text:
    (First Circuit — Butler Co., O., Circuit Court
    April Term, 1886.)
    Bepobe Judges Cox, Smith and Swing.
    Robert Foster et al. v. The State of Ohio.
    1. An indictment, which with other proper averments, charges, that three defendants unlawfully made an assault upon another person, and did then and there unlawfully have carnal copulation, against nature, with such person, is a good indictment under the act of May 4, 1885, O. Xi., vol. 82, page 241; and a motion to quash the same, on the ground that is had for uncertainty, repugnancy and duplicity, and a demurrer thereto for the reason “that the facts stated therein do not constitute an offense punishable by the laws of this state,” were properly overruled.
    2. While it is the clear rule of the law, that in prosecutions for the crime - of rape, the declarations of the injured female, made shortly after the alleged criminal act, as to the commission thereof, are competent evidence for certain purposes, this being an exception (founded on necessity) to the general rule as to hearsay evidence, there is strong ground for holding that it must not be extended to prosecutions under the sodomy statute — the reasons which exist for the rule in the one case, not existing in the other, and there appearing to be no authority which holds such evidence to be competent.
    3. But even in prosecutions for rape, such statements of the prosecuting witness are only competent, as tending to corroborate her evidence given upon the witness stand. And where in a prosecution for sodomy, the bill of exceptions taken in the case, shows, that the trial court, against the objection of the defendants, allowed evidence to be given of the statements and declarations made by the person alleged to have been assaulted, to o.ther persons, shortly after the time the act * was said to have been committed, as to the manner, and by whom it was done, “ for the purpose of further maintaining the issues on the part of the state of Ohio, and to prove the allegations in said indictment contained, ” and the bill of exceptions does not show that the person injured was examined as a witness in the case, it was error to receive such evidence at all, or if such person had been examined as a witness, to receive it for such a purpose.
    Sec. 7297, Revised Statutes, as a rule of evidence, is applicable as well to prosecutions for sodomy as to those for rape.
    Error to the Court of Common Pleas of Butler County.
   Smith, J.

The errors assigned in this case are, that the court erred in the overruling of the motion to quash the indictment; in refusing to sustain the demurrer to the indictment; in admitting incompetent evidence, and in refusing to charge the jury as requested; and in the charge as given to the jury.

Should the court have sustained the motion to quash ? It is urged that the indictment was bad for uncertainty, repugnancy and duplicity. That it charges two or more separate offenses in one count, and improperly charges against th.e three defendants the joint commission of a crime, which, from its nature, cannot be committed by three persons at the same time.

Sec. 7249 Rev. Stat. provides, that “ a motion to quash may be made in all cases when there is a defect apparent'upon the face of the record, including defects in the form of the indictment, or in the manner in which a« offense is charged.”

The indictment in this case is substantially as follows: It charges, “ that Michael O’Connor, Robert Foster and John Wilson, on the 29th day of December, 1885, at the county of Butler aforesaid, in and upon one Christian Ramsayer then and there being, unlawfully did make an assault, and then and there unlawfully did have carnal copulation against nature, with him the said Christian Ramsayer, the said Christian Ramsayer being then and there a human being, and then and there unlawfully did carnally know him, the said Christian Ramsayer, and then and there, unlawfully and against nature, did commit and perpetrate the detestable and abomi-. nable crime of sodomy, contrary to the form of the statute,-” etc.

The claim is made by counsel for the plaintiff in error, that, in effect, this indictment, in the one count, charges each of the defendants with a separate and distinct crime. That as in the nature of things, it is impossible that three men should, at the same time, have carnal copulation against nature with a fourth, that the criminal act here charged must be held to be a separate one against each of these defendants, and that this is in direct conflict with well established rules of criminal pleading. And if such is the interpretation to be placed upon the language of the indictment, there ean be no doubt but that the motion should have been sustained; for it is the general rule, that it is not allowable to charge one defendant with two or more distinct and separate offenses in the same count, or in one indictment to charge two or more persons each with a separate and distinct offense. Each defendant is entitled to have his case. presented by itself, and not have another person, charged with an altogether different offense, joined with him. It is only when the allegations of the indictment show, that all of the defendants charged therein, participated in the same offense, that they can be jointly charged in the same indictment.

But does this objection properly lie to this indictment ? It has been urged with much ability and force that it does. But it will be observed that the charge in question is one against all of these persons, and of participation by them in one act. It alleges in effect, that th^ three jointly made an assault upon Ramsayer — one assault — and that they then and there had carnal copulation with him against nature, still one other act charged — and while it may be true that this last criminal act so charged could not have been actually performed by more than one of them at the same time, it does not follow in our opinion that all of the three might not have been properly found guilty of the offense so charged. It is one of the most familiar principles of criminal law, that where the criminal act in question, is actually committed by one of several defendants, as for instance the blow which takes the life of another, yet those who are present, aiding and assisting 'in the act, are equally guilty as principals.

But an examination of the authorities shows that the question as to the form of the indictment in such cases is not a new one, but that it was long ago adjudicated by the courts in England and in our own country. Thus in 2d Archbold’s Criminal Practice and Pleadings, page 161, in a discussion of the question as to the proper form of indictment under the statutes punishing rape, (and which, in this particular, is applicable as well to indictments for sodomyi, cases are cited which show that the objections made to this indictment are not well taken. See Rex v. Filkes R. & M. C. C. R., 354; Rex v. Vide et al., Fitz Coronne 86; Rex v. Borgess, Trin T., 1813.

This would seem to settle the question even at common law; but in view of section 6804, Revised Statutes, which provides, that whoever aids, abets or procures another to commit any offense, may be prosecuted and punished as if he were a principal offender,” and of the decisions of our supreme court made upon it, it is especially true in Ohio. See State v. Munson, 25 Ohio St., 383; Hartshorn v. State, 29 Ohio St., 635, and 42 Ohio St., 150.

But while the objection made to this indictment, in our view, is not tenable, we incline to the opinion that the criticism made of the one in the case of Rex v. Borgess, above cited, has weight in this case, and that form of it is not to be commended. It is likely, that under a charge of this kind, injury might result to the defendants in the introduction of evidence, owing to the uncertainty as to what act, or of which defendant, it is intended to complain. If there was, in fact, a carnal copulation by each of these three defendants with Ramsayer (which perhaps might be inferred from its language), the others aiding and abetting in each, then each of the defendants was guilty of three separate and distinct offenses, and under proper indictments might be convicted thereof. But under this indictment, evidence ought not to be given as to more than one such act, and if offered as to other acts it should be excluded or the prosecuting attorney be required to elect as to which act he relied on for conviction ; but under an indictment like the one in question, all of the defendants might properly be convicted, if the proof showed that all had participated or assisted in the commission of the one criminal act.

Was the demurrer to the indictment well taken? It states five grounds, one only of which is authorized by the statute. Sec. 7251, Rev. Stats., provides that “ the accused may demur when the facts stated in the indictment do not constitute an offense punishable by the laws of the state, or when the intent is not alleged and proof of said intent is necessary to make out the ofíense charged.” The causes of demurrer set out in this case are, that it does not charge any offense, and in addition it objects to the form of the indictment, on the grounds set out in the motion to quash, and which have been disposed of.

The reason upon which the claim is founded that it does not state facts sufficient to constitute an offense under our law, is that it does not aver that the defendants, or either of them, are male persons.

The statute under which they are indicted provides, “that whoever shall have carnal copulation against nature with another human being, or with a beast, shall be deemed guilty of sodomy.”

It is to be noted that the term, “ man” or “male person,” is not used in the statute in defining the crime. It states what constitutes the offense, and a person of either sex may be guilty under it; yet it is plain that when the act charged is copulation against nature, that at least one of the parties to it must be a male person. A reasonable interpretation should be placed upon the language of the indictment. In the first place it appears that the Christian names of all the defendants' as set out in the indictment, are names almost universally applied to male persons — and this is a fact not without weight. The same thing is true of the person upon whom the assault is said to have been made. It says that he was a human being, and the personal pronoun him, denoting the male sex, is used with reference to him, and as in the nature of things the party committing the act here charged, must be a male person, we think the indictment does allege the fact with sufficient ■certainty, and that this objection to it is not well taken. But it may be further said on this point, that at common law it ■does not appear to have been necessary, in an indictment ■either for rape, or sodomy of the character here charged, to make an express allegation, either that the defendant was a male person, or that' the person ravished was a female, or in a ■crime against nature to disclose the sex of either. See for form of indictment in such cases : 2nd Archbold’s Criminal Practice and Pleading, page 159 and 185.

Was there error in the charge of the court as given, or in ■ refusing to charge as requested? Before the argument commenced, the counsel for defendants asked the court to give the following special charges to the jury : “ 1st. That copulation is the coupling of the sexes in the act of procreation, and to constitute this copulation, there must be both penetration and emission :■ that, is, there must be both penetration of the penis of the male, and the emission of seed therefrom into the womb or vagina of the female.” And 2nd. “ That •copulation against nature requires both penetration and emission of seed, as in the act of procreation when performed .in the natural way.” The court refused to give either of these charges, but' did say to the jury as to the first point, that in a case of this kind' it was only necessary for the state to prove penetration, and that it need not be shown that there was any emission of seed — to each and all of which rulings the •counsel for defendants excepted.

