author: Jones, J.

text:
    A STATUTE IN VIOLATION «F THE RIGHT OF LIBERTY.
    Circuit Court of Hamilton County.
    In re Saul Berger.
    Decided, June 1, 1912.

      Constitutional Law — Section 18948 Invalid — Unwarranted Interference with the Right to Contract for Labor and to Fix Conditions and Terms.

    Section 12943, making it an offense punishable by fine or imprisonment for a member, agent or officer of a firm or corporation to prevent an employe from forming, joining or belonging to a lawful labor organization, or who coerces or attempts to coerce employes by ' discharging or threatening to discharge them for connection with such an organization, is an infringement upon constitutional rights . and is "therefore void and of no effect.

      Morse •Tuttle, for the petitioner.

      Nicholas Klein, contra.
    Smith, P. J.; Swing, J., concurs; Jones, J., dissents in a separate opinion.
   Upon the 24th day of January the petitioner was arrested upon an affidavit and warrant charging that on the 2d day of 'December,' 1911, he, being an agent and employe of the Roth Shoe Manufacturing Company, did unlawfully coerce and dis-1 charge. one Schroeder from the employment of. the said cpm•pany-,- because said Sehroeder was a member of the United Shoe Workers of'America, a lawful labor organization. ■ -

To the answer of William H. Jackson, chief of'police óf the ...city.of .Cincinnati, who by virtue of said warrant held the..,petitioner in custody, a demurrer was filed, setting up therein.that ..Section 12943 of the General Code, the statute under which the prosecution of the petitioner was had, is unconstitutional as.be- • ing. in. contravention of the Fifth and Fourteenth Amendments . to -the Constitution of the United States, and Section 1, .Article I, of the Constitution of Ohio,

Section 12943 reads as follows:

“Whoever, being a member, of a firm, or agent, officer or employe of a company, corporation or person, prevents employes from joining or ■ belonging to a lawful labor organization, or coerces or attempts to coerce employes by discharging or threatening to discharge them from their employ or the employ of a firm, company or corporation because of their connection with such labor organization, shall be fined not more than one hundred dollars or imprisoned not more than six months, or both. ’ ’

Section 1 of the Fourteenth Amendment of the Constitution of the United States provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state, deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

Section 1, Article I, of the Constitution of Ohio, declares:

‘ ‘'All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting ' property, and seeking and obtaining happiness and safety.”

It was said by the court in the ease of People v. Marcus, 185 N. Y., 257:

“The free and untrammeled right to contract is a part of the liberty guaranteed- to every citizen by the Federal and State Constitutions. Personal liberty is always subject to restraint when its exercise affects the safety, health or moral and general welfare of the public, but subject to such restraint an employer and employe may make and enforce such contract relating to .-.-labor-as they- may agree upon.”

. The offense charged against the petitioner in effect is-, that he, ' being an agent of the shoe company, did unlawfully coerce' and 'discharge one Schroeder from its service because of his membership in a labor organization.

We do not think that the Legislature can make such an act as is described in Section 12943 a criminal offense in the face, of the constitutional guaranties above cited.

“The right to employ labor and make contracts in relation thereto upon such terms' as may be mutually agreed upon is incident to the right of enjoying liberty and of acquiring, possessing and protecting property guaranteed by the Constitution. An essential element of the right to enter into a contract of employment is the right of the parties to fix the terms of the employment, and of either, party to terminate thé employment at pleasure, when it is not otherwise agreed upon. When the Constitution declares that every person has an inalienable right to liberty and to acquire, possess and protect property, it guar-' antees to him the right to make and enforce all proper contracts, and to employ in carrying on his business such persons and such lawful means as he may choose, free from all restraints except such as are necessary for the common welfare,.’’ Ohio v. Bateman, 7 N. P., 487; People v. Marcus, 185 N. Y., 257; Adair v. United States, 208 U. S., 161, and cases cited therein; State v. Julow, 129 Mo., 163; Railroad Co. v. Schafer, 65 O. S., 420.

Upon an examination of the above authorities, together with numerous others cited by counsel, we can reach but one conclusion: that the great weight of authority is that statutes characteristic of the one in question are unconstitutional and void, and we so hold in this case-.

. The demurrer to the answer will be sustained and the petitioner discharged.

Jones, J.

(dissenting).

The majority opinion is doubtless in accord with the decisions of the highest courts of many of our sister states upon statutes, similar and 'in some instances in the precise words of the section under consideration here.

Such laws are passed in the exercise of the police power inherent in every organized government. This power has been defined by Judge Cooley in his Constitutional Limitations, Chap. 16, page 704, as follows:

“The police power of a state, in a comprehensive 'sense, embraces its whole system of internal regulation, by which the state seeks not only to preserve the public order and to prevent offenses against the state, but also to establish for the intercourse .of citizens those rules of good manners and good neighborhood, which are calculated to prevent a conflict of rights and to insure to'each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others. ’ ’

Blackstone’s definition is:

."The .due regulation and domestic order of the kingdom, whereby the . inhabitants of a state, like members of a well governed family,- are bound to conform their general behavior .to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious and inoffensive in their respective . stations. ”

I quote the following from the opinion in this case written ' by Smith, P. J.:

"When the Constitution declares that every person has an inalienable right- to liberty, and to acquire, possess and protect property, it guarantees to him the right to make and enforce all proper contracts and to employ in carrying on his business such persons and such lawful means as he may choosé free from all restraints, except such as are necessary for the common welfare.”

Here, in the majority opinion, is a clear recognition of the power of the state to place limitations upon a man’s control of his business or his property, whenever the good of society so demands.

But, who is to determine whether a proposed legislative act is necessary for the common welfare? Manifestly'the legislative 'or governing body of the state has a large discretion in such mats' ters "and' it is only where a court is clearly satisfied that this'dis~--'éretion"'hás been -abused and arbitrarily exercised without".reasonable or probable cause therefor that it will be justified in '.overruling the law-making body and declaring- its act a nullity. f> The question for the Legislature when such laws- are proposed s for -passage is not alone whether they interfere with -personal liberty or private property, but whether the conditions'such Teg- . illation is designed to, remedy make.such interference necessary .- and justifiable, having in view.the.rules of "good manners, good ' neighborhood” and the general comfort; safety and welfare. - - .-In -■-other words, whether the protection afforded and benefits-'be- ■’ stowed 'by the proposed measure aré commensurate with' of but-weigh the cheeks and restraints imposed upon freedom of action with respect to person or property.

Counsellor relator bases his argument against the validity of the law upon the decisions of other states above mentioned, and my associates also rely on such precedents in the conclusion to which they have dome. The Supreme Court of Ohio has not passed upon any law such as the one before us, nor has any circuit court of our state.

From the nature of the law and its subject-matter, I do not think that controlling weight should be given to decisions- rendered upon like statutes in other states where, .and at a time when conditions may have been far different from those which prevail here and now. The police power, as has been pointed" out,- is or should be exerted to meet conditions existing in the territory where its regulations are to operate and the validity of a law expressive of this power must depend upon those conditions, and not upon conditions and circumstances of a bygone age or a distant state.

In deciding the recent case of Borgnis et al v. Falk Co., wherein the constitutionality of the Workmen’s Compensation Law was upheld, Chief Justice Winslow of the Supreme Court of Wisconsin used this language:

“Constitutional commands and prohibitions, either distinctly laid down in express words or necessarily implied from general words, must be obeyed, and implicitly obeyed, so long as they remain unamended or unrepealed. Any other course on the part of either legislator or judge constitutes violation of his oath of office; but when there is no such express command or prohibition, but only general language or a general policy drawn from, the four corners of the instrument, what shall be said about this? By what standards is this general language or general policy to be interpreted and applied to present day people and conditions ?' When .an eighteenth century constitution forms the charter of liberty of a twentieth century government, must its general provisions be construed and interpreted by an eighteenth century mind in the light of eighteenth century conditions and ideals? Clearly not. This, were to command the race to halt in its .progress, to stretch the state -upon a veritable bed of Promistes.
“Where theré is no express command or prohibition, but only general language o.r policy to be considered, the conditions prevailing at the time of its adoption must have their due weight; but the changed social, economic, and governmental -conditions and ideals of the tirnie, as well as the problems which the changes have produced, must also logically enter into the consideration, and become influential factors in the settlement of problems of construction and interpretation. These general propositions are here laid down, not because they are considered either new or in serious controversy, but because they are believed to be peculiarly applicable to a case like the present, where a law which is framed to meet new economic conditions and difficulties resulting therefrom is attacked principally because it is believed to offend against constitutional guaranties or prohibitions couched in general terms, or supposed general policies drawn from the whole body of the instrument.” 133 N. W. Rep., 209.

Two of the associate judges of the Wisconsin court were impelled by the language of the chief justice above quoted to write separate concurring opinions, fearing that the impression might go out that court held the Constitution to be changeable. But to me the meaning is clear and the apprehension on the part of the associate justices of danger in the language quoted is on fanciful rather than on real ground.

It is not at all a new doctrine that he. so well expresses, but one that, with much new legislation to meet changed and changing conditions, must necessarily be more often cited and applied.

For example, when the pioneers of Ohio were living in log cabins and there were no other buildings in the state, a law requiring fire-escapes or smoke consumption, if passed, might' well have been declared invalid, but would that decision upon that law at that time be a barrier to such legislation today?

The purpose of the law under which relator was arrested is to prevent an employer from coercing an employe by discharging or threatening to discharge him because he is a member of a lawful labor organization.

