author: CARPENTER, J.

text:
    SHERIFFS
    [Cuyahoga (8th) Court of Appeals,
    July, 1915.]
    Carpenter, Grant and Spence, JJ.

      State ex rel Frank F. Gentsch, v. A. J. Hirstius et al.
    Construction of Salary Act with Reference to Sheriff's Profits Arising from Feeding Prisoners.
    There Is no claim or obligation resting upon a sheriff to account for or pay over to the county or state the amount received by him for keeping and feeding prisoners during his term of office in excess of the actual cost of so doing.

      F. F. Gentsch and F. W. Green, for plaintiff in error.

      D. E. Morgan, for defendants in error.

      Affirming State v. Hirstius, 32 Dec. - (15 N. S. 505.)

   CARPENTER, J.

This action was brought in the common pleas court by Frank F. Gentsch, Esq., on the relation of the state (the county prosecutor having refused to institute the same) to recover from the defendant, A. J. Hirstius, the sum of $46,741.25 with interest, by reason of the same being the amount in excess of the actual cost of keeping and feeding the prisoners as provided by law during the time which he was sheriff of this county.

It is claimed by the plaintiff that Sec. 2996 G. C. absolutely limits the compensation to $6,000 per year which the sheriff can receive from all sources.

The question of law, therefore, is: Does the law create an obligation upon the defendant to return to the treasury of the state the sum of $46,741.25. By reason of the demurrer to plaintiff's petition the defendant’s construction admits that such sum was his net profit.

Section 2996 G. C. is a portion of the salary law, so-called, enacted by the general assembly on March 22, 1906, and took effect January 1, 1907. This statute fixed the salaries of probate judges, county auditors, treasurers, recorders, clerks of the common pleas court and sheriffs. Following immediately the section relating to the salary which each of the foregoing officers shall receive, Sec. 18 of the act, now Sec. 2996 G. C., is as follows:

“And said salaries shall be in lieu of all fees, costs, penalties, percentages, allowances and of all other prerequisites of whatever kind which any of the officials herein named may now collect and receive, provided, however, that in no case shall such annual salary payable to any of the officers aforesaid exceed the sum of $6,000. ’ ’

Section 19 of the act provides as follows:

! ‘ The county commissionters shall, in addition to the compensation and salary herein provided, make allowances quarterly to every sheriff for keeping and feeding prisoners under Sec. 1235 R. S., and shall allow his actual and necessary expenses incurred or expended in pursuing or transporting persons accused or convicted of crimes and offenses, in conveying and transferring persons to and from any state asylum for the insane, the institution for feeble minded youth, etc., etc. and all expenses of maintaining horses, etc., necessary to the proper administration of the duties of his office. Every sheriff shall file under oath with the quarterly report herein provided for a full, accurate and itemized account of all his actual and necessary expenses, mentioned in this section, before the same shall be allowed by the coimty commissioners.”

The foregoing Secs. 18 and 19, became Secs. 2996 and 2997 6. C., respectively, upon the revision of 1912. Slight grammatical changes were made in the provision. The words “Section No. 1235 of the Revised Statutes” were omitted, and the words “as provided by law” were substituted instead in the revision.

It is claimed that these two sections should be construed together, and also in connection with the entire statute, to the end that it may harmonize with the intent of the legislature of placing all of the officers upon a fixed and stated salary, and that in any. event none of said officers .shall be paid more than $6,000. But it will be observed that the limitation of $6,000 applies to the a.rmna.1 salary, for the statute provided that in no case shall the annual salary paid any officer exceed $6,000.

The words “compensation” and “salary” have reference to two distinct things. Compensation evidently with reference to the actual expenditures made by the sheriff in the discharge of specified duties, while salary is limited to the amount to be paid annually.

It will also be noted that in every case where expenditures are authorized, the terms “actual or necessary” or, “actual and necessary,” are used; and it also provided at the close of Sec. 2997: “Each sheriff shall file under oath with the quarterly report herein provided, a full, accurate and itemized account of all his actual and necessary expenses, including railroad fare, street car fare and livery hire mentioned in this section, before they shall be allowed by the commissioners.” It will also be noted that no such restriction or requirement in reference to actual expenditures in keeping and feéding prisoners is provided, in the statute, and that such is only required where the same is specifically authorized and report of same required.

This is a significant fact in arriving at the construction of this law. It is almost equivalent to saying that the sheriff shall not be required to keep and render an account of his expenditures in keeping and feeding prisoners. But the plain statement at the outset of Sec. 19 is of much greater significance, for it says: “The county commissioners shall, in addition to the compensation and salary herein provided, make allowances quarterly to every sheriff for keeping and feeding prisoners, as provided under Sec. 1235 R. S. (Sec. 2850 G. C.) ” This statute provides that “The sheriff shall be allowed by the county commissioners not less than 45 nor more than 75 cents per day for keeping and feeding prisoners in jail, but in any county in which there is no infirmary, the county commissioners, if they think it just and necessary, may allow any sum not to exceed 75 cents each day for keeping and feeding any idiot or lunatic. The sheriff shall furnish at the expense of the county to all prisoners confined in jail, except those confined for debt only, fuel, soap, disinfectants, bed clothing, washing and nursing when required, and other necessaries as the court, in its rules, shall designate.”

Section 3046 G. C. provides that “on the first Monday of September of each year, each county treasurer, recorder, sheriff, etc., shall make returns under oath to the county auditor of the amount of fees and moneys received by them or due them during the year next preceding the time of making the return.” There are other sections which provide for reports by the sheriff of moneys received or .collected by him, but in none of them is a report required of him of any expenditure of or connected with the keeping and feeding of prisoners.

With these sections of the statute before us, what construction should there be given to said See. 19 ? This section provides, in substance, that in addition to the compensation and salary herein provided, the county commissioners shall make allowances quarterly to each sheriff for keeping and feeding prisoners at a rate or price of not less than 45 cents nor more than 75 cents per day. In this case a rate was made of 50 cents per diem.

There is no ambiguity in the language of these two sections, and consequently they do not call for judicial interpretation. In other words, they mean exactly what they say, viz., that the allowances made by the commissioners are in addition to the compensation and the salary allowed by the statutes preceding.

The general rule of law is “that where there is in the same statute a particular enactment and also a general one which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular endctment” (26 Am. & Eng. Enc., 216). This is the rule applied in the case of Stone v. State 1 O. App. 76 (34 O. C. C. 275; 18 N. S. 246), which is quite similar to the case at bar, where the court say:

“It will not help in the interpretation of these statutes to criticize the apparent carelessness with which they seem to have been so complicated. We must suppose that the Legislature did not intend to do an unreasonable thing, that it had an object in view in amending and re-enacting these sections.”

Furthermore, it is to be, borne in mind that the Legislature, by the enactment of Section 2850,' gave full authority to the commissioners to allow not less than 45 nor more than 75 cents per day for keeping and feeding prisoners. It is a general rule of law that a court has no power to control the discretion which is given by the Legislature to another body, such as a town or city council, school board and even commissioners; and should we in the case at bar hold with the plaintiff, we should be guilty of controlling their discretionary power, and in effect fixing the rate which the sheriff should charge per diem. The Legislature has delegated to the commissioners the power and duty to fix the rate for keeping and feeding the prisoners, and specifically limits their discretion to an amount of not less than 45 nor more than 75 cents per day. Belief from the provisions of this statute manifestly should come from the Legislature and not from this court regardless of our own opinion as to whether it is a good or bad law.

•This statute was passed in 1906, about nine years ago. It has been recognized by the authorities of the state and county auditors, treasurers and public 'accountants; attorney-generals have held in ■ favor of the sheriffs. The Legislature has not seen fit to change it, and it is a general rule that the practical construction given a doubtful statute by the state or officers whose duty it is to carry it into execution is entitled to great weight, and will not be disregarded or overturned except for cogent reasons and unless it is clear that such construction is erroneous. Southerland Statutory Construction, Section 472 and 474. Dutout v. Doyle, 16 U. S., 400-407; State v. Akens, 10 Circ. Dec. 121 (18 R. 349).