The first charge asked, we think, was properly refused. The court was requested to say, in direct opposition to the plain meaning of the statute, that under it there is no such crime as sodomy — that carnal copulation can only be had between the two sexes and in the usual and ordinary mode — which of course is not a crime; and such certainly is not the law.

As to the second charge asked for, we may say that it was undoubtedly the law in Ohio (and so declared by the supreme court), before the passage of the statute changing the rule, that to constitute the crime of rape, there must be, not only penetration, but emission of seed; and in the absence of any statute on the subject as to sodomy, it might well be that the rule would be the same. But we think that the objection is removed, and proof of emission in such cases rendered unnecessary by the terms of section 7297, Rev. Stats., which provides, that carnal knowledge, or sexual intercourse shall be deemed complete upon proof of penetration only.”

But the most serious and difficult question which we meet in this case is, whether the court erred in admitting the evidence of Jackson and Brown, two witnesses on the part of the state, as set out in the bill of exceptions, and for the purpose as therein indicated. At the trial, Jackson was examined, as set forth in the bill, by the state “ to further maintain the issues upon its part.” And he testified against the objection of the defendants to a conversation had by him with Ramsayer, about one or two hours after the alleged assault upon him, which conversation was not had in the presence of the defendants, or of either of them, and stated to the jury that Ramsayer had then told him about the commission of the offense by the defendants, and how it was done.

The bill of exceptions also states that, to further maintain the issues on the part of the state of Ohio, and to prove the allegations in said indictment contained, the prosecuting attorney offered John A. Brown as a witness,” and-he testified against the like objection of defendants, to a conversation had by him the next morning, in the absense of all of the defendants, and was allowed to state what Ramsayer told him as to the commission of the act by defendants, and how it was done. To all of these rulings of the court, proper exception was taken.

Now, whether any of this evidence was admissible at all is a matter of great doubt. We think it was not. It was clearly hearsay, and thus incompetent, unless it comes within the exception made in prosecutions for rape. It is clear that when a person is on trial, charged with that crime, that “ the declarations made by the injured female to third persons, immediately after the offense was committed, are competent and proper evidence to, sustain and corroborate her testimony, as delivered in court; but such declarations are not competent testimony in chief, to be considered as substantive evidence to prove the offense.” 17 Ohio, 593; 18 Ohio, 99; 8 Ohio St., 643.

But the question here is, whether the law is the same in cases like the one at bar. We are entirely unable to find any authority which holds that it is — the case of rape, in this respect, seems, so far as we can see, to be an exception to the general rule, and we suppose, as counsel for plaintiffs in error has argued, that it stands on this principle — that as to constitute rape the sexual act should have been committed against the will and consent of the woman, that her declarations, made at the first opportunity, are received (almost or entirely from the necessity of the case), to disprove any consent on her'part, or rather to corroborate her statement as to this, by showing that she acted as the instincts of every virtuous and outraged woman would prompt her to act, in making outcry and complaint at the first opportunity. If this were not allowed to be shown, it might be claimed with plausibility, that she had consented to the act. At any rate, for whatever reason, such has been the undisputed law for many years, and the books are full of decisions admitting such evidence as competent. But the fact that no such rule is anywhere announced as applying to prosecutions for sodomy (though it has in most of the states and countries always been a crime), is a potent argument that such is not the law. It may be, and is argued, that there is the same necessity for it in the one case as in the other — but this is not true, for it must be considered that in sodomy cases, the question of consent of the party with whom the act is committed, is not a material one. The crime is complete in either case if the act be committed, and there would seem to be no stronger reason-for breaking down or extending the salutary doctrine as to the incompetency of hearsay evidence in cases of this kind, than in a variety of others which might be named; and if we were to uphold the ruling here complained of, we fear that we would be making, instead of simply declaring, the law.

But as there are other reasons which seem to us to render this evidence clearly incompetent, and for the purpose for which the bill states it was 'received, we do not definitely decide the question; but with the suggestions which we have made upon the subject, leave it to the further consideration and examination of counsel, and of the court called upon to decide it, if the question should again arise.

There are two reasons which constrain us to hold that the trial judge erred in his rulings as to this evidence. And, first, the record distinctly states that if was received for a purpose for which it was not admissible. I have cited the authorities which show that evidence of this character, even in prosecutions for rape, can only be received to corroborate the evidence of the injured person. In this case it is stated in the bill of exceptions, that the evidence in question was offered and received to prove the allegations of the indictment. This is in direct conflict with the holding of the supreme court in 17 Ohio, 593.

Second. But in addition to this, it nowhere appears in the bill of exceptions or record, that Ramsayer himself was examined as a witness in the case. If he was not, the evidence should not have been received at all — for that it can only be admitted when such person was examined as a witness, is shown not only by the cases already cited, but is directly held in 35 Ohio St., 277.

It may be said that the bill does not exclude the idea that he was so examined as a witness. This is true; but the objection was made to the reception of the evidence, and being competent only in a certain event, and for a special purpose, we think the facts which would make it competent in that case, should affirmatively appear from the record.

. We incline to the opinion, that if the bill of exceptions contained a full account of all that took place at the trial, that neither of these objections would in fact be found-to exist We think it highly probable that Ramsayer was examined a witness, and from our knowledge of the ability and Ion perience of the trial judge, we have ground to think that he informed the jury that the evidence of these witnesses was admissible only to corroborate that of Ramsayer. But the difficulty is, that the bill itself, doubtless by oversight, shows neither of these things to be so; but on the contrary, as to one of them, excludes that idea. ¡ The result is, that the judgment must be reversed and the cause remanded to, the court of common pleas for a new trial, or for such other proceedings as may be warranted by law.

John B. Neilan, for plaintiffs in error.

W. G. Shephard, Pros.-Att’y, for the state.

{Mem,. — On a re-trial of one of the defendants, a verdict of guilty of a simple assault was rendered, and the other defendants were .allowed to plead guilty to the same offense.)


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    (Second Circuit — Montgomery Co., O., Circuit Court
    June Term, 1886.)
    Before Williams, C. J., and Stewart and Shattok, J. J.
    Mary McMaster v. George D. Keller et al.
    Suit was brought in the court of common pleas June 18,1881, to contest the validity of a will; a judgment was rendered December 23,1885, and an appeal taken to the circuit court. On motion to dismiss the appeal, held, that the circuit court is without jurisdiction.
    Appeal from the Court of Common Pleas of Montgomery County.
    On the 18th day of June, 1881, the plaintiff brought suit in the court of common pleas to contest the validity of the last will and testament of James Riddle, deceased. The cause was continued from term to term until the October term, 1885, when it was tried to a jury, and on the 23d day of December a verdict was rendered affirming the validity of the will. At the same term the plaintiff’s motion for a new trial was overruled, and a judgment was rendered in accordance with the verdict. The plaintiff thereupon appealed to this court.
    The defendants now move to dismiss the appeal, upon the ground that this court has no jurisdiction thereof.
   Shauck, J.

The jurisdiction which this motion calls in question depends the effect that is to be given to section six of article four of the constitution, as amended in 1883, section 454a of the “ act ’to provide for the organization of circuit courts, and adapt existing legislation thereto,” passed April 4, 1884, and. section five thousand eight hundred and sixty five (5865) of the Revised Statutes prior and subsequent to its repeal and re-enactment February 7,1885. Consideration is also due to section seventy-nine of the Revised Statues, which, it is claimed, operates to prevent the application of the amendment of February 7, 1885, to causes that were then pending in the court of common pleas.

By section six of article four of the constitution it is provided, that “ the circuit courts shall be the successors of the district courts,” and counsel for the appellant argue that as a result of this succession the circuit court became vested with all the jurisdiction which, at the time of the amendment, was vested in the district court. The general grant of jurisdiction is found in the first clause of the section. It provides that “ the circuit court shall have like original jurisdiction with the supreme court, and such appellate jurisdiction as may be provided by law.” The circuit court is alone in contemplation here, and the phrase “ as may be provided by law ” is prospective in its operation. The circuit court was not then in existence, and no jurisdiction had therefore been conferred upon' it by law. Without violence to the language employed, this clause cannot be construed as granting to the circuit court the appellate jurisdiction which had theretofore been conferred by law upon the district court. The consequences which are to result from the provision that the circuit courts shall be the successors of the district courts, are defined in the same clause. They are, that “all cases, judgments, records and proceedings pending in said district courts, in the several counties of any district, shall de transferred to the circuit courts in the several counties, and be proceeded in as though said district courts had not been abolished.”

We do not question the soundness of the doctrine urged by counsel that all such legislative enactments survive an amendment to the constitution as are consistent with the constitutional provisions as amended ; but it affords no aid in the solution of this question, since at-'thé time of this amendment there was no legislative enactment which conferred appellate jurisdiction upon the circuit court.

Gunclcel & Rowe, and D. A. Haynes, for the motion.

Young & Young, contra.

