author: Smith, J.

text:
    (First Circuit, Hamilton Co., O., Circuit Court
    Jan. Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    JOHN HAGERTY, AUDITOR OF HAMILTON COUNTY, v. THE STATE OF OHIO EX REL. THE CINCINNATI GAS COMPANY.

      Overpayment of taxes — Recovery—Mandamus to require auditor to bring fact to attention of County Commissioners—
    A party who has erroneously or illegally paid taxes, may under sec. 5842, recover the same by action brought within one year after such payment. But such party may also, under sec. 10-c8, by proceeding in mandamus, require the auditor on discovering that taxes have been erroneously collected within five years past, to call the attention of the county commissioners to that fact, who may order a refunder of so taxes erroneously collected within the preceding five years, and the fact that such taxes were voluntarily paid, would not be a defense in such action for mandamus.

      Same — Limit of power of court—
    In such an action the court can only order the county auditor to call the attention of the county commissioners to the matter, arid it is beyond the power of the court to enter judgment-for the refunder of the taxes so erroneously paid, and order the auditor to draw his warrant on the treasurer for the refunder of the amount of taxes so erroneously paid.
    Error to the Court of Common Pleas Hamilton County.
   Smith, J.

The plaintiff in error claims that the court of common pleas erred in overruling a demurrer filed by him to the petition of the plaintiff below, and in sustaining a demurrer of plaintiff below, to an answer filed by the defendant below, and in rendering a judgment against him on the pleadings, such as was entered.

The original action was one of mandamus, brought against Mr. Hagerty, as the auditor of this county, by the state of Ohio, on relation of the Gas Company. The petition was filed June 6, 1896, and the material allegations, so far as it is necessary to state them, are, in substance, these:

It avers that it is a corporation, and that for many years before the filing of the petition, and at that time, it has had moneys and credits which it has listed, as required by law, for taxation, together with all such real estate as has been, and is necessary to the daily operations of the company,and that defendant is the company, and plaintiff, the auditor of this county. That,-as required by law,it listed and returned, for taxation,on June 9,1891,such real estate at the same valuation as has been returned by the company for the four years preceding 1891, but which values were far in excess of the true and proper values as finally fixed and reported to said auditor, late in the year 1891, by the Board of Review and the County Board of Equalization, sitting as the decennial city and county boards of equalization, respectively. That

the valuation placed on-said real estate for taxation by the relator in its said return, was as follows:

In Cincinnati, ' $1,034,504.00
In Avondale, 31,110.00
In Carthage, ' 43,460.00
Total, $1,109,074.00

And the valuation placed thereon by such boards, was as follows:

In Cincinnati, $758,610.00
In Avondale, 5,640.00
In Carthage, 27,800.00 792,050.00
$317,024.00

It is further averred, that the Gas Company caused a state, ment in writing to be prepared, setting out those facts, and making it appear that it had valued its real estate (in Cincinnati,) at $1,034,500.00, and that the said boards had, that year, fixed the aggregate at $758,610.00, making an erroneous charge on the company’s duplicate of $275,890.00, and wherein it was made to appear and claimed that the company had paid in taxes upon the amount so erroneously charged, $7,835.27. That this statement and claim was presented to said auditor, February, 1893, and he was requested to call the attention of the county commissioners thereto, at any regulator special session thereof. That the said auditor, not disputing but admitting their correctness, refused and still refuses to do so, or otherwise correct the errors upon the duplicate.

The petition further averred, that said relator company returned for taxation,in 1892, real estate erroneously valued by it at $809,970.00, but which the Board of Review returned to the county auditor at a valuation of $756,710.00, making thereby, an improper and erroneous charge on the duplicate of that year, $53,260.00,' on which the company erroneously over-paid in taxes, $1,459.32.

That for the year 1893, the company returned real estate for taxation, erroneously valued by it in its return at $758,260.00, whereas the true and proper value thereof, as fixed by the Board of Supervisors, (the successor of the Board of Review), and reported to the county auditor, was only $757,210.00, making thereby an erroneous charge on the duplicate of $1,050.00,on which the company erroneously paid taxes in the sum of $28.60

And in the same manner there is an allegation of an overcharge and payment of taxes for 1894, of $15.29.

And that in 1895, the relator returned real estate valued at $877,720.00, which by'the Board of Supervisors was valued at $810,090.00, and returned to the auditor, thereby reducing it to the sum of $66,830.00,on which the company 'erroneously paid the one-half of the taxes due thereon, December 20, 1895, the sum of $940.29, and now, (at the filing of the petition,) stands charged erroneously with the other half, due June 20, 1896, viz, $940.29, and said duplicate is now in the hands of the treasurer of the county, for collection.