The question of feeding the United States and city prisoners is of more difficult solution. We are satisfied with the views expressed by Judge Estep in his opinion upon overruling the demurrer in this case, as follows:

“Having already held that in the matter of feeding state prisoners the sheriff is not required to account to the county or state for the allowances made to him quarterly by the comity commissioners, can it be fairly said that in this respect the legislature intended to distinguish between state, federal and city prisoners? Was it intended by the legislature that he should pay into the county treasury the amounts received for feeding federal and city prisoners, and retain the amount received for feeding state prisoners? If we are right in the conclusion that the sheriff may retain the allowances made to him for feeding state prisoners, it appears to me that it logically follows that it was never intended by the legislature to classify in this respect the prisoners committed to his custody and therefore require him to feed city and federal prisoners at his expense. It is reasonable to say that the county and state having been put to no expense in regard to subsisting these prisoners, and incurring no liability in relation thereto, the sheriff should be required to pay into the treasury of the county the amounts received by him from the federal and city authorities in payment for the expenses he has incurred in subsisting these prisoners? In other words, -is it a reasonable construction to place upon these statutes, which would result in holding that the sheriff must subsist these prisoners at Ms own expense?
“The only reason why this money received by the sheriff from the federal and city authorities should be turned into the county treasury is that the salary act, Sec. 2977 G-. C., provides that all fees, allowances and other prerequisites collected and received by law, as compensation for services, shall be for the solo use of the treasury of the county in which they are collected. The question, therefore, presents itself as to whether or not these amounts received by the sheriff for subsisting federal and city prisoners are allowances or prerequisites collected or received by law. In my opinion the fees, allowances and prerequisites referred to in See. 2977 and Sec. 2996 of the code do not refer to any fees, allowances or prerequisites except such as are fixed by law for services and duties imposed by law upon the sheriff. All these fees, etc., are to be collected by him and paid into the county treasury. These fees, allowances, etc., are fixed by Sees. 2845-6 et seq. of the code. The duty of subsisting federal and city prisoners not being imposed upon the sheriff by law, and any sum he may receive for such subsistence not being fixed by law, but his compensation arising only from contract, I am of the opinion that under the provisions of the salary act he is not required to turn said moneys into the county treasury. This must be so, or else we are bound to conclude that he must render this service for nothing. Should the court place a construction on these statutes which would lead to this absurd consequence and do an injustice to the defendant, when state and county have incurred no expense or liability in relation to such prisoners?
“In the case of Moore v. Given, 39 Ohio St. 661, the law is stated in the first syllabus: ‘It is the duty of the courts, in the interpretation of statutes, unless restrained by the letter, to adopt that view which will avoid absurd consequences, injustice or great inconvenience, as none of these can be presumed to have been within the legislative intent. ’ ’ ’

For these reasons we are constrained to hold that there is no obligation resting upon the defendant to account for or to pay over to the county or state the amount of money received by him for keeping and feeding prisoners during his term of office in excess of the actual cost for so doing, and therefore affirm the judgment of the court of common pleas.

Spence, J., concurs.

Grant, J., dissents.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    DESCENT AND DISTRIBUTION
    [Seneca (3rd) Court of Appeals,
    1916.]
    Kinder, Crow and Robinson, JJ.
    Allen J. Seney, Admr. v. George E. Schroth, Admr.
    Personally Received by Wife from Estate of Deceased Husband Descends to Her Heirs Generally.
    S. died testate without issue, leaving A. W. S. his widow, and certain brothers and sisters and their legal representatives, his only heirs at law. A. W. S. elected not’ to take under the will of S., but took under the law her distributive share of S.’s personal estate, and subsequently died intestate without issue, leaving neither brother nor sister or their legal representatives. Held: That A. W. S. took her distributive share of said personal estate by favor of the provisions of Secs. 10571 and 8592 G. C., and not under any provision of Sec. 8574 G. C., hence, the provisions of Sec. 8577 G. C., are not effective to divert the descent of such personal property from her heirs generally.

      Allen J. Seney and Charles E. Derr, for plaintiff in error.

      George E. Schroth, for defendant in error.
   ROBINSON, J.

The facts, as alleged in the cross-petition of plaintiff in error, are, in brief, as follows:

George E. Seney died testate on or about the first day of June, 1905, leaving no issue, but leaving surviving him one brother, Henry W. Seney, since deceased; one sister, Frances M. Crum, since deceased; George E. Seney, Jr., a son of Joshua Seney, a deceased brother, and Bessie Schaler, a granddaughter of a deceased sister, Josephine Seney Wise. He also left surviving him his widow, Anna Walker Seney, who has since deceased, intestate and leaving no issue and no brothers or sisters or their legal representatives.

The said Anna Walker Seney elected not to take under the provisions of the last will and testament of George E. Seney, deceased, but elected to be endowed of the lands and tenements of which the said George E. Seney died seized, and took her distributive share of the personal estate of said George E. Seney, deceased, the sum of twelve thousand five hundred sixteen and fifty-one hundredths dollars. Said sum came into the hands of the defendant in error, George E. Schroth, as administrator of the estate of Anna Walker Seney, deceased.

The said George E. Schroth, as such administrator, commenced an action against the plaintiff in error and others, asking the instruction of the court in the distribution of said estate.

The said Henry W. Seney died intestate, leaving a widow and children.

The estate of Henry W. Seney is not sufficient to pay the indebtedness thereof.

The plaintiff is the duly elected, qualified and acting administrator of the estate of said Henry W. Seney, deceased, and as such filed his answer and cross-petition to said petition of said George E. Schroth, as administrator of the estate of Anna Walker Seney, deceased, praying that he may be found entitled to the one-fourth of said twelve thousand five hundred sixteen and fifty-one hundredths dollars on distribution, and that said sum may be ordered paid to him as such administrator; to which cross-petition said Géorge E. Schroth, as the administrator of the estate of Anna Walker Seney, deceased, filed a general demurrer, which demurrer was sustained by the court below, and judgment rendered against plaintiff in error.

Error is prosecuted here to reverse said judgment.

The plaintiff in error contends that under Sec. 8577 G. C., the brothers and sisters of George E. Seney, deceased, or their legal representatives, are entitled, upon distribution, to the unconsumed portion of the personal estate received by Anna Walker Seney as her distributive share of the personal estate of George E. Seney, deceased.

Section 8577 G. C. provides:

When the relict of a deceased husband or wife dies intestate and without issue, possessed of any real estate or personal property which came to such intestate from a former deceased husband or wife by deed of gift, devise or bequest, or under the provisions of section eighty-five hundred and seventy-four, then such estate, real and personal, shall pass to and vest in the children of such deceased husband or wife, or the legal representatives of such children. If there are no children or their legal representatives living, then such estate, real and personal, shall pass and descend, one-half to the brothers and sisters of such intestate, or their legal representatives, and one-half to the brothers and sisters of such deceased husband or wife from which such personal or real estate came, or their personal representatives. ’ ’

Clearly this property did not come to Anna Walker Seney by deed of gift, devise or bequest. Did it then come to her under any of the provisions of Sec. 8574? Section 8574 of the G. C. provides:

“If the estate came not by descent, devise, or deed of gift, it shall descend and pass as follows:
“1. To the children of the intestate and their legal representatives.
“2. If there are no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate.
“3. If such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood, and their legal representatives.
“4. If there are no brothers or sisters of the intestate of the whole blood, or their legal representatives, the estate shall pass to the brothers and sisters of the half-blood, and their legal representatives.
“5. If there are no brothers or sisters of the intestate of the half-blood, or their legal representatives, the estate shall ascend to the father; if the father is dead, then to the mother.
“6. If the father and mother are dead, the estate shall pass to the next of kin, and their legal representatives, to and of the blood of the intestate.”

There were no children in this case, and had there been no will, then clearly the whole estate would have passed by descent from George E. Seney to his widow, Anna Walker Seney, under subdivision 2 of Sec. 8574, and upon the death of Anna Walker Seney intestate, she leaving no brothers nor sisters or their legal representatives, would have passed, under Sec. 8577, to the brothers and sisters or their legal representatives, of George E. Seney, deceased. But George E. Seney died testate, and his widow elected not to take under said will. Did she then take the widow’s portion of the personal estate under Sec. 8574 or did she take under Sec. 10571 G. C., which provides:

“The election of the widow or widower to take under the will shall be entered upon the minutes of the court. If the widow or widower fails to make such election, he or she shall retain the dower, and such share of the personal estate of the deceased consort as she or he respectively would be entitled to by law in case the deceased consort had died intestate, leaving children.”

And Sec. 8592 G. C., which provides:

“When a person dies intestate and leaves no children or their legal representatives, the widow or widower, as next of kin, will be entitled to all the personal property which is subject to distribution upon settlement of the estate! If the intestate leaves any children or their legal representatives, the widow or widower will be entitled to one-half of the first four hundred dollars and to one-third of the remainder of the personal property subject to distribution.”

