author: Makvin, J. — (Orally.)

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court,
    Jan. Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    THE NEW YORK RUBBER CO. v. THE GANDY BELTING CO, et al.

      Attachment or books of account, prior lien upon credits contained in books — Appointment of receiver — Cumulative remedy—
    1. Under sections of the Revised Statutes 5524, 5539, 5540, a creditor who levies attachment upon books of account, thereby obtains a priority upon the credits contained in the books. In cases where the provisions of the statutes for appointing a receiver and notifyng the debtors have been complied with, such proecedings are cumulative upon the right to proceed by garnishment against the debtors.

      Same — Receiver appointed for attachment debtor, acts as receiver in attachment case—
    2. Where, subject to a levy of attachment, the debtor corporation applies for and obtains a receiver to wind up its affairs, and the books of account taken in attachment, are turned over to the receiver of the corporation, under an order to collect the accounts and bring the proceeds into court, the order is equivalent to appointing a receiver in the attachment case, and the attaching creditor may preserve his priority, and work out his rights through the receiver of the corporation.

      Same —Failure of appraisers and sheriff to place value of books against same — Effect—
    3. The attaching creditor is not deprived of the benefits of his at. tachment, because the appraisers place no value opposite some of the items of the inventory of property taken in attachment. Where books of account and other property are taekn in attachment, and the Sheriff’s return shows no value placed upon the books, the attachment of the books of account is not thereby invalidated.

      Error to the Court of Common Pleas of Cuyahoga County.
   Makvin, J. — (Orally.)

There are two cases here, both growing out, however, of the same case in the court of common pleas, and so docketed here because two of the parties in that action filed separate petitions in error. . One was filed by the New York Rubber Company, and the other by the Gandy Belting Company. The case, as shown by the findings of fact in the court below, is that there was a corporation, the name of which was The E. W. Hull Company. That corporation acted as a factor for various parties who consigned goods, to it to be sold, and the various parties in this action, other than the E. W. Hull Company, consigned goods to that company to be sold.

Among the parties who consigned goods in that way, are the New York Rubber Company, The Gandy Belting Company, The Boston Woven Hose & Rubber Company, and others.

The New York Rubber Company brought a suit against the E. W. Hull Company, and obtained an order of attachment. On the 13th of August, 1891, the Sheriff of Cuyahoga county seized and took possession, under such order of'attachment, of the books of account of The E. W. Hull Company, among other things. Said books of account were the regular books of account of the company, and contained the entries of charges of the E. W. Hull Company against those to whom it had sold goods. The books of account were so taken by the sheriff prior to the appointment of the receiver in this case.

One of the questions to be determined here is, whether, by virtue of that levy of the order of attachment, the New York Rubber Company obtained priority over the other creditors upon the credits of the E. W. Hull Company, represented by the accounts in these books. The court of common pleas found that no priority was obtained. That is to say, the court found that by the proceedings in attachment and taking possession of the books of account by the •officer executing the order of attachment, the credits of the company, contained in the books of account taken under "the order of attachment, were not thereby subjected to the payment of the claim of the creditor causing the order of attachment to be issued; and that is one of the important questions in this case.

It is urged on the part of the defendant here, that the levy of an order of attachment upon books of account, does not bring under the control of the officer who levies such order such possession and control as that the attaching creditor .gets a priority over the other creditors; but that such levy is invalid. It is said that the way, and the only way to obtain the benefit of attachment against accounts of the debtor, is by proceedings in the nature of garnishment.

Our attention is called to the various sections of the statute with reference to the proceedings in attachment. Section 5524 reads: “The order of attachment shall be directed and delivered to the sheriff, and shall require him to attach the lands, tenements, credits, money and effects of the defendant, in his county, etc.”

Nothing is said in that section about books of account; but the rights and credits of the defendant in the proceeding in attachment are by that section authorized to be levied upon. It is said that that is not sufficient to authorize him to levy upon account books, and thereby hold the credits contained in the books.

Section 5539 provides that “the court, or a judge thereof in vacation, may, on the application of the plaintiff, and good cause shown, appoint a receiver, who shall take oath, and give an undertaking, as provided in other cases.”

Then section 5540: “The receiver shall take possession of all notes, due-bills, books of account, accounts, and all other evidences of debt that have been taken by the sheriff or other officer as the property'of^the defendant in attachment, and shall proceed to settle and collect the same, and for that purpose he may commence and maintain actions in his own name, as such receiver, but in such actions no right of defense shall be impaired brjaffected. ”

Now, remembering that under section 5539 the court, or a judge thereof in vacation, may, on the application of the plaintiff, and on good cause shown, appoint a receiver of the things that have been taken possession of, and that that receiver is to take possession of all notes, due bills, books of account, accounts, and all other evidences of debt that have been taken by the sheriff or other officer, it seems to us it is hardly to be questioned that the sheriff may take possession of books of account, and thereby have in his care for the benefit of the attaching creditor, the credits that are represented by these books; no adjudication, so far as we have found,has been made in this state upon this subject, directly in point, except a case decided by the Superior Court of Cincinnati—J. W. Finnell et al. v. A. G. Burt et al., 2d Handy, page 202, decided by Judge Gholson, after-wards one of the judges of the Supreme Court of the state, but at the time of this suit, of the Superior Court of Cincinnati; and in that case Judge Gholson distinctly held that the officer might take possession of the books, and hereby become the custodian of the credits which should inure to the benefit of the attaching creditor. I read the 10th clause of the syllabus:

“The right of a creditor, in proceeding under an order of attachment to seize evidences of indebtedness, and have them settled and collected through a receiver, is cumulative upon the right to proceed by garnishment against the debtors.”

Now, if Judge Gholson is right in that, and if we are right in saying, as we do say, that the right to attach these credits is cumulative upon the right of proceeding in garnishment then one is not necessarily forced to have garnishee proceedings against the debtors of the debtor in the attachment proceeding in order to hold the claims for the benefit of the attaching creditor. In discussing the matter Judge Gholson says, on page 217: “It appears to be equally clear, that evidences of indebtedness may be taken under an order of attachment. This is shown by section 194, in connection with section 207 of the code.” Section 194 is, I believe, in the exact words of section 5524, and section 207 is now 5540, “But the code does not appear to have provided for a sale of mere evidences of indebtedness, such as notes, due-bills, and books of account. The object of taking them is pointed out in several sections, under the head of Disposition of Attached Property.”'

There is a case cited to us in Missouri, found in the 17th Mo. Appeals, at page 693, Elliott, Assignee v. Samuel Bowman and there, under the statutes of Missouri, the court held that an attachment may be levied upon the books of account, under which the credits represented by such books could be held for the attaching creditor as against an assignee under a general assignment for the benefit of creditors. It is true that the statute of Missouri, which is quoted in this decision, provides that the officer shall levy upon the “books of account,” using those words in addition to the words used in our statute; but the sections in our statute to which attention has already been called, in regard to the disposiion of attached property taken by the sheriff, includes books of account. Now, under section 5540, the receiver is to take possession of the evidences of debt that have been taken by the sheriff, and names, among others, “books of account,” which clearly implies that the sheriff is authorized to levy the order of attachment upon “books of account';” so that we think there was error on the part of the court of common pieas in holding that the order of attachment levied by the sheriff upon the books of the E. W. Hull Company did not carry with it the credits of the company in the books upon which the levy was made. We hold that the New York Rubber Company did obtain preference by reason of that attachment. But it is said that no receiver was appointed to dispose of this property as provided in section 5539. Now, this is what was done, and I read from the findings of fact:

“On the lt4h day of August, 1894, the New York Rubber Company, with the approval of the court, entered into the following agreement and stipulation in case No. 4958, which was the case brought by the New York Rubber Company in which the attachment was issued: By the consent of both parties, the sherifE of this county is hereby ordered to deliver to Henry S. Davis, receiver of the defendant, The E. W. Hull Company, all the chattel property now in the possession of said sheriff under order of attachment in this case, subject to further order of this court, determining the rights and priority of all parties interested m said property, or its proceeds, said receiver to keep a separate account of all money derived from the sale of said goods,” etc.

It appears that subsequent to the bringing of the suit by the New York Rubber Company in attachment, proceedings were commenced in the court of common pleas for the appointment of a receiver, to wind up the affairs of the E. W. Hull Company, and it is in that case that this proceeding in error is brought; but in the attachment case, the order which I have just read is made, “By the consent of both parties to the attachment case, the sheriff of the county is hereby ordered to deliver to Henry S. Davis, receiver of the defendant, The E. W. Hull Company, all the chattel property now in the possession of said sheriff.”