The purpose and effect of such action on the part of employers would be to break up the labor organization; and to prevent such result and to protect the employe from intimidation and coercion and in the enjoyment of freedom- of thought and action, -the law was obviously enacted.

It is to be presumed that the Legislature-looked upon lawful-labor organizations as proper and wholesome agencies and as entitled to the protection of the law from enforced disorganization and disintegration. The fact that an employe belongs to an organization of a lawful nature can not affect injuriously his efficiency or value to his employer. As it can not make his labor less skillful or productive, his discharge on that ground must be for some ulterior purpose and not primarily in furtherance of business interests. Unless the discharge of an employe is actuated by a desire for better service it is difficult to see how a prevention of such discharge can be an intrenehment upon property rights and, therefore, how any constitutional question is involved.

Assuming, however, that the law does impose restrictions, the Legislature, in its wisdom, has said that they are necessary restrictions and that an employe must not be coerced by such threats even if there is an interference by the operation of law with one’s full and absolute control of his property.

With the wisdom or expediency of a law, courts have nothing to do.

Labor organizations, as is generally known, have exerted a potent influence in recent years upon legislation. Many laws have been passed in state and Nation affording protection to and improving ■ conditions of workingmen, women and' children. Labor organizations have hastened such measures and have, at least, taken a large part in shaping and enacting them.

It is conceivable that our Legislature might well consider such organizations entitled to protection. In its discretion it has so declared and its action should not be nullified by judicial decree until clearly shown to be in contravention of the Constitution.

I am not clear that the law is unconstitutional, and hence do not concur in the opinion heretofore announced by my associates.


source: Caselaw Access Project

license: Public Domain

text:
    ESTABLISHING GUILT BY INFERENCE.
    Circuit Court of Fulton County.
    Benjamin E. Hinz v. State of Ohio.

    Decided, November 11, 1911.

      Criminal Law — Prosecution for Soliciting dy Mail — Orders in Dry Territory for Intoxicating Liquor — Inference as to Knowledge of Manager — That Trade Circulars Are Being Sent Out from His Office — Effect of Silence When Confronted dy Such Evidence......
    The inference may reasonably be drawn that the manager or person ■ in charge of an office, from which emanate letters or circulars soliciting trade, has knowledge of such solicitation and is responsible therefor; and where such an inference as to the solicitation by mail in “dry” territory of orders for intoxicating liquors was not modified or rebutted by evidence, and the defendant remained silent when confronted by evidence of that character, a • reviewing court is not justified in holding that a finding of guilty by the court below was so clearly against the weight of the evidence as to require a reversal of the judgment.

      Ben W. Johnson, for plaintiff in error.

      J. B. Templeton, Prosecuting Attorney, and J. A. White, contra.
    Wildman, J.; Ejnkade, J., and Richards, J., concur.

       Affirmed by the Supreme Court without opinion, Hinz v. State of Ohio, 86 Ohio State, page —.

   The plaintiff in error, Benjamin E. Hinz, was convicted before George B. Iieise, mayor of the village of Wauseon in this county; after a trial before him, of soliciting orders for the sale of intoxicating liquors within said county by means of a communication sent by mail by the said Benjamin E. Hinz from Toledo, Ohio, to one J. C. Paxson, the complaining witness, on or about March 29th, 1911, the sale of intoxicating liquors as a beverage: being at that time prohibited and unlawful in, said, county. The prosecution and conviction were under Section 13223 of the General Code of Ohio. Said conviction and the sentence of said mayor thereon were affirmed by the court of common pleas in proceedings in error instituted therein. To reverse the judgment of affirmance this proceeding is pending before us.

Numerous questions were raised in the trial court by the defendant there, and exceptions taken to rulings, but the contentions of vital importance and the ones calling for most careful and serious consideration by us are those relating to the guilt or innocence-of the defendant of the matters involved in the accusation against him. There seems no question under the evidence submitted to the trial court that the section referred to had been violated by the distribution of printed matter in the village of Wauseon while the sale ‘"of intoxicating liquors as a beverage was unlawful; but that the defendant was implicated in such soliciting, either directly or indirectly, is disputed, and upon the issue so raised evidence was offered in the trial court by both state and defendant. It is earnestly urged by the plaintiff in error that the finding by the mayor is so clearly against the weight of the evidence that it should not stand.

The evidence is largely circumstantial. The testimony of - Mr. Paxson discloses the receipt by him from the post office at Wauseon of a printed circular letter, over the printed signature of the Schlitz Brewing Company, soliciting orders for beer manufactured or furnished by said company. By instruction in this letter, orders if given, were to be sent to a street address in the ' city of Toledo, at which address, as the testimony discloses, was an office of said brewing company, occupied and conducted by said Hinz as the manager thereof or local agent of said company, there being, no evidence indicating that said company had any • other office or place of business in said city of Toledo. The - communication so received by Mr. Paxson enclosed a price list . of beer manufactured by said company, and order blank di- • reeted to said company at its said office in Toledo, from which address any orders were to be filled. The envelope containing-this communication bore the Toledo postmark. Soon after the-defendant’s arrest and while in charge-of Sheriff Fred Grandy,- ■ of-.Fulton county.,.'he volunteered certain-statements to Grandy, as-testified: to on-the trial by the latter, with reference to the soliciting of business in so-called dry territory. I will not attempt to detail the language said to have been used by him, but .in substance he stated, as asserted by G-randy, that he had refused personally to solicit business in sporting houses or territory where the sale of liquor was prohibited or to send men into such territory or to such places, but that he had consented to the sending to some persons, whose names he does not appear to have disclosed, of solicitations for business in dry territory. Other evidence was offered upon both sides, but I will not attempt its review.

In view of all the facts disclosed, whatever might be our conclusions as to the guilt or innocence of the defendant, were we sitting as a trial court, we do not feel justified in holding that the finding of the mayor is so clearly against the evidence or its weight as to justify a reversal. As a general inference, reasonably to be drawn from our observation of the conduct of business, we think it may fairly be said that the manager or person in charge of an office through which passes or from which emanates letters or circulars soliciting trade, has knowledge of such solicitation and is responsible therefor. This inference is, of course, open to qualification or rebuttal by evidence, but in the absence of evidence which the trial court was bound to believe a finrliug in accordance with such principle would be justified under the facts in this case. While there was evidence offered by the defendant in a deposition of one Abrams, a manager of agencies for the brewing company, it contained so many reservations of facts, the witness declining to answer upon the ground as given that the answer might tend to criminate himself, and the statements were in other respects, many of them, so vague and general, that we can not say that the trial court was not justified in disbelieving the testimony of said witness and rejecting it from consideration. Hinz himself attempted no other or further explanation of the matter involved in the charge against him than as I have already stated. While no presumption can be drawn against him from the fact that he did not testify upon the witness stand while on trial, the fullest opportunity was apparently afforded him to enter into any desired explanation or detail as to the matter of accusation against him when in the conversation with the sheriff. In view of this fact we see no reason why the ordinary principle should not apply, that inferences may be legitimately drawn against one from his silence or unreasonable or inadequate statements when called upon, by circumstances or questions, to explain his conduct. A like inference is properly drawn from the refusal or neglect to produce in court evidence available to one in his defense.

A not inapt illustration of this general principle is found in the rule asserted in Methard v. State, 19 O. S., 363, and repeatedly announced in other adjudications in this and other-states, that an inference of guilt may be drawn from the unexplained possession of stolen goods soon after the commission of the larceny. Such a presumption or inference is, of course, not indisputable, but one which may fairly be applied under proper circumstances in the absence of adequate rebutting or explanatory evidence.

• As to the various other matters urged by counsel for plaintiff in error as ground for reversal, we deem it sufficient to say that we find no errors in the record justifying the setting aside of the evidence of the trial court and the reversal of the sentence. The judgments of the mayor and the common pleas court are affirmed.


text:
    CONSTRUCTION OF THE WILL OF BURDSALL.
    Circuit Court of Hamilton County.
    F. M. Burdsall v. George M. Burdsall et al.
    Decided, April 6, 1912.

      Wills — Determination as to the Time to which the Words “Now Deceased" Refers. '

    The words “are deceased” as used in the item of the will of Moses Burdsall, reading “If my wife should marry or at her natural death, I devise and bequeath my property to be equally divided among my children, except those children who are deceased,” limit the devise to children living at the time of the death of the widow.

      Chas. S: Burdsall and Scott Bonham, for plaintiff in error.

      David Davis and Wm. M. Tugman, contra.

      Jones, J.; Smith, P. J., and Swing, J., concur.
   Moses Burdsall died in the year 1858 leaving a widow and seven children. He had been married four times and was the father of eighteen children. Some of the children by former wives were dead at the time of his death and others survived him. It appears, too, that some of his deceased children left issue surviving them.

•He died testate and we are called upon to construe the following paragraph from his will:

‘ ‘ Item 3d. If my wife should marry or at her natural death, I devise and bequeath my property to be equally divided among my children, except those children who are deceased.”

..The widow did not remarry and died in 1908, fifty years after the death of testator. Her seven children survived her, all his children by former wives having died in the meantime.

The- controversy arises over the meaning of the excepting-clause in said item three — whether the verb “are deceased” relates to the time of his death or to the time of her death. It is argued that “are deceased” being in the present tense relates , to the time of his death and that all the children then living and their descendants will take per stirpes; and, that if it was intended to have a future signification the future tense of the verb would have been used.

