author: DUSTIN, J.

text:
    CORPORATIONS — EXECUTORS AND ADMINISTRATORS.
    [Clark (2nd) Circuit Court,
    1908.]
    Wilson, Sullivan and Dustin, JJ.

      Western Union Telegraph Co. v. Union Savings & Trust Co.
    Order op Probate Cotjet Appointing Corporation Executor mat be Collaterally Attacked fob Want of Power.
    The name “The Union Savings & Trust Co.” indicates a corporation or partnership, neither of which has any capacity to act as an executor or administrator. Hence, the record of the probate court showing the appointment' by that court of a corporation as executor, being beyond its power, may be collaterally attacked in another court, and an order reviving an action commenced by decedent in the name of such corporation executor is invalid.
    [For other cases in point, see 4 Cyc. Dig., “Executors and Administrators,”' §§ 26, 57. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Clark common pleas court.
    Martin & Martin, for plaintiff in error:
    If the action is one which should be revived, then it should be revived in the name of the heir or devisee, and not the executor. 1 Cyc. 60; Johnson v. Slwood, 82 N. Y. 362; Harris v. Crenshaw, 24 Va. (3 Rand.) 14; Little v. Conant, 19 Mass. (2 Pick.) 527.
    Probate court had no power to appoint the Union Savings Bank and Trust Company, a corporation, as executor. Schumacher v. Mc-Callip, 69 Ohio St. 500 [69 N. E. Rep. 986].
    Collateral impeachment of record of appointment. Shroyer v.
      Richmond, 16 Ohio St. 455; Swazey v. Blackman, 8 Ohio 5;- Cincinnati, S. & C. By. v. Belle Centre, 48 Ohio St. 273 [27 N. E. Rep. 464] ; Hoffman v. Fleming, 66 Ohio St. 143 [64 N. E. Rep. 63]; Carr v. Hull, 65 Ohio St. 394 [62 N. E. Rep. 439; 58 L. R. A. 641; 87 Am. St. Rep. 623].
    Probate court as a court of special and limited jurisdiction must proceed strictly under its statutory powers. Work, Courts 120, 156, 435; Boot v. McFerrin, 37 Miss. 17 [75 Am. Dec. 49].
    The statute only gives power to appoint the party named in the will “if legally competent.’’ Work, Courts 120, 455; Scobey v. Gano, 35 Ohio St. 550; Commercial Gazette Co. v. Dean, 11 Dec. Re. 207 (25 Bull. 250) ; Maxson v. Sawyer, 12 Ohio 195; Moore v. Starks, 1 Ohio St. 369; Buchanan v. Roy, 2 Ohio St. 251; Callen v. Ellison, 13 Ohio St. 446; Penny wit v. Foote, 27 Ohio St. 600 [22 Am. Rep. 340]; Spier v. Corll, 33 Ohio St. 236.

      Dc facto executor. Hooper v. Scarborough, 57 Ala. 510; Bell v. Love, 72 Ga. 125; Dooley v. Bell, 87 Ga. 74 [13 S. E. Rep. 284]; Hoffman v. Fleming, 66 Ohio St. 143 [64 N. E. Rep. 63],
    C. L. Spencer and E. S. Hoitck, for defendant in error:
    Cited and commented upon the following authorities: Shroyer v. Richmond, 16 Ohio St. 455; Swazey v. Blackman, 8 Ohio 5; Cincinnati, S. & C. By. v. Belle Centre, 48 Ohio St. 273 [27 N. E. Rep. 464] ; Hoffman v. Fleming, 66 Ohio St. 143 [64 N. E. Rep. 63] ; Toledo & O. C. By. v. Beard, 11 Circ. Dec. 406 (20 R. 681); Lake Shore <& M. S. By. v. Gilday, 9 Circ. Dee. 27 (16 R. 649) ; Sheldon v. Newton, 3 Ohio St. 494; Carr v. Htdl, 65 Ohio St. 394 [62 N. E. Rep. 439; 58 L. R. A. 641; 87 Am.' St. Rep. 623] ; Schumacher v. McCallip, 69 Ohio St. 500 [69 N. E. Rep. 986]; YanFleet, Col. Attack Par. 540, 619; Whitbeck v. Railway, 36 Barb. 644; Adams v. Blodgett, 47 N. H. 219; Foote v. Merrill, 54 N. H. 490 [20 Am. Rep. 151] ; Smith v. Gonder, 22 Ga. 353; Evans v. Gas Co. 148 N. Y. 112 [42 N. E. Rep. 513; 30 L. R. A. 651; 51 Am. St. Rep. 681] ; Western Union Tel. Co. v. Smith, 64 Ohio St. 106 [59 N. E. Rep. 890]; Johnson v. Elwood, 82 N. Y. 362; Harris v. Crenshaw, 24 Va. (3 Rand.) 14; Little v. Conant, 19 Mass. (2 Pick.) 527; Talley Ry. v. Rohm, 29 Ohio St. 633; McPherson v. Seguine, 14 N. C. (3 Dev. L.) 153; Dobbs v. Gullidge, 20 N. C. (4-Dev. & B.) 68; Clark v. Railway, 36 Mo. 202; Musick v. Bailway, 114 Mo. 309 [21 S. W. Rep. 491] ; Seymour (City) v. Cummins, 119 Ind. 148 [21 N. E. Rep. 549; 5 L. R. A. 126] ; Scobey v. Gano, 35 Ohio St. 550; Bammelsberg v. Mitchell, 29 Ohio St. 22.

      Affirmed by Supreme Court, without report, March 17, 1908, Union Sav. & Tr. Co. v. Telegraph Co. 53 Bull. 83.

   DUSTIN, J.

(Orally.)

This is an action, in error, to reverse the action of the common pleas court in issuing an order of revivor in favor of the defendant in. error.

The case has quite a history. Adolphus H. Smith, in his lifetime,, obtained a judgment against the Western Union Telegraph Company for damages for the destruction of trees belonging to him, destroyed by the telegraph company while stringing its wires upon his premises. The Supreme Court reversed the judgment. Smith died, and the Union Savings & Trust Company was appointed his executor, under a law then existing but later held to be unconstitutional.

The order of revivor is attacked upon the ground that the probate court had no authority to appoint the Union Savings & Trust Company as executor of Smith and therefore it is not the personal representative of the estate of Smith, and there can be no order of revivor in its name.

The court below acted upon the theory that at the time of the appointment of the Union Savings & Trust Company, as executor, it was the statutory law, and that the company continues to act as executor until the probate court, which appointed it, under proper proceedings shall cancel the appointment; that it is the bona fide and de facto executor ; and that its appointment cannot be questioned collaterally in another court; and the proposition is urged by counsel for the trust company that the probate court being a court of record, and having jurisdiction of the subject-matter and of the parties, its finding is conclusive.. It is true that having jurisdiction of the subject-matter and of the parties, the judgment of the court, when acting within its powers, cannot, be attacked collaterally; but the question here is, Did the court act within, its powers ?

A court having jurisdiction of the subject-matter and of the parties nevertheless may exceed its powers, and that is what we think the probate court did in this ease. The Union Savings & Trust Company has no capacity to act as executor of Smith; it would have been the same as an appointment of itself as executor, or an imbecile; and of course if the imbecility of the appointee does not appear from the record it cannot be attacked collaterally. But here it appears from the record that the executor was a corporation,' and a corporation, under the ruling of the Supreme Court of this state has no power to act in that capacity.

But the question is suggested that it does not appear absolutely that it is a corporation — there being no statement in the record that it is such. — but we take judicial knowledge of the fact that, “The Union. Savings & Trust Company” is not the name of an individual, — a natural person. If it be the name of a partnership, so much the worse for the-claim of the trust company, because a partnership, of course, cannot act in such capacity. It is either a partnership or a corporation, and being a corporation under the law, as I have stated, it has no capacity to act as an executor.

A familiar illustration of the law of power may be this: That’ a court in a civil case, although having jurisdiction of the subject-matter and of the parties, nevertheless may not take action appropriate to a criminal case, and in so far as it does exceed its powers by such, act, may be attacked.'

We are of the opinion, therefore, that the court erred in reviving’ the action in the name of the Union Savings & Trust Company, and. the judgment of the court below will be reversed.


source: Caselaw Access Project

author: WILDMAN, J.

license: Public Domain

text:
    ASSESSMENTS — INJUNCTION—SEWERS. '
    [Lucas (6th) Circuit Court,
    January 18, 1908.]
    Haynes, Parker and Wildman, JJ,
    Joseph W. Close v. Peter Parker, Treas., et al.
    1. Inadvertent Change in Construction of Sanitary Sewer not Affecting Cost or Efficiency Held not to Relieve against Assessment therefor.
    Where in the construction by a municipality of a local sewer for sanitary purposes, by the inadvertence of an assistant engineer employed to fix the grade thereof, the contract or specifications for such 'sewer has been departed from as to its depth, but without affecting its cost or efficiency, and the error was not discovered until after the completion of the construction, an assessment against abutting lots will not, for that reason be enjoined, no substantial injury to the rights of the lot owners being apparent.
    2. Proximity of Public Park not Directly Abutting Sanitary Sewer Held not to Require Deduction from Foot Frontage Assessment.
    In an assessment upon lots to defray the cost of a local sanitary sewer, the municipality is not required to make deduction because of the proximity of a public park not directly abutting thereon.
    3. Costs of Intersection Paid by Municipality Held not to Apply to Local Sanitary Sewer Crossing Street.
    The provision of the municipal code as to improvements for which special assessments are made that “the corporation shall pay the cost of intersection” (Rev. Stat. 2373; Lan. 3604; B. 1536-213; Mun. code, Sec. 53) has reference to the parts of street improvements at the intersections of streets, one with another. It has no' application to the crossing of a street by a sewer for local sanitary drainage.
    4. Burden of Proof as to Negative Fact to Establish Irregularity.
    One seeking to enjoin an assessment by a city council on the ground that a statutory requirement has been omitted, has the burden of establishing such fact by evidence. It is not incumbent on the city to show affirmatively its compliance with the statute.
    [Syllabus by the court.]
    Appeal from Lucas common pleas court.
    B. A. Hayes and Ralph Emery, for plaintiff.
    C. S. Northup, city solicitor, and O. W. Nelson, for defendants.
   WILDMAN, J.