Now, it is said that no receiver was appointed in the attachment case such as is provided by law, and therefore, if the New York Rubber Company did obtain priority, it lost it by allowing the goods to pass from the sheriff to the receiver who had been appointed in this case. It seems to us that what was done was equivalent to appointing a receiver in the attachment case; that when the court ordered, by consent or otherwise, that all the property then in the hands of the sheriff should be taken possession of and passed over to Henry S. Davis, the person who was, it is true, receiver in another case; but by which order he was to receive this property was, we think equivalent to appointing him et receiver in the attachment case. Davis was to take all the attached property in that case, and dispose of it. We do not think the benefit of this attachment is lost to the New York Rubber Company by the fact that the property was passed from the sheriff, by the direction of the court, to the receiver who was appointed in this case.

The court found, as a matter of fact, that the only appraisal that was made under the attachment that was issued to the sheriff, is that shown by the inventory and appraisement of the property that is filed here; and it is urged that since opposite the books of accounts, the journal, ledger, invoice book, stock book, check book, etc., no value was placed, that it is a failure to appraise the property; that it is such a failure of the carrying out of the duties of the officers is that the benefit is lost to the attaching creditor. Now, it is possible, and not at all perhaps improbable, that those who appraised it thought that the books themselves were of no value; in any event they put no value to any of these books. They said nothing about the credits in these books, but it would be hard to say that the creditor attaching should lose the benefit because in the inventory no value was placed opposite some of the items in that invoice of the goods taken in the attachment. We think it does not deprive the plaintiff, The New York Rubber Company, of the benefit of the attachment because|[no value was placed upon the books.

A. A. Stearns, counsel for New York Rubber Co.

Diclcey, Brewer & McGowan, counsel for Gandy Belting Co., et al.

The judgment of the court below is reversed for the error stated, and judgment will be entered in this court in accordance with this opinion.


source: Caselaw Access Project

author: Caldwell, J.

license: Public Domain

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court,
    Jan. Term, 1892.)
    Before Upson, C. J., Caldwell and Baldwin, J J.
    SWARTZ v. GEHRING, ET AL.

      Construction of 'loill — Income—TJse.
    The use in a will of the words, “I give, devise and bequeath to my wife, the use of all my real and personal property which I may own at the time of my death, to be used by her during her natural life time,” creates a life estate in such wife, and the income or accumulation arising therefrom will pass by her will to her legatees.
    Error to the Court of Common Pleas of Cuyahoga County.
   Caldwell, J.

This action is brought for the construction of a will, and the point is in the first item. John Gehring, of Brooklyn, Cuyahoga county, Ohio, makes his will, and in the first item he says: “I give, devise and bequeath to my wife, Charlotte G.ehring, the use of all my real and personal property which I may own at the time of my death, to be used by her during her natural lifetime.” Neither he nor his wife had any children. They were about sixty years old. He devised one-half of the property after the death of his wife, to his relatives. He says, ‘‘I give, devise and bequeath, after the death of my wife, to” — naming them — one-sixteenth of all my said real and personal estate to be equally divided between said John, Elizabeth, Barbara, etc. — • using the same language and referring to 'the said estate —the same estate he gave to his wife.

It is contended in this case that the testator meant to say that, “I give, devise and bequeath to my wife, Charlotte Gehring, the use of all my real estate, to be used by her during her natural llife time;” that he meant to say by that, “you can take this and use it, and use of it what you need, that is, use of the income of it what you need, and what is left of this income, together with the body of the estate, shall under this will, etc”

Charlotte, the wife, took the estate and used it, and accumulated out of the income about $8,000,and made a will devising it. It is said now, that she had no power to devise this income which she saved out of this estate while she survived her husband, and it must all go under his will with the corpus; and that is the question in this case. It is claimed that giving the use of a thing is not giving a life estate in the property itself; that it is a less term than a life estate; that it simply means, you can use it, but you cannot reap any benefit from it any further than the use.

On the other side it is contended that the use, in a will of this kind, means the same thing as though a life estate had been given. It is not contended but that if the widow took a life estate in this property, that these $8,000 properly goes under her will to the legatees. It is claimed that, from some circumstances stated here, there is an implication to arise that he meant that everything he and his wife had was to go equally between his heirs and her heirs; but there is nothing in this petition, which is taken as true, or in the argument before us, that will indicate that. So it depends largely upon what is meant by the word “use.”

Without going into any extensive discussion of the matter, we will simply say that we find this word “use,” especially in the English works, and in a great many of the English decisions upon wills, to be synonymous with life estate.

In our own state we find a great many decisions in which the term has been construed. In the 40 Howard, 269, there is a case where fhe testator, by his will, gave to his wife the use during her natural life of all his real and personal estate. Then it goes on, “I give and devise unto my daughter Catherine, the wife of, etc., and her heirs, all my real estate and personal property.” The court held in that case that the will gave to the wife the use, during her natural life,of all of his personal estate,the draughtsman employing apt words in framing the devise to create a life estate. The decision goes on further to show that it was the intention under the will to give a life estate in all the property, and a life estate always carries whatever profits arise out of the property, regardless of whether it is used or not by the person who has it.

In 11 Pickering, 262, it was held: “A testator bequeathed to the plaintiff the use of $300 during her natural life; and after divers legacies to other persons he gives as follows: “In addition to the foregoing bequest made to the plaintiff, I give and bequeath to her a handsome support during her natural life, to be furnished by my executors, and the expenses thereof to be paid out of my estate by my said executors.” She sued for this legacy of $300, and the court held that by the word “use” she got a right to the interest that arose on the $300 during her life, the entire income from it.

In the 13 Metcalf, 546, it was decided: “A testator, by one clause in his will, gave to his wife the use of all his property, real and personal, except $100, as long as she should remain his widow; and in the next clause, he declared his will to be, that all his property, which should remain after the death of his wife, or after she should cease to be his widow, should be divided equally among his children.” In that case he did not say “said property”' — that he again devised what he had given to his wife; but it was all the property that she did not use; and there is no question but that she had no power to use any part of the corpus of the estate under his will, because he gave to his wife the use of all his property, real and personal, except $100, as long as she should remain his widow. Now in this case the court says:

“This case depends upon the construction to be given to the last will and testament of Leonard Sawyer, by which he gave and bequeathed to his wife the use of all his estate, both real and personal, as long as she should remain his widow, excepting $100. By a subsequent clause in the will, he gave all his estate, which should remain after the death of his wife, or after she should cease to be his widow, to his children. Under these clauses of the will, the plaintiff claims of the executor the balance of his account, as settled and allowed in the probate office.
“It is contended for the plaintiff, that the widow took an estate for life in the real and personal estate, and that she is entitled to the use and possession of both, during her life, or until she shall cease to be the widow of the testator. This may be admitted as to the real estate, and also as to the personal estate excepting the money in the hands of the executor; but as to that, we think, the executor is to be considered as a trustee, by a plain implication in the will, to hold the principal, during the wife’s life or widowhood, for the children; and that she is only entitled to the interest. It was manifestly the intention of the testator to give to his wife the income of his estate only.”

We can see no other proper construction,' unless we deviate from the common use of the word “use,” than to say that this $8,000 belonged to the widow and she had a right to will it away, and the decree will be accordingly.


author: Swing, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    Jan. Term, 1894.)
    Before Swing, Smith and Cox, JJ.
    W. L. DIXON, on Behalf of Himself and Others v. THE CITY OF CINCINNATI.

      Street improvement — Easement for support of slopes of part of street — Damages aioarded, may be assessed on whole length of street improved.