That in March, 1896, it caused to be prepared a statement in writing, setting forth those facts in detail for the years 1892, 1893, 1894 and 1895, and presented it to the county auditor, and requested' him to call the attention of the county commissioners, at any regular or special session, to such improper and erroneous charges for 1892, 1893, 1894 and 1895, and further requested said auditor to grant and issue a refunder oh the treasurer in favor of the relator, certifying that it was entitled to have refunded and paid back the sum of $940.29, so erroneously paid in December, 1895, and to issue his remitter to said treasurer in favor of relators, certifying to said treasurer that said sum of $940,29, which then stood charged on the duplicate against relator,June 20, 1896, be remitted; yet the auditor, not disputing any of said facts, but admitting them to be correct, and notwithstanding the auditor had thus discovered and had made manifest to him,the said improper and errom eous charges upon the said duplicates, refused and still refuses to call the attention of the county commissioners to the erroneous charges and errors apparent upon said duplicates for the years 1892, 1893, 1894, and has refused and still refuses to grant and issue the refunder and remitter in favor of said relator, for the sums set out for 1895,or otherwise to correct said errors upon the duplicate.

And being without other remedy as is averred, it prays that a writ issue to defendant, commanding and directing him to call the attention of the commissioners to such erroneous and improper charges upon the duplicate for the years 1891, 1892, 1893 and 1894, and that he be directed to issue and grant the refunder and remitter for the sums set out for 1895, and for other relief.

In the petition there is no direct averment that the taxes claimed to be erroneous for 1891, have been paid, but this is probably an over-sight.

On the 6th of Julv, 1896, a general demurrer was filed to this petition, which was overruled by the court, September 8, and exceptions taken. On the same day, without giving the defendant leave to answer, a decree as prayed for wafi entered; that is, that the defendant be required to call the attention of the commissioners to the improper and erroneous payment and collection of the taxes thereon, and that he issue and grant to the relator, the refunder and remitter for the tax of 1895.

On September 17, an answer was filed, and on September 22, a general demurrer to this answer was filed.

The answer admits that the defendant is the auditor, and the relator a corporation under the laws of Ohio, for many years, and that the relator company, on June 9, 1891, returned the real estate for taxation at the valuation as claimed by the petition, and that the allegations as to its returns thereof, for taxation for the years 1892, 1893, 1894 and 1895, were as set out in the petition. That said returns were regularly made and sworn to, and placed on the duplicate of each respective year, and taxes thereon voluntarily paid by said company. He further admits that the values, as fixed and determined by the Board of Review, as county and city board of equalization, and reported by it to the county auditor,are correctly stated in the petition. He then denies that he refused to correct the duplicate for the years aforesaid, on the application of the relator, and avers that the said property of the relator, was placed upon the duplicate as returned by the company, in accordance with law. And it denies all the other averments of the petition not specifically admitted.

The demurrer to this answer was sustained,and defendant excepted. And thereupon defendant, not desiring to answer further,the court found on the pleadings that the relator was entitled to the relief sought, and that there had been an erroneous and improper charge and collection of taxes from the relator,on the duplicates for the years 1891,1892, 1893, 1894 and 1895', and the defendant was ordered to draw his warrant on the county treasurer,, in favor of the relator, for the full amouht of said taxes so erroneously charged and collected.

The questions which have been presented, or which arise on this record, are these: 1st. Whether mandamus will lie in a case of this kind, and this was presented by the demurrer to the petition. 2nd, Whether the fact, that the relator company made this return of. its real estate for taxation affixing a valuation thereto, and that it afterwards voluntarily paid the tax levied on the amount so returned, is a J bar to this action,and this is raised by the demurrer to the answer of the auditor. And 3rd. If the action is maintainable, whether, on the allegations pf the pleadings, under the law as it stands, the relator was entitled to the relief sought; or to that actually granted by the court.