In support of the appeal it is further insisted, that jurisdiction to entertain it was conferred upon this court by section 454e of the act “ to provide for the organizatiou of circuit courts, and adapt existing legislation thereto,” passed April 14,1884. Admitting, for our present purposes, that this section, while in force, had the effect claimed for it by counsel; it was repealed by the act of February 7, 1885, which took effect upon its passage, while the circuit court, by the terms of the amended section of the constitution, did not come into existence until the qualification of the judges two days later. The act of February 7, also repealed section five thousand' eight hundred and sixty-five of the Revised Statutes, which authorized appeals to the district court in cases of this character. The repeals thus made left in force no statute conferring the right to appeal to any court from the judgment of the court of common pleas- When the circuit court came into existence on the 9th day of February, the only statutory provision relating to this subject expressly denied the right which is here asserted. Section five thousand eight hundred and sixty-five of the Revised Statutes, as re-enacted February 7, 1885, provides that “ no appeal can be taken from the judgment of the common pleas court to the circuit court in cases to contest a will.” The appellate jurisdiction for which the plaintiff contends, has never been provided by law. It has been expressly inhibited. As to cases of this character that were pending in the court of common pleas February 7, 1885, section seventy-nine could have no further effect than to save the right to appeal to the district court, which continued in existence for two days thereafter.

Motion sustained.


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    May Term, 1886.)
    Befobe Judges Cox, Smith and Swing.
    Joseph W. Brewster and Frank Rattermann, Auditor and Treasurer of Hamilton Co., v. Mary F. Anderson.
    M. F. A. brought suit in the Hamilton county common pleas against I. W. B. & F. R., as auditor and treasurer of said county. Judgment was rendered for defendants, and the cause appealed to the circuit court where judgment was also rendered. The case was then taken to the supreme court on error. Subsequently, defendants filed a motion in the common pleas to set aside the judgment on the ground of fraud, which motion was granted, and judgment set aside:

      Held: 1. That the common pleas court had no power to set aside said judgment; that by the appeal the whole case went to the circuit court, and the judgment in that court superseded the judgment below. 2. That the order was a final order to which error will lie in the circuit court.
    Upon the filing of the petition in the common pleas, R. B. S., county solicitor, waived issuing and service of process and entered the appearance of the defendants:

      Held: That under Sec. 2862, R. S., and by the previous conduct of the parties, that R. B. S. was authorized to enter the appearance for defendants, and that the parties were properly before the court.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

Mary F. Anderson brought her action in the Hamilton County Common Pleas against the defendants, Brewster and Rattermann, in which she set out that the defendants were respectively auditor and treasurer of said county; that she was the owner of a certain real estate in the city of Cincinnati; that it was occupied by one -, who was a dealer in spirituous and malt liquors; that by reason of a certain act of the Legislature of Ohio, passed on-day of-, 1886, commonly known as the “ Dow Law,” a cloud had been cast upon her title to said real estate; that said law is unconstitutional and void, and prayed that the same might be so declared and said cloud upon her title removed.

Upon the filing of said petition, Rufus B. Smith, county solicitor of said county, waived service and entered appearance for said defendants. To the petition a demurrer was filed, which the court of common pleas sustained, and dismissed the petition; thereupon the plaintiff appealed said cause to the circuit court, which court also sustained said demurrer and dismissed the petition. Plaintiff then took said cause to the supreme court on a writ gf error to the decision of the circuit court.

► After said cause was in the supreme court, defendants, Brewster and Rattermann, filed the following motion in the court of common pleas :

“ Now oome the defendants, Joseph W. Brewster and Prank Rattermann, and move to set aside the judgment heretofore entered herein, because the same was eollusively and fraudulently obtained.
“ W. W. Symmes,
“ John P. Follett,
“ I-IoadxjY, Johnson & Colston,
“Attorneysfor Brewster and Rattermann.”

The motion came on for hearing in the court of common pleas, and was heard upon affidavits and testimony, and the court found as follows:

“That said entry was erroneously made; that the court had no jurisdiction at the time to make said entry; that the defendants had not been served in the case with a summons, nor had they waived the issuing and service of summons, or entered their appearance, or authorized any one so to do in this cause, and that, therefore, said entry is void and of no binding effect. It is, therefore, ordered by the court that said entry be and the'same is hereby set aside, and held for náught.”

To all of which the defendants, Brewster and Rattermann, excepted by the county solicitor, and a bill of exceptions was allowed and signed.

To reverse this order of the court below tbis action is prosecuted here.

■ It is claimed by plaintiffs in error, through the county solicitor, that the court below had no jurisdiction to pass on the question raised by this motion,.for the reason that when the case was appealed to the circuit court, the whole case was taken up, and that nothing was left in the court below. On the other hand, the plaiutiffs in error, through their attorneys, who filed said motion, or rather through Mr. Kittredge, who represents the Saloon-keepers’ Association, claim that the appeal did not take up the case so as to deprive the court of the power to set aside the judgment upon motion during term time, and that the perfecting of an appeal during term time does not oust the court from jurisdiction so as to prevent it from rendering such orders and judgments in the case as the court may deem proper; and they further claim, that as far as this proceeding is concerned, the order of the court setting aside such judgment is not such a final order that error will lie to it in this court.

In some respects this is a peculiar case. Brewster and Rattermann, in whose favor the judgment below was rendered, without in any way attempting to show how they were prejudiced thereby, filed the motion to set the judgment aside. The motion was granted. And now they are seeking through the county solicitor to have the order setting aside the judgment set aside.

This strange and anomalous proceeding is not to be accounted for by what is disclosed in the record in this case. The reasons must be found elsewhere; but we don’t think we are called upon to go outside of the record to hunt for them. We deem it, however, proper to remark that we doubt if it was caused by any special desire on their part to fulfill the obligations that they were resting under by reason of the oath that they took before entering upon the duties of their respective offices.

Did the court below have jurisdiction to. do what it did? We think not.

By the appeal we think that the whole case was taken from the common pleas to the circuit court.

The statute applicable to appeals, section 5335, as amended February 7, 1885, O. L., vol. 82, p. 32, reads as follows: “ When an appeal is taken and bond given the judgment is thereby suspended, unless some part of the final judgment appealed from be an injunction. *. * * And the clerk of the common pleas shall forthwith make an authenticated transcript of the docket and journal entries and of the final judgment in the cause appealed, which transcript, together with the original papers and pleadings, he shall'deliver at the office of the clerk of the circuit court.”

Section 5239 provides, that when the circuit court makes a final order, or renders a final judgment in cases brought before it on appeal, it may enforce the same by process issued therefrom, or may remand the same to the common pleas court for execution ; and when so remanded, such judgment shall stand as the judgment of the common pleas court.

Certainly, when the appeal was perfected, every question between the parties was transferred from the common pleas to the circuit court, leaving no part of the case remaining in the common pleas court for its determination, and the case stood for trial in the circuit court, as it did originally in the court below, with full power in that court to determine every question which might arise in the case. If this were not true, the court of common pleas might, after a case had been appealed to the circuit court, set its judgment aside, grant a new trial and proceed to re-try the case, while at the same time the circuit court might be trying the case on the appeal. This illustration shows that such a theory of the law is not correct. When the case went to the circuit court, it went there as a whole, and there remained in the common pleas court a suspended judgment with no life in it except the power to retain. any lien that it might have on the judgment debtor’s property ; and we think it beyond the power of the court below to meddle with this suspended judgment so as to affect the rights of the parties in the controversy which is pending for trial, or has passed into judgment in the court above.

The question for trial on an appeal in the circuit court is not whether the judgment of the court of common pleas is right or wrong, but it is as to the rights between the parties on the pleadings and the evidence, and it is the judgment in the circuit court which fixes the ultimate rights between the parties; and if the case goes to the supreme court, it is this last judgment which it is sought to reverse. Courts do not sit to reverse or modify judgments unless there is error in them to thé prejudice of the party complaining, and this motion was not based on any ground provided in the statute, but was urged upon the ground that the court has the common law right to change and control its judgments during the term.

The ground set out in the motion was collusion and fraud; but-the entry setting aside the judgment-sets forth as the ground of reversal that the defendants were not served and the court had no jurisdiction to try the dause.

Did the county solicitor have authority to waive service and enter appearance for the defendants? Sec. 2862 of Revised Statutes, provides: “Whenever an action has been commenced * * against any person holding the office of county treasurer, or county auditor, or other county office, for performing or attempting to perform any duty authorized by or directed by any statute or statutes of this state for the collection of the public revenue, * * it shall be the duty of the solicitor of said board of control to take charge of and attend to all actions against any of the officers above named in such county for performing, or attempting to perform, any of the duties aforesaid, and it shall be unlawful for any of said officers in such county to employ any other counsel to defend such action or suit.”

We are of the opinion that under this section, when a petition is filed, the action shall be deemed “ commenced,” and that it then becomes the duty of the solicitor to take charge of and attend to said case, and that within this power is the right to waive the issuing and service of process, and to enter the appearance of said defendants, if he thinks it is to the interest of the people so to do. The auditor and treasurer are only nominal parties to the action. The real party is the people, and the county solicitor is the person who looks'after their interests. It is of no benefit to the people that the auditor and treasurer have notice, provided the solicitor have no.tice — in cases where they were served with summons, the proof shows they took no official action except to send the'summons to the solicitor.