Section 8574 G. C. makes no provision for the widow where the intestate died leaving children. The widow, under the common law, was endowed of no portion of the personal estate of her husband. The right of the widow, therefore to a portion of the personal estate of her deceased husband, arises entirely by statutory enactment and has no existence independent thereof, and is not a subject of equitable interpretation. However much justice there may be in the contention of the plaintiff in error that the same course of descent should obtain where the widow receives all the personal property by virture of the provision of subdivision 2 of Sec. 8574, as where she receives but the one-third under the provisions of Sec. 10571 and Sec. 8592, said contention is sufficiently answered by the fact that she would receive no part of said personal estate in the absence of a statutory provision giving it to her. And the same legislative power which could provide that she' should receive all of the estate under one set of circumstances and only one-third under another, eoiild and did provide that where she receives it all and dies intestate and without issue, th'at it shall pass one-half to her brothers and sisters or their legal representatives and one-half to the brothers and sisters of her deceased husband or their legal representatives, but failed to make any such provision or any provision for succession under circumstances where she received but the one-third, and we can not say that the Legislature, in the amendment of 1857, did not intend to provide for the succession in the one case and in the other case allow it to descend as any other estate of which she might die possessed.

The amendment seems to have been made for the sole purpose of remedying the severity of the rule laid down in the case of Brower v. Hunt, 18 Ohio St. 311, and had the legislature intended it to include all personal property which came to her as the relict of her deceased husband it could, and undoubtedly would, have so declared. This seems to us the more apparent since all the sections of the code herein referred to antedate in time of enactment Sec. 8577, and must have been in contemplation of the legislature creating said section, especially since by the very language of the section it was content to describe property held by descent under Sec. 8573 in general terms, but confined its operation, beyond property which came by deed of gift, devise or bequest, to property held under the provisions of a certain section, indicating an intention to limit its operation.

We are'of opinion that the personal property which came to Anna. Walker Seney as the widow of George E. Seney did not come to her-by deed of gift, devise or bequest from her deceased husband, nor under any of the provisions of Sec. 8574, but on the contrary, that said personal estate came to said Anna Walker Seney by virtue of Sec. 10571 and Sec. 8592 G. C.

We are also of opinion that in the enactment of Sec. 8577, the legislature did not intend to include all property which might come to the relict from a deceased husband, but only such property as was contemplated and included in the provisions of Secs. 8573 and 8574 G. C.

We find upon a comparison of the provisions of the General Code with the Revised Statutes as they existed at the time of the amendment of 1857 to See. 8577, that the provisions then in force with reference to the election by the widow to take under the law and with reference to the distributive portion which the widow was then entitled to, were substantially the same as they are now, and we can not assume that the legislature in the enactment of the amendment of 1857 to said Sec. 8577, G. C. were not cognizant of that fact and were not also cognizant of the fact that all property which might come to a relict from a deceased husband was not included in the description contained in said Sec. 8577.

The judgment of the court below is therefore affirmed.

Crow and Kinder, JJ., concur.


author: GORMAN, J.

text:
    CONTRACTS — REAL ACTIONS — TRIAL
    [Hamilton (1st) Court of Appeals,
    December 20, 1915.]
    Jones, Jones and Gorman, JJ.

      Henry Eisenstadt et al v. John H. Lucke et al.
    1. Creditors of Grantor in Favor of Whom Real Estate Contract Runs, Proper Parties on Breach of Contract.
    When a contract for the sale of real estate runs in favor of persons to whom tbe proposed grantor is indebted, they are proper and necessary parties to an action for damages on account of failure of the defendant to take the property.
    2. Measure of Damages in Breach of Contract for Sale of Real Estate.
    The measure of damages in such a case is the difference between the contract price and the market price at the time of the breach, and it is error to admit evidence as to what the property brought when offered at public auction at a later'date and upon different terms.
    3. Title not Shown by Deed from Immediate Grantor.
    Perfect title in the plaintiff is not shown by admission in evidence of a deed from the immediate grantor to plaintiff’s creditor with a declaration of trust by the creditor in his favor.
    4. Tender of Deed not Necessary when Grantee Refuses to Comply.
    A tender of a deed is unnecessary when the defendant has declared that under no circumstances does he intend to comply with the contract to purchase, and the plaintiff has made evident that he was ready and willing to perform his part of the contract.
    5. Exclusion of Deed by Grantor to Third Party for Property in Issue, Prejudicial.
    It is prejudicial to the defendant in such a case to exclude a deed from the plaintiff to a third party for the property in question, which deed was executed prior to the breach but was not recorded for some time thereafter.

      I). 8. Oliver, for plaintiffs in error.

      Kramer & Bettman, Alfred Bettman and John D. Ellis, for defendants in error.

      Reversing Lucke v. Eisenstadt, 26 Dec. 529 (17 N. S. 209.)

   GORMAN, J.

In the' superior court of Cincinnati the defendants in error commenced an action against plaintiffs in error to recover damages for the alleged breach of a contract for the sale of real estate. On a trial had to a jury a verdict was returned in favor of the plaintiffs below, and a judgment rendered thereon. Plaintiffs in error ask for a reversal of that judgment, claiming that several errors are disclosed in the record, prejudicial to them.

It is urged that inasmuch as Mr. Fleischmann, who held the legal title to the property contracted to be sold, had no interest in the damages which might be awarded in the action, therefore he was not a necessary or proper party plaintiff. The record discloses that Mr. Fleischmann held the legal title to the property in trust, to secure the Market National Bank on account of a debt owing by John H. Lucke to the bank, and that he was also trustee for Lucke of the equity which Lucke had in the property after the claim of the Market National Bank should be satisfied.

The contract to sell the property ran in favor of both Lucke and Fleischmann, trustee, and therefore Fleischmann and Lucke were necessary and proper parties. The fact that neither the Market National Bank nor Fleischmann, its trustee, would receive any part of the damages, if any should be awarded, was a matter between Lucke and Fleischmann, trustee, and was no concern of the defendants.

The contract for sale obligated the plaintiffs Lucke and Fleischmann, trustee, to convey a perfect title. The only title proved was the offer and admission of a deed from the immediate grantor of Mr. Fleischmann, Elmer and Jessie Britney, and a written declaration of trust by Mr. Fleischmann in favor of Lucke.

We are of the opinion that this proof was insufficient to establish a perfect title in Fleischmann and Lucke, under the rule laid down in Walsh v. Barton, 24 Ohio St. 28 Syl. 2:

“When a vendor of land having contracted to convey a perfect title, brings his action to compel specific performance against the vendee, who denies the sufficiency of the vendor’s title, the burden of showing title in himself rests on the plaintiff, and the introduction of a deed of recent date executed to himself, without further proof of title, is not sufficient. ’ ’

We see no good reason why the above rule, applied in a case of specific performance, should not be applied in an action for damages. In order to recover damages the plaintiff must prove that he has a perfect title or the defendant will not be required to respond. In a case of specific performance he must establish a perfect title in order to have a decree compelling the defendant to perform specifically. If he fails in his proof in the former case as to his perfect title, we apprehend that the rule of proof should not be more lax because he seeks redress in a court of law, rather than in equity, the forum of conscience.

It is not alleged, nor is it proven, that a deed was tendered to defendants before the commencement of the action. It is alleged and shown by the record that defendants were notified, both orally and in writing, that the plaintiffs were ready and willing to deliver a deed, but the defendants refused to accept it, repudiated the contract and refused to be bound by it. Under such a state of facts it would seem that the rule laid down in Wiedemann Brewing Co. v. Maxwell, 78 Ohio St. 54 [84 N. E. 595], would apply and excuse the plaintiffs from making a tender of a deed. When the party to whom the conveyance is to be made repudiates the contract and makes it certain that under no circumstances does he intend to comply with his part of the contract, a showing of readiness and ability on the part of the complaining party to perform his part, communicated to the other party is a sufficient compliance without an actual tender. While this rule was laid down in an equity case for specific performance, it appears to be a sound rule to apply in a case at law, such as the instant case. Plaintiff should not be required to do a vain and useless act — a tender of a deed to one who has declared that he will not accept it.

It was error to admit evidence of the price received on the sale of the property at public auction, because the terms and conditions upon which the property was sold were different from those contained in the contract of sale with the defendants, and as the price received might have been, and no donbt was, in some measure affected by the terms, that sale would not reflect the market value of the property. The measure of damages was the difference between the contract price and the market price at the time of the breach of the contract. This sale was made some time after the alleged breach.