The case below was brought by Joseph W. Close, who sought by injunction to restrain the county officers from proceeding to collect a sewer assessment upon a large number of lots owned by him. These lots are situated in what is known as “Harvard Terrace,” near Wal-bridge Park in this city. The case was tried in the court below and brought here by appeal. Assessments for the construction of two sew•ers are involved: one, known as sewer 930, designed for the local sanitary drainage of the lots of Harvard Terrace, and the other, No. 838, a main sewer and also a sanitary sewer.

The first substantial claim of the plaintiff to the equitable protection of the court is, that sewer 930 was not constructed according to contract, or according to the bids or advertisements for bids, and, consequently, that the assessments upon the lots are invalid'.

It seems that during the construction of the work and after all that part of the sewer in the southern half of Harvard Terrace had been completed and while the work was in progress upon that part of the sewer lying northerly of University Boulevard, by mistake of an assistant engineer, the sewer was not laid at the depth contemplated by the contract and specifications, but was made several feet shallower. This mistake was not discovered until some time after the sewer was completed, as stated in Par. 13 of the agreed statement of facts submitted to us. The evidence of witnesses has been taken on the trial before us to the effect that as complete drainage was effected for the benefit of the lots by the sewer as constructed as would have been by a sewer as contemplated and provided for under the contract; and witnesses have testified that'in their judgment it was no more costly to construct, so that no more expense has been included in the assessment. It nowhere appears that any injury has been done to the petitioner by reason of this deviation from the contract in the construction of the improvement.

It is urged upon us that bidders should have had an opportunity to bid for the construction of the sewer in the manner and form in which it was constructed,'and this may be true; but we have concluded that the irregularity is not such a one as justifies the setting aside of the assessments. The assessments are made for the actual expense only, and to disturb them upon this ground would result in a reassessment with the same result — unless the court went further and held all assessments invalid and took the position that no further power exists in the municipality to assess at all. ¥e think that this would be inequitable; it would leave the lot owner in possession of all the advantages derived from the construction of the sewer and throw the entire burden of cost upon the city, upon no better ground than that there has been an inadvertence in the carrying out of a contract, which inadvertence has resulted in no substantial injury to any one. The conclusion at which we arrive is in harmony with our holding in Kohler Brick Co. v. Toledo, 29 O. C. C. 599.

In the first cause of action in plaintiff’s petition and,what is styled . Par. 2, it is alleged that the assessment was made according to benefits instead of being by foot frontage, and that by the terms of the assessment it was limited to abutting lots, thereby letting all the property included in Walbridge Park — which is on the other side of Broadway —escape assessment entirely, although it is said that it derives benefit from sewer 930, which is the sewer under consideration in this part, of the first cause of action. It does not appear, however, that the property in Walbridge Park is to be considered in any sense as “abutting property.” It is true that two cofinections have been made from structures in Walbridge Park by piping across Broadway to this sewer 930, but the sewer is constructed upon private right of way — it is not in the street known as Broadway but lies in the interior of Harvard Terrace, running along the lot lines mainly if not entirely, except where it crossés University Boulevard. Now, if in seeking to assess all property benefited we go beyond the abutting property, it is a little difficult to tell where to stop; that is, if the court assumes that other property'is so benefited that it was the duty of the assessing authorities-to assess such other property — there would seem to be hardly a limit to the jurisdiction off the court ¿s to the boundaries of territory which might be assessed, to take care of a sanitary sewer like this. But whatever might bé the rule if Walbridge Park were private property, it-does not necessarily apply to a public park such as this.

There is a provision in the statute for payment of a part of the expense of such improvement by the public, based upon the principle that the public doe's derive some benefit. Section 63 of the municipal code of T902 (96 O. L. 43; Rev. Stat. 2276; Lan. 3614; B. 1536-223), may properly be considered as throwing some light upon the-■intention of the legislature as to property of the character which we have here. ' “When the whole or any portion of an improvement authorized by this title passes by or through a public * * * park # * * or any other public * ' * * grounds within and belonging-to the corporation, the council may authorize the proper proportion of the estimated costs and expenses of the improvement to be certified by the clerk of the corporation to the county auditor and entered upon the tax list of all taxable reál and personal property in the corporation, and the same shall be collected as other taxes. ’ ’

Now, if we apply the rule that the expression of one thing is the exclusion of all'others of the-same general class, we must, by implication, hold that the municipality may not assess the proportion of such estimated costs and expenses upon a public" park, unless the improvement “passes by or through” the park. Now, what is meant by the expression “by?” -The expression “through” will not apply — as this improvement nowhere passes through the park. That the park is in the neighborhood of the improvement, is true; but, according to the testimony of Mr. Consaul, the city engineer, at its nearest point to the sewer under consideration there is a distance of 150 feet, and the sewer cannot be said to run “by” a park unless close proximity is to be so understood. We think, however, that what was contemplated by the legislators is that when an improvement either passes through a public park or the park abuts upon the improvement — when it runs alongside of it or through it — that then the park may be assessed.

Whether the park, if it were a private park, would have any access to this sewer so as to avail itself of the benefits of the sewer without joining in the expense of construction, might be a very serious question, but one which we think we are not called upon to meet.

Our judgment is that the assessment cannot be set aside upon the ground that the park should have been included in the property to be assessed.

It is claimed also in the petition that the assessment is invalid in that there is no deduction for intersections. In order that I may state the position of counsel for the plaintiff fairly, I read from his brief:

“Plaintiff claims that an intersection is formed by an improvement, whether paving, sewer or sidewalk, crossing a street. Counsel for the city claims that an intersection is formed by one street crossing another street, and relies upon the language of this provision as expressed in the Revised Statutes as they existed prior to the passage of the municipal code. That section was 2274, and reads, in part:
“ ‘That when the council of a city, * * * determines to grade, pave, sewer or otherwise improve a street, alley or other public highway, * * * the council shall levy and assess a tax, * * for the estimated cost and expense of so much of the improvement as may be included in the crossing or intersection of such street,, alley, or highway.’ ”
“This language seems to imply that the improvement intersects* the street. If under the Revised Statutes the city paid for intersections only when the improvement was in a street, then we claim that the municipal code enlarges the number of intersections to be paid for by the city.”
“From paragraph 8 of the agreed statement it appears that the city was not charged with the cost of any intersection.”
i “If the crossing of the streets by sewer 930 forms intersection» under tbe terms of the statute, it is conceded in Par. 7 of the agreed statement that the assessment is excessive by 9.93 per cent.”

The provisions of the municipal code of 1902, relied upon by counsel as changing the character of an intersection the construction of which is to be paid for by the city, is Sec. 53 (Rev. Stat. 2373; Lan. 3604; B. 1536-213), which reads, in part:

“In all municipalities the corporation shall pay such part of the ‘cost and expense of improvements for which special assessments are levied as council may deem just, which part shall not be less than one-fiftieth of all such costs and expenses; and in addition thereto, the 'Corporation shall pay the cost of intersections.”

It will be noted that the word “intersections” is here used without definition, but by the former statute were clearly contemplated, ns counsel agree, improvements extending along or in streets and the provision was that the city should pay the costs of such improvements ’in the squares made by the intersections of two streets. The examination that I have given to this matter leads my mind to the conclusion that the word had acquired at the time of the passage of the municipal code of 1902 a familiar meaning and that it had reference to inter- ■ sections of the character described in the statute in force up to and at the time of the passage of the municipal code; and although the definition of “intersections” is dropped out, I think that the new section— ‘53 of the code — still had reference to the same class of intersections that had been before known.

In the ease of Northern Ind. Ry. v. Connelly, 10 Ohio St. 159, decided long before the passage of the law providing that the city ¡should stand the cost of such intersections, the courts had under consideration the question as to how their cost should be assessed. A contention arose as to whether the cost should be paid by an assessment upon the property abutting on a street being improved, and it was indicated (p. 165) and in the later case of Creighton v. Scott, 14 Ohio St. 438, it was held:

“When in making such improvement, squares formed by the intersection of other streets, are crossed and improved, the city council may, if the object of improving the squares is the improvement of such street, assess the whole expense upon the same property on which the other expenses of such improvement are assessed.”

This entire legislation and adjudication as to intersections is based upon the idea that the part of the improvement at such intersections is connected with a street improvement to be paid for by assessment. If the property owners are benefited by the general street improvement, assessment is to be made upon such property owners along the street where the other expenses are being assessed. Upon the ' same principle, if a sanitary sewer is, at the intersection, still for the benefit of the people whose land it drains, although it crosses the street, the owners of the property drained should equitably pay the expenses. The city derives no benefit from a sanitary sewer at the point of crbss-ing a street. The city does not need it. It is not there to take off the surface water; it is not for the purpose of draining the street, but it is for the purpose of caring for the sanitary drainage of the lots which are assessed. Both upon authorities, so far as we are able to find them, and upon principle, as it seems to us, the cost of the improvement at the kind of intersection we have here, should not be paid by the city. To the extent that the city is in any way. benefited by this sanitary drainage, as I have already suggested, the city does pay one-fiftieth of the cost.

The assessment for the sewer 898 does include some amount which should be deducted, as is conceded by council, it being the amount claimed by plaintiff in his petition.

This would seem to dispose of the substantial questions which are involved in the inquiry. It was claimed in oral argument, as asserted in the petition, that the proceedings were irregular in one respect, to wit, that the council omitted in the proceedings for the construction of main sewer 898 to assess the sum required to construct an ordinary sewer sufficient to drain the property. It was argued that this omission on the part of the council would necessitate the setting aside of the assessment and the ordering of a reassessment, but as this yrould not be especially beneficial to the plaintiff, by a paragraph in the brief before me the application to enjoin the assessment, or set it aside upon that ground, is withdraAvn.