It is conceded that sec. 1038, Revised Statutes, is that upon which the relief sought is based. It gives to the audit- or of the county, the right,and imposes upon himfthe duty, from time to time, to correct all errors which he discovers in the tax list and duplicate, either in the name of the person charged with taxes or assessments, the description of lands or other property, or when property exempt from taxation has been charged with tax, or in the amount of such tax or assessments. * * * And when the auditor , is satisfied, after having delivered the duplicate to the county treasurer for collection, that any tax or assessment thereon, or any part thereof, has been erroneously charged, he may give the person charged therewith, a certificate to that effect, to be presented to said treasurer, who shall deduct the amount from said levy or assessment. And if, at any time, the audit- or discovers that any erroneous taxes or assessments have been charged and collected, he shall call the attention of the county commissioners thereto,and if the commissioners find such to be the case, they shall order the auditor to draw his warrant on the county treasurer,for the full amount of such taxes and assessments so erroneously charged and collected. By a subsequent provision in the same section, this refunder is limited to those payments made within the five years immediately prior to the discovery by the auditor.

The question then, under this section, is this: Whether mandamus will lie against the auditor to compel him to issue, a certificate, to be presented to the treasurer of the county, stating that the amount of $940.29,was erroneously charged against the relator on the duplicate of 1895, payable June 20, 1896. It is entirely clear, we think, that under this section, this was the ,only certificate or warrant the auditor was authorized to issue as to any of those taxes of the relator, claimed to have been erroneously charged, except under the express direction of the county commissioners, acting under the provisions of this section. • If the duty of the auditor as to this, is judicial in its nature, or involving discretion on his part,it would seem that on general principles of the law, as well as on the express provisions of sec. 6742,Rev. Stat., the writ requiring him to do this special act ought not to issue. And there is some reason to think, in this case, that the duty so imposed upon him is not merely ministerial, for it is only when the auditor is satisfied, that the tax or some part thereof,charged upon the duplicate for the current year is erroneously charged, that be can, under the statute, issue a remitter, and his answer, that he was not satisfied of this, might be a good answer to the writ. But, however this may be, we do not think it necessary to express an opinion upon it, for the reason that at this time, the tax collectible June 20, 1896, which was unpaid when the petition in this case was filed,has since been paid, and the amount so paid, therefore,stands on the same footing that the other sums paid do; and the same steps must be taken as to that, as in case of the other payments

_ Another reason is suggested why this action in mandamus will not lie; and that is, that it is claimed that the relator had a plain and adequate remedy in the ordinary course of the law, and, if so, this is a defense. (Sec. 6744, Rev. Stat.) Sec. 5842, Rev. Stat., gives a person the right to enjoin the illegal collection of taxes, and to recover taxés illegally collected by action in the courts. But, under this section, an action to recover taxes erroneously collected, could only be maintained when brought within one year after such collection,and thereby the relator might have availed itself of the provisions of this statute, but it did not do so, and it is now too late to do it. And the question then is, can it now resort to a proceeding in mandamus, and thereby, in effect, extend the statute of limitations to five years?

We incline to the opinion, that the proceeding in mandamus,to require the auditor,on discovering that taxes have been erroneously collected within five years, to call the attention of the county commissioners thereto, will lie in this case. So far as we can see, the provisions of what is now sec. 1038, with reference to giving the county commissioners the right to order the refunder of taxes erroneously collected within the preceding five years, first appeared in Ohio Laws, vol. 70, page 11, passed January 16, 1873. At that time substantially, the provisions of what is now sec. 5848, were in force under the law of May 1, 1856, (S. & C.,1151,) which also required that actions to collect taxes erroneously collected, should be brought within one year after their payment. The law,then,of January 16, 1873, seems to give a new right to persons who have erroneously paid taxes, viz, to have the judgment of the county commissioners, as to whether on principles of equity and justice, taxes erroneously collected within five years before that time, should be refunded. And if a duty i§ imposed upon the auditor on discovering such erroneous collection, to call the attention of the commissioners to it, this is a ministerial act, which he may be required to do by proceedings in mandamus. We think,then,the court did not err in overruling the demurrer to the petition.

Was the demurrer to the answer of the defendant properly sustained ? This raises the question whether the fact that the relator voluntarily paid the taxes erroneously charged against it, would bar it of its right in this mandamus proceeding, to have the matter brought to the attention of the commissioners, If this action were one to recover the taxes so erroneously collected, it is probable, under the decisions of our courts, that the defense would be a good one. See 48 Ohio St.,210. But for the reasons before stated, we .think that this averment would not be a defense to this kind of action. And we suppose that the commissioners might order a refunder when the case was brought to their consideration, though the payment had been voluntary. That is a matter to be settled by the board of commissioners. There was no averment in the answer of the auditor, that he had not discovered the fact that those taxes had been erroneously collected. He only alleges the voluntary payment of the taxes,- and denies that he refused to call the attention of the commissioners to the matter when requested. The demurrer to this answer was properly sustained by the court.

