumstances as are claimed in this case, can only be accomplished to make the same binding upon both parties by a strict compliance with the statutes, particularly the two sections above quoted. Newton v. City of Toledo, 18 C. C., 756, affirmed without report, 52 O. S., 649. Quoting from the syllabus, paragraphs 1 and 3:

“Section 2419. Revised Statutes, defining the powers of water works trustees, which 'by the act of January 22d, 1889, is made applicable to the trustees of the natural gas works of Toledo, provides that ‘the trustees of the board, before enter-ing into any contract for work to be done, the estimated cost of which exceeds five hundred dollars ($500), shall cause at least two weeks notice to be given in one or more daily newspapers of general circulation in the corporation.’ Held: that the word -‘work’ in this statute includes material to be furnished; that a contract for the purchase by the Toledo gas trustees of pipe already manufactured and on hand, without advertising for bids therefor, was not in conformity with the requirements of Section 2419, Revised Statutes, and can not be enforced against the city.
“Although under Section 2415, Revised Statutes, the gas trustees of Toledo, the same as water works trustees, are empowered to make contracts, such power must be taken with the limitations prescribed by Sections 17 and 2702, Revised Statutes, and they can not enter into a contract without a fund applicable for the purpose provided for by tax assessment or otherwise, nor until a certificate of the city clerk is furnished that the money is in the treasury, and the city is not bound by contracts made in disregard of these provisions of the statutes. ’ ’

Something is said in the petition to the effect that the village had established a custom of securing extensions to its waterworks system in accordance with the method set forth in the petition in this ease, and some reliance was placed upon this custom in the argument before us. However, we do not understand that custom can create a right or liability where none otherwise exists. Quoting from the syllabus of Thomas v. Guarantee Title & Trust Co., 81 O. S., 432:

“Usage or custom can not create a contract or liability where none otherwise exists. A usage or custom can only be used to explain or aid in the interpretation of the contract or liability existing independently of it. It can not be permitted to contradict or vary express terms of a contract, nor to vary the legal import thereof.”

It was further urged that the resolutions of the board of trustees were not contracts, yet in the petition those same resolutions are relied on as creating the contract sued on. The resolutions constitute the acts and only acts of the village upon which the right of recovery rests. In this manner the failure to observe the requirements imposed by statute upon the letting of a contract for work is evaded. If the board of trustees did in this case, by the proceedings had, impose upon the village, now city, of East Cleveland, the obligation to pay for the installation of these water systems, then a clever scheme and plan has been conceived whereby the requirements of the statute may be omitted. The board of trustees might very well provide in this manner for the extension of water pipes throughout the entire territory within the village limits and have the same constructed without competitive bidding, and a decade or more later the inhabitants be obligated to pay without the obligation of any of the statutory safeguards having been applied at the time the obligation was incurred. We do not think that the board of trustees-should be or can be permitted to do indirectly what the statute would forbid its doing directly.

It was said in argument that the plaintiff was never paid for the pipe installed. A deed in evidence discloses a provision therein to the effect that the plaintiff would cause water to be supplied to the residents on said street. It may be true that the cost of installation was not figured into the selling price of the lot, but it is equally true that each purchaser undoubtedly thought he was buying and paying for water pipes when he bought the lot, and undoubtedly thought that the cost thereof was included in the price paid.

The fourth cause of action is based upon conversion. It is admitted that the pipes were installed and attached by the plaintiff to the water works system of defendant. It did so with the permission of the defendant, and did so upon the condition that the same should be installed subject to the approval of the engineer and inspectors of the village. The pipes so laid became a part of the water works system of the village, under the circumstances of this case. Upon what theory conversion thereof may be claimed we are unable to understand. When the plaintiff installed the pipes and dedicated the streets of the village, with the pipes made a part of the village water system, plaintiff must recover upon an express contract the cost of installation, or has no cause of action at all. If the plaintiff has no valid contract as a basis for recovery, it has no claim to the pipes and no recovery can be had against the village for the value of the pipes. Courts will leave the parties where they placed themselves. Buchanan Bridge Co. v. Campbell et al, Commissioners, 60 O. S., 406.

There can be no recovery from the village upon a basis of an implied contract or on quantum meruit. City of Welleston v. Morgan, 65 O. S., 210; McCormick v. City of Niles, 81 O. S., 246.

We are of the opinion under the facts of this ease that the plaintiff did not have a legal, binding contract made according to law with the defendant; that in order to make a binding contract of the character herein claimed, the sections of the statutes quoted must be complied with, and a failure to comply therewith, which is admitted in this case, causes the transactions to fall far short of a legal contract. We understand that these sections must be complied with in all matters involving the construction or extension of a water system, and the only exceptions thereto are, perhaps, items of cost of operation. These statutes are the safeguards imposed by the Legislature for the protection of the tax-payers and citizens of a municipality. Lancaster v. Miller, 58 O. S., 575.