There is another reason why the relief would be refused — as has been indicated to counsel — and that is, that there is no evidence before us that the council did omit to determine such required sum. It was argued that, it being a sort of a negative, plaintiff was not called upon to prove it; that it was sufficient for him to assert a negative in his pleading, making the claim, and then the duty would be devolved upon the defendant to show the proper action of council in this regard. We, however, in a case in Wood county, Westenhaver v. Hoytsville, 28 O. C. C. 357, took the opposite view and held that all claims of defects of proceedings of a municipality must be averred 'and proven; that the burden is still upon the plaintiff; that the court would not presume that the officers had omitted any duty. And in the case of Bolton v. Cleveland, 35 Ohio St. 319, the same principle was expressly .and clearly enunciated:

“Where a party seeks, in equity, to enjoin the collection of an assessment by the city council, on the ground that the improvement was not recommended by the board of city improvements, he must show such fact by averment and proof.”

There the question involved a negative, as here. It was just as true there as it can be here, that the knowledge of the facts was in possession of the counsel or of the defendants and that if a particular .action had been taken by the council, it was easy to show it by the records; yet the Supreme Court held that it was not incumbent upon the council to show that it had acted, but that it was incumbent upon the party attacking their proceedings to- show the failure to act. On page 322, Judge Boynton, in announcing the opinion, says:

“Where a party seeks, in equity, to enjoin the collection of an .assessment standing against him, or his property, on the duplicate of the county treasurer, on the ground that it was illegally made, but which it was within the power of the board or tribunal causing it to be placed there, to levy, he must show its invalidity by proper averment and proof. The assessment will be held valid until the contrary is made to appear. It, therefore, was not the duty of the defendants to show that the improvement was, in fact, recommended by the board ■of city improvements.”

We think that there are no contentions in the petition that should prevail, and the judgment will be entered accordingly. The petition will be dismissed.

Parker and Haynes, JJ., concur.


author: COOK, J.

text:
    APPRAISEMENT AND AWARD — INSURANCE—MORTGAGES.
    [Ashtabula (7th) Circuit Court,
    September, 1907.]
    Burrows, Laubie and Cook, JJ.
    Ohio Farmers’ Ins. Co. v. Erie Brewing Co. et al.
    1. Mortgagee Held not Bound by Appraisement and Award to which He was not a Party.,
    A mortgagee who holds a policy of insurance issued to the mortgagor, which provides that in case of loss there shall be an appraisal and award with the usual mortgage clause attached, “loss if any payable to the mortgagee as his mortgage interest may appear” and further in substance: “That the insurance as to the interest therein of the mortgagee, should not be invalidated by any act or neglect of the mortgagor:” is not bound by an appraisement and award made by mortgagor and insurance company without the knowledge of the mortgagee.
    2. But Mortgagee Repudiating Appraisement should Demand Another Ap-praisement before Insisting on Payment.
    In such case where the mortgagee repudiates the appraisement and award made by the mortgagor and insurance company, it is the duty of the mortgagee to demand an appraisal and award before insisting upon the payment of the loss to him either by original action or by cross petition in an action brought by the mortgagor.
    tSyllabus approved by the court.]
    Elliott & Elliott and E. J. Betts, for plaintiff in error.
    Cox & Kingdom and W. C. Chadman, for defendants in error.
   COOK, J.

Bridget CuLlen was the owner of a parcel of real estate upon which there was a mortgage for a considerable amount. Two policies of insurance were taken out by her, one in the Ohio Farmers’ Insurance Company and the other in the Columbia. These policies were indorsed in the ordinary manner, “loss, if any, payable to the mortgagee.”

The mortgage was assigned by the mortgagee to the Erie Brewing Company and the policies delivered by the mortgagee to it. When the policies expired new policies were issued in the name of Bridget Cullen, by the insurance companies for $1,750 each, and the one issued by the Ohio Farmers’ Insurance Company, is the one in controversy. This policy provided that, “the loss, if any, should be payable to the Erie Brewing Company,” and further had the following indorsement known as the Standard Mortgage clause: “It is hereby specially agreed that this insurance, as to the interest of the mortgagee only therein shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured.” The building was partially destroyed by fire and after the fire Bridget Cullen entered into an agreement with the two insurance companies for an appraisement of the loss without the knowledge of the brewing company, and the appraisers fixed the amount of the loss at about $1,200 and rendered an award for the same.

The amount due the brewing company upon its mortgage was over $2,450, and it claimed the amount of the loss was from $1,800 to $2,000.

The Ohio Farmers’ Insurance Company failing to pay the amount of the award, Bridget Cullen brought suit against it on the award making the Erie Brewing Company a party defendant. The brewing company filed an answer and cross petition setting up the facts herein set forth and insisting that it was not bound by the award agreed upon by the insurance company and the owner' and mortgagor of the property and asking judgment for the full amount of the actual loss. The mortgagor took no further action in the suit after the filing of the petition and the case was tried alone on the cross petition of the brewing company. The court charged the jury that the brewing company was not bound by the award and the jury returned a verdict against the insurance company for $1,049.41, being one-half of the actual loss with interest, the other half to be paid by the Columbia Insurance Company.

The principal question that is made in the case is: Did the court commit error in its charge to the jury upon this question? It has been generally held in cases of mere indorsement upon a policy, “loss, if any, payable to the mortgagee,” that the contract is still with the mortgagor and is for the insurance of his interest and the holder of the policy by such indorsement takes such policy subject to all the conditions of the policy as to nonoecupaney, .increase of hazard, other insurance, alienation, etc. 1 Jones, Mortgages See. 406.

But would this rule apply as to the settlement of the amount of the loss after fire Í It would seem that it should not, as it would be unjust to the mortgagee. They select the appraisers and the mortgagor, under certain circumstances, might not feel inclined to get the full amount of the loss or at least to insist upon the same.

In 1 Jones, Mortgages Sec. 409, it is said:

“It is well settled that a mortgagee to whom a loss is payable is not bound by an adjustment to which he is not a party and is made without his knowledge and consent and that an adjustment made only by the insurer and mortgagor is without effect as to the mortgagee.”

But in this case the mortgage clause provided:

“It is hereby specially agreed that this insurance as to the interest of the mortgagee only therein shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured. ’ ’

By this provision no act of the mortgagor could affect the interest of the mortgagee in the insurance. The insurance company must deal directly with the mortgagee. The full amount of the loss must be paid to him at least up to the amount of his claim and he settles with the mortgagor. 1 Jones, Mortgages (5 ed.) Sec. 409.. In such case it is precisely the same as if the mortgagee had taken out- a policy in his own name to secure his interest, a separate and distinct contract between him and the insurance company. Such was the holding in the case of Hastings v. Insurance Co. 73 N. Y. 141.

In that ease “the policy contained a clause declaring in substance that in ease of other insurance the insured could only recover upon the-policy its proportionate share of any loss. * * * In an action upon the policy, held, that the mortgage clause operated as an independent' insurance of the mortgagee’s interest; it gave them the same benefit as if they had taken out a separate policy, free from the conditions imposed upon the owner and making them responsible only for their own acts; and that, therefore, the clause of the policy limiting defendant’s liability in case of other insurance did . not apply, as the mortgagees had procured no other insurance, and plaintiffs were entitled to recover the-whole of a loss, without regard to the additional insurance procured byS.”

In the opinion on page 150 it is said:

“The rules laid down in the authorities cited have no application, however, to a ease where a provision has been inserted in the policy which places the mortgagee upon another and a different footing from that of a mere assignee or appointee to receive the loss. The mortgage clause was agreed upon for this very purpose, and created an independent and a new contract, which removes the mortgagees beyond the control or the effect of any act or neglect of the owner of the property, and renders such mortgagees parties who have a distinct interest separate from the owner, embraced in another and a different contract. The tendency of the recent cases is to recognize these distinctions, and thus protect the rights of the mortgagee when named in the policy, and the interests of the owner and of the mortgagee are regarded as distinct subjects of insurance.” Excelsior Fire Ins. Co. v. Insurance Co. 55 N. Y. 343 [14 Am. Rep. 271]; Springfield Fire & Mar. Ins. Co. v. Allen, 43 N. Y. 389, 392 [3 Am. Rep. 711].

We are therefore of opinion upon principle and authority the charge-of the court was correct.

Another question, however, that presents itself is: That if by such indorsement upon the policy it made the contract of insurance a separate and distinct one between the mortgagee and the insurance company the same as if the interest of the mortgage had been insured by a separate policy, what right had the mortgagee to insist upon the payment of the loss or bring suit for the same until it had demanded an appraisement of the loss. It was bound by all the requirements of the policy that it was required to perform; and if the manner of ascertaining the amount of the loss was one of such requirements, no suit could be brought until the mortgagee procured an award or ascertainment of the loss by appraisers or showed a legal excuse therefor, the loss being a partial one. Graham v. Insurance Co. 75 Ohio St. 374 [79 N. E. Rep. 930].

Why was not the provision for an appraisement binding upon the mortgagee? If, as said, it was equivalent to a separate policy upon its interest, surely it could not insist upon the payment of the loss until the amount, was ascertained in the manner provided by the policy.

The brewing company repudiated, as it had a right to do, the .appraisement made by the insurance company and the mortgagor, but the insurance company had the right to an appraisement and award and the mortgagee could not deprive it of such right.

We are therefore of opinion that the brewing company had no right to proceed upon its cross petition until such appraisement and .award was demanded or a legal excuse given why it was not done. The ■cross petition shows no such demand or excuse, neither does the evidence.

For this reason the judgment of the common pleas court must be reversed and the case remanded for such further proceedings as may be required by law.