    Where a street is improved requiring on a part of the street a heavy fill to support the slopes, for which it is necessary to occupy part of abutting lots, and for which easement claims for damages were filed ny the owners of such abutting lots, such damages may be awarded without condemnation proceedings, and the amount thereof may be added to the costs of the improvement and assessed ■on all the abutting feet front on such improved street for the entire length of the improvement, where the assessment for such improvement was ordered tobe by the feet fronting on such street by the ordinance to improve.
    Error to the Court of Common Pleas of Hamilton County.
    This was an action to enjoin that part of the improvement assessment upon property on McMillan street, between Highland avenue and Kibby street, included in the same ordinance, which is an item of damages for land condemned to support sloping fills.
    In their petition plaintiffs say that to pay the costs and expenses of improving McMillan street between said points by grading etc., the Board of Public Improvements of said city, on June, 1, 1890, passed an ordinance levying an assessment of $11.08 in cash on each foot of the abutting property, which sum was divided into ten annual installments, with interest added at the rate of 5 per cent.per annum-; that said asssessment included the cost of property condemned to support McMillan street east of Hunt street, and that said property was condemned under ordinance No. 4168, of the city council, passed February 15, 1889, providing that the amount of condemnation and costs be assessed per front foot upon the lots and lands abutting on McMillan street from Kibby street to Highland avenue, a distance of over 2,000 feet, while the property condemned fronted only 137 feet on said street, which assessment for this condemnation amounted to $0.65943 per front foot.
    Plaintiffs further claim that the property condemned lies outside the lines of McMillan street, and that said condemnation was necessary solely for the purpose of acquiring an easement in said abutting 137 feet for the slope of the street at that place, there being a fill of 25 feet or more in the construction of McMillan street, where the condemnation was made, except 137 feet on Fannie C. Metcalf’s property, apd is therefore not subject to the frontage assessment called for by said ordinance 4168, under section 2264 of the Revised Statutes.
    Plaintiffs say that after the passage of the resolution to improve McMillan street between said termini, and the service of notices thereunder upon the abutting owners, two claims for damages were filed.
    The ordinance to improve said street provided that the costs of improvement and’damage to the abutting property owners should be assessed per front foot upon the abutting lots and lands between the termini before named. Said damage claims were inquired into, and the sums awarded the claimants, together with the costs of suit and advertising amounted to $1,752.19; that said damages to said claimants did not arise from a change of grade, but were awarded on account of the appropriation of an easement in the abutting property of said claimants to maintain the sloping fill of said street, said fill being 25 or 30 feet at said points; that the condemnation and appropriation of said easement was not effected through a condemning ordinance passed specially for that purpose, but through the filing of said claims, the determination ofjthe same, the proceedings in the common pleas court, and the occupation by the city of the front of said claimant’s property by the sloping fill of said street, which was placed on said lots, and has been maintained there ever since.
    That said sum of $1,752.19, less 2 per cent., was assessed on all the property on McMillan street from Highland avenue to Kibby street, the assessment on the front foot amounting to the sum of $0.39483, while the abutting property for which said easement was appropriated was 250 feet only, the total number of feet assessed for said appropriation being 4,349.08 feet.
    That none of the property of the parties abutted on that part of McMillan street for which said easement was appropriated, and was, therefore, not subject to the frontage assessment called for by the said improvement ordinance. That the term “damages”, as used in said ordinance to improve McMillan street, did not contemplate the appropriation of an easement in any of the abutting property, and that there was no other ordinance providing for the assessment of the costs of said appropriation than said improvement ordinance, and that said assessment of $0.39483 was also, for this reason, illegal and void.
   Swing, J.

The plaintiffs are not entitled to the relief prayed for in their petition.

The case does not come within the principles decided in the case of Batsche v. The City, (33 W. L. B., 82). There is no widening of the street here, as in that case. What was done there was for the purpose of improving the street, and the easement obtained in the adjoining premises outside the limits of the street, was not for the purpose of widening the street, but for the purpose of getting an easement in the grotind to support the fill for the street, which it was -necessary to have in order to make the improvement. The same result could have been obtained by making solid masonry walls, brt the expense would have been much greater to the property owners, and the improvement would not have been so satisfactory.

JT. C. Ampt, for plaintiffs.

Wm. H. Whittaker, for city.


author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    January Term, 1896.)
    Before Swing, Smith and Cox, JJ.
    G. M. CONE v SARAH L. REES et al.
    Where the payee of a joint and several note has no knowledge that one of the signers is a surety only, he may treat them both as principals.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

The plaintiff in error seeks the reversal of the judgment rendered against him by the court of common pleas, upon the following grounds, viz: That the court erred in overruling his motion for a new trial, which alleged that the verdict was not sustained by the evidence, and for errors of law occurring at the trial, excepted to by him. We were not favored by any oral argument by counsel for plaintiff in error, and no brief has been furnished by him. We have, therefore, examined the bill of exceptions taken in the case with care, to see whether there was any error in any of the rulings of the trial court prejudicial to the rights of the plaintiff in error.

In the first place we may say, that in our judgment the verdict of the jury, finding that the plaintiff in error was liable on the note sued on, is not so manifestly against the weight of the evidence as to justify us in reversing the judgment on this ground. The evidence of the two witnesses who testified on the question as to whether there ever was a contract for the extension of the time of the payment of the note sued on, which was set up by G. M. Cone, who claimed to be a mere surety for his brother, was in direct conflict. The burden of showing that there was such a contract, was upon him, and this was a question for the jury, and we can not say that their verdict was wrong.

2. We see no error in the ruling as to the admission of evidence over the exception of the plaintiff in error. No exception was taken to any such ruling by him.

3. The bill of exceptions does show exceptions to the charge given by the court to the jury, and to the refusal of the court to give certain special charges asked by plaintiff in error, and we notice these briefly. The first exception is to that part of the general charge of the court found in the second paragraph on the second page of the charge. As to this we may say that if, as claimed in the exception itself, it is not applicable to the case, and is not strictly accurate. we do not see that it was at all prejudicial to the defendant below. The next exception is to so much of the general charge on page 8 as is marked on the margin, but we think this stated the law correctly. The third exception to the general charge was to that part on page 13 marked on the margin, to the effect that the payment of $12 of interest then due, alone, was not a good consideration, for the extension of the time of payment of the interest which was then due. This, we think, was correct. The payment of the $12, if due, was only what a maker was bound to do, and unless there was some other consideration, as an agreement to keep the money then due on the note for a fixed and definite period and pay the interest on it at same rate, it would not be binding upon the payee. The court, at the request of the defendant,did properly charge the jury that “an agreement between the payee and principal of a note for the extension of the time of its payment for a fixed and definite period, in consideration of the same rate of interest as that named in the note, is valid without the payment of the interest in advance, and if made without the knowledge of the sureties, will discharge them.”

J H. MoGarry, for plaintiff in error.

Milliken, Shotts & Milliken, contra.

The plaintiff asked the court to give the two following special charges, which were refused and exceptions taken, viz;

First' — If you find from the evidence that plaintiff agreed to extend the time for payment of said note from April 25, 1892, until April 25, 1893, in consideration that W. H. Cone then promised to pay interest thereon, and if you further find that G. M. Cone was surety on said note, then your verdict must be for G. M. Cone, unless you find that said extension was made with his knowledge and consent.

Second — Agreement on the part of W. H. Cone to pay interest on the note for the year would be a good and sufficient consideration for the alleged contract for extension of time of payment.

The objection to the first of these charges is that it leaves out of view entirely the question whether the plaintiff below knew, or had reason to believe, that G. M. Cone was only a surety on the note, which was one of the issues in the case. He might, as between himself and his brother, have been a surety,and as to the payee,a principal— and if so, he might have made a contract with the other principal.for ihe extension of the note which would not have discharged G. M. Cone. We understand the law to be that where a joint and several note is made by two persons to another, without any knowledge on the part of the payee of the fact that one of them is surety only, he may consider and treat them as principals. For this reason the court was justified in refusing to give this charge.

And in our judgment the court had already, in substance and effect, given the second charge asked, and was not bound to do so again.

For these reasons we think the judgment should be affirmed.


author: Summers J.

text:
    (Second Circuit—Montgomery Co., O., Cir. Court,
    June Term, 1896,)
    Before Shearer, Summers and Wilson, J.J.
    SEIFERT v. WEIDNER.
    The act of March 27, 1893, (90 Ohio Laws, 375), commonly known as the crematory law, applies to all cities in the state then or thereafter of the second grade of the second class, and is constitutional,
    Appeal from the Court of Common Pleas of Montgomery County.
   Summers J.

The question to be determined is the constitutionality of the act of the general assembly, passed March 27, 1893, entitled “An act to authorize the boards of city affairs in cities of the second grade, second class, to contract for the removal and disposition of garbage, night soil, dead animals and animal offal, and to erect and maintain garbage crematories or furnaces for such purposes. ’ ’ 90 Ohio Local Laws, 375.

The plaintiffs, in their petition, aver that they are residents and taxpayers of the city of Dayton; that they had in writing requested the solicitor to bring suit, and that the defendant Weidner, and others of the defendants, compose the board of city affairs of said city; that said board has entered into a contract with The Dixon Sanitary Crematory Company for the construction of a crematory; that bonds of said city have been sold to pay for the same, and that the city is about to levy a tax to pay said bonds, and for the removal of garbage under said act, which it avers is in contravention of section 26 of article 2, and of section 1 of article 13, of the constitution, Dayton being the only city of the second grade'of the second class; and they pray for an injunction restraining the city from levying any tax to pay said bonds or to carry out the provisions of the act, and for a rescission of the contract for the construction of the crematory.

A demurrer to the petition was filed and overruled, and a temporary injunction allowed, and an answer was then filed averring that the bonds had been sold and the money paid into the city treasury; and that the contract for the crematory had been entered into before the written request was made upon the city solicitor; states facts showing the regularity of all proceedings under the act, and avers that the city has a population of 79,331; that Montgomery county is densely populated; that the city cannot, unless permitted to build a crematory, otherwise dispose of its garbage than by dumping it in the river, wüereby it is polluted and the public health endangered.

To this answer a general demurrer was interposed and sustained, and the injunction made perpetual, and.the case appealed to this court.

Section 1 of the act in question provides: “That boards of city affairs in all cities of the second grade, second class, be, and they hereby are authorized to contract” for the removal of garbage.

Section 2. That they may, when in their judgment the best interests of the city will be subserved thereby, build crematories.

Section 3. That they may issue bonds for that purpose.