Defendants offered in evidence a deed for this property from Julius Fleischmann to Gustave R. Fries, dated, attested and acknowledged six months prior to the date of the contract claimed to have been breached. The deed was not recorded until more than three months after the date of the contract. The court excluded this deed on the ground that the defendants failed to show that the deed had been delivered to Fries before the execution of the contract of sale. The trial court stated to counsel for defendants that, if he would show a delivery of the deed before the date of the contract, he would admit the deed in evidence. This, counsel for defendants failed to show.

In the case of Oehler v. Walsh, 28 O. C. C. 446 (7 N. S. 572), the circuit court of this county, the predecessor of this court, held that in the absence of evidence to the contrary it would be presumed that a deed was delivered on the date of its execution. See also Devlin, Deeds, Sec. 108, where it is said:

“But when the time of actual delivery is doubtful, resort must be had to presumption. And the presumption in cases of this kind, it may be stated, as a general rule, is that a deed is delivered at its date.”

The deed having been recorded in October following the date of the contract, but dated in January prior to the date of the contract, the defendants had the right to offer the deed which presumptively was delivered before the date of the contract, to-wit, on the date of its execution. This presumption, to be sure, might have been rebutted by plaintiffs showing a delivery after the date of the contract, but the burden of thus showing delivery was not upon defendants but upon plaintiffs, and if they failed to overcome the presumption in favor of defendants’ contention that the déed was delivered to Fries before the date of the contract, then plaintiffs must fail because at the time the contract was made for the sale of the property to defendants plaintiffs conld not give title. Fries was the owner, not the plaintiffs. It was therefore prejudicial to defendants to exclude this deed as evidence that plaintiffs were unable to perform at the time of the alleged breach.

It was not error to admit evidence of the contents of the contract of sale, when it was shown that the original contract had been destroyed by fire, although it was in existence when the action was commenced; but plaintiffs should have been required by supplemental petition, before admitting this evidence, to set up the destruction of the original contract after the suit was commenced.

We find no errors in the record prejudicial to plaintiffs in error except those herein pointed out; but on account of those errors noted, the judgment will be reversed and the cause remanded for a new trial.

Jones (E. H.) and Jones (O. B.), JJ., concur.


author: JONES (O. B.) J.

text:
    LANDLORD AND TENANT
    [Hamilton (1st) Court of Appeals,
    February 1, 1916.]
    Jones, Jones and Gorman, JJ.

      H. S. Hamburger Co. v. Miller Brothers & Co.
    1. Parol Testimony as to Modification of Terms of Lease which it is Sought to Transfer not Admissible.
    The assignment, not yet performed, of a written lease of real property is witbin tbe statute of frauds, and oral evidence of a modification of tbe terms of tbe transfer is inadmissible in an action for rental under tbe lease.
    2. Tender of an Imperfectly Executed Lease does not Constitute Performance.
    Tbe assignment of a lease is as necessary to performance of a contract to transfer as is delivery of possession of the property, and performance can not be claimed when an imperfect assignment was the only one proffered.

      Murray Seasongood and Robert P. Goldman, for plaintiff in error.

      Alfred B. Benedict, for defendant in error.

      Motion to certify overruled by Supreme Court, April 25, 1916.

   JONES (O. B.) J.

This action is for the recovery of one-half month’s rent from June 15 to July 1, 1914, and for a proportionate share, for the same period, of an annual bonus for the transfer of a lease of the premises at 624 to 628 Baee street, Cincinnati, made by Mary T. Harrison and others to H. S. Hamberger and formerly occupied by the H. S. Hamberger Co. and assigned by it under the terms of a written option to Miller Brothers & Co., who now occupy these premises. This option was accepted in writing May 15, 1914. The written agreement made by this option and its acceptance provided that plaintiff might vacate said premises any time within thirty days from its acceptance, with privilege of further time up to thirty days more, and assign the lease and turn over possession of the building.

At the close of plaintiff’s evidence the court instructed a verdict for defendant and rendered judgment thereon. Plaintiff prosecutes error to this court.

The petition alleges that the lease was duly assigned by H. S. Hamberger to plaintiff, the H. S. Hamberger Co., and by it duly assigned to defendant, and tendered to defendant on June 13, 1914, and again on June 15, 1914. These allegations are denied by the answer. Plaintiff, however, admits that a small part of the leased premises were occupied by its subtenant, one Kamp, who carried on a cigar stand therein, renting from month to month and remaining'in possession'until July 1, 1914. But in the petition plaintiff pleads the original contract was by agreement of the parties modified so that plaintiff agreed to give up possession on June 15, 1914, of all said premises except that part occupied by Kamp and defendant agreed to so accept possession of the premises subject to such occupation by Kamp; and it was alleged that this modified agreement was duly performed. Defendant in the answer denied this modification of the contract, and denies that it took possession of the premises June 15, 1914, with Kamp still in possession of said cigar stand therein.

It developed on the trial that plaintiff relied solely upon oral evidence to prove this alleged modification of the written contract. After some evidence tending to show such modification had been submitted, the trial judge ordered stricken out of the record all evidence relating to such oral modification, and refused to permit plaintiff to prove such modification by further evidence. Plaintiff excepted to this ruling of the trial judge, and complains of it here as the principal error relied upon.

What is called the fourth section of the statute of frauds is now found in Sec. 8621 G. C., as follows:

“No action shall be brought whereby to charge the defendant * * * upon a contract or sale of lands, tenements or hereditaments, or interest in, or concerning them; * # * unless the agreement upon which such action is brought or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized. ’ ’

Kling v. Bordner, 65 Ohio St. 86 [61 N. E. 148], holds that the written memorandum of agreement required by the statute is not sufficient, unless it contains the. essential terms of the agreement expressed with such clearness and certainty in the writing itself, or other writings to which it may refer, that the contract can be established without the necessity of resorting to parol proof.

Clark v. Guest, 54 Ohio St. 298 [43 N. E. 862], also decides this question squarely. Its syllabus closes as follows:

“A verbal extension of the time within which to take off such timber is within the statute of frauds, and to be valid must be in writing; that such verbal extension of time, reliance thereon, and consequent delay in taking off such timber, is not such fraud as will take the case out of the statute. ’ ’

Judge Burket, on pages 306 and 307, uses this language:

“The circuit court found as its conclusion of law upon the facts found, that it would be a fraud upon the defendant in error to revoke such verbal extension of time; and that the 'case was therefore taken out of the statute of frauds. This is not tenable. The statute was enacted to prevent frauds and perjuries. The law-making power knew that frauds and perjuries would be practiced with or without the statute, but it was thought that less harm would come from enacting and enforcing the statute, than otherwise. The only exceptions to the statute, engrafted therein by judicial interpretation, if not by judicial legislation, that can be justly defended, are cases in which the acts of both parties are such as to imply a contract with substantially the same certainty as would be shown by a written memorandum, as in the case of a verbal sale of lands followed by a delivery of possession to tbe purchaser, and valuable permanent improvements made by him with the knowledge of the vendor.
“To say that to refuse to carry out a verbal purchase of standing growing trees is a fraud on part of the owner of the trees, is to disregard the statute, and in effect a repeal thereof. * * * He had no legal right to rely upon the verbal contract, and where there is no right there can be no fraud. If he intended to rely upon the extension of time he should have caused the contract therefor to be reduced to writing. The statute was enacted to protect men in their property rights and it should be enforced unless in cases clearly within some of the well established exceptions.”

Broom’s Legal Maxims, 8th Ed. *888, states the rule thus:

“Where a contract is required to be in writing by the statute law, it clearly can not be varied by any subsequent verbal agreement between the parties; for, if this were permitted, the intention of the Legislature would be altogether defeated. A contract, for instance, falling within the fourth section of the statute of frauds, can not be waived and abandoned in part; for the object of the statute was to exclude all oral evidence as to contracts for the sale of land; and, therefore, any contract sought to be enforced must be proved in writing only; and if such a-contract could be verbally waived in part, the new contract between the parties would be proved partly by the former written agreement and partly by the new verbal agreement. And this reasoning applies also to a contract for the sale of goods falling within the operation of the seventeenth section of the same statute. Such a contract can not be varied or altered by a subsequent verbal agreement.”

See also, Burdick, Sales, 35; Benjamin, Sales (6th Ed.), Sec. 216; and the leading case of Goss v. Lord Nugent, 5 B. and Ad., 58.

Browne, Statute of Frauds thus states the rule in Sec. 411:

“It seems to be well established that where a contract, affected by the statute, has been put in writing, and the plaintiff, in a case of subsequent oral variation of some of the terms of the written agreement, declares upon the writing qualified by the oral variation, he can not prevail. The decision in Cuff v. Penn, one of the earliest and most important cases of this class, was in fact to the contrary; but from the report the point does not seem to have been distinctly in the mind of the court, the whole stress of the opinion bearing upon another position; and later English and American authorities have conclusively settled the rule as above laid down. ’ ’

The court was therefore right in holding that this contract which was within the statute of frauds could not be varied by parol.