The only object of a summons is to notify the opposite party of the nature of the claim and when answer shall be made. It is every-day practice for attorneys to waive this on behalf of their clients; the testimony shows it to have been the custom of the county solicitor to do this in similar cases, and of our own knowledge we know this to have been done in the cases against defendants which have come into this court, and we regard this, by reason of the course of conduct between them, independent of the statute, as an implied authority from them to the solicitor to appear for them and waive service and enter their appearance.

No attempt was made upon the hearing of the motion, to show that said defendants had been prevented from performing any duty devolving upon them pertaining to said suit, or that they had lost any rights by reason of the solicitor having entered their appearance without their knowledge or consent. Costs had been saved, the question had been speedily determined in the lower courts, and a judgment in favor of the people obtained, and yet the servants of the people complain. This case abundantly shows how it may be to the interest of the people that the solicitor should have the power to enter the appearance of the people by the auditor and treasurer, and we can see no good reason why he should not have this power, or why it is not within the authority granted by Said section. If we are correct in this view of the law, the court below should not have set the judgment aside for the reasons set forth in the order. But if the court gave a bad reason for its judgment, can there still be found a good reason to sustain it?

It is claimed that there was collusion and fraud upon the part of the solicitor and the attorneys in getting up the case and obtaining the judgment in the court below. Collusion means “ a secret agreement and co-operation for a fraudulent purpose;” and again, “a person who is guilty of collusion unites with others, playing into their hands, for fraudulent purposes.”

Do the acts of the parties show a fraudulent purpose — I mean the acts of the solicitor and the attorneys?

Did the plaintiff have the right to bring her action ? She certainly had. Her right was a'substahtive right, and not a fictitious one. The question being one of a public nature and involving a constitutional question, we can not regard a purpose which endeavors to get the question as soon as possible before the supreme court for its decision, as fraudulent. It is to the interest of all the people that the question be speedily decided by the only tribunal whose judgment would determine the question. This was the object of the parties, and it is to be commended rather than condemned. In a case of this kind there could be no good reason why the case should be delayed in the lower courts, and there was no ground to apprehend that the case would be unduly hastened through the supreme court without its receiving proper consideration. Questions of a kindred nature had lately been passed upon by a majority of the present supreme court, and ample provision is made for all persons to be heard in said court, even though they are not parties to the suit. (See 441.)

Thomas McDougall, Q. Bently Matthews, Rufus B. Smith, and Willis M. Kemper, for plaintiffs.

Hoadly, Johnson & Colston, John F. Follett and W. W. Symmes, for defendants.

There remains one other question to be determined, and this probably should have been'passed upon before considering the last two questions, for their consideration depends upon the view we have taken of this.

The question is: Was the order of the court setting the former judgment aside, such a final order as that error would lie to it? We think it is, although we are not without doubt as to the correctness of our decision.

In Hettrick v. Wilson, 12 Ohio St., 136, the plaintiff had obtained a judgment at one term, which the court, at a subsequent term, on motion, without notice to the opposite party, had set aside. The supreme court say :

There can be no doubt that the order of the court of common pleas which is sought to be reversed is one “ affecting a substantial right made in a special proceeding in an action, after judgment,” and is, therefore, the proper subject of review upon error.

We think this case, fairly considered, is an authority in point on this question. „

The judgment of the court below will therefore be reversed.


author: Beer, J.

text:
    (Third Circuit — Allen County, O., Circuit Court
    June Term, 1886.)
    Before Judges Beer, Moore and Seney.
    The State of Ohio ex rel. The City of Lima v. William D. Pohling, Auditor, Etc.
    1. Section 4919, Rev. Stats., as amended, 82 O. L., 171, is unconstitutional so far as it provides that the taxes “ levied and collected ” thereunder “ in the city of Lima, Allen county, Ohio, together with any balance which may remain unexpended, levied and collected in said city under said section, shall be expended within the corporate limits of said city, under the direction of the council of said city of Lima.”
    2. Where a tax for road purposes has been illegally assessed and collected, the county auditor cannot be required to draw a warrant upon the treasurer in favor of a municipal corporation for the amount of such tax paid into the treasury by the taxpayers of such municipal corporation.
    Error to'the Court of Common Pleas of Allen County.
   Beer, J.

The relator says:

The Commissioners of Allen county at their June sessions in 1883 and 1884, claiming to act by virtue of the provisions of § 4919, Revised Statutes, levied in each of said years 3J mills on the dollar, upon all taxable property of Allen county for the purpose of improving the highways in said county.

The levies were collected by the treasurer.

Neither prior to, nor at the time of the levies did the commissioners find that any specific highway, or part or parts of highways in said county had been damaged or destroyed by freshet, landslides, wear, or water courses, or by any other casualty', neglect, or inattention, so as to render the same unfit for travel, or hinder free and necessary transportation, and that the ordinary levies authorized by law for the improvement of highways would be inadequate to make said repairs.

Said levies were made under the name of, and were for a “ county road fund,” tobe expended generally for the improvement of highways. No other levy was made in either of said years by said commissioners for road purposes.

The levy and collection so made included 3J mills on the dollar on all the taxable property in Lima.

Of the tax so levied and collected on the taxable property of Lima, there remains unexpended $11,196.05.

On the 29th day of April, 1885, the general assembly of the state of Ohio passed an act amending § 4919, providing that the tax so levied and collected in Lima, together with any balance which may remain unexpended, levied and collected in said city under said section, shall be expended within the corporate limits of said city under the direction of the council.

On May 5, 1885, written notice was served on the treasurer of Allen county, that the city council of Lima will expend the money collected under and by virtue of § 4919, and remaining unexpended, levied and collected under said section within the corporate limits of Lima, under the direction of the city council of the said city of Lima.

On the 12th day of May, 1885, a similar notice was served on the county auditor, the respondent in this proceeding.

On the 22d of May, 1885, the city treasurer made a demand upon the county auditor that he draw his warrant on the county treasurer for said sum of money.

The auditor refused.

The city council are desirous of expending said sum so collected and remaining unexpended, in the improvement and repair of the streets of Lima.

The relator therefore prays, that a writ of mandamus may issue against the auditor commanding him to issue his warrant on the treasurer for said sum.

An alternative writ was allowed by a single judge of this court, answerable at the present term.

The defendant demurs to the petition and the writ.

It is claimed by the defendant, that that part of § 4919, Rev. Stats., under which the relator claims to be entitled to the fund prayed for, is unconstitutional and void.

The right to levy the tax provided for in § 4919, is made to depend upon the existence of certain facts. (Copy § 4919, R. S., 82 O. L., 171.)

The right is conferred upon the commissioners of all counties where the necessary facts exist.

In all counties where the necessary facts exist the commissioners may make the levy.

In each county where the levy is made, except in Allen county, the fund raised by the levy is to be expended under the direction of the county commissioned in such manner as may seem to them most advantageous to the interest of any such county for the construction, repair, etc., of certain roads. But in Allen county, the tax so levied and collected in Lima, together with any balance which may remain unexpended, levied and collected under said section, shall be expended under the direction of the council of the city of Lima.

One or more of the principal highways of the county must have been so damaged or destroyed as to render the same unfit for travel, and hinder free and neccessary transportation, in order to authorize the levy.

These conditions must exist to justify the levy in Allen county.

In every other county the levy must be made for the con.struction, reconstruction or repair of such road or roads.

In Allen county' the levy is made upon the property of the county for the same purpose; but it cannot all be expended for the purpose, but only that portion raised upon property outside of Lima.

In every county except in Allen, the commissioners may levy a tax not to exceed five mills on the dollar for the purpose of constructing, reconstructing or repairing any principal road or roads which may have been damaged or destroyed by freshet, landslide, etc.

The levy must be proportioned to the estimated cost of the improvement.

In Allen county, if one or more of the principal highways of the county be damaged or destroyed, and the levy be made of a sum sufficient to make the necessary repairs, the sum levied will hot be sufficient, for the tax levied and collected in Lima cannot be used upon the roads, to repair which it was levied.

• To raise a sum sufficient to repair the»damaged or destroyed highways in Allen county, the commissioners must levy a sum sufficient for the purpose, and in addition thereto a sum equal to the levy upon the taxable property of Lima.

This requires the taxpayers of Allen county living outside of Lima to bear a burden not borne by the people of any other county in the state, and relieves the taxpayers of Lima of a burden borne by the taxpayers of every other city in the state.

The tax levied upon the taxable property of the county is for the construction, reconstruction or repair of damaged or destroyed highways; the tax collected in Lima is expended for another purpose.

The effect of § 4919, as amended, is to impose a burden upon the taxpayers of Allen county, who live outside of Lima, not borne by the taxpayers of any other county, while it confers a privilege upon the city of Lima not enjoyed by any other municipal corporation in the state. No other city or village can replenish its treasury in this indirect way.

No other county commissioners can levy a tax for city purposes.

No other city council can expend a county road fund.

When the roads of the county are not out of repair, the city of Lima gets no such fund though her treasury may be empty.

When the roads are damaged or destroyed, she gets it if her treasury be full.

In every other city in the state taxes are levied by the council in amount sufficient for the' support of the city government.

When the roads of Allen county are destroyed, or out of repair, the city .of Lima gets control of a fund which she may not need.

It must be plain that § 4919, as amended, has not a uniform operation throughout the state.