Section 4. That the city council of any such city may levy a tax to pay the bonds and interest thereon, and

Section 5. That in any such city, when the board of city affairs may build and equip such garbage crematory or crematories, furnace or furnaces, the city council of such city may levy a tax to operate the same.

The act is published in the volume containing the local laws of 1893, and under its title is the word [Dayton] in brackets.

The act confers corporate power, and its constitutionality depends upon the validity of the system of classification of cities adopted by the general assembly; for Dayton is the only city in the second grade of the second class, and if such classification is not warranted, then the act is special and confers corporate power in violation of article 13, section 1, of the constitution, which provides that, “the general assembly shall pass no special act conferring corporate powers.”

The present system of classification of municipal corporations into cities, villages and hamlets, and the division of cities into cities of the first class, first, second and third gradps, and into cities of the second class, first, second, third and fourth grades, was first adopted with the revision of the statutes in 1880, and Dayton was then, now is, and ever since has been, the only city of the second grade of he second class.

The provision in the Revised Statutes of 1880 was, “Section 1548. Existing corporations organized as cities of the second class, shall remain such until they become cities of the first class, and their grades, and the grades of those which may be, or may become, cities of the second class, shall be determined as follows: those which on the first day of July, last, had, and those which, on the first day of July in any year, have, when ascertained in the way mentioned in the last section, more than thirty thousand five hundred, and less than thirty-one thousand five hundred inhabitants, shall constitute the first grade; those which on the first day of July last, had, and those which, on the first day of July in any year, have, when ascertained in the same way, more than twenty thousand, and less than thirty thousand five hundred inhabitants, shall constitute the second grade.”

The system then adopted has been upheld by repeated decisions of the supreme court.

Under the decisions an act which confers corporate power upon all the cities of one of the grades of one of the classes of cities into which they have been so divided by the general assembly, or which relates to the administration by them of their government, is not in contravention of section 6 of article 13, which provides that the general assembly shall, provide for the organization of cities and villages by general laws, or of section 1 of article 13, which provides that the general assembly shall pass no special act conferring corporate powers, or of section 26 of article 2, which provides that laws of a general nature shall have a uniform operation throughout the state, although there may be [but one city in such grade, unless the act is so limited in its provisions that it cannot apply to cities thereafter coming into that grade.

In State ex rel. Attorney General v. Hawkins, 44 Ohio St. 98, it is held that, ‘‘The act of the general assembly, passed April 3, 1885. (82 Ohio Laws, 101-11), conferring, certain corporate powers on cities of the first grade of the first class, is one of a general, and not of a special, nature; and, therefore, not in conflict with article 13, section 1, of the constitution, prohibiting the passage of special acts conferring such powers.”

And in The State ex rel. Attorney General v. Hudson, 44 Ohio St. 137, it is held that: ‘‘The act of April 3,. 1885 (82 Ohio Laws, 101),providing for a police force in ‘cities of the first grade of the first class,” applies to all cities of that grade and class in the state, and is a law of a general nature, having a uniform operation throughout the state, and is constitutional.”

In The State ex rel. v. Smith et al., 48 Ohio St. 211, it is held that: “A statute applicable only to a particular ■city in the grade and class to which it belongs, and which cannot, by reason of its provisions,be adapted to any other city in the same grade and class, is special in its nature, and not general, and where corporate power is conferred thereby, is invalid.”

. In The State v. Pugh, 43 Ohio St. 98, the act under consideration, providing for the reorganization of cities of the first grade of the second class, was held invalid for the reason that its provisions so limited it that it would not apply to cities thereafter coming into that grade, and Columbus then being the only city in that grade and class, the act was special.

It is unnecessary, however, to review the many decisions upon this question. The system of classification has been greatly developed or refined since its inception, and the law applicable thereto as it now exists, has grown out of these decisions, and the consideration of the question in the many cases in which they were made. This will appear from an examination of the many cases in their order: Welker v. Potter and wife, 18 Ohio St. 85; The State ex rel. the Attorney General v. City of Cincinnati, 20 Ohio St. 18; The State ex rel. the Attorney General v. Covington, 29 Ohio St. 102; The State ex rel. v. Mitchell, 31 Ohio St. 592; McGill v. The State, 34 Ohio St. 228; Bolton v. City of Cleveland, 35 Ohio St. 319; State v. Powers, 38 Ohio St. 54; State v. Brewster, 39 Ohio St. 653; Bronson v. Oberlin, 41 Ohio St. 476; Falke, ex parte. 42 Ohio St. 638; State v. Pugh, 43 Ohio St. 98; State v. Hawkins, 44 Ohio St. 98; State v. Hudson, 44 Ohio St. 137; State v. Anderson, 44 Ohio St. 247; State ex rel. Herron v. Smith, 44 Ohio St. 348; Marmet v. State, 45 Ohio St. 63; State v. Wall, 47 Ohio St. 499; State v. City of Toledo, 48 Ohio St. 112; State v. Smith, 48 Ohio St. 211; Costello v. Wyoming, 49 Ohio St. 202; City of Kenton et al. v. State, 52 Ohio St. 59; Carr v. Village of West Oarrolton, 8 Ohio Cir. Ct. Rep., 1; State v. Bargus, 53 Ohio St. 94; Cincinnati v. Steinkamp, 35 Weekly Law Bulletin, 146; Hixson v. Burson, 35 Weekly Law Bulletin, 280.

However, it is claimed that the supreme court has indicated a purpose to hold all classification unwarranted by the constitution, and that therefore these decisions are not binding, and we should anticipate such a decision by holding this act special, or at least consider the question as res integra. The last two cases above noted are cited in support of this claim. Whether or not the Steinkamp case is distinguishable from earlier decisions is not for us to question Spear, J., writing the opinion, says, page 208: “It is not intended by this holding to overturn earlier decisions of the court upon kindred questions. Each case stands, and must stand, upon its peculiar facts and circumstances.”

We think that case is distinguishable from this. It will be observed that the act under consideration in that case did not confer power upon cities of the first grade of the first class to regulate the construction of buildings within their limits, but provided for the appointment, by the mayor of such cities, of inspectors, and prescribed their duties and the regulations to be observed, and provided that any person violating any provision of the act should be guilty of a misdemeanor and subject to fine and imprisonment. If the act had conferred the power upon cities of the first grade of the first class, any such city could, by ordinance, have prescribed the same regulations and enforced them by fine and imprisonment, and the act would not have been in conflict with section 26 of article 2. Falk Exp. 42 Ohio St. 638, 644.

Why the dictum of the learned judge who wrote the opinion in Hixson v. Burson, that the doctrine of classification of cities should be overruled, should excite so much interest, if not apprehension, is not apparent, since the same judge, in State v. Nelson, 52 Ohio St. 88, 99, said: “As the statutes affecting different cities and villages of different classes, practically do not operate in every part of the state, but only where a city or village of the particular class is found, it might seem that such laws do not operate uniformly throughout the state. A moment’s reflection will show that this is not so. If a new city or village of a particular class should be built up in the wildest spot in the state, the statutes applicable to such class of cities or villages, would be found to be in force there,and,in that sense, all statutes applicable to different classes of cities and villages, are in uniform operation in every part of the state,” and especially in view of the fact that the court itself, in State v. Wall, 47 Ohio St. 499, 500, said: “Grave doubts may well be entertained as to the constitutionality of this method of classifying cities for the purpose of general legislation, ” and in State v. Smith, 48 Ohio St. 211, 218: “It must be conceded that the method of classifying cities for the purpose of legislation, has been carried to the very verge of constitutional authority. Many conscientious minds believe that it has been exceeded.” And the judge falls into error when he says that “the doctrine of classification of cities and villages, as heretofore upheld, has been applied only to their organization, and has not been, and cannot be, applied to subjects in such cities which are of a general nature, and require laws of a uniform operation throughout the State. ’ ’

The act (82 Ohio St. 156), authorizing the board of public works of any city of the first grade of the first class, to cause its streets to be paved and to issue bonds of the city to the amount of two millions of dollars, in no manner related to the organization of such cities, but was upheld. Scheer v. Cincinnati, 14 Weekly Law Bulletin, 87; affirmed by the supreme court, 15 Weekly Law Bulletin, 66. Except for an application of the doctrine of classification it must have been held invalid, because special, and conferring corporate powers. The same is true of the act (86 Ohio Laws, 7), authorizing any city of the third grade of the first class to issue its bonds for an amount not exceeding seven hundred and fifty thousand dollars for supplying natural gas, upheld in State v. City of Toledo, 48 Ohio St. 112. Many other instances might be given. Division 2 of Title XII, Revised Statutes, relates to organization. And so, too, if by the expression “subjects in such cities which are of a general nature,” the learned judge meant “general subjects,” for many of the cases cited expressly decide that the word “general,” as used in section 26 of article 2, may relate to one grade and class of cities only; that a law is not necessarily of a general nature by reason simply of its being upon a general subject, and that a law applicable to a whole class is a law of a general nature, and has a uniform operation throughout the state, within the meaning of this constitutional provision.