Nor does the case of Negley v. Jeffers, 28 Ohio St. 90, relied upon by plaintiff, hold otherwise. In that case the deed to the real estate had been executed and the title passed and subsequently a modification in the manner of payments made by parol was sustained, the court distinctly holding that such a contract was not-within the statute of frauds. (Syl. 6, 7 and 8.) This ease was so understood and cited in the note to Section 421 of Browne on Statute of Frauds.

A written contract for the sale of land, where possession has not been delivered, may be rescinded by an oral agreement, Jones v. Booth, 38 Ohio St. 405. Such rescission can be proved by parol. So, of course, can complete performance of such a written contract. Likewise, the plaintiff may always show a substituted performance instead of that required by the original contract, when that performance has been actually and fully had and has been accepted by the other party in full substitution for such original terms, but it does not permit proof that such written contract is to be varied by parol where it is not yet performed.

This doctrine of substituted performance is stated in Browne, Statute of Frauds, Sec. 423, as follows:

* * performance, according to the orally substituted terms, is available to either party in like manner as would have been performance, according to the original contract. This is manifestly not to enforce an oral agreement within the statute of frauds, even by way of defense; the oral stipulation is relied upon simply by way of accord and satisfaction; it is relied upon for the purpose of proving performance alone, which is thus, so to speak, dissociated from the contract itself. And in this sense and for this purpose, there is no difficulty in accepting the distinction asserted between the contract which is within the purview of the statute, and the performance, which is not. ’ ’

Leading cases on substituted performance are found in Leather-Cloth Co. v. Hieronimus, L. R., 10 Q. B., 140; Swayne v. Seamans, 76 U. S. (9 Wall.) 254 [19 L. Ed. 554],

If defendant could be shown to have accepted the lease and actually taken possession of the premises on June 15 with Kamp still in, as a substituted performance of this contract, plaintiff might recover.

The position of the plaintiff, however, is somewhat equivocal. After alleging in the petition the fact that Kamp occupied part of the premises with his cigar stand during the month of June and that defendant agreed thereto, plaintiff says:

‘ ‘ The defendant refused to accept tender of the key and assignment of the lease made as aforesaid June 13, 1914, and again June 15, 1914, but nevertheless took possession of said premises on June 15, 1914, and has been in occupation of the same ever since. ’ ’

And again:

“The defendant further claims not to have taken possession of said premises until July 1, 1914.”

Plaintiff undertook to show by evidence that certain acts of Mr. Fanning, defendant’s general sales manager, and of Mr. Hobelman, his window trimmer and utility man, operated as a taking of possession of the premises by defendant or at least tended in that direction so far as to require a submission to the jury-

It must be conceded, though, in the first place, that there is nothing in the evidence to show the authority of either of these men to act for or to bind defendant as his agent in this matter under the rule laid down in Bradford Belting Co. v. Gibson, 68 Ohio St. 442 [67 N. E. 888].

The evidence shows without dispute that Mr. Grote, who furnished men and teams for the purpose, moved out from the premises shelving, piping and other things for plaintiff and was so engaged until at least June 20th; that Fanning and Hobelman acted for defendant in the matter only so far as to see that none of the tables, chairs and other chattel property which plaintiff had sold to defendant and which remained in the premises, were taken, and that such other movables and fixtures as did not belong to the building were not left to be in the way of defendant. The painting of plaintiff’s removal sign by Hobelman and the taking of it down, had nothing to do with the case. Nor do we find in the record any evidence tending to show that defendant went into possession of the premises before July first. In fact, it rather appears that plaintiff does not really claim that defendant actually took possession of the premises on June 15, with Kamp still in possession of the cigar stand, but rather that after Fanning had misled plaintiff into believing he would do so and thus caused him to sacrifice his property by a hurried sale, because of a carpenters’ strike or for some other reason, defendant refused to carry out his oral contract and did not take possession until July 1st.

But an assignment of title was as essential to performance as delivery of possession. It is admitted defendant did not receive an assignment of the lease before that date. True, an assignment was executed by plaintiff June 13, 1914, and tendered to defendant on that day, and also on June 15, 1914; but'that assignment was executed by the H. S. Hamberger Co., while the lease was made by H. S. Hamberger. There had been an agreement by H. S. Hamberger to eonvey same to the H. S. Hamberger Co., which was shown by the minutes of that company. But until that agreement had been carried out and the assignment duly executed, defendant was justified in refusing to accept the proferred transfer to him from the company as is would not confer a complete legal title.

A careful consideration of the record fails to disclose any error to the prejudice of plaintiff, and the judgment is therefore affirmed.

Jones (E. H.) and Gorman, JJ., concur.


author: HALE, J.

text:
    MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    February 11, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Etzensperger & Orschak v. Cleveland (City).

      1. Municipal Corporations Liable for Negligence of Officers when Acting in Ministerial Capacity.
    Though municipal corporations are not liable for injuries caused by the negligence of officers while acting in a governmental, legislative or judicial capacity, they are liable to the same extent as private corporations when the Injury is caused by negligence in performing some duty which is purely ministerial.
    2. Municipality Liable for Negligence in Construction of Building. While the preparation and adoption of plans for a public building are the exercise of governmental and judicial functions, the construction of the building is ministerial, and when it is so negligently done that the building collapses upon the property of another, the municipality is liable in damages.

      Popplelon, Billman & Billman, for plaintiff in error.

      Beacon, Baker, Gage <& Carey, for defendant in error.
   HALE, J.

Error is prosecuted in this court to reverse a judgment of the court of common pleas in sustaining a demurrer to ■ the petition.

The petition charges that the city and one Francis Campbell in the winter of 1900 were building an engine-house for the use of the fire department of the city, at No. 36 Hill street in said city. That they so negligently, carelessly and recklessly built and constructed the south wall thereof, which was composed of stone, brick and mortar, that a part of the same, on or about the March 3, 1901, fell down upon the property of the plaintiff which was next to and adjoining said engine-house, and completely demolished and destroyed the same and the contents thereof, to the plaintiff’s damages in the sum of about three thousand dollars.

The petition specifies the particular acts of negligence relied on.

On behalf of the city a demurrer was filed to this petition which was sustained and judgment rendered in favor of the city.

It seems to be well settled that a municipal corporation, acting in its governmental, legislative or judicial capacity, is not responsible for injury caused to person or-property, by its.negligence in the performance of such duties. Whether or not the municipality will exercise such powers is a matter of discretion with the proper officers or board charged with such duty, and such discretion can not be controlled by the courts. But, in the performance of duties which are purely ministerial, a municipal corporation is liable for its negligence in the same manner and to the same extent as private corporations.

We hold that the adoption of plans for and the direction to construct a public building, are acts judicial and governmental and included in the class first named. That the prosecution of the work in the construction of such building in accordance with the plans and determination of the municipality, is purely ministerial, and the duty rests upon the municipality to see that the work is done with ordinary care, and if injury to others is caused by the negligence of the municipality in the performance of such duty, a liability attaches. The petition, then, brings this case within this latter rule and states a cause of action.

The fact that the building is constructed for the use of the fire department, does not change the rule, as above stated.

For error in sustaining the demurrer to the petition and rendering judgment in favor of the defendant, the judgment of the court of common pleas is reversed and the cause remanded for further proceedings.

Caldwell and Marvin, JJ., concur.


text:
    RAILROADS
    [Hamilton (1st) Court of Appeals,
    March 18, 1916.]
    Jones, Jones and Gorman, JJ.
    Joseph F. Bailey v. Baltimore & O. S. W. Ry.
    Statute Fixing Penalty for Requiring Employes to Join Relief Association Held Constitutional. •
    Sections 9012-13-14, providing that it shall be unlawful for any corporation to compel employes to join an association, or to withhold any part of their wages for payment of dues in such association, and prohibiting the demanding or receiving of waivers from employes of any right to damages in case of personal injury or death during the course of such employment, and declaring agreements of that character void, are not in contravention of either the federal or the state constitution; an action lies to recover a penalty for requiring an employe to dp the things in these statutes forbidden.

      Albert D. Alcorn and Robert 8. Alcorn, for plaintiffs in error.

      Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   GORMAN, J.

The above and three other proceedings in error present the same questions of law, and they were argued and submitted to the court as one cause involving the same or identical facts, from which facts the same conclusions of law should be drawn.