Before the amendment, when the circumstances were the same, it applied to all counties, to all municipalities and to all taxpayers. It operated alike upon all. It imposed the same duties and conferred the same powers upon all county commissioners. It laid the same burdens upon all the taxpayers in every county, whether in city, village or county. So before the amendment it had a uniform operation throughout the state.

If it is a general law, the amendment is unconstitutional.

The law as originally passed was a general law. It was entitled : “An Act authorizing county commissioners to levy a tax for road purposes in certain cases.”

It confers authority upon the commissioners of all counties to levy the tax if the facts authorizing the levy exist.

It authorizes the borrowing of money in anticipation of the receipts to come into the treasury by virtue of the levy.

It provides that during such years as the commissioners of any county shall avail themselves of its provisions, they shall make no other levy for road purposes.

It operates alike upon every county, upon all boards of commissioners, and upon all taxpayers of the state, whenever the occasion exists for calling its provisions into exercise.

The special privileges conferred upon the city of Lima and her taxpayers, and the additional burdens imposed upon, the balance of the taxpayers of Allen county, contained in the amendment, destroy the uniform operation of the law.

The amendment is, therefore, unconstitutional and void.

Section 5, art. 12, of the constitution, provides as follows: “No tax shall be levied except in pursuance of law, and every law imposing a tax, shall state, distinctly, the object of the same, to which only it shall be applied.”

This provision is very plain. The tax must be authorized by a statute.

The statute must state, distinctly, what the money is to be used for. ■

It can be used for no other purpose.

A tax levied by the commissioners for the construction, reconstruction or repair of one or more of the principal highways of the county which have been damaged or destroyed by freshet or otherwise, is not a tax levied for expenditure in Lima under the direction of the city council.

By § 2824, Rev. Stats., the county commissioners of Allen county are authorized to levy on each dollar of valuation of taxable property within the county, for road and bridge purposes, one mill and five-tenths. This raises the ordinary road fund.

But where one or more of the principal highways of the county have been damaged or destroyed by freshet or otherwise, the commissioners may levy not to exceed five mills under § 4919.

Under this section the commissioners are to ascertain and estimate the amount necessary, over and above the usual levy, and levy upon all the taxable property in the county an amount sufficient to provide the necessary means to construct, reconstruct or repair any of the principal highways of the county which have been damaged by freshet or otherwise.

Under their oaths of office they are to ascertain and levy a tax sufficient to provide the money necessary to repair the damages.

If, by mistake, they over-estimate the amount necessary, the part remaining unexpended should be restored to the townships or municipal corporations from which it was collected, to be expended as the ordinary road fund is expended.

The occasion for the extraordinary levy is the damage by by freshet or otherwise of one or more of the principal highways of the county.

The object of the levy is to repair the damage, and to that purpose only it must be applied under sec. 5, art. 12, of the constitution.

It is a county fund raised for a county purpose.

But the amendment to § 4919 takes from this county fund raised for a county purpose, all that has been collected in the city of Lima, and turns it over to the city of Lima to be expended under the direction of her city council.

This, in effect, imposes no tax upon the taxable property in the city of Lima for the county purpose for which the tax is levied, and imposes the whole burden of the extraordinary levy upon the property outside of the city.

For the ordinary needs under the ordinary levy, Lima contributes her just share for the construction and repair of the roads in the county.

But when by some casualty one or more of the principal highways of the county is damaged or destroyed, and an extraordinary levy becomes necessary, she contributes nothing.

The extraordinary levy has been made for a definite purpose, the money needed is raised and in the treasury, the relator asks that it be divested from that purpose and applied to another.

Under the constitution this can not be done, and the amendment to § 4919, authorizing it to be done, is unconstitutional and void. •

The amendment is just as clearly a violation of §§ 1 and 6, art. 13, of the constitution.

It authorizes the city of Lima to demand and receive of the proceeds of a county tax, levied and collected for county purposes, so much thereof as was levied and collected upon the taxable property of Lima, to be expended for another and a different purpose under the direction of the city council.

No such privilege or power is conferred by law upon any other city in the state.

The law authorizing the tax applies to all the counties of the state, and in every other county the fund raised is required to be expended under the direction of the commissioners, and applied to the purpose for which it was raised. No city in the state but Lima can divest a portion of the fund from the purpose for which it was raised, and apply it to another; neither can the taxpayers of any other city escape from contributing their fair share towards the maintenance of the public highways.

For these reasons, the amendment to § 4919 is a special act conferring corporate powers, and is prohibited by § 1, art. 13; and for the same reasons; is a violation of § 6 of the same article, which provides for the organization of cities by general laws. State v. Cincinnati, 20 Ohio St., 18. In this case the supreme court say: Under the restrictive and mandatory provisions of §§ 1 and 6, art. 13, of the constitution, “ the general assembly cannot, by special act, create a corporation. It cannot, by special act, confer additional powers upon corporations already existing.”

The decision in the case of the Cincinnati Southern Railroad has not been applied to any other city, and we think it will not be.

It certainly should never be followed except in a case of great necessity.

We are sustained in the foregoing positions by the following authorities : McBride v. Lima, 34 Ohio St., 338, 218, 228-238; Cooley on Taxation, 104, 105, note 2, 127; 2 Ohio St., 607, 617; 3 Ohio St., 15; 42 Ohio St., 638; 5 Ib., 246; 2 Black., 510; 20 Ohio St., 18, 1; 10 Ohio St., 588; 23 Ohio St., 22, 434; 31 Ib., 607; 25 Ohio St., 426, 431; 38 Ohio St., 54; 13 Law Bull., 519, 615; 6 Ohio St., 272, 269; Cooley on Taxation, 105, 178, 180; 3 Ohio St., 34; 37 Ohio St., 44.

Pillars & McKenzie, for plaintiff.

Townsend & Lamison, for defendant.

If, as the relator avers, the commissioners did not find that any specific highway, or part or parts of highways, in said county, had been damaged or destroyed by freshet, etc., and if the facts authorizing the levy did not exist, we are not required to find that the fund in the hands of the treasurer came from a levy under § 4919. If illegally levied, the remedy is under § 5848, 34 Ohio St., 338.

If the tax was lawfully levied, the fund had been collected before the passage of the amended act, and it should be disbursed under the provisions of the act under which it was levied and collected. 10 Ohio St., 384; 1 Ohio, 236; 7 Ohio, 2 pt., 170; 37 Ohio, 72-74; Cooley’s Const. Lim., 370; Broom’s Leg. Max., 35; 7 Johns., 477; 43 N. Y., 135; 17 Ohio St., 180.

Demurrer sustained. Writ refused.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    January Term, 1886.)
    Befobe Judges Cox, Smith and Swing.
    Margaret Driscoll, adm’x, v. The C., W. & B. Ry. Co.
    A person has no right to be on the track of a railroad where there is no public crossing, and a railroad is not liable for injury by its train to a person on its track where there is no public crossing, unless the injury be the result of wanton, willful negligence on the part of its employes in charge of the train.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

The action of the plaintiff was for damages for the killing of her son, Col. Edward M. Driscoll. The allegation of the petition was, that on the 6th day of March, 1884, by the gross and wanton negligence and willful, wrongful carelessness of the defendant, by its agents and servants, the said Edward M: Driscoll was killed, and without any fault on his part.

The facts as shown by the bill of exceptions are, in brief and in substance, as follows:

Col. Driscoll was a store-keeper, employed at Dodswoth’s distillery, near Cumminsville, in the western part of this city. He lived in Cincinnati. On the morning of March 6th, 1884, he rode in the street cars until he came to the C., W. & B. Ry. tracks at Cumminsville. At this point he left the street cars, and started to walk along the tracks and road bed of the company to go to the distillery, which was distant about 1,800 feet. At this point there is a double track, which is used by the C., W. & B., and O. C. & I. Railways. In walking on the. track he was going east and north and away from the city, and was walking on the left hand track as he went.

The first seen of him on the track was about 900 feet from where he left the street cars. The time was about 15 minutes till 9 a. m.; when about 1,200 feet on his way, a passenger train going into the city came along, and he left the track he was walking on and crossed over on to the other track, when in a' very short time he was struck and killed by a freight ‘train going from the city.

Driscoll left the street cars and was walking on the road-bed of the defendant, for the reason that he could save time and distance in going to his objective point, Dodsworth’s distillery. At the point where killed, it was not a public crossing, but was a fill and was‘the property of defendant, although it was used a great deal by foot travelers and was the ordinary way used by Col. Driscoll in going to and from his home to the distillery.

Plaintiff called several witnesses, who testified as to what was done by Col. Driscoll and the company’s servants at the time of the accident.

There is not much disagreement as to the evidence, and it all goes to show clearly that Col. Driscoll was walking on one of the tracks of the company. That, meeting a passenger train, he walked off that track directly in front of a train going in an opposite direction, and in a very short time was killed. The train that killed him had been in full view of him for at least 1,500 feet.

The engineer on the engine that killed him blew the whistle of alarm, but from the evidence it would seem that the unfortunate man never heard it. He had his back to the train, and probably never was aware of the presence. of. the train until it struck him.

Now, what were the duties and obligations of Col: Driscoll and the Railway Company to each other under these circumstances ?