But we think the judgment of the court on the petition went far beyond the claim made by it, and far beyond the power of the court. All that should have been "done, was to require the auditor to call the attention of the county commissioners to the matter, so that they, might consider it, and the order of the court actually made, requiring the auditor to draw his warrant on the county treasurer,in favor of the relator for the full amount of the taxes erroneously collected, as found by the court, for the years 1891, 1892, 1893, 1894 and 1895, as set out in detail in the plaintiff’s petition, was clearly erroneous,

As before stated, the auditor can only do so when ordered to do it by the commissioners. The judgment will, therefore, be reversed, and the case be remanded to the court of common pleas for further proceedings.


source: Caselaw Access Project

author: Haynes, J.

license: Public Domain

text:
    Sixth Circuit — Sandusky Co., O., Circuit Court
    May Term, 1897.)
    Before Haynes, King and Parker, JJ.
    STATE OF OHIO EX REL. JOHN NIEMAN, TREASURER OF WOODVILLE TOWNSHIP, SANDUSKY COUNTY, OHIO. v. JOHN FANGBOUER, AUDITOR.

      Act of April 27, 1896, (92 O. L. 748), unconstitutional—
    The act of the General Assembly, passed April 27th, 1896, vol. 92, page 748, Ohio Laws, which provides that in all counties which by the federal census of 1890, have a population of 30,617, nor more than 30,900, any money arising from the tax on oil wells, drilled or hereafter to be drilled, shall be collected by the treasurer of the county as other taxes are,and be returned to the~township treasurer, where said oil wells are located, in any sum not exceeding $2,500 per annum, to be used as a road fund in any such township, is unconstitutional.
   Haynes, J.

A petition for mandamus has been filed in this court, praying that a writ may issue, requiring the defendant to perform certain acts. The appearance of the auditor has been entered in the case, and demurrer has been filed to this petition. Strictly speaking, in practice, perhaps the demurrer at this point is not the proper remedy. The supreme court, however, has held that the question of the sufficiency of the petition may be raised by the court in deciding whether it will allow a writ to issue. The writ shall not issue unless it shows upon its face that there is a proper ■cause of action. Mr. Niernan states that he was the duly ■elected treasurer of Woodville township, and says Wood-ville township has a large amount of land, containing and producing mineral products, to-wit: oil; that there is drilled, and now in operation in said township, a large number ■of oil wells, producing mineral products, to-wit: oil; and that there will be hereafter, a large number of wells drilled, which, in all probability, will produce a large quantity of ■oil.

Relator further says, that by the provisions of section 2792, Rev. Statutes, as amended January 30, 1891 vol. 88, p.13, Ohio Laws, the board of equalization of Sandusky county assessed on said oil wells, in said township, the sum of $2318.67, as the developments of said oil wells were made, over and above the decennial appraisement of lands upon which oil welte are situated. That the owners, operators and managers of said oil wells, in said township, have long since paid into the treasury of said Sandusky county, Ohio, the said sum of $2318.67, as provided for so as aforsaid in said amended section 2792,and that the said $2318.67, are now in the treasury of said Sandusky county, Ohio.

Relator further says, that by the provisions of an act of the General Assembly, of the state of Ohio, passed April 27th, 1896. vol. 92, p. 748, Ohio Laws, which is as follows:

“House Bill, No, 673. An act to provide a road fund in townships where oil wells are located, or may hereafter be located. (Sandusky county.)
“Section 1. Be it enacted by the General Assembly o the state of Ohio, That in all counties , which, by the federal census of 1890, had a population of 30,617, nor more than 30,900, any monies arising from the tax on oil wells,drilled, or hereafter to be drilled, shall be collected by the treasurer of the county as other taxes are, and be returned to the township treasury where such oil wells are located, in any sum not exceeding $2,500 per annum, to be used as a road fund in any such township.
“Section 2, Said fund shall be under the control of the township trustees, and shall be by them expended in maintaining and building roads, as to them seem advisable.
“Section 3. All acts,and parts of acts,in conflict with the provisions of this act, are, as to such conflict, hereby repealed, and this act shall taue effect, and be in force, from and after its passage.”

It is provided that in all counties, which by the federal census of 1890, have a population of 30,617, nor more than 30,900, any money arising from the tax on oil wells, drilled or hereafter to be drilled, shall be collected by the treasurer of the county as other taxes are, and be returned to the township treasurer, where said oil wells are located, in any sum not exceeding twenty-five hundred dollars ($2,500) per annum, to be used as a road fund in any such township.