We think this view erroneous. The action or operation of the devise is placed in the future, namely: “ at her death. ’ ’ To say “at her death I devise my property to my children,"except such children as are deceased,” is equivalent to saying as are deceased at that time.

Again, if it was the intention to make the devise to the children living at the time the will was made, why the exception of deceased .children? .

Such intention would be clear without the exception. The living children only could be beneficiaries.

It must be presumed that the testator meant something by the exception. If it were his intention to give the property to the children living at the time the will was-written, the exception is useless.

Without the exception all children or their issue would be devisees under that item of the will.

The- only way force and effect can be given to the- excepting clause is to limit the devise to the children who survived the widow, and this, we think, is the correct construction.


text:
    CALCULATION OF INTEREST ON AN OVERDUE NOTE.
    Circuit Court of Columbiana County.
    Sarah E. Ingram v. Frank H. Scattergood.
    Decided, March Term, 1912.

      Interest — Construction of the Words "Payable Annually” — Installments of Unpaid Interest on cm Overdue Note Do Not Draw Interest, When — Sections 8303, 8304 and 8305.
    A stipulation. in a promissory note for- the payment of interest annually extends only to the maturity of the note, and after that time interest must be computed at the rate stipulated without annual rests. ’

      E. L. Cobourn, for pláintiff.

      Metzger ■& Smith, contra.
    Norris, J.; Pollock, J:, and Metcalfe, J., concur.
   The defendant claims credit for three promissory notes all drawing interest “payable annually” or “to be paid annually,” all having run several years after their maturity. The question is, did installments of: interest become due after the maturity of these notes so as to draw interest, or in other words, should the interest on these notes after maturity be computed with annual rests ?

So far as we have been -able to find this question has never been directly determined by the Supreme Court of this, state. There is no stipulation in these notes in relation to interest after they became due. The defendant is therefore entitled to interest after that time by operation of law, and not by any provision in the notes themselves. Brewster v. Wakefield, 22 How. (U. S.), 118-127; In re Bartenbach, 2 Fed., 956; 2 Amer. T. Rep. (N. S.), 33.

The law of Ohio in relation to interest is found in the following three, sections:

“Sec. 8303. The parties to a bond, bill, promissory note, or other instrument of writing for the forbearance or payment of money at any future time, may stipulate therein for the payment of interest upon the amount thereof at any rate not exceeding eight per cent, per annum, payable annually.
“Sec. 8304. Upon all judgments, decrees, or orders, rendered on any bond, bill, note or other instrument of writing containing stipulations for the payment of interest in accordance with the provisions of the next preceding section, interest shall be computed till the payment at the rate specified in such instrument.
■ “Sec. 8305. In cases other than those provided for in the next two preceding sections, when money becomes due and payable upon any bond, bill, note * * * the creditor shall be entitled to interest at the rate of six per cent, per annum and no more.”

In Cook v. Courtwright, 40 O. S., 248, the Supreme Court seem unable to give any effect to the words “payable annually,” found at the close of Section 8303, and seem to hold that no effect can be given to these words, and in Ohio College of Dental Surgery v. Rosenthal, 45 O. S., 183-191, the Supreme Court say:

“It is well settled that our statutes relating to interest were intended to fix the rate and not the time of payment.”

And in Averill Coal & Oil Co. v. Verner, 22 O. S., 372-381, the Supreme Court holds that computing interest with annual rests without express contracts therefor is not sanctioned by the laws of this state, although it may be the “.mercantile method.”

Do the sections of the code above referred to provide for the computation of interest on these notes after maturity with annual rests? We think clearly not. Section 8304 provided that upon judgments and decrees, etc., rendered on any bond, note * * * interest shall be computed till payment at the rate specified in such instrument. Not expressly providing that -the rate on such bond or note shall be the same after maturity of the note as béfore. ■

But our Supreme Court in Marietta Iron Works v. Lottimer, 25 O. S., 621-626, holds that inasmuch as the statute provided that upon all judgments on such notes interest should be computed till payment at the rate specified in the note, the inference is irresistable that the notes after maturity and before judgment must bear this stipulated rate; thus so construing the statute as to uphold that notes shall bear the stipulated rate of interest after maturity.

Such rate is not usurious, but by virtue of the same provision of the statute the Supreme 'Court in this same case hold that while the judgment'would bear the rate of interest stipulated in the contract, the interest could not be made payable quarterly until paid, although such payments were also stipulated in the contract, holding that the judgment only drew interest by operation of law, and that in the absence of statutory provisions on the subject the interest on the judgment could not be computed with quarterly rests.

The holding in this case would seem by its reasoning to be conclusive of the question before us, there being no statutory provisions for computing interest on notes after their maturity with annual rests.

The ease of Hunter v. Hall, 14 C. C., 425-432 ( 6 O. C. D., 366), gives this construction of the statutes. "We find no conflict on the authorities on this question. The general principlis laid down in the 22 Cyc., 1483-1510, and some authórities are cited although-they are not numerous. One of the leading eases is Wheaton v. Pike, 9 R. I., 132, the syllabus of which is as follows:

“Where a promissory note is made payable at a time given after date, with interest payable semi-annually, interest may be computed in making up'the judgment on all installments of interest overdue and remaining unpaid; but no installments of semi-annual interest will be considered as due after the maturity of the note, because after that, both the accruing interest and the principal are due, not on any particular day but every day till they are paid.” '

And in Magnester v. DeHavens, 52 S. W., 795, by the Supreme Court of Kentucky, 1899, the syllabus is as follows:

“•A" stipulation in a note for payment of interest semi-annually extends only to the maturity of the note and after that interest must be computed in the ordinary way.”

To the same effect is Havey v. Edmison, 22 N. W., 594. In this ease the Supreme Court of Dakota review many authorities on questions of computing'interest.

In re Bartenbach, supra, Judge Longyear, of the United States District Court of Michigan holds the same rule under the Michigan statute, which he quoted and which is quite similar to the Ohio statute so far as this question is. concerned. In his opinion he says: •

‘' The interest up to the .maturity of the debt had been paid and the only interest in question here is such .as had accrued after that time by operation of law and not by any provision of the contract. It was therefore not due by installments but it was due at any and all times as it accrued.”

Hall v. Scott, 13 S. W., 249, decided by the Supreme Court of Kentucky in 1890, confirms the same, rule as to-computing interest.

The Supreme Court of New Hampshire in the case of The Ashuelon B. Co. v. Elliot, 57 N. H., 397, holds that same interest after maturity and recoverable by way of damages for the .detention of money should be computed without semi-annual or other .rests. The Supreme Court of South Carolina in Wilson v. Kelly, 19 S. C., 160, and Wakefield v. Wakefield, 19 S. C., 85, holds the law to the same effect as applicable to the notes in suit.

We have not been able to find any authorities holding a different rule. We are therefore constrained to hold that defendant is entitled to have the interest on these notes computed after .maturity at the rate specified therein without. annual rests.

..The defendant further claims credit for pasture- and house ■rent. We are not able to say from the testimony that he is en-.titléd to credit for these items.


author: Kinkade, J.

text:
    INVALIDITY OF ACT REINSTATING DISBARRED ATTORNEY.
    Circuit Court of Lucas County.
    State, ex rel, Charles A. Thatcher, v. Bernard F. Brough et al.
    Decided, June 15, 1912.

      Disbarment — Act Reinstating Disbarred Attorney Unconstitutional— Order of Disbarment by Supreme Court under Asserted Powers Operative in all Courts — Prejudice of Judges in Entering Order of Disbarment Not Presumed, When — Mandamus.
    1. The act (102 O. L., 84), reinstating a disbarred attorney is unconstitutional in that (1) it is a usurpation of judicial power, and (2) it is special legislation in a matter of a general nature as to which uniform operation is required. ■
    2. An order of disbarment of an attorney at law, made by the Supreme Court under its asserted powers, rather than by virtue of statutory powers conferred, applies to all courts of the state, the intention that it shall so operate being indicated by the provision that the name of the defendant attorney be “s'tricken from the roll of attorneys of the state,” and there is but .one such roll.
    3. Prejudice, disqualifying judges of the Supreme Court to hear and determine disbarment proceedings, will not be assumed from the facts that the disbarred attorney had previously .published circulars attacking other candidates for judicial office and also reflecting upon members of the Supreme Court as candidates for reelection, since no pecuniary or other interest in the proceeding is shown.
    Mandamus; action brought by Charles A. Thatcher, relator, against Bernard F. Brough, John P. Mantón, Charles E. Chittenden and Curtis T. Johnson, ^Judges of the Court of Common Pleas of Lucas County.

      Charles A. Thatcher and G. B. Keppel, for relator.
    Respondents in person.
    Wildman, J.; Kinkead, J., and Richards, J., concur.
   This is a proceeding for mandamus under the statute, and one of such importance to the courts, the bar and the people of the state as to have enlisted our most earnest attention. The case involves the right of the relator as an attorney, at law to practice in the courts of this state.

The claims of Mr. Thatcher to recognition as such attorney have been made the subject of wide discussion by the press of the state, and of special legislation by the General Assembly. The matter involves not only his personal interests, but the rights and interests of litigants in courts, and proper definitions of the powers and jurisdictions of the judicial and legislative branches of our state government.