But the claim is made that these pipes were to be paid for by water rentals, the earnings of the water system. For the board to undertake to' do so would be a mere subterfuge. One of two things would necessarily occur to do so: either

the water rentals would have been maintained at a special and excessive figure to produce the sum required, thereby indirectly taxing all the water users of the village, or the water rentals would not have to be so raised as to amount to an excessive rental for the sole object and purpose of paying the amount due under this alleged contract. The citizens would foot the bills by permitting the trustees to do indirectly thereby what they are not permitted to do directly. The citizens of the village were entitled to have all the beneficial results of competitive bidding, if any, in the creation of an obligation imposed upon them for the construction or extension of their water works system.

We hold that the plaintiff has no express contract which is binding upon the village, now the city of East Cleveland; that the judgment below is contrary to law, and the same is reversed, with costs assessed against the defendant in error.

Grant, J., and Carpenter, J'., concur.


author: Jones, P. J.

text:
    CREDIBILITY OF ONE CONVICTED OF A FELONY.
    Court of Appeals for Hamilton County.
    The Cincinnati Traction v. Fred Lied.
    Decided, November 19, 1917.

      Charge of Court — Plaintiff Shown to Save Been Guilty of a Felony— Refusal of Trial Judge to Give a Special Instruction as to his Credibility.

    It is not reversible error for the trial judge in a civil case to decline to give an additional instruction to the jury, defining the relation plaintiff’s conviction of a felony bore to his credibility as a witness, where counsel failed to formulate any specific rule of law in their request that such a charge be given.
    The plaintiff below recovered a judgment for damages resulting from injuries while a passenger .alighting from a ear of defendant company. A reversal of that judgment is sought in these error proceedings.
    The plaintiff was the only witness who testified .as to just how the accident occurred. No operative of the defendant company was called — the only witness offered by it being a claim agent who was unable to testify in relation to the accident' itself. Numerous witnesses on behalf of plaintiff testified as to his injury and results therefrom, and medical evidence was introduced as to the fact that sarcoma had developed from a bruise, resulting in the necessary amputation of his leg.
    The only evidence offered by defendant, other than the testimony of the claim agent, was a certified copy of an indictment of plaintiff for accepting a bribe while a public officer, a certified copy of the verdict finding him guilty, .and a certified copy of the sentence of the court. The court in its general charge used the following language:
    “You, the jury, are the sole judges of the facts, of the weight of the evidence and of the credibility of the witnesses. The evidence has to be weighed in the scales of credibility. Yon must consider whether the evidence is probable, or improbable whether it is sustained with reason and common sense as applying to the transaction, whether it appears that the testimony-has been given frankly, openly and squarely, or whether it has been given otherwise. You will consider all the things that appeared in this case that ought to be considered in determining the credibility of the; testimony that has been given to you by the various witnesses. You do not have to ■believe what .a witness states just because he may have stated it, but you may disbelieve it altogether if you consider that the witness is unworthy of belief, or you may believe a part and disbelieve other parts; you should consider the interest, the motive, if there is any, which prompts a witness to testify, or you may consider the want of interest, whether or not a witness is disinterested and has no reason under all the circumstances for telling .anything but the truth. The truth is the most sacred thing courts of justice deal with. There is not anything in a court of justice that is more shocking than an untruth. Therefore, gentlemen, while you are sitting in the jury box and acting under the solemn obligation you have undertaken, you have a sacred job to perform, and you know nothing but your conscience and your oath .and your duty as members of this jury.
    “You have a right to determine from the appearance of the witness on the stand, his manner of testifying, his apparent candor, his apparent intelligence, his relationship business or otherwise to the party, his interest if any may .appear from the evidence, his temper, feeling or bias, if any, and from all these and all the other circumstances appearing in connection with the evidence produced at the trial, you, the jury, have the right to determine which witness is the more worthy of credit and to give credit accordingly.”
    At the close of the general charge, counsel for defendant made this statement to the court:
    “I desire to call attention to an omission in the charge, and I request your honor to charge upon the relation of the conviction of the plaintiff of a felony, an infamous crime, as bearing on his credibility as a witness.”
    This request w.as refused and counsel for defendant excepted and also took a general exception to the charge.

      Einlcead & Rogers, for plaintiff in error.

      Belcher & Connor and Simeon M. Johnson, contra.
   Jones, P. J.

Counsel insists that the trial court committed reversible error in refusing to make an additional charge to the jury in response to his request at .the end of the general charge, defining the relation that plaintiff’s conviction of a felony bore to his credibility as a witness; and he relies chiefly upon this so-called error to secure a reversal of the judgment below.

While under the common law one who had been convicted of an infamous crime was not permitted to testify, that harsh rule has been abrogated, and under our code all persons are competent witnesses except those of unsound mind and children of tender years. G. C. 11493.

In criminal cases it is provided, G. C. 13659:

“No person shall be disqualified as a witness in a criminal prosecution by reason of his interest in the event thereof, as a party or otherwise, or by reason of his conviction of crime. * * * Sfich interest, conviction or relationship may be shown for the purpose of affecting the credibility of such witness. ’ ’ * * *

There is no question, therefore, but that the plaintiff was a competent witness in this case. Defendant furnished to the jury ample proof of his conviction of the crime of bribery, and that being practically all of the testimony offered by defendant, it certainly must have been impressed upon the minds of the jurors as one of the important “circumstances appearing in connection with the evidence produced at the trial,” from which the jury were directed by the court “to determine which witness is the more worthy of credit and to give credit accordingly.”