Bach of the plaintiffs in error commenced an action against the defendant in error in the common pleas court under favor of Secs. 9012, 9013 and 9014 G. C., to recover a penalty for withholding from their wages certain sums each month to be applied in payment of their dues in the relief department of the defendant in error.

It will be sufficient for the purposes of the court to refer to the petition of Joseph Bailey. He sets up thirteen causes of action, all of which, except as to dates, are identical. In his first cause of action he sets up the corporate existence of the defendant, and that it was organized to operate a railroad in Ohio and other states, and he then avers that:

“Plaintiff, during the month of-April, 1913, was employed by the defendant as switchman. Defendant required him, as a condition of his employment, to join its relief department. Said association or department, by its rules and regulations, required him to agree to surrender or waive a right of damages against the defendant for personal injuries, and to surrender or waive his rights in said department or association, in case he asserted his claim for damages against defendant for personal injuries.
“During April, 1913, the defendant unlawfully and illegally withheld from plaintiff’s salaray as such employe the sum of four dollars for the payment of dues in said department or association, contrary to the provisions of Sec. 9012 G. C., to the plaintiff’s damage in the sum of $500.

The trial court sustained a demurrer to this cause of action and to the petition setting up the other twelve similar causes of action, on the ground that no cause of action was stated. He also sustained like demurrers to the like petitions setting up like causes of action by the other plaintiffs in error.

The question presented to this court is the correctness of these rulings.

The statutes under which plaintiffs seek to recover are Secs. 9012, 9013, and 9014 G. C. Section 9012 in part reads as follows:

“No corporation directly or indirectly shall compel or require an employe to join anjr company or association whatsoever, or withhold any part of an employe’s wages or his salary for the payment of dues or assessments in any society or organization, or demand or require either as a condition precedent to securing employment or being employed,” etc.

Section 9013 reads as follows:

“No railroad company, insurance society or association or other person shall demand, accept or enter into an agreement or stipulation with a person about to enter or in the employ of a railroad company, whereby he stipulates or agrees to surrender or waive any right to damage against a railroad company, thereafter arising for personal injury, or death, or whereby he agrees to surrender or waive in case he asserts such right, any other right. ’ ’

Section 9014 G. C., in substance provides that all rules, regulations, stipulations and agreements declared unlawful by the next three preceding sections are void. A corporation violating, or aiding or abetting the violation of either of such sections shall for each offense forfeit and pay to the person thus wronged or deprived of his rights thereunder not less than fifty nor more than $500, to be recovered by a civil action.

The demurrers for the purposes of the eases admit the truth of the averments set out in the various causes of action of the several petitions; and the sole question to be determined, therefore, is the right of the plaintiffs to recover on the admitted facts of the petitions. This in turn involves the constitutionality of these sections. If they are valid constitutional expressions of the law-making body, then clearly the petitions disclose a violation of these Secs. 9012 and 9013, and by the express terms of Sec. 9014 the defendant company, by the act of violating these sections or either of them, became liable to the injured employe in a civil action, for the penalty fixed by the statute. On the other hand, if these sections are invalid because they are in contravention of any provision of the state or federal constitution, then no cause of action exists in favor of plaintiffs and the demurrers were properly sustained.

It is claimed by counsel for defendant in error that these sections of our code are violative of the Fourteenth Amendment of the federal constitution, in that they impair the rights of citizens of Ohio to contract fully and freely concerning their own labor and the fruits thereof, and therefore deprives them of liberty without due process of law.

Before considering this question we shall take up the claim of defendant in error that the relief department of the defendant, which is attacked in the petition in these cases, is a valid. and lawful organization. The following cases are cited in support of this claim, in which cases it is contended that this organization has been held to be a valid and lawful one: Pittsburgh C., C. & St. L. Ry. v. Cox, 55 Ohio St. 497 [45 N. E. 641; 35 L. R. A. 507]; State v. Pittsburgh C., C. & St. L. Ry., 68 Ohio St. 9 [67 N. E. 93; 64 L. R. A. 405; 96 Am. St. 635]; Pennsylvania Co. v. State, 69 Ohio St. 536 [70 N. E. 1128] ; State v. Baltimore & Ohio Ry. Co., 88 Ohio St. 539.

The case of Pittsburgh C., C. & St. L. Ry. v. Cox, supra, was an action to recover damages for personal injuries claimed to have been sustained by Cox by reason of the negligence of the company. The company set up as a defense that its relief department was a voluntary association created for the purpose of managing a fund known as “the relief fund,” and that said relief fund was formed by voluntary contributions from employes, and appropriations when necessary to make up the deficiencies, all for the benefit of the employees who may be members thereof; that under the regulations of said relief department no employe is required to become a member of said relief department or to-contribute to said fund, and that membership therein is purely voluntary, and an employe may withdraw therefrom at pleasure; that payments by the employes to the support of said relief fund were voluntary. A demurrer to this defense was overruled, and this ruling was sustained by the Supreme Court. In deciding the ease the court, through Spear, J., on pages 512 and 513, says :

“We think the contract set up in the answer is not fairly within the inhibitory terms of the act, when reasonably construed, and this conclusion makes it unnecessary to consider the unconstitutionality of the statute.”

On pages 514 and 515, in speaking of the character of the relief department, and of the effect of the rules and regulations thereof on the members, this language is used:

“Nor is the contract a compulsory one. It is entered into voluntarily. If the employe conceives it to be for his interest to enter the relief class, he applies for the privilege; if not, he with like exercise of his own judgment stays out. ’ ’

It will therefore be seen that the constitutionality of these sections was not passed upon by the Supreme Court in this case; nor was the point decided that a relief department, whose rules required an employe, or one about to become an employe, of a railroad company to become a member of said relief department, is a legal or valid association. On the contrary, the kind of a relief department which the court was considering in this case was one which was purely voluntary and whose rules did not require or compel railroad employes to become members thereof, or compel them to contribute to the relief fund.

But the petition in the case before us avers that defendant required plaintiff, as a condition of his employment, to join its relief department, and that the rules of said department required him to agree to surrender or waive a right to damages against the defendant for personal injuries, and that the defendant unlawfully and illegally withheld from plaintiff’s salary the sum of $4 each month for the payment of dues in said relief department. The demurrer admits these averments to be true, and these requirements or exactions on the part of defendant company are the things prohibited by the statute, Secs. 9012 and 9013 G-. C. If the employe is not required or compelled to join the relief department but does so voluntarily, as was said in Pittsburgh, C. C. & St. L. Ry. v. Cox, supra, then there is no violation of any statute; and therefore this case does not aid us in determining whether or not the demurrer to plaintiff’s petition was properly sustained.

The case of State v. Pittsburgh C., C. & St. L. Ry. supra, was an action in quo warranto brought by the attorney-general to inquire by what authority the defendant company was engaged in transacting the business of life and accident insurance whereby it insured its employes against sickness, accident and death through its relief department, and praying for a judgment of ouster. The findings of fact upon which the case was submitted to the court shows that the defendant’s relief department was entirely voluntary and confined to its employes, none of whom were required to become members thereof nor to pay dues thereto except voluntarily. The court found as a matter of law that such an association conducted as a voluntary relief department, where there was no compulsion or obligation on the part of the employees to join, was not illegal; nor were the acts of the defendant company in maintaining such a relief department ultra vires or contrary to public policy. But no question as to the constitutionality of the statute under which defendant company was maintaining said relief department was raised in that ease, nor was there any question involved as to the legality of a compulsory relief department whose members were required or compelled to join, as a condition of their employment, by the defendant company whose employes’ wages were illegally taken to pay dues into said association. On page 33 the court says:

“Not a dollar of the fund ever belongs to the railway company, and it is made up primarily of a certain part of the wages of the employe retained for that purpose by his direction. * * * "While an employe is not required to become a member, none but employes could do so. * * * Is this an insurance business? It is not held out to be such. * * * The members of the fund are volunteers. ’ ’

The case of Pennsylvania Co. v. State, supra, is decided on the authority of Pittsburgh C., C. & St. L. Ry. v. Cox, supra, and State v. Pittsburgh C., C. & St. L. Ry. supra. Evidently from the title of the case and the reference to these two cases it was a case of quo warranto involving the same questions considered in the two cases cited. We can not speculate as to what questions were involved in this ease, and can not see that the citation sheds any light on the questions under consideration.

The case of State v. Baltimore & O. Ry. supra, is decided on the authority of Pittsburgh C. C. & St. L. Ry. v. Cox, supra. This case would also, as appears from the printed record, seem to have been a quo warranto proceeding; but in the absence of a report of what was there decided we can not say that this decision has any application to the questions raised in the instant cases.