The prominent facts constituting the history of bis case in both these branches have become, by wide publication and discussion, familiar history, and, except in outline, need not be repeated. They are briefly, his original admission to the bar some years ago by the Supreme Court of Ohio, his disbarment for alleged immoral conduct by judgment of the same court, June 25, 1909, In re Thatcher, 80 Ohio St., 492; the refusal December 20, 1910, to reinstate him, In re Thatcher, 83 Ohio St., 246; his disbarment by a federal court on the same and additional grounds, In re Thatcher, 190 Fed. Rep., 969; the special act of the General Assembly of April 18, 1911 (102 O. L., 104), for his readmission to the bar; his attempt to practice in the Court of Common Pleas- of Lucas County and the refusal of that court to permit him so to do, In re Thatcher, 12 N.P.(N.S.), 273; holding the special act of the Legislature to be a usurpation of judicial power and for that reason invalid.

The present proceeding before us seeks a peremptory writ of mandamus, compelling the common pleas court to permit him to practice therein. He asserts a right based on his original admission to the bar, the claimed invalidity of the Supreme Court’s judgments for lack of jurisdiction and disqualification of two of its members, and, if these claims prove untenable, the special act of the Legislature for his readmission.

These claims invite no inquiry into the merits of the charges on which the Supreme Court acted and we will attempt none; but to remove, so far as we may, any possible false impression as to the grounds of the-Supreme Court’s action, quotations from the syllabus of its original opinion, In re Thatcher, supra, and from that rendered on the motion for reinstatement, In re Thatcher, supra, may not be inappropriate here. Neither the general public, the legislative body, nor any judicial tribunal can intelligently review the findings of fact of that court without a consideration of all the evidence on which it acted.

Paragraphs 3, 4 and 6 of the syllabus in the original case and paragraph 3 of that on the motion to reinstate are as follows :

“An elector who is an attorney has the right to criticise the judgments and conduct of judges in a decent and respectful manner; but no man has a right to degrade and intimidate a public officer and bring his office into contempt by the publication of libelous matter at any time, and the fact that such officer is a candidate for re-election will not excuse such conduct. One who claims the protection of the Constitution, Article I, Section 11, must also and at all times be held responsible for ■abuse of the privilege.
“The real question in cases of this hind is whether under the' facts admitted and proved the respondent appears to be a fit, person to be longer allowed the privilege of an attorney; whether he h&s shown himself, by lack of appreciation of ethical standards and by unworthy conduct, to be no longer worthy of being recognized as an officer of the courts.
“While the power of disbarment should be exercised with great caution, yet where the respondent has been found guilty of unprofessional conduct involving moral turpitude and of misconduct affecting his character and standing as an attorney, and especially where he has manifested no signs of regret and retracted nothing, the courts will not hesitate, through sympathy for the individual, to protect themselves from scandal and contempt and the public from prejudice, by striking such person from the roll of attorneys.
“This court has found the respondent guilty of a specification which in substance was that, for the purpose of procuring for himself a large sum of money, disproportionate to legitimate fees for services as an attorney, he caused suit to' be brought on notes which had been paid and which he knew had been paid; and procured a reputable attorney who did not know that said notes had been satisfied to bring the action thereon and verify the petition, and such finding by the court establishes the charge that he was guilty of unprofessional conduct involving moral turpitude.”

There is no rule better established than that the remedy of mandamus will be afforded only where the right to it is clear. It was embodied in the first paragraph of the syllabus of State v. Yeatman, 22 Ohio St., 546, as follows:

“A mandamus will not be awarded in the absence of a clear right, in the party seeking the writ, to the object sought to be obtained by it. ”

. See, also, General Code, 12283, 12285, 12288.

Has the relator in the present proceeding shown such clear right to the remedy which he prays?

The situation produced by the claim of relator that the judgment of disbarment pronounced by the Supreme Court is of no validity, is, when addressed to a court of subordinate power, a very peculiar one. While it may be true that if the court of last resort acted beyond its jurisdiction, or'if for any other' reason its judgment lacks validity, a lower court in a collateral proceeding may disregard it; still, the problem presented to us is a perplexing one. . The relator’s claim in this respect is a double one: First, that the constitutional jurisdiction of the Supreme Court does not embrace proceedings to disbar attorneys, and second, that two of the judges of that court who sat in the case, and one of whom pronounced the opinion adverse to the relator upon the motion for his reinstatement as attorney, were disqualified from sitting.

As to the first óf these two contentions, we are relieved from the difficulty by the conclusion which, after a reading of the authorities cited, we have unanimously reached, that the jurisdiction of the Supreme Court, under the powers derived by it-through the Constitution and by common law, was entirely adequate to justify the procedure. In this connection attention is invited to the adjudications' cited in the opinions of the three judges of the court of common pleas who concurred in reaching a conclusion that-the relator was not entitled to practice in their court.

The othér claim, that the judgment of disbarment is invalid because two of the judges were disqualified, is, we think, untenable. The claim is not that either of the two judges mentioned had any pecuniary or other direct interest in the proceeding, but only that certain conduct of relator under consideration as a ground for disbarment, to-wit, the publication of an alleged libelous circular. or circulars attacking other persons, also reflected upon the two judges of the Supreme Court, and that they may have been thereby prejudiced against him. We can not assume that by such an attack, they were so biased or prejudiced against the relator as to affect their judgments, and even if such bias did appear, we have been presented with no authorities indicating that in the absence 'of a challenge to the right of such judges to sit, they would be disqualified.

Another question incident to this disbarment proceeding is one of greater difficulty and one which has not elicited a united opinion from the common pleas judges. I refer to that as to the scope of the judgment of disbarment.' It is contended by rer lator and held by Judge Johnson, one of the common pleas judges, In re Thatcher, 12 N.P.(N.S.), 273, that the jurisdiction of the Supreme Court to disbar did not extend so far as to affect the right of relator to practice in the court of common pleas. The argument is that if the Supreme Court derived no jurisdictional power from the General Assembly by virtue of Revised Statutes, 563 (General Code, 1707) but acted by virtue of its constitutional power, independent of the Legislature, that power was one possessed independently by every court for its own protection and suitors invoking its jurisdiction; that if the Supreme Court could determine who should and who should not practice before it, the court of common pleas had like power within its own jurisdiction.

We have examined with care such adjudications as we have found touching this question, and are convinced that the three common pleas judges, Mantón, Brough and Chittenden, adopting the other view, were correct. Among these authorities are several referred to approvingly by the Supreme Court in the disbarment case. The ones so cited are:

In re Breen, 30 Nev., 164, a proceeding to disbar an attorney in which the Supreme Court of that state, while asserting its right to disbar, independent of statute, expressly ordered that the name of the attorney disbarred by its decree should be struck from the roll of attorneys and that he should be disbarred from “thereafter appearing or practicing in any of the courts” of that state.

In re Simpson, 9 N. Dak., 379; Nelson v. Commonwealth, 128 Ky., 779; Brooks v. Fleming, 65 Tenn., 331, 338; In re Robinson, 48 Wash., 153.

In all these cases the orders of suspension or disbarment, though based, as in the Ohio case, on asserted powers not statutory, were made or held to apply to all the courts of the states where such judgments were rendered..

That our own Supreme Court intended to disbar relator from practicing in the lower courts of the state, we think is clearly indicated in the language of the opinion, and in that of the journal entry ordering that his name be “stricken from the roll of attorneys in the state.” There is but one such roll, and under the procedure as regulated by statute an attorney admitted to practice by the Supreme Court, is, by virtue of that admission and without further order by the lower courts, entitled to practice therein. In the disbarment case, In re Thatcher, 80 Ohio St., 492, the Supreme Court not only in the first paragraph of the syllabus, but on page 655 of the opinion, clearly connects the right to disbar with the right to admit, evidently deeming the effect of the exercise of one power as broad as the other.

Having arrived at this conclusion with reference to the jurisdiction of the Supreme Court and the power and scope of its judgment, we reach the interesting and important question as to whether or not the disability of relator to practice in the courts of the state has been removed by the attempted legislation in Ms favor, the act of 1911.

The judges of the common pleas court, with the exception of' Judge Johnson, united in their holding that the special act attempting to admit relator to practice in the courts of the state was invalid. The judgment of the court of common pleas, as shown by the opinion of the three judges, was based on their view, supported by numerous citations of authorities, that the power to admit attorneys to practice in the courts is exclusively a judicial power and not legislative. I will not attempt to review these opinions or the authorities cited. We have read them and many other cases bearing on the subject and are satisfied that the great weight of authority sustains the conclusion at which the three judges arrived. Before leaving this branch of our inquiry, it should be stated that the language in the opinion rendered in the disbarment ease clearly indicates the view, we think, that a statute such as the one relied upon by Mr. Thatcher for his reinstatement to the bar, would be deemed and held an encroachment upon the judicial power 'belonging exclusively to the courts. See especially pages 654 and 655 of the opinion.

It may be said also before leaving this question of legislative as distinct from judicial power, that the special act in question is, so far as the search of counsel or that instituted by ourselves has discovered, the first attempt by any legislative body in this or any other state to admit an individual directly to the practice of law in the courts. Some requirements of eligibility to admission have been enacted, but for more than a century the final admission has been left in Ohio as in other states to the courts themselves.

Upon a ground additional to that adopted by the three common pleas judges in support of their holding that the special act is invalid, we have arrived pt the same result. The statute is clearly, in our judgment, an attempt to restrict the uniform operation of legislation of a general nature, and it thereby violates Article II, Section 26, of the Constitution.