Burrows and Laubie, JJ., concur.


text:
    CUSTOM AND USAGE — MASTER AND SERVANT — RAILROADS.
    [Lucas (6th) Circuit Court,
    October 5, 1907.]
    Haynes, Parker and Wildman, JJ.
    Philip Schwartz v. Lake Shore & M. S. Ry.
    Local Yard Custom Competent to Dispel Negligence Charge.
    A local yard custom among brakemen, upon discovering that a car coupler would not couple, as to giving the usual stop signal and stepping between the cars to adjust the coupler, is admissible to meet a charge of contributory negligence against a brakeman injured by stepping between a car and locomotive tender to adjust the coupling device. hake Shore é M. 8. By. v. Botefuhr, 30 O. C. C. 67, reaffirmed.
    [For other cases in point, see 3 Cyc. Dig., “Custom and Usage,” §§ 105, 112; •6 Cyc. Dig., “Master and Servant,” §§ 689-693. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    Marshall & Fraser, for plaintiff in error.
    Doyle, Lewis & Schauffelberger, for defendant in error.
   WILDMAN, J.

This is a proceeding to reverse the judgment of the court of common .pleas rendered in an action brought by Schwartz, for personal injuries, caused, as be claims, by the negligence of the defendant company. Upon the trial in the court of common pleas, at the close of plaintiff’s evidence, the court directed a verdict for the defendant, upon two grounds: that the evidence failed to show negligence on the part of the company, and that it disclosed contributory negligence on the part of the plaintiff. The •case is one of a character not unfamiliar to1 courts. The plaintiff was a brakeman in the employ of the defendant company and received severe injuries while engaged in coupling ears of a train.. He was between the tender of the locomotive and a car, when, in obedience to a signal from the conductor, the locomotive was moved, without warning to :Schwartz, and his arm was crushed. I will not attempt in more detail a review of the evidence in the case, but will give my attentior to one or two points which are claimed, in the petition in error, as ground for a new trial.

It is alleged as one ground of error that the court erred in the rejection of evidence offered by the plaintiff. On pages 56 and 57 of the bill of exceptions before us we find an offer of evidence as to the custom of the railway company in switching ears under circumstances like these in the •case at bar. The court, however, sustained an objection to the question .asked, and an exception was taken by counsel for the plaintiff, who .at the same time offered to prove by the answer <©f the witness that '■“according to the universal custom of the defendant in that railroad .yard, the brakeman, after seeing that the coupler would not couple”— (it being a mechanical coupling between the tender and the car, which it appeared by the evidence would not work) — “would give the engineer the usual stop signal with his hand, and átep in between to adjust the knuckle.” Then counsel informed the court: “and this will be followed up by questions, which, if permitted to be answered, will ■draw out the statement from the witness, according to the custom, he would not go to the engineer and tell him what he was going to do or what his signal meant, and he wduld not, before stepping in between the ■cars, wait until he had told the conductor what he was going to do in there; and further that in compliance with the custom the brakeman would not, after the engine stopped, after it was standing still, after he had given the stand signal, he would not, before stepping in between, look and see whether the engineer was watching.” Whereupon the court said: “The objection to the introduction to that testimony will be sustained;” and the defendant excepted.

In the conversation preliminary to this offer, between counsel and the court, the judge, in saying that the objection would be sustained, ■added: “I do not understand it to be competent to show what was the proper thing to do by showing what they usually do.” The questions by which this evidence was sought to be elicited from the'Witness were not very artistically framed and possibly the court may have been justified in requiring some clearer statement of the interrogatories to' the witness; but we gather from the language of the judge that it was intended to exclude evidence of that character upon the ground suggested by him — that it was not competent to show- what ought to have been done, or what it was proper to do, by what was usually done. We think, however, that if it was intended to exclude all evidence as to a local custom which had obtained in the operation of defendant’s trains in the yard, the court was in error.

It is not worth while to cite authorities, in view of the fact that this question has come before the court on other occasions, and the holding, so far as I have known, has been uniformly.made that a custom of this character may be shown for its bearing upon the conduct of the parties. A custom of brakemen of going between cars to uncouple and remaining there in supposed security against any danger from moving of the train, would naturally have some effect upon the conduct of the brakeman. His knowledge that the conductor would not be likely, by reason of the custom, to signal for the moving of the train while he was in such a place of danger, bears legitimately on an inquiry whether he exercised ordinary care. The custom would naturally have an effect upon the conduct of the conductor also, because he might assume that the brakeman, having knowledge of such a common practice, would follow it.

The cases of Carl v. Railway, 10 Circ. Dec. 711 (20 R. 68); Pennsylvania Co. v. Mahoney, 12 Circ. Dec. 366 (22 R. 469); Memphis & C. Packet Co. v. Britton, 25 O. C. C. 153, are all cases which perhaps should be referred to in this connection in support of the position which has just been taken and expressed. The case of Toledo Ry. & Light Co. v. Ward, 25 O. C. C. 399, held, as disclosed by the syllabus:

“Evidence of a custom of slackening the speed of electric cars in approaching a particular street crossing is admissible in a trial involving a collision at that crossing, as bearing upon the question of 'contributory negligence on the part of the one injured.”

The case at bar is very similar in some of its aspects to the case of Pennsylvania Co. v. Mahoney, supra; the case of Andrews v. Railway, 8 Circ. Dec. 584 (19 R. 699), decided by this cpurt, and also the case of Lake Erie & W. Ry. v. Mulcahy, 9 Circ. Dec. 82 (16 R. 204), decided by the circuit court of the third circuit. Another case almost precisely in point and remarkably like the present one in most of its details, was decided by this court at the last term, Judges Haynes, Parker and Taggart sitting, I at the time being engaged in the Cuya-hoga circuit. The case to which I refer is that of Lake Shore & M. S. Ry. v. Botefuhr, 30 O. C. C. 67. In this case, as in the others, the principle was announced that evidence as to a custom in a yard was proper to be received. The language in the syllabus of the ease is as follows:

“Evidence that it was the custom of a railway conductor to give warning to the trainmen assisting him in the making up of a train in the yards, is admissible upon the question whether, knowing the custom, the conductor exercised ordinary care, and also upon the question of whether the deceased, being aware of the custom, and of .the habit of the conductor, was guilty of contributory negligence.”

In the case at bar Schwartz had been in the employ of the railway company for many years, and it may be said, as in Toledo Ry. & Light Co. v. Ward, supra, that it was a question for the jury whether or not he had such knowledge of a common practice and to what extent his ■conduct was influenced by it.

Whether we should reverse the judgment because of the rejection ■of this evidence, it is perhaps unnecessary for us to say. The framing of the question was such that possibly the court may have been justified in refusing to permit it to be answered without some reformation of it so as to make it more clearly express to the witness the meaning of counsel. But I have said this much with regard to this evidence, in view of the claim made that the court erred, and by reason of the fact that we have concluded that the judgment should be reversed on another ground, and we desire to indicate to the trial court what should be the rule on another trial as to the admission or rejection of evidence of this character.

I will not stop to read further from any of the cases cited. They may be read with profit and interest in connection with the case at bar. We think that even without the evidence which the plaintiff sought to introduce, the court should have permitted the case to go to the jury; that there was at least a scintilla of evidence tending to sustain the claims of plaintiff’s petition, and for the error of the court in arresting the case from the jury and directing a verdict for the defendant, the judgment based upon the verdict is set aside and the cause will be remanded for a new trial at the costs of the defendant in error.

Haynes and Parker, JJ., concur.


text:
    EVIDENCE — PRINCIPAL AND SURETY.
    [Ashtabula (7th) Circuit Court,
    September Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    George W. Martin et al. v. First Nat. Bank of Geneva.
    Pabol Proof that Cashieb of Bank Aoeeed to Secure Collateral to Savb Sureties, Held Incompetent.
    Parol evidence is not admissible to show that, at the time of taking a promissory note by a bank for the payment of a loan secured by sureties,, the cashier agreed that he would secure certain bonds as collateral for the payment of the note and that the liability of the sureties should be subordinate to such collateral; neither has a cashier, in the ordinary performance of his duties, authority to make such an agreement.
    [Syllabus by the court.]
    Error to Ashtabula common pleas court.
    E. J. Pinney, Hoyt, Munsell & Hall, for plaintiff in error.
    Henry Means and A. J. Trunkey, for defendant in error.
   COOK, J.

George W. Martin and others made their negotiable promissory note to the First National Bank of Geneva, Ohio, for the sum of $2,145, for money loaned. The note was in the ordinary form. Two of the parties, Clark Martin and George Martin, were sureties and they contested the payment of the note, but at the close of the evidence' the court directed a verdict against all the makers, including the sureties, for the full amount due on the note.

It was claimed by the sureties that at the time of the delivery of the note to the bank there was an agreement with the cashier that the' bank was to obtain from the Ottumwa Telephone Company, of the-state of Iowa, in which company the principals upon the note as well as the bank were interested, the bonds of that company of sufficient amount to pay the note and that such bonds were to be held by the' bank as collateral for the payment of the note and were to be exhausted-before any liability of the sureties would attach.

It was further claimed that the bank did not procure the bonds or, if it did, it appropriated them to its own use in payment of other claims that it had against the telephone company.

There was some evidence tending to show that such an agreement was made with the cashier, but there was no evidence that the board of directors of the bank knew anything of such agreement, either before or after the execution of the note, if it was made.

The effect of the agreement as claimed was that the obligation of the sureties was to be secondary; that the bank was to secure these-bonds of the telephone company which were to be primarily liable and', if the proceeds- of the bonds were not sufficient to pay the note, the sureties were to be responsible for the payment of the residue.

The first question that confronts us is, Can parol evidence be-admitted to show such an agreement? A promissory note is a contract in writing and both parties, the maker and payee, are bound by its. terms. A want or failure of consideration in whole or in part might be shown the same as in a deed or other written contract, but certainly the time or manner of payment differing from that stated in the note could not be varied by such evidence. As said in the- case of Holzworth v. Koch, 26 Ohio St. 33, 37:

“The note contains an absolute and unconditional promise to pay its full amount at the end' of six months, and the defendants sought, by parol proof, to change.this into a promise to pay on condition the plaintiffs would furnish goods to Doering, and to pay at such time or times as he might be able to pay. This they could not be allowed to do, without violation of one of the first and plainest principles of evidence. ’ ’

We are of opinion that this parol evidence was not admissible.