He then states the population of Sandusky county; and that there is now, under, and by virtue of said last mentioned act of the General Assembly of the state of Ohio, passed April 27th, 1896, to the credit of the treasurer of said Woodville township, Sandusky county, Ohio, the sum of two thousand three hundred and eighteen and 67-100 dollars.

That by reason of the boring and drilling of said wells in said township, the roads have been-cut up and destroyed by hauling thereon engines, boilers and timbers,and it is necessary, in order to place said highways in a secure condition, that said money aforesaid collected be returned to said treasurer, to enable the township trustees to spend the same on the public highways of said township, as provided by section 2, etc.

Relator says he has demanded the return of this money, and it has been refused, and he therefore prays that a writ of mandamus issue commanding said defendant to issue his warrant upon the county treasurer of said county, for the payment of said above named sum.

There is a little trouble in regard to this allegation of the petition, as to the amount of taxes, for the reason that it does not follow the statute. Tt says under section 2792 Rev. Statutes, as amended January 30, 1891,vol. 88, p. 13 Ohio Laws, the board of county commissioners, acting as a board of equalization, assessed on said oil wells, in said township, the sum of $2318,67. If this is literally true, the money has not been properly raised. It has not been raised in pursuance of the statute. We have assumed, and shall assume, in deciding this case, that this money is the amount of taxes that have been levied upon certain values that have been made by the board of equalization of the county upon oil well property. The fact is found in section 2792 Rev. Statutes,a s amended in vol. 88, Ohio Laws p. 13:

“Each separate parcel of real property shall be valued at its value in money, excluding the value of the crops growing thereon; but the price for which such real property would sell at auction, or at forced sale, shall not be taken as the criterion of the true válue, and where the fee of the soil of any tract, or parcel of land, is in any person or persons, natural or artificial, and the right to any minerals therein in another, or others, the same shall be valued and listed agreeably to such ownership, in separate entries, specifying the interests listed, and shall be taxed to the parties owning tbe different interests respectively.”

That is to say, the land is returned at its value, and the oil wells are to be listed at their value.

“Provided the assessor shall deduct from the value of any such tracts of land lying outside of municipal corporations, the amount of land occupied and used by a canal, or used as a public highway at the time of such assessment, and if the assessor fails to do so, the county auditor is hereby authorized to make the deductions as herein provided; and provided further, that the annual board of equalization may reduce the mineral value assessed against lands containing or producing petroleum (oil), natural gas, coal, or limestone, fire-clay or other minerals, in proportion as the product of such mineral has diminished, “ (now comes the clause upon which it says the board has acted in this matter:) “if such mineral product was considered as a part of the value of said real estate in its previous appraisement for taxation, and annual assessors or boards of equalization may assess such mineral values as developments of its product or existence are made. ”

That is to say, if the productions are increased, the board may increase the amount of the value upon the duplicate. When the assessment is made, it stands the same as the assessment of real estate or other property, and is subject to taxation in the same manner as taxes are levied and assessed upon other property generally. By the laws of Ohio, certain bodies, commencing with officers of the state, assess or fix the rate to be assessed for certain purposes upon taxable property in the state of Ohio. The board of county commissioners may make assessments and fix the rate of taxation that is to be upon the property in the county;.that is to say, 'upon the value that is placed upon the duplicate, and these amounts are fixed for exclusive purposes, for purposes of the state, for purposes of school, county and township purposes, and for the various purposes for which money is raised by taxation, and we assume under this allegation, that inasmuch as the money has been raised in accordance with this section of the statutes,that it has been raised by the board of equalization, fixing the value of these oil wells, and then the county auditor assesses upon such values the various rates of taxation, which he is authorized to assess under the laws, which rates have been fixed by the various public authorities. So this sum of 12318.67 represents, in fact, the moneys that have been collected by the treasurer for the various purposes for which money is raised in the state, and that the aggregate amount is 12318.67.

The constitution of the state of Ohio under article 12, provides for levying taxes in the state. Section 5 of that article, reads as follows:

“No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same to which only it shall be applied.”

Now, this money being raised and paid into the treasury, under the general laws of the state, is to be paid out to the various treasurers and officers for the various purposes for which it has been assessed and collected. But this local law comes in and provides that this money, which was so raised for specific and definite purposes, shall be diverted from these purposes, and shall be paid over to the treasurer of the township up to a certain amount,and shall be used by them exclusively for the purpose of repairing roads, for road purposes; and the question is, whether this act is in violation of the constitution of the state of Ohio.