For many years prior to 1851, when our present Constitution was adopted, in the compilations of statutes in Ohio, acts relating to the admission and disbarment of attorneys were published in the volumes'of session laws under the title “Acts of a General Nature.” That the framers'of the Constitution were familiar with this arrangement and phrase, is apparent from their use of the same words in the section referred to. All such acts they intended to have a uniform ■ operation. That these facts furnished one just rule of constitutional interpretation is expressly held by the Supreme Court in State v. Bargus, 53 Ohio St., 94, 107.

If, in the general act as to judicial proceedings for disbarment, it had been provided that all attorneys in the state, except Mr. Thatcher, should be subject to its provisions, its unconstitutionality would hardly be questioned, and it would seem no more within the legislative power to except relator by a special act from the operation of a general one. Whatever the form of legislation it should not violate the manifest spirit and purpose of the constitutional inhibition.

That acts of a general nature must operate uniformly is a rule applicable to classes of persons as well as to territorial subdivisions of the state. As stated in the opinion of Judge Spear, in Senior v. Ratterman, 44 Ohio St., 678:

"The principle of uniform operation requires simply that the law shall bear equally in its burdens upon the persons- standing in the same category. * * * It must have a uniform operation upon all those included within the class upon which it purports to operate.”

Numerous authorities in support of this proposition might be cited. The rule is in harmony with the prohibition in the federal constitution forbidding states "to deny any person within their jurisdiction the equal protection of the laws,” and our Ohio Bill of Rights prohibits the granting of privileges to one which are denied to others of the same class, and the imposition of restrictions or burdens upon certain citizens from which others of the same class are exempt. See State v. Gardner., 58 Ohio St., 610.

It is urged by relator that the enactment in question was based, as it recites, upon an existing "emergency” and that by reason of this fact it was taken out of the constitutional prohibition. While the force of this claim is not distinctly rebutted by an express holding of the Supreme Court, it is forcibly said in Platt v. Craig, 66 Ohio St., 79, that "the local and temporary emergency -must be a real exigency, and not a mere pretext for special legislation, ’ ’ and it is forcibly urged by Judge Burkett in State v. Spellmire, 67 Ohio St., 90, that “there is no provision for violating the Constitution in an emergency.”

The history of the adjudications and legislation relating to Mr. Thatcher’s status has become so familiar that we feel at liberty to infer that the “emergency” mentioned in the statute signified merely his disability from practicing as an attorney by reason of the judgment of disbarment. The act, besides reciting facts as to his .legal eligibly to practice, says also that Thatcher “is of a good moral character.” It is urged by relatir that this recital is not inconsistent with the finding of the Supreme Court that he was of such character at the time of the disbarment as to render him unfit to be a member of the bar, and that the statute is neither inconsistent with the judgment of disbarment nor an attempt to evade or reverse it. He urges that if the finding of the court was justified, there was time between the date of the judgment and that of the passage of the act, for reformation; but in the case of In re King, 54 Ohio St., 415, it was held that a court rendering judgment of disbarment retains jurisdiction with power to reinstate the disbarred attorney “on a proper showing of reformation, or for other satisfactory reasons, arising after the disbarment. ’ ’ The opinion of the ease cited is by the full court, which in addition to what has already been stated, holds:

“When a member of the bar of the state has been, upon proper proceedings, disbarred, and the judgment remains in full force and unreversed, the only remedy of the party is, at the proper time and on a proper showing, to apply to the court in which he was disbarred to be reinstated.”

. Can it be said that the jurisdiction of the Supreme Court can be arrested in Mr. Thatcher’s case, and that the recitals of the special act are to be taken .as evidence or proof of the existence of the facts stated? That they can have no such effect is asserted in substance by Cooley, Const. Lim. (6th Ed.), pp. 113, 115.

In effect, this attempted legislation is in our judgment, a's already indicated, an attempt to reverse an adjudication of the ■Supreme Court of the state rendered in the exercise of its independent power.- . . . .:

“The power to open or vacate judgments is essentially judicial. Therefore, on the great constitutional principle of the separation of the powers and functions of the three departments of government, it can not be exercised by the Legislature.” 1 Black, Judgments, Section 298.

I quote also to the same purport the language of the opinion in Bartlett v. State, 73 Ohio St., 58:

“It is well settled that the Legislature can not annul, reverse or modify a judgment of a court already rendered, nor require the courts to treat as valid laws those which are unconstitutional. If this could be permitted the whole power of the government would at once become absorbed and taken into itself by the Legislature.”

In these days of sharp criticism of courts for assumed interference with the legislative province, we can not too often remind ourselves of the principles defining the respective functions and powers of the co-ordinate branches of the government. Many well meaning but not always well informed critics have, of late, questioned the power of courts to pass upon the constitutionality of legislative enactments. It is altogether probable that some judges have too readily declared statutes to be invalid because of a vague belief that they were hostile to the general spirit of the Constitution; but while every court appreciating both the scope and limitations of its own duties and powers will approach with reluctance and caution any question as to the validity of an act of a legislative body, no judge can, when an issue is fairly presented properly refuse to hold invalid a statute which clearly violates the fundamental law ordained by the people. So to refuse and to uphold the statute would be to hold that the Legislature is mightier than the people, and the statute enacted by the Legislature more potent than the written Constitution.

In this connection and in closing, the words of Chief Justice Marshall, of the United States Supreme Court, in Marbury v. Madison, 5 U. S. (1 Cranch.), 137, written many years ago, as we were entering on our new experiment of a republic with a written constitution, may not unfitly be quoted:

“Tbe powers of the Legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the Legislature shall please to alter it. If the former part of the alternative be true; then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as following the fundamental and paramount law of the nation, and, consequently, the theory of every-such government must be, that an act of the Legislature, repugnant to the Constitution, is void. This theory is essentially attached to a written Constitution, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.
“If an act of the Legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law ? This would be to overthrow -in fact what was established in theory; and would seem, at first view, an .absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular eases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on thé operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding.the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution; and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be construed, in. court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes, on the Constitution, and see only the law.
“This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is.in reality effectual. It would be giving to the Legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written Constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction.”

Our unanimous conclusion, based, we believe, on both wise and just principles and the weight of judicial authority, requires us to refuse the relator the writ which he asks. If he has just grounds for reinstatement to the bar, he should present them to the court which struck his name from the roll, the court of last resort in the state. We can not assume that that court will not do him justice.

Kinkade, J.

I concur in the conclusions reached that the judgment of the Supreme Court bars Mr. Thatcher from practicing in all the state courts of Ohio and that the act of the Legislature of April 18, 1911, is unconstitutional for the reason that it is the exercise of judicial power which is, by the Constitution, vested in the courts and not in the Legislature and for the further reason that it is special legislation of a character prohibited by the Constitution. The writ of mandamus applied for heré should not. be issued.


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    VERDICT INVALIDATED BY IRRELEVANT TESTIMONY.
    Circuit Court of Hamilton County.
    Charles E. Roth v. Agnes Bien, Administratrix of Nicholas Bien, Deceased.
    Decided, May 4, 1912.

      Evidence — Irrelevant and Prejudicial where Relating to Decedent’s Relations'to his Children — Death from being Strucle by an Automobile ■ ■ —Error..

    In an action for wrongful death testimony that the decedent was . greatly attached to his children is irrelevant, and in the case under consideration must have been brought out for the purpose of influencing the amount of damages the said children should receive as beneficiaries, and the court being unable to say that ' this purpose was not accomplished, it must be assumed that 'prejudicial error resulted. • >' '

      D. F. Gash, for plaintiff in error.

      Kramer & Bettman, contra.
    The decedent was killed by an automobile belonging to Mr. Roth, which struck him as he was crossing the street at Eighth and Walnut, Cincinnati.. Judgment was recovered below by the administratrix for $9,000.
    Jones; J.; Smith, P. J., and Swing, J., concur.
   On pages 18 and 14 of the bill of exceptions will be found the following:

“Q. Mrs. Bien, will you state what his disposition towards the children was? A. Why, he was always with them; he was always with them; he thought so much of them; he would call them around him in the evening, of sometimes in the afternoon, and want to tell them something that was going on, with-the little ones, the small ones. . "
“Q. Now, I don’t know that I understood that; speak louder. A. He thought so much of them he would always call them to him in the evening, or Sunday afternoons, that was his pleasure, to call them up to him, the smaller ones, to tell them something.
“ (Counsel for defendant moved that the answer be ruled out. Motion overruled; to which defendant, by his counsel then and there excepted.)”

These questions and answers were irrelevant and could not possibly throw .any light upon the issues in the case. The authorities cited in the brief of defendant in error do not sustain the contention made as to the admissibility of such evidence.

It appears that counsel for plaintiff below insisted upon the questions be'ing answered against objection and requested a “louder” repetition of the answer.

His purpose manifestly was to have the jury consider the evidence thus given as affecting the amount of damages suffered by the beneficiaries.

We can'not say that the desired effect was not accomplished, and, hence, are justified, we think, in holding that the error was prejudicial. We find no other error.

Judgment reversed and cause remanded to court of common pleas.


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    ACTION FOR LIBEL GROWING OUT OF DISBARMENT PROCEEDINGS.
    Circuit Court of Cuyahoga County.
    Herman Preusser v. F. V. Faulhaber.

    Decided, June 18, 1909.

      Disbarment — Statutory Order of Procedure — Pleading in an Action Growing Out of Such Proceedings — Publication of the Libel.