In order for the plaintiff to maintain an action in this case, the proof should sustain the allegation of the petition, which is that there was wanton, wilful negligence on the part of the defendant. The plaintiff has stated the law in the petition, but is there any proof to sustain it?

Col. Driscoll was on the tracks of the defendant, at a point where, as a matter of right, he had no right to be. The only obligation that the company was under to him, was that they had no right to wilfully injure him, which would include the duty they owed to him if, the engineer, after he had seen the imminent danger that he was in, had not done all in his power to prevent any harm to him ; but the company had the right to run its trains at this point, totally regardless of the possible presence of the decedent; they owed him no obligation to look out for his safety. They had a right to rely on him using his senses, and keeping out of the way of their trains. They owed him no obligation to see him on the track, and warn him of danger. It was his duty to look out for the train and avoid danger. He was under obligations to use his senses of seeing and hearing. If after he had placed himself in this perilous position, and the person having charge of the engine had seen him, and had at the time great reason-to believe that the decedent would not get out of the way, and was not using his senses, or could not, it was then the duty of the engineer to do all in his power to prevent the injury. This was the only duty owing to the decedent, and the failure to have used it would have amounted to wilfulness; but there was not a particle of evidence that tended in the least to show any such negligence as this on the part of the defendant.

At the conclusion of plaintiff’s evidence, the court, on the motion of the defendant, directed the jury to return a verdict for defendant, on the ground that there was no evidence tending to show such negligence on the part of defendant, and in this we think the court did right.

Malloti & Coffey, Durbin Ward and S. A. Miller, for plaintiff in error.

Soadly, Johnson & Colston, for defendant in error.

Judgment affirmed.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    January Term, 1886.)
    Before Williams, C. J., and Judges Smith and Swing.
    The Queen Insurance Company v. L. W. Sinclair.
    A policy of fire insurance was to become void, when in the buildings insured, “ nitro-glycerine, gun-powder, phosphorous, fire-works, naptha, benzole, benzine, gasoline, or any of the products of petroleum, or coal oil, are deposited, stored, or kept, or used for light in the premises.”
    Gasoline was placed in a tank under-ground, thirty-five feet from the buildings insured, where, by means of certain machinery, it became vaporized, which vapor or gas was conveyed into said building by means of gas-pipe, where it was used for light on said premises:

      Held, that the substance used for light did not come within the terms of the policy.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

Sinclair brought his action against the insurance company in the common pleas court, on a policy of insurance issued by the company, on his mill, situated at Salem, in the state of Indiana. The case was tried before a jury, and a verdict was given for the plaintiff, on which a judgment was rendered. To reverse this judgment this action is prosecuted here.

The case was stubbornly fought, and quite a number of exceptions taken to the rulings of the court, to which error is assigned, here, but in the argument counsel for plaintiff in error stated that he would claim error as to three assignments only, which errors were:

1. That the court erred in not permitting the jury to pass on. the question raised in the third defense of defendant’s answer, .which was as to whether plaintiff had used gasoline or a product of petroleum in lighting said mill, or kept the same in store on said premises; but passed on the question itself.

2. That said policy of insurance was avoided by the defendants ceasing to operate the mill.

3. That by the terms of said policy the same was to become void when in the buildings insured nitro-glycerine, gun-powder, phosphorous, fire-works, naptha, benzole, benzine, gasoline, or any of the products of petroleum or coal-oil are deposited, stored or kept, or used for light on the premises, or if refined coal or earth oils or kerosene in quantities exceeding five gallons are deposited, stored or kept on the premises.

The contract sued on was a contract of insurance in the ordinary form, and with the ordinary conditions.

As to the first ground of error relied on, to-wit, that the court erred in refusing to submit to the jury the question whether the .substance used in lighting the building came within the terms of the policy, we think that we are not called upon to decide it, for the reason that we are not able to find in the bill of exceptions any exception taken at the trial to the ruling of the court on this point. We could, therefore, only consider it, if upon a consideration of the whole case we came to the conclusion that the court was wrong, not only in refusing to refer the matter to the jury, but in its conclusions upon the facts and law, and this wé are not prepared to do.

Next as to the second error relied on, that the mill ceased to be operated. The evidence shows that the mills were shut down entirely about the 1st of September, 1883, and were not operated from that time on until December 4th, 1883, at which time the mill was destroyed by fire.

It was claimed by plaintiff and conceded by defendant that the plaintiff had the right, at any time whenever it became necessary, to shut down for repairs, and this is what the plaintiff claimed he did. There was no controversy as to the law, but it was purely one of fact for the jury. The plaintiff offered evidence tending to show that repairs were necessary and that he proceeded to make the same in a judicious manner, as rapidly as it could properly be done. This was contradicted by the defendant and was the' issue of fact between the parties. Without taking up the evidence and commenting on it in detail, we may say, that we have considered it, and the result of our conclusion is, that at least we can not say that the finding of the j ury on this issue is not so manifestly against the weight of the evidence as to authorize us in reversing the judgment.

The third and last ground of error relied on is as to the manner in which the building was lighted. There is no difference between the parties as to the facts about the way the building was lighted, the only question being whether it was lighted by gasoline or a product of petroleum, as claimed by defendant, or whether by gas or gasoline vapor, as claimed by plaintiff.

The building was lighted by what was known as a Coleman gas machine. Gasoline was placed in a tank under ground, thirty-five feet distant from the outside of the nearest wall of the insured building. In connection with the tank are flannel cloths and adjusted weights, and other appliances, by means of which the gasoline is easily and rapidly vaporized, and in this form forced through iron pipes, which connect with said tank, and which pipes run through all portions of the building which are to be lighted. The pipe used is the ordinary gas-pipe, and the manner of lighting and burning is similar to ordinary gas. In this way the mill was lighted.

It is claimed by defendants that the vapor produced by means of this machine was still gasoline and a product of petroleum, and that it was stored and kept in the building and used for lighting the same, and the conditions of the policy violated. To support this view, defendant called Prof. Frayne and Mr. Going, expert chemists, the substance of whose testimony is to the effect that while in common parlance it is called a gas, yet strictly and scientifically speaking it is not a gas, but gasoline. They say that a gas does not condense, whereas under proper circumstances and conditions this gasoline vapor can be condensed so as to become gasoline again, just as steam will become water. They call it atmospheric air charged with gasoline, a vapor of gasoline carried along in a current of atmospheric air, and an atmospheric air saturated with gasoline, but Prof. Frayne says that common people out of the labratory speak of it as gas. Gasoline is defined by •Webster as “a highly volatile mixture of fluid hydrocarbon, obtained from petroleum.” Worchester, as “a volatile fluid distilled from naptha.”

The Encyc. Brittanica says, “ gasoline is the lightest fluid, obtained in considerable quantities, and is used in automatic gas machines for the carburation of gas or air.”

There is no question that by the word gasoline, as ordinarily understood, a fluid is meant. As an article of commerce no other idea is conveyed, it is sold in barrels and measured by the gallon.

Taking these three facts to be established, viz., that ordinarily gasoline is understood to be a fluid, that the vapor produced by this machine is {commonly called a gas, but that chemically speaking it is still gasoline held in the air in a vaporized condition, what meaning shall we give to the word gasoline as used in this contract? It is a fixed rule of construction that the words of a contract are to be understood in their general, ordinary and popular sense, unless from the circumstances and surroundings of the parties and the context of the instrument they were clearly intended to be used in a different sense. Applying this principle of law to the admitted facts, it seems clear that the thing usód in this mill for lighting was not the thing called gasoline within the meaning of the contract.

It would seem very unjust and unreasonable indeed, that a contract of insurance, which usually, I might say always (as this one was), is prepared with great care and at great length by the insurer, not as the result of any agreement between the parties, about which they had consulted, but rather in the nature of a statement of terms and conditions upon which insurance would be taken, should be governed by any other rule of interpretation. These contracts of insurance are intended and expected to be accepted by the ordinary, general average man of business, who is supposed to know the primary, common ordinary meaning of words, but who is not supposed to know their technical, hidden, secret or secondary meaning, nor is there anything in the context of the contract or anything to be gathered from its subject-matter that would lead one to believe that the words used were to have any other meaning than the one ordinarily attached to them. Clearly, to our minds, the intention of the parties to this contract was, that liquid gasoline was the gasoline that was intended to be prohibited from being stored in the mill or to be used for light on the premises.

Paxton & Warrington, for plaintiff,in error.

J. P. Balwin, for defendant error.

But it is also claimed that the thing used by plaintiff was a product of petroleum. Let us apply the same rules of construction to this that we have to the word gasoline, and what are we to understand as being a product of petroleum ? Certainly the primary products of petroleum, and not its secondary or sub-products. There is no dispute as to what this vapor is. It is not a first or primary product ‘but a sub-product of petroleum. The American Encyclopedia gives as the products of retroleum, rhigoline, gasoline, naptha, kerosene, mineral sperm oil, paraffine, paraffine wax, residuum, and witnesses gave substantially the same. The sub-products of petroleum are very numerous and of various characters.