In view of the interest which is at present manifested in the question of special legislation for cities, it may not be improper to consider, briefly, the subject of municipal government.

Until comparatively recent years the great majority of people lived in the country, and the matter of municipal government received little if any attention here or elsewhere. Our studies were all of questions relating to the state and national government. But all this is now changed.

Under old conditions, country life was the rule, and town life was the exception. But under the new conditions, urban life becomes the necessary lot of an ever-increasing proportion — a proportion that in several countries has now reached preponderant dimensions, while in all civilized lands a like result is only a matter of a few years.” Municipal Government in Great Britain, by Albert Shaw,page 4.

The same authority gives statistics showing that whereas in 1801, in Scotland, there were three country dwellers to one citizen of a town — there are now three townspeople for every one who lives in the country; and further, that in England the majority of the population is urban. The tendency in this country is the same, In 1800, less than one in twenty-five lived in cities; in 1850 one in eight; in 1880, about one in four, and now about one in three. And «orne idea of the importance of the subject may be obtained from the statement that, for the year 1888, the value of property in these corporations, in Ohio, returned for taxation, was more than five hundred and eighteen millions of dollars; that the amount of tax, including school tax, levied annually, was more than fourteen millions of dollars, or about equal to that raised by taxation for all other purposes in the state; and that their total bonded indebtedness September 1, 1888, was about forty-five millions of dollars; that of the ■counties being a little over six, and of the state seven millions of dollars. From 1803 to 1851, inclusive, charters were granted in this state to three hundred and eighty-two cities, towns and villages, and six hundred and twenty-two acts by the general assembly were passed relative thereto. Th'ese charters possessed many features in common, but no system was attempted until after the adoption of the constitution of 1851, section 6 of article 13 of that instrument directing the general assembly to provide for the organization of cities and villages by general laws. Accordingly, May 3, 1852, an act to provide for the organization of cities and incorporated villages was passes (52 Ohio Laws, 223), comprising in one hundred and eleven sections, a system for the government of all the municipalities in the state, and providing for the organization of new towns and cities. The provision of our constitution, requiring legislation with respect to cities to be by general laws,was supposed to be a distinctive feature of our system. Gholson, J., in. Thomas v. Village of Ashland, 12 Ohio St. 124, 130. But it was not. The example had been set in the Municipal Corporations Reform Act pf 1835. Dillon on Municipal Corporations, section 36, 41, notes. Municipal Government in Great Britain, 27, 28.

Strange as it may seem, it is nevertheless true, that in the convention which framed the constitution of 1851, there was no committee on municipal corporations, and section 6 of article 13, emanated from the “Committee on corporations other than banking.” It is almost a literal copy of a provision of the constitution of New York of 1846,excepting that the words “by general laws” are inserted. Section 1 of article 13, provides: “The general assembly shall pass no special act conferring corporate powers,” and section 2 of the same article:.“ Corporations maybe formed under general laws; but all such laws may, from time to time, be altered or repealed.” These provisions were intended to prevent abuses which had come into existence under the previous constitution. See observation of Ranney, J., in Atkinson v. M. &. C. R. R. CO., 15 Ohio St. 21, 35, and of Brinkerhoff, C. J., in State v. Cincinnati, 20 Ohio St. 18, 34, 35. One object was to secure the interest and attention of each member of the general assembly in each of such laws by the possibility, if not probability, that his own constituents might be affected by its provisions, and thus to prevent pernicious legislation which had received the consideration only of the members interested in securing it. For these reasons this same committee inserted in section'6 of article 13, the provision that the general assembly should provide for the organization of cities and villages by general laws. It is doubtful that section 1 of that article was intended to apply to municipal corporations, and Okey, J., in State v. Pugh, 43 Ohio St. 99, 135, says: “Ifthequesion were res integra, by no means could it be said to be clear that this court would hold that article 13, section 1, of the constitution, has any application to municipal corporations. But, according to a series of cases, the provision does extend to municipal as well as private corporations, and since State v. Mitchell (31 Ohio St. 592), this court has regarded the construction of the constitution in that particular to be settled. But it was soon found that by reason of such construction of the constitution, there was great difficulty m framing bills for municipal corporations, in view of article 13, section 1, of the constitution; for what might be appropriate, or even necessary, for the welfare of one city, might be unnecessary or even mischievous, if applied to another. Apparently there were two ways in which the difficulty presented by that section could be ojbviated. One was to amend the constitution— a very difficult thing in Ohio. The other, which was adopted, was to give to article 13, section 6, such liberal construction as to enable the legislature, under the power of classification, to afford to each of the large cities of the state that which is, in effect, a substitute for a charter, by permitting corporate power to be conferred on any grade or class.” Just what scope should be given to the word “organization” in section 6 of article 13, is not apparent. Evidently that section was not intended to require that all laws relating to cities and villages should be general, and the supreme court has held valid many special acts relating to cities, but not conferring corporate powers.

But, be this as it may, the first act passed after the adoption of the constitution, the one already referred to, providing for the organization of cities and villages, divided the municipal corporations of the state into classes on the basis of population. Those having, or that might thereafter have, over twenty thousand population, were cities of the first class, and all other cities were cities of the second class. The act of 1852, while comprehensive in its provisions, did not meet all requirements, as is evidenced by the fact that something like one hundred and eighty-four acts were passed! amending or supplementing it prior to the adoption of the municipal code in 1869 (66 Ohio Laws, 149.) The code comprised seven hundred and thirty-one sections, and embraced the previous system of classification, which was not changed until the revision of the statutes in 1880, the reasons for which are given in the preface to the Revised) Statutes for that year. The purpose was to place Cincinnati, Cleveland, Toledo, Columbus and Dayton, each, in a* grade by itself, so that each readily might obtain what was-supposed to be necessary legislation. In 1850 these cities-had, respectively, in round numbers, a population of 115,-000, 17,000, 3,000, 17,000, and 10,000. While in 1880-they had increased to 255,000, 160,000, 50,000, 51,000 and 38,000, and found their clothes too small. This system of' classification was upheld, and these cities each obtained what it wanted, or what somebody said it wanted. The example so set was infectious, and many other places thought they needed special legislation, but found it difficult to obtain in a form that would stand a judicial test, because they were not in separate grades, and other legislators besides. the members from their own county had to be consulted. The result is a demand for still further classification, and it is conceded that the present system can be readily changed so as to place each of the cities of the state in a separate grade. In many of the opinions, in the cases cited, it is assumed that it is impossible to provide for the organization, regulation and government of all municipal corporations by general laws. The evidence is to the contrary. Mr. Shaw, Municipal Gov. in Great Britain, page 28, says of the reform act of 1835, heretofore referred to: “The bill reformed and assimilated the government of 178 borroughs (about seventy in Scotland had been reconstructed by the act of 1833), and provided an intelligible system under which 125 more English and Welsh towns have come under the enjoyment ofjcorporate privileges. From time to time new enactments applying in general to all municipal corporations were made by parliament, modifying at some points the structure of town government, but affecting more usually the scope and functions of the municipal administration. The chiefjoutlines of the act of 1835 had remained unobscured. Considered as a system, the municipal government of England had acquired a permanent foundation, and a staunch framework. But nearly naif a century of experience andjofjgrowing institutional and social life had placed several scores of additional laws upon the statute books, when, in 1882, it was decided to consolidate and revise all existing statutory provisions relating to the incorporated towns into a lucid municipal code.” This code, which provides for the government of three hundred and three cities, jcontainsjjust two hundred and sixty-nine sections. But the object sought is local self-government, of which, largely, our people, under existing laws, are deprived. Under our system of classification, placing each of the principal cities in a separate grade, it has not been difficult to secure the passage of laws in reference to any such city, for the practice prevails generally of treating such bills on their passage as the concern of no one but the member from the county in which the city is located. Consequently there is a disposition by interested parties to control municipal affairs by laws passed by the general assembly, instead of allowing the citizens’to control them under general and comprehensive laws conferring the''power upon the municipalities, and we are undergoingran experience in some respects similar to that of New York. Referring to this matter, the commissioners appointed by governor Tilden in 1875, to devise apian for the government of pities in the state of New York, say:

“It may be true that the first attempts to secure legislative intervention in the local affairs of our principal cities were made by good citizens, in the supposed interest of reform and good government, and to counteract the schemes of corrupt officials.

“The notion that legislative control was the proper remedy was a serious mistake. The corrupt cliques and rings thus sought to be baffled were quick to perceive that in the business of procuring special laws concerning local affairs, they could easily outmatch the fitful and clumsy labors of disinterested citizens.