    1. The statutory order of procedure in disbarment proceedings is (1) ' knowledge coming to the judge of the probable guilt of an attorney; (2) the causing by the judge of proceedings to be instituted against the attorney by the appointment of a person or persons to file and prosecute charges; (3) the filing of written charges.

      2. Where in an action for libel the charges bear internal evidence of having been filed in a disbarment proceeding, and it is not alleged that such proceeding was a mere cloak maliciously employed to make the publication a privileged one, the alleged libel is not actiondble.
    3. While the more delicate method of bringing charges against an attorney to the attention of a judge, preliminary to a proceeding for disbarment, is to seal the charges before depositing them with the clerk, failure to seal such charges does not render the party filing them liable for damages in publishing said charges to the clerk.

      Kerman Preusser, for plaintiff in error.

      M. P. Mooney, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.
    Error to tbe court of common pleas.

       Affirmed without opinion, Preusser v. Faulhaber, 82 Ohio State, 466.

   The parties stand related here as they stood below. There the plaintiff in error brought action for an alleged libel contained in certain written charges against him as an attorney at law filed in the office of the clerk of thé court of common pleas by the defendant in error. The charges so filed were acted upon by that court and sustained; but, upon review in this court, we held that though by Revised Statutes 563, ‘ ‘ judges of such courts are required to 'cause proceedings to be instituted against any attorney at law, when it in any manner comes to the knowledge of any judge in whose court such attorney practices, that such attorney is probably guilty of any of the causes of suspension or removal,” and “before any attorney is suspended or removed, written charges must be filed against him,” the statutory order of procedure had not been followed. That order is in brief, so far as it is pertinent to the present cause:

■ ■ 1. Knowledge coming to ■ a judge of the probable guilt of an attorney.

2. Proceedings caused by the judge to be instituted against the attorney by the appointment of a person or persons to file and prosecute charges.

3. The filing of written charges, etc.

Manifestly, therefore, the charges filed by Faulhaber against Preusser did not of themselves amount to the institution of a 'disbarment' proceeding. A judge of tbe court in tbe office of whose clerk the charges were filed might, in his discretion, have treated them as bringing to his knowledge the probable guilt of the accused; whereupon it would have become his duty to cause proceedings to be instituted. But he could not proceed to try charges which were filed without previous authority from him.

•• . After we so held the disbarment proceedings to have been irregular and the judgment of suspension from practice therein pronounced by the court below to have been without jurisdiction, a libel suit was begun by Preusser, in which he merely alleged that the said libelous charges against him were published by Faulhaber, and omitted to mention the circumstances above-set forth. When that case came before us, we held that the charges quoted bore internal evidence of having been filed in a disbarment proceeding; and. without any averment that such proceeding was a mere cloak maliciously employed to make the publication a privileged one, the alleged libel was not actionable.

Thereupon Preusser began a second action for libel,.based upon the same charges; although the record here does not disclose that any prior action for said libel was ever commenced or decided. In this new action, he discloses all the circumstances, and adds other averments which he relies on to escape the application of the principles announced in the former case. He relies' máinly upon the fact that the so-called charges were filed not with any judge, but in the office of the clerk of the court of common pleas, the publication counted and relied on, being to a' certain deputy clerk.

"We do not Concur in the distinction thus attempted to be made. In our view, the proper way to bring charges in such cases” to the attention of a judge is by putting them in writing and depositing them with the clerk of the court for such action thereon as the'judge must take, in case'he finds the accused attorney “probably guilty.” It might be more delicate if the accusation so deposited with the clerk were left sealed for delivery to the judge or judges, as' in the case of Wilson v. Whitacre, 4 C. C., 15; but it is neither necessary nor desirable that such charges should'be'whispered orally into the ear of a judge who is called to act judicially upon them.


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    INVALID DELIVERY OF DEEDS.
    Circuit Court of Tuscarawas County.
    Frank Gross vs. Annie List et al.
    Decided, June 21, 1912.

      Delivery — Of Deeds in Escrow — Wife of Grantor Incompetent to Act as Escroto, When — Dominion Over Deeds Not Parted With, Where Grantor Continues to Save Access Thereto — Partition.
    1. Where an owner of lands executes deeds therefor to certain of his ctuldiren, subject to a life estate in his wife, and delivers said deeds to his. Wife in escrow, to be placed by her in the possession of the grantees after his death, the. interest of the wife therein and her connection with the grantees renders her incapable of acting as escrow, and the deeds are without effect for failure upon the part of the grantor to make delivery.
    2. Moreover, the handing by a husband to his wife of certain deeds for safe keeping, to be delivered after his death to the grantees named therein, does not operate to convey an unreserved, irrevokable and absolute title, where it appears that the wife placed said deeds in a tin box without separation from the other papers contained therein, and said box was kept in a bureau drawer to which the grantor h-ad access, and tnat he thereafter frequently called for said box and examined the papers contained therein and made such use of t.hem as his business interests required.

      P. S. Olmstead, J. F. Stephenson and Henry Bowers, for plaintiff and defendants Anne List and Fannie V. Gross.

      W. B. Stevens and W. 1. Kinsey, for defendants Mary Stevens, Anne Slade, Fannie Sperling and John H. Gross.
    Shields, J.; Voorhees, J., and Powell, J., eonenr.
   This action is before this court on appeal from the judgment of the court of common pleas of this county, and in a petition filed in the ordinary form the plaintiff alleges therein that he is the owner in fee of the undivided one-fifth part of certain real estate described therein, in said county, containing one hundred and twenty acres. That said real estate descended from his father, Benedict Gross, now deceased; that the defendants Annie List, Fannie V. Gross and John H. Gross, children and heirs at law of the said Benedict Gross, deceased, are also seized of the undivided one-fifth part of said .premises, and that the defendants Mary Stevens, Anne Slade and Fannie Sperling, grand children of the said Benedict Gross, deceased, are each seized of the undivided one-fifteenth part of said real estate, and partition of said real estate is prayed for.

To this petition various pleadings are filed by the defendants, among which is a separate answer and cross-petition of Mary Stevens, in which she alleges, for answer, that as alleged in said petition, she is the owner in fee simple of the undivided one-fifteenth part of the real estate described therein, and asks that partition of said land may be had and that her interest therein be set off in severalty.

For cross-petition she says that she has a legal estate in fee simple in and is entitled to the immediate possession of the undivided one-fifteenth part of certain other lands and tenements-therein described in addition to those described in said petition, which also came to her by descent from the said Benedict Gross, deceased, aggregating about five hundred and fifty acres of land, situated in the county of Tuscarawas and State of Ohio.

She further says that the defendants Annie List, John H. Gross and Fannie V. Gross, and the plaintiff, Frank Gross, unlawfully keep her out of possession thereof, and have so done since February 4,1909, the date of the death of the said Benedict Gross.

She further says that the said defendants Annie List, John H. Gross and Fannie V. Gross, and the plaintiff, Frank Gross, are each the legal owners of and are entitled to the possession of the undivided one-fifth part of said premises as tenants in common with her; that the defendants Fannie Sperling and Anne Slade are each the legal owners of and are entitled to the possession of the undivided one-fifteenth part of said premises as tenants in common with her; that on the last named date the defendants Annie List, John H. Gross and Fannie Y. Gross, and the plaintiff, Frank Gross, fraudulently obtained certain pretended deeds from the said Benedict Gross to themselves for separate portions of said premises, aggregating the whole thereof, and unlawfully took, and have ever since unlawfully held, kept posse ■ sion of and claimed to own all of said premises, adversely to her, whose title and right therein they have denied and still deny; that since the above mentioned date the defendants Annie List, John H. Gross and Fannie V. Gross, and the plaintiff, Frank Gross, have had the sole nse and occupation of all of the above described real estate, and have taken and received the rents, issues and profits thereof, which were.and are of great value, to-wit, the sum of two thousand dollars per annum; that she desires to hold her said interests therein in severalty, and to recover from the defendants Annie List, John H. Gross and Fannie Y. Gross, and the plaintiff, Frank Gross, her proportion of the value of said rents, issues and profits thereof.

She therefore asks that said pretended deeds be set aside and held for naught, and that she may recover possession of the undivided one-fifteenth part of said premises so held by said named parties and her proportion of the value of said rents, issues and profits, and to ascertain which she prays for- an accounting thereof against them for the amount that may be due to her, that partition may be made of said premises, and for such o^her relief in equity as she may be entitled to.

■ Like separate answers and cross-petitions are also filed by the defendants Anne Slade and Fannie Sperling setting up the same facts therein and praying for the same relief as prayed for in the cross-petition of the defendant Mary Stevens.

To the- separate answers and cross-petitions of the defendants Mary Stevens, Anne Slade and Fannie Sperling, what is denominated a reply is filed by the plaintiff, Frank Gross, and Fannie Y. Gross and Annie List, jointly, in which they deny each and every allegation in the said several answers and cross-petitions contained except such as are mere repetitions of allegations of the said petition. ^

And further replying they say that on or about the 19th day of February, 1897, the said Benedict Gross by his deed of conveyance of that date, for a good and valuable consideration, conveyed a tract of land containing 218.5 acres mentioned, in said cross-petitions, to the said Fannie Y. Gross and to the heirs of her body, subject to a life estate therein in Malinda Gross, the wife of said Benedict Gross,

That on the 22d day of April, 1905, the said Benedict Gross by his deed of that date, for a good and valuable consideration, conveyed to the said Annie List and the heirs of her body 64.27 acres in lot thirty, 27 acres in lot twenty-nine, and 47 acres in lot twelve, mentioned in said cross-petitions, subject to the life estate of the said Malinda Gross therein.