But, if this evidence was admissible, what authority had the cashier of the bank to make such an agreement? It is true the cashier is the agent of the bank, but the board of directors has control of the affairs of the bank and without specific' authority from the board the cashier cannot enter into any agreement that does not usually pertain to the duties of a cashier, or such other' acts as the board has by such a uniform custom permitted the cashier to perform. Sturges v. Bank, 11l Ohio St. 153 [78 Am. Dec. 296]; First Nat. Bank v. Bank, 6 Circ. Dec. 452 (10 R. 233).

If," after making a loan, receiving a note and taking security for the payment of the same, he could by an outside agreement provide that the bank was to obtain certain stock, and hold it as collateral to the obligation of the sureties and if the stock was not obtained, then the sureties would not be liable, then he might by such agreement provide that the sureties were not to be liable at all, which certainly would not be within his power.

We think the court of common pleas did right in instructing a verdict for the plaintiff and the judgment will be affirmed.

Burrows and Laubie, JJ., concur..


author: ■DONAHUE, J.

text:
    COURTS — ERROR—JUSTICE OF THE PEACE — PARTNERSHIP.
    [Knox (5th) Circuit Court,
    October Term, 1907.]
    Taggart and Donahue, JJ.
    (McCarty, J., not sitting.)
    James O’Rourke v. W. I. Edwards.
    1. Tesansceiet Certified to be Correct and True Binding on Reviewing Court. A transcript of a justice of the peace filed in the common pleas on error proceedings must be considered conclusive by the reviewing court as to the correctness thereof.
    ,2. Justice of the Peace has no Jurisdiction of Action for Undetermined Profits.
    A justice of the peace has no jurisdiction o'f an action at law to recover earned profits due one member of a joint enterprise until the profits have been determined by an accounting, either between the parties themselves or by a court of competent jurisdiction.
    [Syllabus approved by the court.]
    Error to Knox common pleas court.
    W. M. Koons, for plaintiff in error.
    W. A. Hosack, for defendant in error.
   ■DONAHUE, J.

This proceeding in error is brought to reverse the judgment of the common pleas court affirming the judgment of the justice of peace rendered in an action before said justice, wherein William Edwards sued to recover from the plaintiff in error, James O’Rourke, the sum <of $152.30, upon the following bill of particulars:

' ‘ The plaintiff says that on the-day of. May, 1904, he became -engaged with the ■ defendant in a certain business by virtue of a certain verbal contract, by the terms of which the plaintiff was to receive one-half of the profits. The plaintiff says that'the defendant received in cash out of said business the sum of $1,295.65; that he received from one Bechtol $61.20, and rebate on goods, $262.00; that the defendant paid out the'sum of $1.020.00, leaving net profit to defendant :$588.85. The plaintiff says that he has only received $284.25, making .a balance due plaintiff in the sum of $152.30, which amount is due .and unpaid. ’ ’ /

The plaintiff in error did not appear before the justice of peace .at the time named on the summons, nor within one hour thereafter, .and thereupon the plaintiff was sworn and judgment rendered in his favor for the amount asked with costs of the action. Thereupon the defendant sought to appeal said cause. The appeal bond not having been filed, or at least not having been approved within the time limited, therefore no appeal was perfected, and error is -now prosecuted to reverse this judgment, together with the judgment,of the common pleas court affirming the same.

The first contention of the plaintiff in error is that the amended or corrected record filed in the common pleas court, in the error proceedings in that' court, is not a true and correct transcript, and that the docket entries have been changed and mutilated so that such transcript is not a true transcript. With that contention, this court has nothing to do at this time. It is certified to be a true and correct transcript and is binding in an error proceeding upon this court, or any other court having jurisdiction in error only, and the remedy of the plaintiff in error, if any, must be against the justice and his bond for certifying falsely to such transcript.

The second contention is that the bill of particulars filed before said justice shows that the justice of peace had no jurisdiction of the cause; that such bill of particulars shows that the defendants were partners; that no partnership accounting had been had, and therefore no action at law would lie to recover the plaintiff’s share of the profits until that share had been fixed and determined either by a mutual accounting between them, or by a court in a suit filed for that purpose. On the other hand it is insisted that because the averments of the bill of particulars do not show that the parties were to bear the loss as well as to divide the profits, that no partnership is stated, therefore, no accounting is necessary. We are of the opinion, however, that the question of whether or not there was a partnership is of little or no importance. The plaintiff and defendant were each entitled to a one-half interest in the profits of the concern, and that must be determined in the same manner as if they had been partners to all intents and purposes. In other words, before the rights of either party could be fixed and determined, an accounting must be had. The reasons therefore are just as important and potential as if a partnership were admitted. In fact, the principle underlying this case is the same principle that controls partnership accounting. I

This case, we think, is on all fours with the case of Eagle v. Bucher, 6 Ohio St. 296 [67 Am. Dec. 342], There an association was formed by the subscription of stock and the adoption of a constitution fo prócure gold from the mines of California, and it was agreed that eight persons should be selected and sent to the California gold fields, furnished with outfits and money for their expenses, and upon their-return they should account. Upon reaching California the eight persons failing to agree, partitioned their effects and each worked out in his own way and by his own efforts the purposes of the association.. It was held that the persons thus selected to labor for the association,, though members of the association, stood also in the relation of employes-of the association, and their refusal after arriving in California, to-work together, and the partitioning among themselves of the property of the association, without its knowledge or consent, and with the view of doing their separate and independent labors, do not work a dissolution of the association and discharge them from their obligation to it' under their contract, and that it was competent for the association to compel an accounting and payment by either of the eight of hisi earnings, while thus working separately, in favor of the other members, of the association, or to sue either of them for a breach of his contract, at its election.

Conceding then that the plaintiff below, William I. Edwards, was an employe of this plaintiff in error, and that he was to receive for his services one-half of the profits of the business in which they were engaged, then it became, and was, necessary to determine what those profits were just as much as if they had been in fact full partners in profit and loss, and the partnership had earned profits and there had been no mutual accounting between the partners as to the amount of such profits, and until this profit is determined by an accounting, either between the parties themselves, or by a court of competent jurisdiction, no action will lie at law to recover either’s share thereof from the other. Therefore, we are of the opinion that the justice of the peace had no jurisdiction of the subject-matter of the suit, and the judgment of said justice is reversed, and the judgment of the common pleas court affirming the same is reversed, with costs. And coming now to render the judgment that the common pleas court should have rendered, said action of the plaintiff is dismissed without any order or judgment as to the costs in such action, and exceptions of the defendant in error are noted.

Taggart, J., concurs.


author: WILDMAN, J. ,

text:
    MANDAMUS — NEW TRIAL.
    [Lucas (6th) Circuit Court,
    January 18, 1908.]
    Parker and Wildman, JJ.
    (Haynes, J., not sitting.)
    State ex rel. Orleano G. Barnes v. E. L. Kimes.
    1. Clerk Cannot be Compelled to Enter Judgment Pending Motion to Vacate Verdict.
    Mandamus will not lie to compel a clerk of court to enter judgment upon a verdict in favor of the plaintiff, during the pendency of a motion by the defendant to vacate the judgment.
    2. Motion to Vacate Verdict Amended by Insertion, “and por a New Trial.”
    A motion asking that a verdict “he vacated,” hut not' in terms asking for' a new trial, may, at the same term, although more than three days after the rendition of the verdict, he amended hy leave of court by the in-' sertion of the words, “and for a new trial.”
    [Syllabus approved by the court.]
    Mandamus.
    C. A. Thatcher, for plaintiff.
    Marshall & Fraser and King & Tracy, for defendant.
   WILDMAN, J. ,

The facts involved in this proceeding for a mandamus afe, briefly,as follows: An action was brought July 25, 1906, by Orleano G-. Barnes against the Toledo & Interurban Ry. Co., for damages caused by personal injury, received, as claimed, through the negligence of that company. A verdict for the plaintiff was-rendered at the January term, 1907, which was subsequently set aside, upon the ground'that the damages were excessive, disclosing prejudice. The case was again tried and another verdict obtained by the plaintiff for the sum of $7,200. A motion was filed which asked that this verdict be “vacated,” but not in terms ashing for a new trial.

The statute first to be considered is Kev. Stat. 5305 (Lan. 8821), providing, after a definition of the term “new trial,” that “the former verdict, report, or decision, shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes affecting materially the substantial rights of such party.”'

It is contended by the relator that this was not a motion for a new trial and could not be considered by the court as such.

At the same term, on December 23, 1907, the court, by order, allowed an amendment of this motion, inserting the words “and for a Hew trial.” It is claimed by counsel for the relator that the court had ho jurisdiction or power to do this; and also that the time having passed for the filing of a proper motion for a new trial, it was the duty of the clerk, under another section of the statute, to enter a judgment upon the verdict.

Now it is to' be noted that the court has but one duty to do under tie statute, if it vacates a verdict — unless, of course, some further proceedings are taken by the parties prior to the judgment, as, for instance, a settlement, or dismissal of the action. Revised Statutes 5307 (Lan. 8823) provides that:

“The application for a new trial must be made at the term the ■verdict, report, or decision is rendered.”

And Rev. Stat. 5308 (Lan. 8824):

“The application must be made by motion, upon written grounds, filed at the time of making the motion.”

Nothing has been said in discussion, that I recall, placing any ■emphasis upon the fact that in this section it is not provided that the ■motion for a new trial must be in writing. The statute does not say that “the motion or application must be in writing,” but that “the .application must be made by motion, upon written grounds,” in other words, the grounds or facts upon which the party bases such an application must be presented to the court in writing, to apprise the court and the opposite party of the reasons upon which the application is made; but I am not aware of any provision of the statutes requiring that the application itself shall be in writing. However this may be, there was evidently an attempt here by the party against whom the verdict was obtained to invoke the jurisdiction of the court to set aside the finding of the jury. There is no prescribed form anywhere in the ■statutes for a motion for a new trial. It is the substance of things and not the superficial form, that should determine such controversies, and if there is any irregularity in the form of a motion, it should, under •another provision of the code, be disregarded, unless it cause some prejudice to the person or party against whom the motion is addressed. Every error and irregularity is to be disregarded unless it be a material ,and substantial one, and unless it does inure to the prejudice of the party who complains of it. We think, then, that the court had a right to permit an amendment of the motion by insertion of the words, “and for a new trial,” although we doubt much whether an amendment was necessary.