There remains to be considered the ease of Copeland v. Baltimore & O. S. W. Ry., (not reported), and cited by counsel for defendant in support of their contention that this decision is decisive of the questions involved in the cases under consideration. This ease was brought by an employe of the defendant company to recover from the defendant all the moneys which he alleged he was compelled to pay, or which were compulsorily deducted from his wages by the defendant company as premiums for insurance in said defendant company against his own liability to injury or death. The total amount sought to be recovered was $112.30, and included weekly items of $3 extending over the period from January 15, 1911, to December 22, 1913. The theory upon which a recovery was sought in this case was that the defendant company had insured plaintiff against death or personal injury in consideration of the sums withheld each week from his wages, and that he was discharged by defendant from its employ against his will and thereby cut off from the benefits of said insurance, and that said discharge operated as a cancellation of his insurance. Plaintiff bottomed his right to recover these premiums compulsorily deducted from his wages under the rule laid down in Union Cent. Life Ins. Co. v. Pottker, 33 Ohio St. 49 [31 Am. Rep. 555], the fourth paragraph of the syllabus of which is as follows:

“If in such ease the company (insurance company) wrongfully declares the policy forfeited, and refuses to accept the premium when duly tendered, and to give the insured the customary renewal receipt evidencing the continued life of the policy, the assured is in equity entitled to demand a rescission of the contract and a return of the premiums paid thereon, with interest- from the time of payment. ’ ’

No claim was made in that case that Secs. 9012, 9013 and 9014 G. C., were unconstitutional and void, nor was this question considered or decided by this court. It appeared to this court that Copeland was seeking to recover back sums of money voluntarily paid by him to the railroad company, under a claim that he had been compelled to pay the same.

The case of State v. Pittsburgh C., C. & St. L. Ry., supra, appeared to cover Copeland’s case, and this court so stated in its opinion. There is no express provision of law warranting a recovery of money paid into the relief department of a railroad company whether paid voluntarily or involuntarily. The remedy given by Sec. 9014 C. C., appears to be the recovery of a pen-. alty of from $50 to $500 for a violation, of the statutes which forbid employes of a railroad company being ■ required to join relief associations or witholding a part of their wages against their will. It appears further that during the entire time that Copeland paid into the relief association of the railroad company he received the benefits of an insurance against injuries or death, and this court felt that under the circumstances he had received value for the dues paid in by him.

The trial court in the cases under consideration was warranted in sustaining the demurrers to the petitions on the language employed in the decision in the Copeland case. But this court did not intend in the Copeland case to hold Secs. 9012 and 9014 unconstitutional, nor was its decision in that ease based on such grounds. "We deem it to be fair to the trial court to say that he was no doubt misled by the language in the Copeland case, in deciding the ease before us.

As to the question of the constitutionality of the sections of the General Code, raised in these cases, we are of the opinion that it was within the province and power of the legislature to prescribe the regulations and conditions under which a railroad company, a corporation doing business in Ohio, might conduct and operate its relief departments, and to define the kind and character of relief departments or associations which such corporations could maintain. Courts must presume all statutes passed by the law-making body to be valid; and an act of the legislature should never be held invalid or unconstitutional, unless clearly or manifestly so. These sections do not deprive either the railroad company or any of its employes of the right to freely and voluntarily contract with one another with reference to the employment of the employes or their rights to benefits in the relief departments. The inhibition is to requiring or compelling employes to join relief departments 'or to submit to compulsory deductions from their wages as conditions of employment or continuance in employment.

The statutes seek to prevent the coercion of the employes. Voluntary payments of parts of their wages, or voluntarily seeking to be admitted to membership in the relief departments is not prohibited. In all the cases decided by the courts of this state, in so far as we have found, upholding the railroad relief ■departments, the associations were either admitted or found by the court to be purely voluntary and not compulsory.

In the case of State v. Pennsylvania Co. 41 O. C. C. 17, (13 N. S. 37) the court said on page 39 :

"It is further contended as a second ground of demurrer that the amended petition does not state facts sufficient to constitute a cause of action on the ground that Sec. 9010 G. C., as amended April 7, 1908, is unconstitutional and void.
"We are of the opinion that it is entirely competent for the legislature to place proper restrictions upon a corporation, such as a railroad company, in respect to its conduct and operation, and the character of relief associations that it maintains or assists in maintaining, and that it is not violative of any of the provisions of the constitution.”

Section 9010 G. C., prohibits any railroad company from establishing, maintaining or assisting in maintaining

"a relief association or society, the rules or by-laws of which require of a person or employe becoming a member thereof to enter into an agreement or stipulation, directly or indirectly, whereby he stipulates or agrees to surrender or waive a right of damages against any railroad company for personal injuries or death, or to surrender or waive in case he asserts such claim for damages, any right whatever.”

There would seem to be no good reason for holding that if such a statute is constitutional and valid, then Sees. 9012, 9014 G. C., are also valid enactments, inasmuch as these sections prohibit any railroad company from directly or indirectly eompeling or requiring an employe to join any association whatsoever or to withhold any part of his wages, and imposing a penalty of from $50 to $500 for a violation' of the sections.

In the case of Shaver v. Pennsylvania Co. 9 O. F. D. 221 [71 Fed. 931], Judge Ricks of the United States federal court for the northern district of Ohio held that Sec. 3270 R. S., a part of which is now Sec. 9012 G. C., is unconstitutional and void because violative of Art. 2, Sec. 26, of the Constitution, and of the fourteenth Amendment of the federal constitution; but the facts show that the relief association in that case was a voluntary one and in no way compulsory.

In the case of Pierce v. VanDusen, 118 Fed. 693, decided by the United States circuit court of appeals for this sixth district, Justices Harlan, Taft and Lurton, sitting, the court in commenting on this decision of Judge Ricks in the Shaver v. Pennsylvania Co., supra, says on pages 702-703:

“It is quite clear from an examination of Judge Eick’s opinion that he intended to decide nothing more — indeed, the case under his view of the statute required nothing more to be decided —than that the part of the act of 1890 relating to contracts or agreements whereby a right to damages against a railroad company, arising from personal injuries or death, was surrendered or waived when the employe became a member of the relief ássociation referred to, was unconstitutional, as depriving the employes of railroad corporations of their liberty without due process of law. He had no occasion in the case before him to consider the validity of the third section of that act. ’ ’

A perusal of this decision, satisfies us that the United States circuit court of appeals did not approve of Judge Ricks’ holding in the Shaver case, and that what he said in that case as to the unconstitutionality of Sec. 3270 R. S., was to be considered as obiter dicta.

Penalty statutes similar to Sec. 9014 G. C., have been frequently upheld as valid and reasonable legislation. Cincinnati, S. & C. Ry. v. Cook, 37 Ohio St. 265; Detroit T. & I. Ry. v. State, 82 Ohio St. 60 [91 N. E. 869; 137 Am. St. 758]; Seaboard Air Line Ry. v. Seegers, 207 U. S. 73 [52 L. Ed. 108]; Western U. Tel. Co. v. James, 162 U. S., 650 [40 L. Ed. 1105].

Indeed, in the case of Chicago B. & Q. Ry. v. McGuire, 219 U. S. 549 [55 L. Ed. 328], the court held that McGuire, a brakeman who after being injured accepted his benefits as a member of the relief association to the amount of $822, was not thereby barred to maintain an action against the railroad company for the injuries received. The law of Iowa as to relief associations set up in that case to defeat McGuire’s recovery, was similar to the Ohio statutes. In the fourth paragraph of the syllabus of the ease the court says:

“A state has power to prohibit contracts limiting liability for injuries, made in advance of the injuries, and to provide that the subsequent acceptance of benefits under such contracts shall not constitute satisfaction of the claim for injuries received after the contract. Such a statute does not impair the liberty of contract guaranteed by the Fourteenth Amendment; so held as to the Iowa statute relative to employees of railway companies. ’ ’

Under the employer’s liability acts of 1906 and 1908 passed by Congress, there is a provision that the acceptance of benefits from the relief department does not bar an injured employe from recovering, even though he agrees to waive his claim for damages, if he accepts the benefit for any injuries received after the agreement is entered into. This provision of these acts has been upheld as a valid exercise of the legislative power. Philadelphia B. & W. Ry. v. Schubert, 224 U. S., 603 [56 L. Ed. 911]; Pittsburg, C., C. & St. L. Ry. v. Sheets, 34 O. C. C. 641 (15 N. S. 305).