That on the same date the said Benedict Gross, by his deed of that date, for a good and valuable consideration, conveyed the one hundred acre tract and the thirty-five acre tract mentioned in said cross-petitions to the said Frank Gross and to the heirs of his body, subject to the life estate of the said Malinda Gross therein.

That on the day of the execution of the said several deeds as aforesaid the said Benedict Gross delivered the same in escrow to the said Malinda Gross, with directions and instructions, to take, hold and keep the same, until the death of the said Benedict Gross, and at his death to deliver said deeds to the several grantees named therein.

That said Malinda Gross did so hold and keep the same, and at the death of the said Benedict Gross, the said Malinda Gross did deliver the same to the plaintiff,' and to the said Annie List and Fannie V. Gross, as directed, and the same were thereafter duly left for record with the recorder of said county and recorded in the record of deeds of said county. That Benedict Gross did not die seized of any of the real estate in said several deeds described, and further, that plaintiff and said defendants make a part of said reply all the denials contained in said first reply herein.

A cross-petition is also filed by the defendant Fannie V. Gross setting up certain advancements to certain children of the said Benedict Gross, deceased, and answers are also filed thereto and to the cross-petition, termed a reply of the defendants Fannie Gross and Annie List, and the plaintiff, by the defendants John H. Gross, Mary Stevens, Anne Slade and Fannie Sperling.

It thus appears that while the plaintiff and defendants together own and ask that partition.be had of the land described in the plaintiff’s petition, an issue is raised as to the title to the other .lands and tenements described in the cross-petitions of the defendants, Mary Stevens, Anne Slade, and Fannie Sperling.

Without going into the details of the evidence offered upon the trial, the deeds made in 1905 will be treated the same as those made in 1897, by which Benedict Gross is alleged to have conveyed title to the several grantees therein named of the lands therein described, subject to the reservation of a life estate therein in favor of Malinda Gross, wife of the said Benedict Gross, including a separate deed to the said Malinda Gross of a life estate in all of said lands, for if title was conveyed thereto under said deeds to the said grantees therein named by the said Benedict Gross in 1897, the same is equally true of the deeds made by him in 1905.

The cross-petitioners set up that since February, 1909, the parties named fraudulently obtained deeds from Benedict Gross for the separately described parcels of land and have ever since said time unlawfully kept them, out of the possession of the same. The defendants deny this, and say that they are the owners, respectively, of said lands, and that they acquired title thereto under conveyances executed therefor by the said Benedict Gross, during his lifetime, who delivered them to Malinda Gross, his wife, with instructions to keep the same until his death, and then to deliver them to the grantees therein named, which said instructions it is claimed were carried out.

It appears that Benedict- Gross on the 19th day of February, 1897, did execute the deeds in question and deliver them to the said Malinda Gross with the instructions mentioned. That said deeds, upon the death of Benedict Gross, were delivered by the said Malinda Gross to the persons named therein as grantees, containing the changes made therein occasioned by the intervening death of the daughter Kit, and that said grantees thereupon took possession of said lands, respectively.

’ No objection is made to the form of the deeds, but it is urged that there was no valid delivery of them in law, and that therefore no valid title to the lands described therein passed to the grantees therein named.

Closely related to the delivery of these deeds is the primary question, whether their delivery to Malinda Gross, wife of Benedict Gross, as a depositary was a delivery in escrow, in view of the interest she had in said deeds, which was a life estate in each and all of the lands therein described. At the time of said delivery she and her husband were living together as such, and she was interested in'the subject matter of said deeds as stated. Being thus interested, the question arises as to whether or not delivery to her was a valid delivery in escrow. Chancellor Kent defines an escrow as follows: “A deed may be delivered to a stranger as an escrow, which means a conditional delivery to the stranger, to be kept by him until certain conditions be performed, and then to be delivered over to the grantee.” And in the case of The C., W. & Z. R. R. v. Iliff, reported in the 13 Ohio State Reports, at page 235, the judge announcing the opinion in that case at page 254, in discussing the requisites of an escrow, says:

‘ ‘ The phrase ‘ a stranger, ’ used in this definition, or the phrase ‘ a third • person, ’ which, in many of the books, is used interchangeably with it, it seems to me, can mean no more than this— a stranger to the deed, as not being a party to it; or at most, this —a person so free from any personal or legal identity with the parties to the instrument, as to leave him free to discharge his duty, as a depositary, to both parties, without involving a breach of duty to either.”

See also 26 N. Y., 483; 8 Mass., 230-237; 51 Kansas, 9; 24 Neb., 83-86.

How was it here? Was Malinda Gross a stranger to the deeds in the sense of not being a party to them ? Was she so disconnected with the parties named in the deeds as that she might not have felt called upon to carry out her husband’s instructions? To us these questions must be answered in the negative, and' we therefore hold that the delivery made to Malinda Gross was not a valid delivery of these deeds as an escrow.

But whether or not our conclusion is correct as to Malinda' Gross being incapacitated from becoming the depositary of these deeds in escrow, under the circumstances shown by the evidence in this case, we are met by the further inquiry, irrespective of her relation as such depositary, was the delivery of these deeds as an escrow such a delivery as the law contemplates? It ap pears that after the execution of said deeds, Benedict Gross, the grantor, handed said deeds to Malinda Gross, his wife, with instructions to her “to put them away for safe keeping until after he was dead and then deliver them to the persons named above, ’ ’ and she testifies in her deposition “I put them away, locked them up and kept them until his death’ ’; and she further testifies in her deposition “I delivered them to Frank Gross, Annie M. List and John H. Gross.” She also testifies that she delivered a deed to Fannie V. Gross, under like instructions from Benedict Gross. Assuming that Malinda Gross was not incapacitated from becoming the depositary of these deeds in escrow, and that they were really so deposited in escrow, and were so intended by Benedict Gross, and were so treated by him during his lifetime, without reserving to himself any control over them, and upon his death were delivered to the grantees named in said deeds, such delivery would pass title to the lands so conveyed. Crooks v. Crooks, 34 Ohio St., 610.

That the deeds were executed and their delivery to Malinda Gross accompanied by the instructions to her as mentioned, is not open to question, as shown by the evidence, but it is contended by said cross-petitioners that such delivery was not such as to become operative as a conveyance of the title, that it was not unreserved, irrevocable or absolute, as shown by the alleged subsequent conduct and acts of the said Benedict Gross, the grantor, in retaining the custody and control and power of disposition over said lands, and such conduct and acts are competent, in our judgment, as bearing upon the intention of such grantor in executing said deeds. Dukes v. Spangler, 35 Ohio St., 119.

The conditions upon which a deed is placed in escrow may be expressed in writing, or rest in parol, or be partly in each. Here it appears that the directions given were in parol. No particular form or ceremony is essential to constitute delivery, but such delivery must be absolute.

In the ease of Ball v. Foreman, 37 Ohio St., at page 139, the judge announcing the opinion in said ease lays down the following proposition in relation to the delivery of deeds:

“Where the grantor places in the hands of a depositary, a deed to be delivered to the grantee upon the death of the grantor, reserving the right or power to recall the deed at any time before his death, there is no delivery, and the deed passes no title to the premises' therein described. In such case the depositary is the agent of the grantor, and holds the deed subject to his direction and control.” Citing: Shirley v. Ayers, 14 Ohio, 307; Cook v. Brown, 34 N. H., 460; Prutsman v. Baker, 30 Wis., 644.

In the ease of Rathmell, Executor, v. Shirey et al, 60 Ohio St., page 187, it is said that delivery being essential to the efficacy of a deed, it is obvious that the title does not actually pass until that' which was an escrow becomes a deed by virtue of its delivery as such, or at least, until the satisfaction of the conditions prescribed for its final delivery.

In Stinson v. Anderson, 96 Ill., 379, it is held that where delivery of a deed, though to a stranger, is absolute, it is good, but if the future control is reserved by the grantor no estate passes.

In Elmore v. Marks, 39 Vt., 537, it is held that a deed does not take effect until delivery. To constitute a delivery the grantor must part with the custody and control of the instrument, permanently, with the intention of having it take effect as a transfer of the title, and must part with his right to the instrument as well as the possession.

In Cook v. Brown, 34 N. H., 460, it is held that there must be a time when the grantor parts with his dominion over the deed, else it can never have been delivered. So long as it is in the hands of a depositary, subject to be recalled by the grantor at any time, the grantee has no right to it, and can acquire none; and if the grantor dies without parting with his control over the deed, or it has not been delivered during his life, and after his decease, no one can have the power to deliver it. The depositary must have such dominion -over the deed during the lifetime of the grantor as the latter could not interfere with, in order to have any control over it after his decease.

In the ease of Campbell v. Thomas, 42 Wis., 437, it is held that where the grantor in a deed retains the right of control over it, notwithstanding its deposit with a third person with instructions to deliver it to the grantee upon his compliance with specific instructions, it is not an escrow.