“The transfer of the control of the municipal resources from the localities to the Gapitol had no other effect than to cause a like transfer of the methods and arts of corruption, and to make the fortunes of our principal cities the traffic of the lobbies. Municipal corruption, previously confined within territorial limits, thenceforth escaped all bounds, and spread to every quarter of the state. Cities were compelled by legislation to buy lands for parks and public places, because the owners wished to sell them; compelled to pave, grade, and sewer streets without inhabitants, and for no other purpose than to award corrupt contracts for the work. Cities were compelled to purchase, at the public expense and at extravagant prices, the property ne ¡essary for streets and avenues, useless for any other purpose than to make a market for the adjoining property thus improved. Laws were enacted abolishing one office and creating another, with the same duties, in order to transfer official emoluments from one man or another; and laws to change the functions of officers, with a view only to a new distribution of patronage, and to lengthen the. terms of offices, for no other purpose than to retain in place officers who could not otherwise be elected or appointed. ’ ’

Fuller extracts may be found in Brice’s The American Commonwealth, vol. 1, 609. The author says: “There is no denying that the government of cities is the one conspicuous failure of the United States;” and one of the causes assigned is: “The assumption by the legislature of the direct control of local affairs. ” The same author (page 615), is authority for the statement that the constitutions of eleven states now provide that cities shall be incorporated by general laws. “This prohibition of special legislation has generally worked well, though it is sometimes evaded.”

The whole matter is very forcibly set forth by Hon. W. R. Grace, in an article in Harper’s Monthly, in 1883:

“General incorporation acts, rather than special charters, would seem clearly to be the best method of creating and organizing municipal corporations. 1. Such acts tend to prevent favoritism and abuse in procuring extraordinary grants of special powers. 2. They secure uniformity of rule and construction, all being created and endowed alike, real wants are the sooner felt and provided for, and real grievances the sooner redressed. ” Dillon’s Municipal Cor-porations, section 41.

On the other hand Professor Goodnow, of Columbia College, in his recent timely and valuable work, “Municipal Home Rule,” gives a list of twenty states having constitutional provisions prohibiting the incorporation of cities by special act and, after a consideration of the many cases arising under these provisions in the different states, says: “Finally, are not the conditions of the various cities within a given state so varied as to make it impossible to govern them all to advantage by one general law, which attempts to fix in their details the municipal organization and the functions which this organization is to discharge? This was evidently the opinion of the late constitutional convention of New York, which, instead of prohibiting special legislation, merely hedged it about with formalities which it was hoped would prevent it from having evil results. These are the-reasons, also, why the courts have, through the exercise of their powers of interpretation, almost nullified the constitutional provisions requiring general acts for the incorporation and regulation of municipalities. The fact that they have, when looking at the matter from the private-legal point of view, been able to delimit quite satisfactorily and logically a sphere, of municipal private action, would prove beyond a doubt that the failure to accomplish the same result, when considering the matter from the public-legal point of view, was not due to lack of judicial knowledge or powers of legal perception,. They have simply refused, in the way so characteristic of courts entrusted with powers of judicial legislation, to apply to conditions, where its application would be fraught with evil, a general legal principle of which they were perfectly well aware, and for whose development in its proper sphere they were themselves responsible. The fact that they have acted thus has probably saved us from stagnation in municipal development and disintegration in the administration of central matters.”

The occasion for most of this so called special legislation has been the absence of any power in the municipality to issue bonds for the purpose of raising money for necessary municipal improvements, the cost of which was in excess of the sum which could be raised within the limits of its authorrized rate of taxation; and the demands of party politics that the cities be controlled by boards appointed by some officer designated by act of the legislature.

When the people perceive that the best interests of the state will be subserved by permitting the inhabitants of its cities to administer their own municipal affairs rather than by entrusting them to the control of the general assembly, and by a constitutional provision delimit a sphere of municipal home rule, which provision shall e held to vest in the municipality power to do whatever may fall within the purview of such a corporation, unless clearly prohibited or reserved for legislative control, then legislation by general laws will be not merely desirable, but possible.

But, desirable as such a system may be, it probably cannot be had, except by a constitutional provision securing to the municipalities the right of local self-government,' and directing that their organization,regulation and government shall be provided for by general laws, and that any law in relation thereto shall be general, applying to all; and if classification be deemed essential, let it be general and fixed in the constitution. But these questions are for publicists, and not for the courts.

That many abuses would have been precluded by a refusal to recognize the doctrine of classification, is not questioned, but that a repudiation of the doctrine, now, would result in greater good than harm seems to be doubted by the supreme court,

In State v. Brewster, 39 Ohio St. 653, 658, it was held: “The classification of municipal corporations, provided for in the Revised Statutes, sections 1546-1550, referred to in the act of 1883 (80 Ohio Laws, 124), is authorized by the constitution, and is not in conflict with article 2, section 26, nor article 13, section 6.” And in the opinion it was said: “ We hold that statutory provisions, with respect to any such class, are, for governmental purposes, general legislation, and not in conflict with article 2, section 26, nor article 13, section 6, of the constitution.” And Judge Okey, in his dissenting opinion, in State v. Pugh, 43 Ohio St. 98, 137, says of the above decision: “If not a rule of property within Arrowsmith v. Harmoning, 42 Ohio St. 254, that case should be adhered to, unless the clearest and most cogent reasons can be'given for overturning it. But there is no such reason.”

In State v. Hawkins, 44[)Ohio St. 98, 108, where the doctrine of classification was involved, Minshall, J., says: “To hold this statute invalid, for the reasons stated, would be to deprive, not only Cincinnati, but every city of this state, of any system of municipal government whatever; as all statutes conferring’"corpoiate power upon the municipalities of the state apply, in terms, to cities of certain grades and classes. There should be something more than a mere question as to the validity of a statute, to warrant a court in a holding that it must lead to such serious consequences.”

And Follet, J., in State v. Hudson, 44 Ohio St., 137, 139, where it was claimed the same act was in violation of section 26 of article 2, says: “This question vitally affects Cincinnati, as well as Cleveland, Toledo, Columbus and Dayton; for, at present, under our system of classification of cities, there is but one of these cities in a general class. This act (section 1870), applies to “cities of the first grade of the first class” — to all such cities in Ohio — though Cincinnati is now the only city in that class. Each city just 'named is now similarly situated. Each of the large cities ' seem to need peculiar legislation, which can be provided only- by such general classification. The peace and prosperity of these cities, and the best interest of the state, require that this system of classification be regarded as stare decisis and settled. See Revised Statutes, section 1546.”

McMahon & McMahon and G. V. Nauerth, for plaintiffs.

R. A. Harrison and E. P. Mattheios and G, H. Bosler, Oity Solicitors, for defendants.

In Marmet v. State, 45 Ohio St. 63, 66, Spear, J., says: “The classification provided for by sections 1546 and 1547 of the Revised Statutes, has been sustained by repeated adjudications of this court, in cases involving questions as to the conferring of corporate powers, as to assessments, and as to governmental regulation, and it is too late now to question the validity of those sections.”

And to the same effect is the peí■ curiam in State v. Wall, 47 Ohio St. 211, 218.

Stare decisis et non. quieta move re” if nothing more, requires this court to declare such acts constitutional until these cases are overruled by the supreme court, or a differ - 'ent. system of classification is adopted by the legislature.

The demurrer to the answer, searching the record, will be sustained, to the petition the injunction dissolved, and the petition dismissed.

[Affirmed by Supreme Court without report, June 26, 1896.|


author: Cherrington, J.

text:
    (Fourth Circuit, Scioto Co.,O, Circuit Court,
    November Term, 1890.)
    Before Clark, Cherrington and Russell, JJ.
    AM. B. TIMMONDS, Administrator de bonis non, with the Will Annexed, etc., v. WILLIAM H. WHEELER et al.
    S Fees of Master prior lien on fund realized by 7vis services—
    1. A judgment creditor of an insolvent debtor, who has in a suit in equity, recovered a judgment for money against the adverse party — part of the costs of which suit is taxed against such insolvent debtor and remains unpaid — cannot, when the proceeds of such judgment have been paid into court, by filing a creditor’s bill under section 5401, Revised Statutes, subject such funds to the payment of his judgment claim, to the exclusion of the equitable claim of a Special Master Commissioner against such funds, for fees for services rendered as Master in the suit in which such judgment was rendered and the funds realized.

      Master’s fees are part of the costs of the case—
    2. The fees of a Special Master Commissioner, appointed by the court under section 5221, Revised Statutes, for services rendered in the case in which he was appointed, are part of the costs of such action, within the meaning of the statute, and when funds derived from such litigation are brought into court, the court will order the fees of the Master paid out of the proceeds, before making distribution thereof to the litigant entitled thereto, or to a judgment creditor of such litigant seeking to subject the same to the payment of his judgment by proceedings under section 6164, Revised Statutes.

      On appeal, Master’s fees not be relegated to recovery from bondsman.—
    3. Where an action in which such funds have been realized, has been appealed to the Circuit Court by such insolvent debtor — he having given bond under section 5351, Revised Statutes — the court will not, under its equitable power in marshaling liens, where there is not sufficient to pay the claim of such judgment creditor and the fees of the Special Master Commissioner, order payment of the funds to such creditor, and require the Master to proceed against the bondsmen for his fee, unless they have been brought into court, and there exists some equitable grounds that they should pay such costs; nor will the court, in case there exists equitáble grounds that the bondsmen should pay such costs, and that the Master should proceed against them for his fees, award such funds to the judgment creditor until the Master has realized his fee from the bondsmen.
    Appeal from the Court of Common Pleas of Scioto County.
   Cherrington, J.