It might have been proper for the court to instruct the jury that they could take into consideration the fact of his conviction in determining his credibility. Conkey v. Carpenter, 106 Mich., 1. But that was not necessary, and possibly might have been considered improper under the rule laid down in State v. Tuttle, 67 O. S., 440, in which the fourth clause of the syllabus »is as follows:

“It is not the province of the court, to classify witnesses, and give to the jury what the experience of the courts may be in respect to such a class, but their credibility should be left to the jury, under all the competent facts and circumstances of the case before it.”

No written charge in this respect was asked by counsel for defendant, as might have been done under clause 5 of Section 11447, G. C., nor was any distinct rule of law suggested or formulated by counsel in his request to the court at the close of the general charge. It was clearly the duty of counsel not only to call the court’s attention to such omission as he claimed but, if he desired to found error upon it, to indicate clearly what he claimed the law to be and what charge he desired the court to give. It does not seem to be essential that this request should be in writing, but there must be some specific rule of law formulated in that request in order to predicate error upon its refusal. Railway Co. v. Ritter, 67 O. S., 53; Whitaker v. Insurance Co., 77 O. S., 518, 522.

In the opinion of this court it was not prejudicial error in the trial judge to» fail to add anything further to what had been said by him in the general charge on the suggestion made by the counsel for defendant below; and a careful review of the record fails to disclose any error to the prejudice of the plaintiff in error, and the judgment is therefore affirmed.

Gorman, J., and Hamilton, J., coficur.


author: Metcadee, J.

text:
    APPOINTEES OF A BOARD OF HEALTH.
    Court of Appeals for Ashtabula County.
    State, ex rel Schmidt, v. Colson, Auditor.
    Decided, September 2, 1918.

      Office and Officer — Appointive Positions in Health Department— Abolished by Repeal of Ordinance Establishing Such Positions.

    The repeal of an ordinance, passed pursuant to the provisions of Section 4404, General Code, establishing a board of health, abolishes all appointive positions under such board.

      EL. G. Kingdom, for plaintiff in error.

      J. E. Helman., contra.
   Metcadee, J.

This is an action in mandamus to compel the defendant in 'error, W. B. Colson, as auditor of the city of Conneaut, to issue to the plaintiff in error, Karl Schmidt, a warrant for five months’ pay as clerk of the board of health of said city. A demurrer to the petition was sustained by the court of common pleas.

The council of the city of Conneaut, under the provisions of Section 4404, General Code, passed an ordinance creating a board of health, and relator was thereupon appointed clerk of such board. Some time afterwards, however, the council repealed the ordinance, and relator claims that in spite- of such repeal he is entitled to recover the amount of his salary from the time of the repeal of the ordinance until the end of his appointive term.

Section 4404, General Code, provides:

“The council of each municipality shall establish a board of health, composed of five members to be appointed by the mayor and confirmed by council who shall serve without compensation and a majority of whom shall be a quorum.” * * *

Section 4405 provides that if the municipality fails or refuses to establish a board of health or appoint a health officer, the state board of health may appoint a health officer and fix his salary and term of office, and grants to such officer the same powers and imposes upon him the same duties ag health officers appointed in villages in place of a board of health.

It is urged that Section 4404, General Code, is mandatory, and that its requirement that the council shall establish a board of health has the force of a constitutional provision, so that when the council has acted in pursuance of the provisions of the law and established a board of health it can not abolish the board, or deprive the employees thereof of the emoluments of their respective offices, without further action on the part of the Legislature; in other words, that an ordinance of the council-of a municipality, once passed, in pursuance of a grant of power by the Legislature, becomes of as much force and effect as a provision of the Constitution itself and must remain the law of that particular municipality until the Legislature grants the power of repeal.

We can not assent to this proposition.

•Of course it goes without saying that the council of a municipality can only exercise the powers delegated to it by the-General Assembly. But ig a specific grant of power required' to authorize the council to amend or repeal an ordinance which it had the power to pass? The efficacy of any-legislative body would be entirely destroyed if the power to amend or repeal its legislative acts were taken away from it. The grant of the power to pass the ordinance in question, or any ordinance .for that matter, carries with it the power to amend or repeal the same act.

The Constitution itself provides the method by which it may be changed.

The Legislature may repeal or modify an act which it has passed, and it seems to -us to be utterly illogical to say that a municipality can not repeal an act of its legislative body, whether the power to repeal is expressly granted or not. And we think that the repeal of the ordinance creating the board of health also abolished all appointive positions under such board. State, ex rel, v. Covington. 29 Ohio St., 102; State, ex rel, v. Jennings, 57 Ohio St., 415; McHugh v. Cincinnati, 1 Cin. S. C. R., 145, and State v. Brown, 38 Ohio St., 344.

Tbe judgment of tbe court of common pleas sustaining tbe demurrer to tbe petition is affirmed.

Pollock, J., and Farr, J., concur.