And that such was the intention of the parties, the language of the contract clearly shows. Applying the principle of Uejusdem generis,” the contract prohibits, ‘Í naptha, benzole, benzine, gasoline, or any of the products of petroleum.” Things of the same nature are intended. They are all liquids, and all first products of petroleum. They are all of the same nature, highly inflammable, and dangerous, increasing the risk- — but no evidence has been offered which tends to show that lighting the mill by this gas or vapor increased the risk. The law of our state prohibits the sale of these substances for illuminating purposes, but does not when sold to produce the gas or vapor from such oils, when they are contained in reservoirs under ground.

This manner of lighting buildings is not uncommon. It must be presumed to have been known to .the parties, and it was commonly known, not as gasoline or a product of petroleum, but as a gas, or vapor. It is not of the same nature as to form of substance, or as to its dangerous quality. It had a distinct and different meaning from the words used; this meaning was known to the parties, and if they had intended such a meaning to be attached to the words, they could easily, and should, have said so. We think the judgment of the court below was right, and it will, therefore, be affirmed.


author: Swing. J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    January Term, 1886.)
    Before Judges Cox, Smith and Swing.
    F. Springmyer et al., Members of the Board of Public Works of the City of Cincinnati v. The State ex rel. Louisa F. Bowler.
    A sewer was constructed in Annie alley, a public street in the city of Cincinnati, by private parties, and given to the city. L. F. B. owned property abutting on the street. She did not contribute to the building of the sewer. The Board of Public Works of said city refused to permit her to tap said sewer, unless she first paid eighty dollars. Ten dollars was the usual charge for a permit.

      Held: 1. That the sewer was a public sewer, and that L. F. B. had the right to tap it on the payment of the usual fee for a permit.
    2. That under section 2402, Revised Statutes, the B. P. W. had no right to charge more'than usual fee provided by ordinance of council.
    3. That mandamus is the proper remedy.
    Error to the Court of Common Pleas of Hamilton County.
   Swing. J.

In the court of common pleas an action was brought by the state on relation of Louisa F. Bowler, praying for a writ of mandamus against the members of the board of public works of said city. The petition set out: That relatrix was the owner of certain real estate abutting on Annie alley; that there was a public sewer in said alley; that on a certain day she made due and proper application to said board for a permit to tap and make connection with said sewer for the purpose of drainage, and that afterwards the same was granted; that afterwards she made proper demand for said, permit, and tendered the proper charge, to-wit, $10'; that thereupon said defendants refused to issue said permit unless relatrix should pay $80; she says that she cannot tap said sewer without said permit, and that said requirement that she first pay $80, is contrary to the laws of Ohio, wherefore she prays for a writ of mandamus.

To this defendants filed a demurrer, which..was overruled;' and afterwards defendants filed an answer, in which they set out that they admitted the granting of said permit, but say it was reconsidered, because said relatrix refused to pay the charge of two dollars per front foot, or eighty dollars for. her •lot of forty feet, which by the rules and regulations of the board is assessable against said relatrix before she can tap said sewer. Defendants then set out such rule, which is as follows: “ That parties desiring to tap any sewer located in a district adjoining that one in which the property to be drained is situated, be required to pay the sum of $2 for each front foot of such property for the privilege of putting in such private drains.”

They further say that said property is not in the sewer district in which the sewer in Annie alley is situated, but is in another.

Defendants further say that as to said relatrix, said sewer is not a public sewer; that it was built by.private property owners abutting on said street, and then given to the city; and that to permit said relatrix to tap said sewer, without paying the $80, would work gross injustice to said builders of said sewer, and to that extent would divert said gift from said city.

The court below gave judgment for the relatrix.

The facts are nearly all stated in the petition and answer of the parties, and as to the-facts there is no dispute between the parties, the only question being one as .to the law applicable to them.

It is also admitted that the board of public works have all the powers granted by the different sections of the statute to sewer commissioners and the board of public improvements.

It is also admitted that the $10 tendered by relatrix is the usual license fee for tapping sewers as provided by ordinance of council.

Section 2187 provides, that the board shall supervise the cleaning, repairing and improving of sewers, drains, ditches,” etc.

Section 2188: It may adopt such rules and regulations for its government, as it may deem necessary and expedient to effect the purpose of its organization, not inconsistent with the ordinances of the corporation, or constitution, or laws of the state.”

Sections 1366 and 2370 provide for a sewerage system to be planned by districts.

Section 2380 provides that a lot not needing drainage, or which has been provided with such drainage, shall not be assessed.

Section 2402 provides: “ Parties owning property abutting upon a street or public highway, in or through which a public sewer or drain is constructed, shall.have the privilege of tapping and using such sewer or drain for the purpose of draining their premises, under such rules and regulations as maybe prescribed by the board, and the council may, by ordinance, require persons contracting to build such house connections to procure a license from the board, and may charge therefor such sum as may be deemed just.”

Section 2384 provides that in no case shall the assessment exceed $2 per front foot.

In the first place, we have no doubt that this sewer in Annie •alley is a public sewer within the meaning of Sec. 2402.» The fact that it was built by private parties and given to the city, could make no difference; when it became the property of the city, it was as much public property as if built by the city, and the city could not say to a citizen, you can not use this sewer because you did not contribute to its construction. Although built by private donations, it was built for a public purpose, and must forever remain to the public use. If a public sewer, clearly, under this section, the relatrix has the right to tap it under such rules and regulations as may be prescribed by the hoard, and upon the payment of such sum for a license as may be deemed just.

Of course such rules and regulations must be reasonable rules, and such.as contemplated by the statute.

Was the rule that the relatrix should pay $2 per front foot such a rule ? We think not. It is in effect an assessment, and the highest allowed by law. As shown by the testimony, it went into the sewerage fund. It was not used to keep in repair or maintain this particular sewer,'and, as already shown, it had nothing to do with its construction. But it might be used in the construction of sewers in any other portion of the city. As we read the statute, we find no power of this kind in it.

The rules and regulations contemplated by this section seem to us to be such as would pertain to the use and maintenance of the sewers, and not to the raising of money for the purpose of building sewers. Other sections of the statute make abundant provisions for this.

OoppocJc, Cox & Gallagher, for Board.

Kiitredge & Wilby, for Mrs. Bowler.

We think it would not be unjust that- such should be the law, but certainly it is not yet within the law, and to the extent that the board has required of the relatrix more than was necessary for the license to tap the sewer, t.o-wit, $10, we think they have gone beyond their powers.

The performance of the act which the relatrix asked, was enjoined by law on this board, and mandamus will lie.

The judgment of the court below was right and must be affirmed.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan’y Term, 1886.)
    Before Judges Cox, Smith and Swing.
    Sophia Campbell, Adm’x, v. John H. McCormick, Adm’r.
    1. Rents received by an administrator from the real estate of his intestate under certain circumstances, may properly be charged to him, on his account filed for the settlement of the estate.
    2. An account containing items of credit to an administrator for his statutory commissions, and for extra services, and for an amount paid by him for attorney fees in the settlement of the estate, and which account current was duly allowed and confirmed by the probate court, can not, on the filing of a second account, more than one year thereafter, be re-opened for hearing, and such items be disallowed by the court, on exceptions filed thereto, when it is not claimed or found that there was any error or mistake therein, or in .their allowance.
    3. Under our statute, an administrator is legally entitled to the statutory commissions “ on the amount of the personal estate collected and accounted for by him, and of the proceeds of the real estate sold under an order of the court for the payment-of debts,” although he may have failed to charge himself with all the assets received by him, or has asked for credits for sums not paid by him. Even if there be unfaithful administration of the estate, it will not deprive an executor ' or administrator of a right to compensation for his services, so far as they have been beneficial to the persons interested in the estate.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

The error assigned in this case is, that the court of common pleas erred in reversing the judgment of the probate court.

The record discloses the following facts: On March 16, 1885,' McCormick, as administrator of Dorman, filed in the probate court, his second account for settlement, and on the 13th of April, 1885, Sophia Campbell and the other heirs*at law of the intestate, filed exceptions to this account, and tfo one which had been filed by him in 1881, and which in the same year was duly approved and confirmed by said court. The grounds of exception were, that the administrator had not accounted for all the assets that had come into his hands — and to the items of the accounts for which there were no vouchers, and to those not properly authenticated by affidavits. They specially excepted to the amounts charged by the administrator for his services, and to the sums paid to his attorney, as excessive and unreasonable.

In the account which had been filed in 1881, and then settled and approved by the court, there were credits of 850 paid to his attorney, 887.42 for his statutory commissions on the amount of the estate then accounted for, and 860 for extra services rendered by the administrator.

On the second account, filed in 1885, he asked credit for his statutory commissions on the additional amount of the estate accounted for, and for an additional sum for extra services, and for a further amount paid to his attorney.

Quite a large part of the debit side of the account consists of charges to the administrator of rents received by him, and the residue is the proceeds of real estate sold by him under the order of the court, to pay the debts of the intestate.

On March 21, 1885, Sophia B. Campbell was appointed administrator de bonis non of the estate, in the place of McCormick removed, and on the 21st of September the exceptions to the accounts were heard, and the court made a finding as to the mode in which the account of the late administrator should be settled. It was found by the court:

1st. That McCormick, as administrator, had received from the sale of real estate, the sum of $307, with which he had failed to charge himself.