This action is a petition in equity, commonly called a creditor’s bill, under section 5464, Revised Statutes, by the plaintiff, to subject to the payment of a judgment for $1,810.05, rendered in his favor against the defendant William H. Wheeler, and one David M. Richardson, the proceeds of a certain judgment for $393.76, rendered in another suit in favor of said Wheeler against one William H. McCurdy.

The facts in the case, as disclosed by the pleadings and evidence, are as follows:

In 1877, William H. Wheeler filed a petition in equity in the common pleas court of Scioto county against William H. McCurdy, alleging that they had been partners in the mercantile and contracting business; that a large amount of money was due him by virtue of such partnership, and praying for an accounting.

The case was referred to a Master, and a large amount of testimony was taken, and a report made, finding some $800 due from McCurdy to Wheeler. This report was confirmed by the common pleas court, and the case was appealed to the district court by both of the parties to the action. When the circuit court was created and the district court abolished, Wheeler perfected his appeal by giving a new bond; McCurdy did not. The report was set aside by the circuit court, and the case referred to William B. Grice, the present Master. More testimony was taken, and a report made finding some $300 due from Wheeler to McCurdy. This report was set aside by the circuit court, and the case was referred back to Mr. Grice. More testimony was taken, and the present report was made by the Master, reversing his former judgment, and finding that there was $393.76 due from McCurdy to Wheeler. This report was confirmed by this court March 21, 1889, and judgment rendered thereon in favor of Wheeler against McCurdy for that amount; and in the same decree Wheeler was ordered and adjudged to pay one-third of the costs in the case, and Mc-Curdy two-thirds.

McCurdy thereupon gave notice of his intention to, and did, file a motion to re-tax the costs, under section 5237, Revised Statutes, claiming that because the plaintiff did not recover as large a sum as he did in the court below, he should, under the provisions of said section, pay all the costs made in the circuit court. The motion was subsequently heard by the court, and the parties ordered and adjudged, under section 5351, Revised Statutes, each to pay one-half the costs.

When judgment was rendered March 21, 1889, the plaintiff had an execution on his judgment against Wheeler and Richardson in the hands of the sheriff, and a demand was made on McCurdy to pay the $393.76 over to him, under section 5482, Revised Statutes. This he refused to de, and on the same day, the petition in this case was filed. Mr. McCurdy thereupon paid the money into court. There remained at that time, due Mr. Grice, Special Master Commissioner, on his fees as such Master, the sum of $200, from William H. Wheeler.

On the trial of the case in the common pleas court, it was conceded by all the parties that this $200 due Grice should be first paid out of the funds-in court.

On April 18, 1889, John W. Overturf and N. W. Evans were made parties defendant in the court of common pleas, and their appearance entered. They both had equitable assignments of the judgment prior to the filing of the Timmonds petition; but as the assignment of'Mr. Evans was prior to that of Mr. Overturf, and the equities of Mr. Grice conceded to be superior to the others, there was nothing left to which Mr. Overturf’s assignment could attach, and he filed no answer. Mr. Grice was therefore not made a party defendant in the common pleas, and the contest was between Mr. Evans and Mr. Timmonds. The court made an order only as to the $143.76 balance of the judgment remaining after the payment of Mr. Grice’s fees.

■ Timmonds thereupon appealed the case to this court, and when the claim was made for the first time that he had, by virtue of his creditor’s bill, a lien and claim prior and superior to that of Grice, the latter was made a party defendant to the action in this court, and filed his answer there November 8, 1890, alleging that at and before the filing of plaintiff’s petition, there was due him for fees, as Special Master Commissioner, in the case of Wheeler v. McCurdy, the sum of $300, which is a part of the costs in the case, and that at the time of the filing of plaintiff’s petition, $200 of that amount was due and payable to him therein from the defendant in this action, William H. Wheeler; that said Wheeler was then, and is now, insolvent, and has no other means but the proceeds of said judgment paid into court by McCurdy, out of which said sum can be made, and that in equity, he is entitled to have the sum of $200 paid out of the funds in court, realized from the judgment of Wheeler against McCurdy, and praying the court to so adjudge.

The defendant William H. Wheeler, also filed an answer in the case, denying that at the commencement of this suit, he had any interest whatever in said judgment rendered in his favor against the said William H. McCurdy, and averring that there was yet due William B. Grice, Special Master Commissioner, as fees allowed him by the court, for services rendered in said case, the sum of $200, which should be paid out of the said judgment, and that there is a balance of $250 due from him to the said N. W. Evans, as attorney fees, for services rendered in said case, and asking that after the payment of the $200 due Grice, the balance be paid to N. W. Evans on his claim for attorney fees, and that the petition of the paintiff be dismissed at his costs.

From the pleadings it appears that both David M. Richardson and William H. Wheeler are insolvent, and nothing can be made of them by execution.

It is now conceded by all the parties that N. W. Evans had an equitable assignment of this judgment before the plaintiff herein filed his petition, to the extent of $250, and that his claim is prior and superior to that of the plaintiff and William B. Grice; it is also conceded by counsel for Mr. Grice that Mr. Wheeler has paid, or secured to be paid, the remaining $56.24 due him, so we have only to deal with the $143.76 balance remaining after the payment of Mr. Evans’ claim.

The question presented in this case for the determination of the court, under the pleadings and the evidence, is simply this: Can a judgment creditor of an insolvent debtor, who has, in a suit in equity, recovered a judgment against another party — a part of the costs of which case is taxed against the insolvent debtor and remains unpaid — when the proceeds of said judgment have been paid into court, by filing a creditor’s bill under section 5464 appropriate such funds to the payment of his judgment,and prevent the court from applying the same to the payment of such unpaid costs, cut the officers out of the fees due them for services rendered in the prosecution of the case in which such judgment has been rendered and such funds realized, and leave them to make their costs as best they can, out of the insolvent debtor?

It is claimed, on behalf of the plaintiff: First — That the $200 due Grice for fees as Master Commissioner, are not costs that can be taxed to, or ordered paid out of the funds; that he could have refused to file his report until his fees were paid, and that having filed his report without insisting upon payment, he waived his right to have such costs taxed against the funds, and elected to look therefor to the personal responsibility of Mr. Wheeler, or the sureties on the appeal bond.

Second — That the only means by which costs can be collected in this state, is by virtue of the provisions of sections 1318, 1319, 1320, 1321, 1322, 1323 and 1324, of the Revised Statutes.

Third — That, if he is mistaken as to the first and second propositions, as Mr. Grice has two funds out of which he can make his claim, viz: the money in court and the bond given by Wheeler to appeal the original case of Wheeler v. McCurdy to this court, he should be compelled to make his claim out of the latter, for the reason that plaintiff can make no claim thereon.

Fourth — That because the plaintiff acquired a lien on the funds in question, by the filing of his petition on March 21, 1889, and Mr. Grice did not file his answer asserting his claim to this fund until November 8, 1890, the former acquired the first superior lien.

We think all these claims are untenable.

As to the first, section 5224 provides that Special Master Commissioners shall be allowed such fees as are allowed for similar services to other officers. Section 5218 provides that referees shall be allowed such compensation for their services as the court may deem proper and just, which shall be taken as a part of the costs in the case. Where the matter in controversy in a court of equity has been referred to a Special Master Commissioner, it has always been the practice to tax his fees at costs in the case, and courts of equity have always recognized the right and exercised the power, when funds derived from litigation are brought into court, to order the fees and costs of their officers paid out of the funds realized by their exertions, before making distribution thereof to the litigant or litigants entitled thereto.

It is true the Master could have refused to file his report until his fees were paid; but he does not, by filing it, waive 'his right to invoke the power of this court to order it paid out of the fund, nor does he, by such action, elect to look to the personal responsibility of the party against whom the court may, in its discretion, on the final determination of the case, tax such costs.

The second proposition is equally untenable. It is urged that because costs are unknown to the common law, and are created solely by statute, there must exist some statutory authority to enable the court to order their payment out of the funds realized from litigation, when brought into court; and that, as no statutory authority exists authorizing the court to order their payment out of the funds in its hands, the court is powerless to do so; that the only manner in which costs can be collected by legal process in this state is the method pointed out by sections 1318, 1319, 1320, 1321, 1322, 1323 and 1324 of the Revised Statutes, above referred to.

These sections only provide for the collection of costs by means of executions issued for that purpose, and they do not, in any manner, limit or abridge the powers of, or forbid courts of equity from ordering costs paid out of funds in court, realized from litigation, and section 5351, Revised Statutes, we think, gives us ample power to award and adjudge the costs as we may deem right and equitable.