This brings us to the question whether the-court had jurisdiction to pass upon the motion. The plaintiff below filed a motion to direct tbe clerk to enter judgment on the verdict, and, on another motion by the defendant, this motion of the plaintiff was stricken from the Bless, No error proceeding has been brought to this court to reverse that? action of the court, although it is claimed by counsel upon one side at-least, that the order of the court striking from the files the motion for' a direction tó the clerk to enter judgment, was such a final order as: might be made the basis of a proceeding in error. It is not necessary for us to determine whether or not this is so.

The court upon vacating the verdict granted a new trial. It is claimed here again, that the court had no jurisdiction to do this, because of the fact that the verdict rendered at the first trial had. been set aside by the court upon the ground, as here insisted, that it was against the evidence, and that the statute does not permit the vacation of a judgment and the granting of a new trial twice for that cause.

On the other side it is claimed that the two orders of the court for new trials were not of the same character; that the first was not the setting aside of a verdict upon the ground that it was against the evidence; but, rather, that the verdict was for excessive damages, a violation of another clause of the statute as to new trials, “excessive damages, indicating passion or prejudice.” We think as to this point that it is not necessary in this proceeding to determine the question.. We do not think that the question whether or not the court had power to grant a second new trial upon the cause assigned was jurisdictional. The court had jurisdiction to pass upon the motion and either grant it or refuse it. The court having the jurisdictional power to make the order one way or the other, the party had the right to except and protect himself by proceedings in error at the proper time. It is true he-might not be able to go to the higher court immediately from the court.of common pleas upon the granting of a new trial even if such grant--ing was erroneous; but he could preserve his rights, and it might not"be necessary for him to go any higher, because, upon another trial, bsih: verdict and judgment might be in his favor.

The relator is here asking for a writ of mandamus to compel tí» clerk of the court, Mr. Kimes,-to enter judgment upon the verdict as-rendered at the September term. We hold that he is not entitled to.’ the writ. It was not the duty of the clerk, during the pendency of ac ■ motion addressed to the judge asking for a vacation of the verdict, to ■ enter judgment upon it. The statute should not be so narrowly and technically construed as urged by counsel.

The writ sought is refused and the petition dismissed at the eosfe of the relator.


author: JONES, J. WALTERS, J.,

text:
    COUNTIES — PUBLICATION.
    [Pike (4th) Circuit Court,
    January, 1908.]
    Walters, Cherrington and Jones, JJ.

      State ex rel. News Pub. Co. v. Pike County (Comrs.). State ex rel. Johnson v. Same.
    1Í.'Sufficient Itemizing of Commissioners Annual Reports.
    •The provision of Rev. Stat. 917 (Lan. 2193), requiring county commissioners to make an annual report “itemized as to amount,” does not .necessitate the statement of expenditures with the explicitness of an r account, hut permits the entering, as one transaction, of the aggregate •sum of items, when such report shows said aggregate sum to have been paid out in a single payment to the same person for a specified purpose. :For example, under the heading, “stationery and supplies for county .officers,” the report showing that distinct items were purchased for the ruse of the probate judge which were paid out in a single sum to B. ‘Bros., is a sufficient compliance with the statute. The various subheads in the report, such as “allowance to counsel,” “allowance to justices and mayors,” “insurance,” sufficiently describe the purpose of such several expenditures. Walters, J., dissents.
    Turnpike Directors'’ Reports Do not Require Particularity of Statement • Required of County Commissioners.
    Turnpike directors’ reports of receipts and expenses made in conformity to Rev. Stat. 4898 (Lan. 8371), attached to county commissioners’ reports need not be. set forth with the particularity of statement required by Rev. Stat. 917 (Lan. 2193).
    ■¡[Syllabus approved by the court.]
    .DeMUBEEE TO ANSWER.
    delators filed their separate petitions in the circuit court of Pike county, Ohio, alleging that the board of commissioners of Pike county had failed and refused to file a detailed report of their financial transactions for the year ending August 31, 1907, itemized as to amount, for what purpose and to whom paid, as they are required to do by statute; that the report already filed by them was so condensed as to defeat the object of the statute requiring such report.
    The commissioners answered, setting up four defenses, viz.:
    1. ’ That relators had no legal capacity to sue, not being officers, but private individuals.
    2. That there was a defect of parties defendant, because the ’board of turnpike directors were not made parties defendant.
    3. A denial of the material allegations of the petitions, consisting of legal conclusions merely.
    4. Alleging that they had already fully complied with the law, •and bad filed the required report, and that in making same they had followed the form prescribed by the burean of inspection and supervision of public offices.
    To this answer was attached a copy of the report of said commissioners; also a copy of their report as turnpike directors; also a copy ■of the form prescribed by said bureau of inspection, July 25, 1905.
    Dougherty & Moore, for plaintiff,:
    Cited and commented upon the following authorities: State v. Lewis, 12 Dec. 46; State v. Preble Co. {Comrs.) 6 Dec. 268. (4 N. P. 177) ; State v. Fayette Co. (Comrs.) 12 Cire. Dee. 316 (22 R. 433) ; State v. Washington Co. (Comrs.) 56 Ohio St. 631 [47 N. E. Rep. 565].
    C. M. Caldwell and Eylar & Douglas, for defendant:
    Cited and commented upon the following authorities: State v. Murphy, 2 Cire. Dee. 190 (3 R. 332) ; State v. Preble Co. (Comrs.) 6 Dec. 228 (4 N. P. 180); State v. Columbus (Bd. of Ed.), 35 Ohio St. 368; State v. Preble Co. (Comrs.) 6 Dec. 268 (4 N. P. 177) ; State v. Nash, 66 Ohio SI- 612 [64 N. E. Rep. 558]; State v. Fayette Co. (Comrs.) 12 Cire. Dee. 316 (22 R. 433) ; State v. Washington Co. (Comrs.) 56 Ohio St. 631 [47 Ñ. E. Rep. 565] ; Neil v. Agricultural ■& Mech. College (Tr.), 31 Ohio St. 15; Lewis v. Laylin, 46 Ohio St. 663 [23 N. E. Rep. 288] ; Freon v. Carriage Co. 42 Ohio St. 30 [51 Am. Rep. 794]; State v. Wilson, 123 Ala. 259 [26 So. Rep. 482; 45 L. R. A. 772],

      See State v. Sollars, 19 Dec. 000.

   JONES, J.

The relator seeks a peremptory writ of mandamus to compel the defendant to publish a fuller and more complete report of their financial transactions during the year preceding the third Monday of September, 1907. He states that he is the owner and publisher of a newspaper, and by proper allegations in his petition; establishes his right to publish the report in question.

Defendants answer, the answer containing four defenses. The fourth defense attaches a copy of the report to the plea'ding.

Without stating specific reasons therefor, the court will content itself by saying that the demurrer to the first, second and third defenses respectively, is sustained.

The fourth defense, having the copy of the report attached, however, is considered upon its merits, the sole question being whether the commissioners have complied with the law .in-publishing their re-_port.

Objections have been urged, by counsel for the relator, because the report has' grouped under various heads and subheads the amounts, thereby showing for what purpose they were expended. We t.hinlr ' that, by this means, the report is a substantial compliance with the statute, and that a reference to such heads and subheads will sufficiently show the purpose of the several expenditures. Especial objection is made, for instance, to the items under the subheads “allowance to counsel” and “allowance to justices and mayors,” etc. The item “allowance” so used, is information to the effect that they were statutory allowances, and more specific terms were not absolutely necessary. Other items appear showing various amounts were paid out under the'head of “insurance.” We do not think it necessary that the report show upon what property the insurance was effected; neither under the head “boarding in county jail,” do we think it necessary to state explicitly what prisoners were fed. In such and other similar items the report shows substantially the purpose of the expenditures, and that is all the statute requires.

Upon the question, however, of what constitutes “a detailed report in writing, itemized as to amount, to whom paid, and for what purpose,” the members of this court are not in full accord. It is contended by counsel for relator that, under a proper construction of Rev. Stat. 917 (Lan. 2193), that the amounts shown to have been paid out must be itemized and that instead of the aggregate sum allowed and paid out, the report should show upon its face the several distinct items composing the aggregate sum. For example, under the heading of “stationery and supplies for county officers,” various expenditures appear showing an aggregate sum paid out to Barrett Bros., for the use of the probate judge, and others paid out' for the use of the other county officials. It is insisted that the report show the various items of stationery and supplies; that the statute now requires this to be done with the explicitness of an account. This is but one instance of the character of the report. An inspection of the report shows, that if these aggregate sums found throughout were so itemized, the report would be greatly lengthened.

The majority of the court are unable to concur in this view. Neither does the strict reading of Rev. Stat. 917 (Lan. 2193), nor a \ proper construction of that section require the minute itemizing of each bill passed on, allowed and paid out, when paid to a single person. In the first place Rev. Stat. 917 (Lan. 2193) merely requires a, report of the “financial transactions” of the commissioners. Revised Statutes 850 (Lan. 2109), provides for the keeping of a record by the county commissioners of their proceedings, which record shall be received as evidence in every court in the state. By that section the "financial transactions” mentioned in Rev. Stat. 917 (Lan. 2193), are-entered on that journal. And in the instance mentioned, where the-board audits the itemized bill of Barrett Bros., for stationery and supplies furnished the probate judge, and allows the bill in the aggregate, the act is but one "transaction;” and the allowance of the aggregate sum is all that is necessary to be placed on its journal.

Again, the strict reading of Rev. Stat. 917 (Lan. 2193), does not require the amount to be itemized if paid to a single person. The word "itemized” modifies the word "report,” just preceding. The statute-requires the report to be itemized in three particulars — amount, to-whom paid, and, for what purpose. In other words the natural reading of this section requires the report to be itemized: first, as to amount paid; second, to whom paid; third, for what purpose.