2nd. That he had credited himself with the payment of three items, amounting in the aggregate to 870, for which he was not entitled to credit. 3rd. That 8250 of the amount paid to his attorney should be deducted as excessive. 4th. That he had collected $55 of rents, with which he had not charged himself, but was entitled to a credit of $60 'additional, paid out of the rents for repairs upon the premises, and that he was entitled to a credit of $5, the difference between these sums. 6th. That said administrator did not faithfully administer said estate, and account for and pay over the funds of the estate, as he was bound to do. And it was therefore adjudged that he was not entitled to have any compensation or commissions as such administrator, and that the whole amount charged therefor on the two accounts, amounting in the aggregate to $647.42, be stricken from the accounts.

And on this basis the court settled the account of the administrator and found a balance in his hands, which he was ordered to pay over to the present administratrix. To this judgment McCormick excepted, but did ’ not present' a bill of exceptions.

He thereupon filed a petition in error in the court of common pleas, which reversed the judgment of the probate court, for the reason as stated in the entry, “ that the probate court had charged the administrator with $55 of rents not included in his account.” And this case is now before us to review that judgment of reversal.

It is evident as to many of the findings of the probate court that the correctness of them can not be considered, because the evidence upon which the court acted is not before us— thus we must take it as true that the evidence submitted to the trial court, showed that the amount charged for attorney’s fees was excessive, and that the administrator had not charged himself with all the assets received by him, and had credited himself with items for which he was not entitled to credit'. If the administrator had desired to have the decision of the court as to these matters reviewed, he should have taken a bill of exceptions setting out the evidence’ upon which the court acted.

There are, however, several question's raised upon the record which we proceed to consider, and the first is, whether the probate court erred in its action as to the $55 received by the administrator for rents and added by the court to his account.

In each of the two accounts filed by him, the administrator charged .himself with rents received by him, and the same or a large part thereof is shown by his accounts to have been used as assets of the estate, and disbursed by him in the payment of the debts of the intestate. In the exceptions filed to these accounts, no exception is taken as to this, thus showing the assent of the heirs to it. The court also accepted the account as presented by the administrator, so far as he charged himself with the rents, and presented proper credits for payments on account of the real estate — but finding that he had received $55 additional from the same source, charged him with it and credited him with $60 for repairs upon the property, which stood on the same footing. It would seem, that in this the administrator was not prejudiced, as taking the two items together, the court charges him with $5 less than he was charged with on the account of rents and repairs as presented by him.

We think, too, that a reviewing court can not properly, from the face of the account itself, or taken in connection -with the finding of the court, say, that the items of rent charged to the administrator were not properly assets received by him and with which he ought to be charged. For all that appears, they may have been for rents that had accrued prior to the death of the intestate — or those arising from a lease for years; or they may have been received for rents accruing after the death of the intestate, under an agreement of the heirs that they should be assets in his hands. By sec. 6146, Revised Statutes, the heirs of an intestate are authorized to give a bond in the probate court, conditioned to pay all of the debts of such intestate, and therebjr save the real estate from sale by the administrator to pay such debts. Suppose they furnish the administrator with-money sufficient to do this. Is he not to account for it as assets? We think he should, and that the probate court, on the settlement of his account, would be authorized to charge him with it, and compel a correct account of it to be filed. If, by agreement with the heirs, he receives the rents of real estate to apply to the debts, the same result follows, and such agreement may have been shown by the evidence in this case, and we should presume that it was, if necessary to support the judgment of the trial court. But on the broader ground laid down in the case of Conger v. Atwood, 28 Ohio St., 134, we would be disposed to hold (if necessary so to do), that if this administrator had received these rents, without authority from the heirs, and used them, as it is shown he did in this case, in paying the debts of the estate, that he was bound properly to account for them with the court, and that its action in correcting this account was not erroneous. We are of the opinion then, that the reason which the court of common pleas assigned for the reversal of the judgment of the probate court, was not a sound one — but if the judgment itself was right, it does not matter what reason was assigned for it.

The next question which arises is this: Did the probate court err in striking from the account of 1881, the items allowed to the administrator for his statutory commissions and for extra services?

Section 6187, Revised Statutes, provides, “that upon every settlement of an account by an executor or administrator, all his former accounts may be so far opened, as to correct any mistake or error therein.”.

It was not claimed in the exceptions filed, and it was not found by the court, that there was any'error or mistake as to these items — -indeed the contrary might fairly be inferred from the finding itself. It was clearly an attempt to punish the administrator for failing in his second account (filed four years after the settlement of the first,) to charge himself with the proper amount, and for crediting himself with amounts to which the court thought he was not entitled. It is only where error or mistake in one account has intervened, that the court on the filing of a subsequent one, can correct such mistake or error; and we think the probate court erred in its action, whereby it undertook to deprive the administrator of his right to the commissions and allowance made to him for extra services on the settlement of his first account. And the same would be true as to the item for attorney fees, if it appeared that this had been disallowed — which, however, is not the case, as the amount deducted from the sum paid to the attorney, might properly be held to have been deducted from the allowance asked for on the account of 1885.

The remaining question is whether the probate court on the settlement of the account of 1885, wasjauthorizedjjto refuse to allow to the administrator any commissions on the amount of the property accounted for by him.

He had charged himself with several^thousand dollars of personal property, and with a|iarge^amount, the proceeds of real estate sold under the order ofgthe court to pay the debts of the estate, and had paid out, as shown by his account, (in this respect approved by the court,) the greater part thereof on the debts of his intestate. But for the reason that he had failed, (whether by mistake, or wilfully, does not appear,) to charge himself with one item, and had improperly credited himself with other items, the court found that this was unfaithful administration, and refused to allow him any compensation for his services as administrator. Was this right?

Section 6188, Revised Statutes, provides that “ executors and administrators may be allowed the following commissions upon the amount of the personal estate, collected and accounted for by them, and of the proceeds of the real estate sold under an order of court for the payment of debts, or under the direction of the will, which shall be received in full compensation for all their ordinary services.” * * * “And in all cases, such further allowance shall be made, as the court shall consider just and reasonable, for actual and necessary expenses, and for any extraordinary services not required of an executor or administrator in the common course of his duty.”

Does this section confer a discretion upon the probate court, to allow the whole of|the statutory commissions, or such part thereof as it may deem proper, or if it chooses so to do, may the court refuse to allow any part thereof?

In some of the states, their statutes do not fix the amount to be paid to such trustees. In such cases it seems to rest in the sound discretion of the probate court, and yet as a general rule, it is fixed by custom. In many of these states it has been judicially held that “¿unfaithful administration will not deprive an executor or administrator of a right to compensation for his services, so far as they have been beneficial to the persons interested in the estate.” In others it has been held otherwise, “ where his wilfull default, or gross negligence, has occasioned loss to the estate.” But in other cases it has been held that “ compensation being a matter of discretion, it maybe refused for misconduct.” See note to 3 Williams on Ex’rs, page 1962, and cases cited.

If our statute gave to the probate court the right to determine as to the amount of such commissions, in this conflict of authority, we should be disposed to adopt the first rule referred to, as being the most just and equitable. As in contemplation of law,, any and all loss to an estate from the 'unfaithful administration thereof, is amply guarded against by the bond which is required to be given, it would seem just that if the services of the administrator have been valuable to the estate, that he should receive compensation therefor, and particularly should it not be disallowed, unless his wilful default, or gross negligence, has occasioned such loss.

But we incline strongly to the opinion, that under our statute such a trustee is entitled to his commissions, even if he has failed properly to administer the estate. It is true that the statute says he “ may be allowed.” But it is a familiar doctrine of the law, that the word -may, often has the meaning of shall — and in general laws this is the rule. Thus, as stated in Bouvier Law Die., title “ may,” Whenever a statute directs the doing of a thing for the sake of justice or popular good, the word Imay is the same as shall.” And again, “ The words shall and may, in general acts of the legislature, are to be construed imperatively.” And we think it should receive that interpretation here, as it seems that the two words in the same section are used interchangeably — shall being used twice therein ; that is, the statutory commission fixed, “ shall be received in full compensation,” and “ in all cases, such further compensation shattfrbe made,” etc. It is hardly probable that the legislature intended to make it imperative upon the probate court, to allow for extraordinary services and expenses, and leave the ordinary commissions to the discretion of the court. The compensation for the extra services shall be allowed, in addition to the other, that is, to the commissions fixed by the statute itself. We think it was the intention of the legislature to withdraw this matter from the discretion of the court, and to have it fixed so that the administrator or executor might rely on receiving what the statute provides for; and to have a uniform rate of compensation throughout the state, and not have the amount of such commissions to vary with the views or feelings of the court called upon to act in the matter.

W. J. Goppuck and Isaac B. Watson, for plaintiff in error.

Milton Safer and S. A. M[iller, for defendant in error.

So far as we are advised this has been the uniform practice in the state. This is the first time that we have known an administrator to be deprived of his statutory commissions, even when it appeared that he had been derelict in his duty to the estate. This universal practice goes far to show the judgment and understanding of courts and the profession on this point, though so far as we know, it has not been ad]udicated in Ohio.

Our conclusion then is, that the judgment of the common pleas, reversing that of the probate court, was right, and should be affirmed with costs.