Besides, it must be borne in mind that the case in which these costs were incurred, was a suit in equity, and that it is one of the well recognized and established rules of our jurisprudence that in all such cases, the power to tax the costs is vested solely in the Chancellor, and rests entirely in his discretion, subject only to review for manifest abuse of such power. It must also be borne in mind that courts of equity have, where funds realized from litigation are brought into court, always exercised the authority to order the payment of the costs of their officers out of the fund realized through their labor and exertions, before making distribution of the proceeds to the successful litigants. This power has been exercised time out of mind, and we have never before heard it questioned, and we do not feel disposed to depart from the practice without better reasons than those advanced by counsel in the case at bar.

Courts of equity have always exercised the power to adjudge costs as they deem equitable and right, and when funds realized from litigation are brought into court, they will dispose of the funds, as to costs, in such manner as they deem equitable. This doctrine has been recognized and exercised in the cases following: Armstrong v. McAlpin, 18 Ohio St. 189; Bloomingdale v. Stein, 42 Ohio St. 173; Diehl v. Friester, 37 Ohio St. 473; Mason v. Alexander, 44 Ohio St. 337; Wagoner v. Loomis, 37 Ohio St. 581 Rooney v. Railroad Co. 18 N. Y., 368.

The third claim is an attempt on the part of the plaintiff to invoke the well known power of a court of qquity in marshalling liens, to compel a party who has two funds to resort to the one on which the others have, and can assert no claim. It is true that the condition of the appeal bond required by section 5231, is to the effect that the party appealing shall abide and perform the orders and judgment of the appellate court, and pay all money, costs and damages which may be required of, or awarded against him; but he who seeks equity must do equity. On what principle of equity should we take such action as will, in all probability, require the sureties on this appeal bond to pay the claim of Mr. Grice, when the insolvent appellate in the case of Wheeler v. McCurdy, has funds'in court, realized from the litigation, sufficient to satisfy such claim for costs? This power to compel a party to resort to another fund, will only be exercised by courts of equity when it will work no injustice to any party connected with the litigation. In the case at bar, we do not think it right or equitable to turn this fund over to the plaintiff, and by such action, necessarily compel the sureties on this bond to pay these costs, while funds of the insolvent debtor remain in our hands, and subject to our disposal.

There is nothing in the pleadings or evidence to show that these bondsmen have been in any way indemnified by Wheeler from loss, by reason of the responsibility incurred by them in signing the appeal bond. They are utter strangers to this controversy, and on what principle of equity should we make an order that will, in all probability, compel them to pay this debt of Wheeler’s to Grice? We have in this case, no right to compel Grice to resort to the bond claimed to have been given on appeal, unless there are some equitable grounds that the sureties should pay the costs. Story’s Equity Jurisprudence, 1th Ed., sections 633, 634, 643, 644 and 645.

And why should we compel Mr. Grice to resort to this bond, when the very funds realized, in a great measure, by his personal labor, are in court and at our disposal? He might have to sue these bondsmen, and only succeed in getting his fees at the end of a long and expensive litigation. The bondsmen might prove insolvent, and he might lose the entire fruits of his labor. Now, would it be equitable or just, to award this money to the plaintiff, who never, either through his means or labor, or in any manner, contributed to the result, and perhaps entail, by our action, on the Master Commissioner, a litigation that may in the end prove fruitless,to obtain his justly earned compensation? Besides, if there existed equitable grounds why the bondsmen should pay these costs, we could not, in justice to the Master, award this money to the plaintiff until he had realized his fees from them.

As to the fourth claim, it is true that Mr. Grice did not file his answer asserting his claim to this fund until November 8, 1890, long after the plaintiff had filed his petition and acquired his lien; but from the statement of counsel, it was never claimed on part of the plaintiff, until' the case came into this court, but that Mr. Grice was entitled 'to have his costs paid out of this fund, before the plaintiff, under his creditor’s bill, could reach any part of it. Besides his equity and right to have this fund applied to the payment of costs, existed at, and prior to the rendition of the judgment rendered in favor of Wheeler against Mc-Curdy, and prior to the time that the plaintiff in this action filed his petition; and it makes no difference when his answer was filed, for when filed, any action taken thereon by the court, relates back to the time when his equitable right first accrued. It is the time his equitable right first accrued, and its superiority in equity, and not the date of filing his answer,that determines th.e priority of his claim or lien. Whatever equity plaintiff had, was acquired by the filing of the petition, and the equity of the Special Master Commissioner was prior to that, because his equity existed at, and even prior to the time judgment was rendered in the case of Wheeler v. McCurdy. The ultimate rights of a party in a proceeding of this kind, must be determined on the final distribution of the funds, when they are in the court for that purpose,' and the question is: Who has the superior equity ?

Now, it cannot be successfully denied but that when the funds realized from this litigation were brought into court, as against Mr. Wheeler, Mr. Grice would have the right to have his fees paid out of the moneys then in court, before any part thereof was paid over to the former. If that is the case, how can this plaintiff, by filing a creditor’s bill, destroy the equity of Grice in the funds in the hands of the court? Mr. Wheeler would, in equity and justice, be bound to submit to the payment of Grice’s costs out of the fund, before he could use or dispose of it. In what better position is the plaintiff? When a creditor seizes a fund, he seizes it subject to all equities that parties may have in it, at and prior to the filing of his petition, and when all claimants are brought into court, the court will determine which has the superior equity. He cannot, by filing his petition and seizing the funds, exclude persons having equitable interests therein. In this case we think the superior equity is with the Master.

We have been asked by the plaintiff to state our finding of facts and conclusions of law thereon, separately. We therefore find:

As conclusions of facts

First — That on the first day of the present term of this court, November 6, 1890, there was due the plaintiff from the defendant, William H. Wheeler, on the judgment set forth in the said petition, the sum of one thousand eight hundred and ten dollars and eighty-five cents ($1,810.85), and that neither of the debtors in said judgment, William H. Wheeler and David M. Richardson, at the date of the filing of said petition in the court below, March 1, 1889, had personal or real property subject to levy upon execution sufficient to satisfy the amount then due the plaintiff upon said judgment.

Second — That at the March term of this court, 1889,com-menced and holden on the 14th day of March, 1889, thedefendant William H. Wheeler recovered a judgment against his co-defendant, William H. McCurdy,in the cause mentioned in the said petition, in the sum of three hundred and eighty-seven dollars and eighty-nine cents ($387.89).

Thirdly — -That at the said March term, 1889, of this court, the said defendant William H. Wheeler, was ordered and adjudged and decreed to pay the equal one-third part of the costs in the action wherein he recovered the said judgment against the defendant William H. McCurdy, which said order, adjudication and decree was so modified at this term of the court, by a nunc pro tunc entry as of, and for the said March term, 1889, as to be an order, adjudication and decree that the said defendant William H. Wheeler, should pay the equal one-half of the costs in the said action wherein he recovered the judgment against the said William H. Mc-Curdy.

Fourth — That the costs in the action wherein the said judgment in favor of the said William H. Wheeler and against the said William H. .McCurdy was rendered, was the sum of nine hundred and twenty-five dollars and eighty-eight cents ($985.88). That the said William H. Wheeler, defendant, had paid on account of the said costs before the rendition of the order, adjudication and decree aforesaid, the sum of two hundred and twenty-five dollars ($225), and there was due on the first day of this term from him to the defendant William B. Grice, on account of costs and fees taxed in his favor as a Special Master Commissioner in the said action, the sum of two hundred dollars.

■ Fifth — That prior to the filing of the petition in this action, the judgment that the said William H. Wheeler, defendant, recovered against the said William H. McCurdy, defendant, had been, for value received, assigned to the defendant N. W. Evans, to the amount and extent of two hundred and fifty dollars ($250).

And as to the conclusions of law the court finds:

First — That the said N. W. Evans is entitled to be paid out of the judgment of William H. Wheeler against William H. McCurdy the said sum of two hundred and fifty dollars.

Second — That at the time of filing the petition in this action, the defendant William H, Wheeler, had no interest in the judgment of William H. Wheeler against William H. McCurdy that could be reached by the bill in equity of the plaintiff.

That the amount of said judgment of Wheeler against McCurdy in this action, having been brought into this court, and now on deposit with the Clerk of this court, amounting to the sum of three hundred and ninety-three dollars and seventy-six cents ($398.76), the said clerk should pay and distribute the said sum as follows: (1.) To the defendant N. W; Evans, the said sum of $250. (2.) That the balance of-the said sum of $893.76, the said clerk pay to the defendant William B. Grice.

T. C. Anderson, attorney for plaintiff.

N. W. Evans and Duncan Livingstone, attorneys for defendants.

Fourth — That the plaintiff should pay the costs of each and all of the said several defendants herein.

(A petition in error was filed by the plaintiff in the Supreme Court and the judgment of the Circuit Court affirmed, without report, January 22, 1895. 52 Ohio St. 641.)