In Philadelphia, B. & W. Ry. v. Schubert, supra, the court says:

‘1 Congress has power to enforce the regulations validly prescribed by the employer’s liability act of 1908, but the provision of Sec. 5 of the act providing that exemptions from liability shall be void, and that the acceptance of benefits under the relief contract shall not be a bar to recovery are not in contravention •of any constitutional inhibition.”

Councel for defendant in error have cited in support of their contention that these sections are violative of the Fourteenth Amendment of the Federal Constitution, the cases of Missouri Pac. Ry. v. Tucker, 230 U. S., 340 [57 L. Ed. 1507] ; Chicago, M. & St. P. Ry. v. Polt, 232 U. S., 165 [58 L. Ed. 554] ; Chicago M. & St. P. Ry. v. Kennedy, 232 U. S. 626 [58 L. Ed. 762].

The first of these cases involved the right of the state of Kansas to fix railroad rates for transportation of oil, gasoline, etc., and fixed a penalty of $500 for a violation of the act.

The second case involved the right of the legislature of South Dakota to enact a law allowing double damages against a railroad company for failure to pay a claim or to offer, a sum equal to what the jury finds the claimant entitled to.

The third case involved the same question as was raised in the second case.

Suffice it to say that even á cursory reading of these decisions will satisfy one that the rules therein laid down have no. application to the cases under consideration. The statutes construed in these cases undertook arbitrarily, and without an opportunity to have the questions tried in a court of law or equity, to confiscate property and property rights of railroad companies. These statutes were not regulatory, but highly penal.

Sections 9012, 9013 and 9014 G. C. are purely regulatory and not confiscatory, as were the statutes passed upon in the cases above referred to.

Upon a full and fair consideration of the cases, we are not prepared to say that these statutes are so palpably and manifestly in contravention of any of the provisions of the federal constitution or of the constitution of this state as to require us to hold that the general assembly had no power to enact the same. Courts inferior to the Supreme Court should be very chary in holding acts of the law-making body unconstitutional, and should do so only in cases which are clearly in contravention of the organic law.

For the reasons stated the judgment of the court of common pleas will be reversed and the causes remanded for such further proceedings as are authorized by law.

Jones (E. H.) and Jones (O. B.), JJ., concur.


author: MARVIN, J.

text:
    WILLS
    [Cuyahoga (8th) Circuit Court,
    December 24, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Aribella T. Barlow v. Frances A. Otstott et al.
    Devise Directing Trustees to Convey Estate to Legal Heirs at Death of Cestui qui Trust does not Vest any Estate Until Her Decease.
    A devise to trustees, with directions to pay the rents and profits to A during her natural life and at her death to convey the property to her legal heirs in fee simple, does not vest any estate in the children of A during her lifetime and the “legal heirs” of A are determined at the date of her decease.

      Weed <& Miller, for plaintiff in error.

      Chas. E. Taylor, for defendants in error.
   MARVIN, J.

In the year 1845 Margaret Norton died in the city of Cleveland, Cuyahoga county, Ohio, where up to the time of her death she was the owner of a valuable parcel of real estate fronting on Bank street in said city. Said Norton left a will, which was duly probated in the probate court of said county. She left surviving her a daughter, Harriet F. Dockstader. The said Harriet at the time of the execution of the will of said Norton and at the time of said Norton’s death, was the mother of two children, who were her only descendants. One of the provisions of said will reads:

“I give and devise my real estate situated in the city of Cleveland, * * * unto Alonzo S. Gardner and David G. Doan, and the survivor of them and the heirs of the survivor of them to have and to hold the same to the uses following, to-wit: That they the said Alonzo S. and David C. and the survivor of them and the heirs of the survivor shall from the rents and profits of said real estate (if I do not leave money and debts sufficient for the purpose) pay my just debts, charges of administration and funeral expenses and erect a suitable and respectable monument or grave stone over the grave of my deceased mother and over my own grave and after paying the charges above imposed on it they the said Alonzo S. and David G. and the survivor and the heirs of the survivor shall during the lifetime of ¥m. B. Dockstader, the husband of my daughter Harriet F. Dockstader, take and receive the rents and profits of said real estate herein before described and therewith make all necessary repairs, pay all taxes and other necessary charges and expenses in and about the same and after deducting all such payments and reasonable charges for attending to the business, shall at least once in each year and oftener, if said Alonzo S. or David G. or either of them or the heirs of the survivor shall see fit, pay over the residue of such rents and profits to my daughter Harriet F. Dockstader during her natural life, to her sole and separate use and benefit and after her decease convey said real estate above described to her legal heirs in fee simple. ’ ’

The trustees named in this item of the will duly qualified and acted in the execution of said trust for some time, when they were succeeded by Virginia E. Kidney, who, after acting for a time as such trustee, resigned and was succeeded by Bolivar Butts, who is still engaged in the execution of the trust.

The two children of said Harriet F. Dockstader hereinbefore mentioned were Frances A. Otstott and George B. Dockstader. Harriet F. Dockstader died on or about April 18, 1899. Prior to the death of said Harriet, her son, George B. Dockstader died, unmarried and without issue. On June 13, 1889, said George B. Dockstader executed a warranty deed to Lyman C. and Proctor Thayer conveying to them for a valuable consideration his right, title and interest in and to the real estate herein before mentioned. At the time of the death of said Harriet said Frances A. Otsott was her only living descendant. The plaintiffs in error, by proper conveyances, are the owners of whatever rights the said Lyman C. and Proctor Thayer took in the premises by virtue of the conveyance made to them by the said George B. Dockstader.

The action in the court below was brought by the said Frances A. Otstott, and the prayer of her petition is that the said Bolivar Butts, who is made a defendant, may be ordered to convey the premises to her, and that the title to such premises may be forever quieted as against the plaintiffs in error.

The plaintiffs in error file an answer and cross-petition in which they set up substantially the facts as hereinbefore stated and pray that the said Butts be ordered to convey an undivided one-half of the premises to them.

To that answer and cross-petition the said Frances A. Otstott filed a general demurrer. That demurrer was sustained and plaintiffs in error, not desiring to plead further, a decree was entered that the premises be deeded to the said Frances and that the plaintiffs in error had no right or title therein. The error complained of here is in the sustaining of such demurrer and the entering of such decree.

. The question presented depends entirely upon the construction to be given to said will. If under such will the said Otstott and the said George B. Dockstader became, when said will was probated, vested with an estate in said premises, there was error in the overruling of said demurrer; otherwise, there was not.

On the part of the plaintiffs in error it is claimed that the will is to be construed as though it read as it now does with the exception that the last clause hereinbefore quoted reads: “And after her decease convey said real estate above described to her two children, Frances A. Otstott and George B. Dockstader.” If this were the reading, there could be no doubt that each of these parties would have had a vested right in the premises from the time of the probate of the will, and so the deed made by the said George would have conveyed a title under which the plaintiffs in error would be entitled to make the claim which they do make; and this would probably be so even though the names of the two children had been omitted from the will. To hold that the will as it now reads has the same effect in law as though it read as above suggested would be to hold that the words “her legal heirs” have the same meaning as the word “children” would have if substituted therefor. Technically the word “heirs” has a different meaning. The definition given in Anderson ’s Law Dictionary of the word heir is: “ He upon whom at common law the law casts the estate immediately upon the death of the ancestor; ’ ’ and this is the recognized meaning of the word, though it is not infrequently used in wills, and perhaps other instruments, in a different sense, and not infrequently is construed to mean “children,” but it is ever held in a will to have this latter meaning, or any other than its strict technical meaning, unless the plain meaning of the will derived from the context requires a different meaning. In the present case we find nothing in the context to indicate that the testatrix intended any other than the strict technical meaning of the words “heirs at law.” For some reason she was not willing that her daughter should be the owner of this property, but she wished her to have the entire income from it during her lifetime, and it seems the natural and probable construction of the will to say that she wished the property at the death of her daughter Harriet to go to the same persons to whom it would go if Harriet were the owner of" the property in fee at the'time of her death and should die intestate. This result will be accomplished by giving to the words “heirs at law” their technical meaning. At her death-she left as her only heir at law the defendant in error Otstott. If Harriet had owned this property and died intestate the law would have cast the estate upon Otstott, because she was the heir at law.

Holding as we do, that the testator provided that the same person or persons should take the estate at Harriet’s death as would have taken it had she owned it apd died intestate, it follows that the plaintiffs in error have no interest in the estate, and the judgment of the court of common pleas is affirmed.

Caldwell and Hale, JJ., concur.