In construing this statute before its amendment, as to what constitutes a "detailed report,” Judge Bradbury, in State v. Washington Co. (Comrs.) 56 Ohio St. 631, 646 [47 N. E. Rep. 565], uses this pregnant language:

"It is, of course, within the power of the general assembly to require such minuteness as this in the report made by the commissioners, but unless the language chosen by that body imperatively demands, such construction, the section should not, in our opinion, be so construed. ’ ’

Judge Newby, of the Fayette common pleas, in construing this-feature of the section in State v. Sollars, 19 Dec. 000, held the same-view, for he says:

"I do not think this contention well founded, provided the aggregate amount was paid for a single purpose, for the statute goes no-farther than to require that the name of the person receiving the-money, the amount paid, and the purpose for which paid be stated, and does not require the dates and amounts of several payments to one-person for a single purpose to be given, but permits the several payments to be stated in the aggregate, because by such a statement, the public are advised as to the amount paid, the name of the person to-whom paid, and the purpose for which paid, and the detail contended for is not necessary to serve any purpose.of the statute.”

Attached to the commissioners’ report is the turnpike directors’' report of receipts and expenses made in conformity to Rev. Stat. 4898 (Lan. 8371).

We all agree That the latter section governs the preparation of .such turnpike directors’ report, and that the particularity of statement required by Rev. Stat. 917 (Lan. 2193), does not apply thereto. This section was not amended, as was Rev. Stat. 917 (Lan. 2193), and the construction adopted by the Supreme Court in State v. Washington Co. (Comrs.) supra, applies thereto.

Finding that there has been a substantial compliance with the ¡statutes, the demurrer to the fourth defense will be overruled, the prayer for a peremptory writ of mandamus refused, and the petition dismissed.

Cherrington, J., concurs-:

WALTERS, J.,

dissenting.

I differ from my associates as to the construction or, rather, meaning of the language employed in Rev. Stat. 917 (Lán. 2193), as amended.

It seems to me the added words placed in this section by the amendment need no construction; that when it says the commissioners shall make a detailed report of their financial transactions “itemized as to amount, ’ ’ there is excluded by this language from the report any lump sum, which has contained therein several items. That the amount shall be itemized — “itemized as to amount.” If this is not what these words mean, then the statute has not been changed at all from its former language before amendment, and a detailed report as provided in the old statute is ,all that is necessary now; but if that detailed report is to be “itemized as to amount,” it excludes from the report any amount as a lump sum, which contains more than one item.

The legislature can provide that all these items shall be set out, as the Supreme Court in State v. Washington Co. (Comrs.) supra, say, but unless it does so in such clear and unmistakable language, that a court, without judicially legislating, find and decide that it does mean such detail and itemizing, it will not so construe it; but if the language employed is so clear and plain that it needs no construction, and means what the words clearly interpret, this effect should be given to such language.


author: CHERRINGTON, J.

text:
    SCHOOLS AND SCHOOL DISTRICTS.
    [Lawrence (4th) Circuit Court,
    March 12, 1908.]
    Walters, Cherrington and Jones, JJ.
    Elizabeth Tp. (Bd. of Ed.) v. Cora D. Burton.
    Stipulation that Teacher Would not Accept Compensation fob Attending Teachers’ Institute Held Void.
    In a contract between a township board of education and a teacher, under which the latter was to teach an eight-months’ term of school at $45 per month, was included a stipulation that such teacher would not exact, demand or accept pay for attending the teachers’ institute: Held, such stipulation is against public policy and void; and in an action for the purpose the teacher can recover the sum fixed by Rev. Stat. 4091 (Lan. 6683) for such attendance.
    [Syllabus by the court.]
    Error to Lawrence common pleas court.
    L. R. Andrews, for plaintiff in error.
    A. R. Johnson and A. J. Layne, for defendant in error.
   CHERRINGTON, J.

Cora D. Burton brought suit before a justice of the peace in this county to recover $11.25, to which she, as a school teacher, was entitled under Rev. Stat. 4091 (Lan. 6683) for one week’s attendance at the teachers’ institute held-in Lawrence county, the first week in September, 1906. The trial before a jury resulting in a verdict for the defendant, the board of education, on which judgment was entered against the objection of plaintiff. ■ The case was taken to the common pleas court on error, where the judgment was reversed and cause set down for trial. The only issue in the case was made by the bill of particulars before the justice of the peace, and the evidence introduced on the trial before common pleas and a jury. At the close of plaintiff’s testimony, the defendant declining to offer any evidence, the court instructed the jury to return a verdict for the plaintiff for the amount claimed. This proceeding in error is to reverse the judgment entered on the verdict.

There is really no dispute as to the facts in the case. The evidence shows substantially that on April 18, 1906, the plaintiff was hired by the defendant to teach a district school for a term of eight months, at $45 per month, beginning the second Monday in September following, and contemporaneously with the contract to teach, she agreed not to exact or accept pay for attending the teachers’ institute in the following words:

“Elizabeth Township, 4-18, 1906.
•‘I hereby agree to teach the school assigned me and will not-exact or demand in any way or accept pay for attending the teachers’' institute. CORA D. Burton.”

She taught the frill term, receiving pay therefor monthly at the stipulated price. Near the expiration of the term, viz., April 20, 1907, she presented to the defendant a certificate in due form showing one week’s attendance at the teachers’ institute, signed by the president and secretary of the institute, requesting pay for the attendance, which was refused.

A number of errors are assigned on the record, which we regard as secondary in importance, and will not touch upon them, but will briefly direct attention to the real question in the case, namely, the character of the stipulation not to accept pay for attendance at the institute; the claim of counsel for defendant in error being that it is against public policy and void; counsel for plaintiff in error insists' that if the contract of employment is contrary to public policy and void, it is unlawful and illegal, and the court should give no relief. It is sufficient answer to that suggestion to say that if the argument could be made available in any possible event it would be in answer to a suit to recover wages for teaching, whereas this is an action to recover a sum fixed by the statute as due her, and in no possible way dependent upon the will or agreement .of the board of education.

Bevised Statutes 4091 (Lan. 6683) provides:

“All teachers,of the public schools within any county in which a county institute is held may dismiss their schools for one week for the' purpose of attending such institute, and when such institute is held while the schools are in session the boards of education of all school districts are required to pay the teachers of their respective districts1 their regular salary for the week they attend the institute upon the-teachers presenting a certificate of full regular daily attendance at said institute signed by the president and secretary thereof; the same to be paid as an addition to the first month’s salary after said institute by the board of education by which said teacher is then employed, or in case he is unemployed at the time of the institute, then by the board next employing said teacher, provided the term of said employment begins within three months after said institute closes.”

It was doubtless the policy of the legislature to encourage teachers, to avail themselves of the opportunities afforded by the institutes and to better fit themselves to instruct the youths committed to their charge. This is a policy commendable in itself, and likely to be a public benefit, and any act or agreement in contravention of it should receive little favor at the hands of courts.

In 9 Cyc. 480, it is said:

"A person may lawfully waive by agreement the benefit of a statutory provision. But there is an imputed exception to this general rule in the ease of a statutory provision whose waiver would violate public policy expressed therein, or where rights of third parties which the statute was intended to protect are involved.”

In 9 Cyc. 481, speaking of contracts as against public policy, it is said:

“Where a contract belongs to this class, it will be declared void, although in the particular instance no injury to the public may have resulted. In other words, its validity is determined by its general tendency at the time it is made, and if this is opposed to the interests of the public it will be invalid,. even though the intent of the parties was good and no injury to the public would result in the particular case. The test is the evil tendency of the contract and not its actual injury to the public in a particular instance.”

In Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666, 672, McIlvaine, C. J., said:

“Courts will not stop to inquire as to the degree of injury inflicted upon the public; it is enough to know that the inevitable tendency of such contracts is injurious to the public.”

In People v. Board of Police, 75 N. Y. 38, is the following syllabus :

“The provisions of the act of 1866 fixing the 'salaries of certain members of the Metropolitan police department (Chap. 861, Laws of 1866), continued in force and governed as to appointees under the said charter of 1873.
“In September, 1873, the relator was appointed police surgeon by resolution of the board, which fixed his salary at $1,500. He accepted the appointment, discharged the duties of .the office and drew the amount of salary as so fixed. In proceedings to compel, by mandamus, the board of police to draw a requisition upon the comptroller for an amount sufficient to pay the difference between the salary so fixed and that fixed by said act of 1866, held, that the board had no power by resolution to fix the salary at a less amount than that prescribed by the statute; that the acceptance and discharge of the duties of the office under the appointment was not a waiver of the statutory provision, and did not constitute a binding contract to perform the duties, of the office for the sum named in the resolution.
“A board of officers having the power of appointment to an office cannot reduce the amount fixed by law as the salary of said office, or make a binding contract with their appointee to perform the duties of' the office at a less sum.”

From these authorities and on principle we hold that the common pleas did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Walters and Jones, JJ., concur.


author: SMITH, J. WILSON, J.,

text:
    CONSTITUTIONAL LAW — OFFICE AND OFFICERS.
    [Montgomery (2nd) Circuit Court,
    1907.]
    Wilson, Sullivan and Smith, JJ.
    (Judge Smith of the first circuit, sitting in place of Judge Dustin.)

      John L. Theobald v. State ex rel. Edward T. Hall.
    1. Constitutionality of Act Placing Public Offices on Fixed ,Salary.
    An officer in the constitutional sense is one who is elected or appointed to> a state office, and he must possess the qualifications of an elector; he is the one who takes the oath of office and is responsible for the official acts of himself and subordinates; hence his deputy assistants and other- . employes are not “officers” within the meaning of thé constitution, and the act changing the compensation of all officers from the fee system to a fixed salary is not unconstitutional, as in violation of Art. ,2, Sec, 20-of the constitution, which provides that the compensation of an oflicer shall not be changed during his term.
    2. Uniform Operation of Salary Law.
    The law changing the compensation of public officers from the fee system to a fixed salary, is not unconstitutional as not having uniform operation throughout the state, for the reason that the county commissioners are to fix the salaries according to the population of the county, thus, making the salary for the same officers different in different counties.
    Error to Montgomery common pleas court.