We have quoted at length from the foregoing authorities not only to show the holding of our own Supreme Court upon the kind of delivery necessary to effectuate a conveyance of title of real estate, where the owner seeks to make a disposition of it during his lifetime to take effect at his death, but also to show the trend of decisions of courts in other jurisdictions. In addition to the authorities already cited, the following also sustain the same view:

Hathaway v. Paine, 34 N. Y., 92; Brown v. Brown, 66 Maine, 316; Walls v. Ritter, 54 N. E. Rep., 565; Provert v. Harris, 36 N. E. Rep., 958; 3 Ohio Dec., 552; 11 Am. Reports (Mich.), 598; 118 Mass., 154; 130 American State Reports, 960 (see notes from page 911 to page 974).

In our judgment the epitome of the law on this subject is expressed in the paragraph already referred to in the case of Ball v. Foreman.

And coming now to apply the facts of the case at bar to the principles of law concretely stated in said last named authority, let us first inquire what the facts are in relation to the delivery of these deeds as an escrow. Passing the execution and the formal delivery of the deeds in 1897 to Malinda Gross, as hereinbefore stated, does the evidence show that Benedict Gross, at the time stated, intended to deliver said deeds as an escrow, and were they so delivered, the deeds in 1905 having been executed under like circumstances?

As before 'stated, Malinda Gross testifies that she took possession of them and kept them under lock and key in a bureau drawer in her bed room, in a tin box containing other papers of the said Benedict Gross until his death, and then delivered them to the parties named. That said deeds were placed in said tin box and not enclosed in separate envelopes. Fannie Gross also testifies that she was living at home with her parents and that her mother kept these deeds in said box under lock and key, at the place stated, and that said box was occasionally brought out by her for the use of her father to enable him to transact any business with other parties that his private papers in said box might require. That on all such occasions, when she was at home, she obtained information from her mother before-hand where such key to said bureau drawer was to be found, and that after her father transacted his business said box was replaced in said bureau drawer.

To rebut this testimony and as tending to show that said deeds were not delivered at said time as an escrow, the cross-petitioners introduced testimony tending to show that within a few months after said deeds were delivered to Malinda G-ross in 1897 as such trustee or depositary, the said Benedict Gross, his wife joining him, conveyed by deed, duly executed, to W. B. Stevens, for a valuable consideration, a part of the land so deeded to one of the grantees named in said deeds; that in 1905 the said Benedict Gross revoked said deeds, with one exception, and cancelled them; that in 1907 the said Benedict Gross caused a change to be made in one of the deeds theretofore executed and delivered to Melinda Gross as such trustee or depositary; that the said Benedict Gross at sundry times and to sundry persons offered to sell certain lands included and described in the deeds delivered to Malinda Gross as such trustee or depositary; that the tin box referred to, with the key thereto, was generally kept in 'a bureau drawer in said Benedict Gross’ bed room, to which box the said Benedict Gross had open and unrestricted access, and that on several occasions he was seen to get said box from said drawer, without the intervention or aid of his daughter Fannie, or his wife, and take papers therefrom; that the lid of said box was broken off; that on one occasion when the witness, W. B. Stevens, was at the house of the said Benedict Gross, on legal business, and when it became necessary for the said Benedict Gross to refer to some papers in said tin box, said Benedict Gross took the said tin box from a book-case in his sitting room or library and took therefrom the papers desired; that the witness, D. V. Heck, also testifies that this tin box was sometimes kept in said book-case.

Other evidence was also introduced tending to show the custody and possession of this tin box to be in the said Benedict Gross at times from February, 1897, up to the time of his death; but counsel for plaintiff claim that when the conveyance is a mere gift, where the conveyance is voluntary and no consideration is paid therefor, as is claimed to be the case here, Benedict Gross had the right to revoke these deeds before they were delivered to the grantees named therein by changing or altering them as to him seemed proper, and it is claimed that the intervention of the death of his daughter Kit led him to make changes in said deeds concerning what is described as the home farm.

In support of this claim our attention is called to the case of Meeks v. Stilwell et al, 54 Ohio St., 541, but in that case it was held that notwithstanding the right of Mrs. Meeks, after the deed was placed in the bureau drawer in her house, to be delivered to her grand daughter after death, to make a correction in respect to the right of her husband to occupy the premises mentioned, and by afterwards delivering the deed to her attorney, a valid delivery was necessary.

Under, this showing of facts in this case, can it be said that Benedict Gross at the time stated intended to deliver, and did deliver, these deeds as an escrow? If he did, his subsequent conduct and acts in relation to the lands thus conveyed are irreconcilable with such intention, under the evidence before us. Judging from such facts, he at all times exercised dominion and control over these deeds, subject to be recalled at his will, and their possession by Malinda Gross, his wife, was his possession of them in law. We therefore hold that there was no valid delivery of these deeds, or either of them, as to operate as a conveyance of the title to the lands therein described to the grantees therein named, or either of them.

A decree may be entered herein in favor of the cross-petitioners in accordance with this opinion, with a judgment for costs against the estate of Benedict Gross to be paid out of the fund arising from the sale of the land described, if sold, and if not sold, then that each of the parties hereto pay his or her proportionate share of said costs according to his or her interest therein, and partition is ordered of all the lands described in said petition and cross-petitions, the same commissioners to be appointed as in the court of common pleas, unless the parties hereto otherwise agree, and said cause will be remanded to the court of common pleas to carry this judgment and decree into execution, with instructions to cause an accounting to be taken of the rents and profits of the premises described in said cross-petitions. Exceptions noted. Motion for a new trial filed and overruled. Twenty days allowed for findings of fact and conclusions of law from the 22d day of June, 1912, and the statutory time allowed for the filing of a bill of exceptions.


text:
    WHEN ONE SHOULD STOP AS WELL AS LOOK AND LISTEN.
    Circuit Court of Butler County.
    The Ohio Traction Company v. William H. Smith.
    Decided, April 27, 1912.

      Negligence — A.t a Railway Crossing — Circumstances Determine Degree of Care to be Exercised — Stopping Must be Added to Looking and Listening, When.

    It is the duty of one about to drive across a railway track to look and listen for an approaching car or train in such a manner as will.make his looking and listening effective; and where obstruction to vision or the noise of his vehicle make it necessary for him to stop in order that his looking and listening may be effective, it is his duty to stop, and failure so to do constitutes contributory negligence requiring the taking from the jury of an action for injuries from being struck under such circumstances.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   Defendant in error in'the trial court recovered a verdict and judgment thereon against plaintiff in error, for damages received by him in a collision beaween a traction car of plaintiff in error and a team of horses and wagon driven by'himself, near Jones Station in this county, on the 22d day of July, 1905. Various assignments of error are set forth in the petition in error, all of which the court has considered; but the one that is of importance in the case, if we are correct, is based upon the refusal of the trial court to instruct a verdict for plaintiff in error.

If the evidence' discloses that defendant in error was guilty of contributory negligence, then error was. committed by the court in overruling said motion for an instructed verdict for plaintiff in error.

In the testimony of defendant in error as disclosed by.the record, it appears that at the time of the accident he was about fifty-seven years of age; that he had lived in the neighborhood of Jones Station more than fifty years. He had generally averaged once a week during all this time going to and from the station, and since the traction line had been built, which had been about four years prior to the accident, he had crossed the railroad track at the point of the accident once a week, and on the day in question had crossed it four of five time. He knew that the car coming from Glendale to Hamilton passed Jones Station at this point at ten minutes before each hour, and that this was the schedule time. He knew that his vision of the track toward Glendale as he approached the crossing was obstructed by houses and trees extending close to the track. He testifies that at some distance from the track, when at a bridge, he listened and looked for a car coming in the direction from Glendale, this was at a distance of 233 feet from the railroad track. After passing this point he only looked whenever he could get a glimpse through the trees, but saw no car nor heard one; he drove an empty wagon upon a gravel road, the wagon itself making more or less noise. When he got up to the railroad track he looked and listened to see or hear whether a car was coming from the south, but did not stop, and notwithstanding his vision of the track south was obstructed, he drove his horses upon the track and when the fore feet of the horses were across the railroad the car struck the wagon and he was injured. He further states that, “he certainly would not stop, neither would he get off and look, for a man would not jump off and let his team stand and go and see.”

Under this statement of the occurrence as related by defendant in error, was he guilty of contributory negligence in making the crossing?

The court is of the opinion from the above evidence as given by the defendant in error himself, that he did not take the reasonable necessary precautions which the situation demanded. It is apparent he did not have a sufficient view of the track south, and whether the traveler upon the highway should stop, look and listen for approaching trains upon a crossing, depends upon the circumstances of the particular case under consideration. We believe in the present case that defendant in error showed a lack of precaution and reasonable care, which had he exercised, would have prevented the accident.

“The fact that the view was obstructed did not excuse his neglect to stop and listen; it made his neglect to do so greater. ’ ’ The Pennsylvania Co. v. Morel, 40 O. S., 338.

It was his duty to look and listen for an approaching car in a manner that would make the looking and listening effective, and if under the circumstances, such as are disclosed in his evidence, with the continuing noise of the wagon, and the obstruction of his vision, in order to listen, it was necessary for him to stop his team to make his listening effective, then it was his duty to stop. B. & O. Railway Co. v. Stewart, 31 C. C., 527.

Counsel has urged upon us the application of the doctrine of the “last chance.” We do not think this doctrine can be so applied. There is no evidence tending to show that the motorman discovered or knew the imminence of a collision in time to avoid it by stopping his car.

Being guilty, therefore of contributory negligence, defendant in error was not entitled to a verdict in his favor.

The judgment of the court below will be reversed and- judgment should be entered in this court in favor of plaintiff in error, and the petition of defendant in error dismissed.