       Affirmed by Supreme Court, without report, Theobald v. State, 78 Ohio St. 000; 53 Bull. 000.

   SMITH, J.

The original action was brought by the state of Ohio by Edward T. Hall, a taxpayer, against John L. Theobald, recorder of Montgomery county, Ohio, to recover from him moneys received from January 1. 1907, to March 31, 1907, as fees of his office, which sum he refused to pay into the county treasury as public money belonging to said county,, under Sec. 6 of an act passed March 22, 1906 (98 O. L. 89; Lan. Rev.. Stat. 2740f; B. 1296-16), entitled: “An act to fix salaries of probate-judges, county auditors, county treasurers, county recorders, clerks of' the court of common pleas and sheriffs, and to provide for the employment and compensation of their clerks, deputies and assistants,” — it' being claimed by said defendant, that the law requiring such payment. by him is unconstitutional.

To this petition a demurrer was filed on behalf of the defendant,, which demurrer was overruled by the trial court, and judgment rendered thereon, to reverse which judgment this cause is brought to this-court.

It is claimed on behalf of the plaintiff in error, that the act in-question is unconstitutional, because,

First. It contravenes Art. 2, Sec. 20 of the constitution, which' provides: “The general assembly, in eases not provided for in this, constitution, shall fix the term of office and compensation of all officers;. but no change therein shall affect the salary of any officer during his. existing term, unless the office be abolished,” and

Second. That said act contravenes Art. 2, Sec. 26 of the constitution, which provides, that “All laws, of a general nature, shalj have a uniform operation throughout the state.”

Upon the first contention we are of opinion that Art. 2, Sec. 20 of the constitution, is not infringed by this act. The act in question makes it incumbent upon the legislature to fix compensation of all officers, and as this term “officers” is used in the constitution, we are-satisfied that “deputies, assistants, bookkeepers, clerks and other employes,” are not “officers,” as contemplated ,in the constitution. An officer is one who is elected or appointed to an office in the state, and the constitution recognizes that no person can be elected or appointed to an office in the state unless he possesses the qualifications of an elector, and as the subordinates might all hold their positions without being electors, then in the constitutional sense of the word “officer,” they would not be such, and the “officer” in question is the individual who takes the oath of office, and is responsible for his official acts as well as those of his various employes.

It is therefore within the purview of the constitution to allow the legislature to direct the county commissioners to fix the, sum to be paid for the compensation of all “deputies, assistants, bookkeepers, clerks, and other employes” of said “officer,” leaving it to the legislature to-fix the compensation or salary of the “officer” himself.

Nor do we tbink the law is unconstitutional because it is claimed it contravenes tbe second clause of Art. 2, Sec. 20 of the constitution, which provides:

“That no change therein shall affect the salary of any officer during his existing term, unless the office be abolished.”

Heretofore the various officers mentioned in this act received their compensation under what was known as the fee system, but it is evident that fees cannot be construed as a salary, which is a determined, stipulated sum for a fixed period, and an examination of the debates of the Ohio convention of 1851, Yol. 1, page 233, reported by J. V.' Smith, official reporter, shows, that the convention reeogfiized a distinction when this clause was up for debate between an “officer” receiving fees •and one receiving compensation by way of salary. See also Thompson v. Phillips, 12 Ohio St. 617; Gobrecht v. Cincinnati, 51 Ohio St. 68 [36 N. E. Rep. 782; 23 L. R. A. 609].

The “officers” mentioned in the act were not upon a salary, but were paid their compensation under certain rules prescribed by the legislature. •

As to the second claim that said act is in violation of Art. 2, Sec. '26, that “All laws, of a general nature, shall have a uniform operation throughout the state,” we are of opinion, that the act does have uniform •operation throughout the state. The legislature simply prescribes the rule by which compensation should be had in various counties. This article in the constitution does not mean that each officer in each county ■should receive the same amount of money as salary, but simply that the rules of compensation shall be uniform; and the legislature having .seen |fit to base this' rule upon population, the exercise of that rule through the various counties of the state must of itself in its action be uniform. The reason of this is, that the basis of operation is the same, and the result attained by the operation of the rule is the same, although the amount of money in dollars and cents may be different. See Cricket v. State, 18 Ohio St. 9.

So long as the rule upon which compensation is based is uniform throughout the state, it matters not whether in one county of the state the recorder receives more by reason of the increased population than a recorder in another county receives less by reason of a less population. The compensation belongs to the officer under the act for his .services. The fact that there is a limit upon the annual salary, that it shall not exceed a certain fixed sum, does not change the uniformity of the operation of the law, as this also applies to every county in the ■■state.

We are therefore of opinion that there is no error in the judgment rendered below, and the same will be affirmed.

WILSON, J.,

concurring in the opinion of Judge Smith.

As to the purpose of the law, prior to the enforcement of this act, county officers were paid by fees which they were permitted to charge the public for the performance of their duties. Necessarily these fees were uniform throughout the state, as one citizen could not be charged. more than another for the performance of the same public duty. The consequence was, that a fee system which would support the offices in a small county afforded an exorbitant compensation to the officers in a large county. It was to remedy this evil more than any other that the act under review was passed.

In the opinion of the legislature the services of the officers in the larger counties were not commensurate with the fees they were permitted to charge and collect. The policy is now, as it was before, to support the offices by fees charged to those demanding the services, and because the existing fee system affords but a meager support to the offices in the smaller counties, the fees were not reduced. The principal purpose of the act is to divert the excess in the larger counties over and above a fair compensation for services from the officers to the county general fund.

As to the unequal operation of the law: It should not be said that the services of an officer must be valued by the standard of fees alone. The larger duties of the offices are common to all the counties. They must be kept open for business, requiring the officers’ tiifie; the same reports must be made by all; the same system of bookkeeping must ■obtain in all; the trust imposed upon the officer is alike in kind, if not in degree. The multiplied fees in the larger counties principally entail more bookkeeping, and for this the law in question undertakes to make ■compensation independently of the officers’ salaries. Of course there is increased responsibility and enhancement of the trust in the larger counties, calling for increased attention and ability in office; but in the •opinion of the legislature the graded salary is a corresponding compensation.

The salaries are not so unequal under the law as to make unreasonable classification. The glaring inequalities enumerated by counsel in argument are based upon a wrong construction of the statute; as for instance, the salary of the auditor in Auglaize county, estimated on a population of 31,192, is $2,530, not $2,475 and of the auditor in Brown county based ón a population of 28,237, is $2,345, not $1,500, as stated by counsel. Tbe salaries of tbe same officer in Allen- (47,976) and Miami (43,105) are respectively $3,390 and $3,190; and so, correspondingly in all tbe other counties until tbe maximum of $6,000 under tbe law is reached. ,

In order that tbe officer may be compensated for each full thousand at the given rate in any fifteen thousand, it is not meant, as conceived by counsel, that tbe fifteen thousand must be full before be can be allowed tbe rate per full thousand. Under this interpretation of tbe law the salaries approach uniformity and equality in a remarkable degree.

As to tbe proposition that tbe act authorizes tbe board of county commissioners to fix tbe compensation of tbe officer when it fixes tbe aggregate to be paid his subordinates for assisting to perform the duties of bis office: Tbe legislature takes absolute control and makes full and final disposition of tbe entire funds arising from fees in all of tbe offices, and this it may do. It prescribes bow much shall be paid therefrom to tbe officer; how much to deputies, assistants, bookkeepers and clerks,, and transfers tbe residue if any to tbe county general fund.

In contemplation of tbe act tbe fees no longer attach to tbe officer, but to tbe office, and to the extent they are not needed to support the office they are devoted to tbe general good.

It cannot be said that tbe officer is entitled to claim the fees as perquisites belonging to him by virtue of bis office. The legislature has always bestowed or denied them at pleasure. Nor can it be claimed in reason that it intended to make an appropriation to tbe officer as part of bis compensation, when it authorized tbe board of county commissioners to fix the compensation, in tbe aggregate, of deputies, assistants, bookkeepers and clerks. The law expressly negatives such intent, when it makes it a crime for tbe officer directly or indirectly to receive or appropriate any part of tbe allowance to bis own use and benefit. It would be an anomaly to charge an officer with a crime for receiving bis own.

i Tbe law recognizes the necessity for an additional working force' in some of the offices of some of tbe counties.' Tbe existence of tbe necessity and its extent are questions of fact local in their character, and should therefore be referred to some local tribunal for determination.

Tbe legislature has conferred upon tbe board of county commis--isiojners in each county the power judicially .to determine these questions. The selection of the tribunal must be left to its wisdom. If, under tbe laiy, an officer should make application to tbe board for assist-anee in the prescribed way, and be refused, then should he be physically unable himself to perform all the duties of the office because of their magnitude, the default would be not his, but that of the board. It-must act with legal, not arbitrary, discretion in the bestowal or refusal' of the fund.

The public have a right to expect and demand a reasonable and proper regard, both by the officer and the board for the amount of labor necessary to be performed in each office. The aggregate sums-allowed in the various counties are not required, or expected, to be' uniform. As is said' by counsel, they should be governed by environ--ments — cost of living, the prevailing wage and the like. It is to the' interest of the officer, and the public as well, that the compensation should be no greater than the wages paid for like services in the particular community to be served, and this may be as variant as the judgment of the boards in the different counties. It must not be overlooked that the officer fixes the compensation of each particular-employe, as well as the number of employes. With that the board has-nothing to do, save that it may limit the -aggregate that may be thus: expended. If not left to it, to whom should be left the determination' of the amount? Manifestly the legislature could not determine it. If left to the officer the tendency would be to expend the whole of the fee fund in this way, defeating the purpose of the law.

I am of the opinion, therefore, that the act does not violate either Sec. 20 or See. 26 of Art. 2 of the constitution, and the judgment should be affirmed.

Sullivan, J., concurs in both opinions.