We have given this matter careful attention, because it is a question of importance to the townships interested. We are unable to see how we can sustain this act. Clearly it requires the treasurer to take these moneys that are raised for other specific purposes, and which the constitution especially says shall be applied to no other purposes whatever, and applies them to another purpose, to-wit: repairing of roads in different townships; and it seems to us Oo clear that tha is a violation of this clause of the constitution that there can be no question whatever, that the law should be declared to be unconstitutional.-

We have been cited to a case that has been decided in Allen county. In that case, an act of the legislature attempted to authorize the use of certain moneys that were collected for road purposes in the limits of the city of Lima. The case came up before the third circuit court, in Allen county, and they held that the law was unconstitutional. We are cited in the Law Bulletin, to the fact that the case was taken to the supreme court of the state, and by the supreme court reversed without any report whatever, so that the decision of that court throws no light whatever upon the correctness of the decision as to the law being contrary to the constitution, as we think, and for the reason that the case might have been decided upon ether points without discussing the constitutionality of the' question in any manner or form. We can hardly conceive that the supreme court of Ohio, if passing upon the constitutionality of a law of this kind, would have made’a decision of the case without full report, except it had been decided upon some collateral point- It appears- there was a tax of 3-J mills in Allen county for road purposes. It is said that it was intended to be levied under section 4919 of the statutes, which provides that where roads have been damaged or destroyed or injured, that in addition to the taxes that may be levied for ordinary road purposes, there might be levied an addition of five mills on the dollar upon all taxable property of the county, to be expended by the commissioners in such manner as might seem to them most advantageous to the interest of the county for the construction, re-construction or repair of such road.or roads. The report says, that the commissioners never found any roads damaged or destroyed so as to render the same unfit for travel. It simply states on the face of the papers, -that there had been a levy of 3-k mills on the dollar in Allen county. The act in question provided that money that was raised on property in the city of Lima, should be expended in the city of Lima, by the city anthorities. We may suppose the case was decided as if the whole tax was raised for general and not specific road purposes, and until the supreme court have made a decision, and published it, stating the questions decided, we do not think we ought to attempt to follow'it as authority upon the question before us, for the reason that I have stated, that it might have been decided upon collateral points. It follows from what I have said, that the writ of mandamus must be refused and the petition dismissed.

Kinney & O'Farrell, Attorneys for Relator.

Geo. W. Whitney, Prosecuting Attorney for Defendant.


author: Hale, J.

text:
    (Eighth Circuit, Cuyahoga Co., O.,Circuit Court,
    Jan. Term, 1897.)
    Before Hale, Marvin and Caldwell, JJ.
    LOUIS F. POST v. THE STATE OF OHIO.

      Contempt of court — Proof—Better Practice—

    When the transactions constituting an alleged contempt of court do not come within the personal cognizance of the court through his own senses, the better practice is, to require an information to be filed by a proper representative of the state, and permit the accused to file an answer to the charge made against him, and that all facts not within the personal knowledge of the court, should be established in open court upon the sworn testimony of witnesses, or other competent evidence, in the ordinary manner o,f other judicial investigations.

      Same — Inherent Power of Court — Regulation by legislature— .
    The power to punish for contempt, is inherent in a court of general jurisdiction, independent of legislation, and has always existed in the courts of England and in this country. • The legislature may regulate that power of the court.

      Same — Full opportunity to answer and defend — .
    Whether the transaction constituting the alleged contempt is brought into the record by information filed,or first entered on the journal of the court by order of the court, before the arrest of the accused, or any notice to him, the fullest opportunity should be given to him to show cause why he should not be punished for contempt; and his guilt should not be determined before such opportunity-is given to him. All facts not within the personal knowledge of court, should be established and brought into the record in the ordinary way, by proof upon sworn testimony that is competent.

      Same — Review on Error—
    A proceeding to punish for contempt of court under sec. 5639, R. S., including the question whether or not the court in awarding a punishment has exercised a reasonable discretion,may be reviewed on error.

      Question whether matter is contemptuous not to be pre-judged—
    It is the right of the accused, in showing cause why he should not be punished for contempt, to establish, if he can, the fact that the article published was not in law contemptuous. And it is not in accordance with ordinary precedent to refuse him a hearing on that proposition, for the reason that the court, before the issuing of the order of attachment, had adjudged the article to be contemptuous. All propositions of law and fact necessary to the conviction and punishment of the defendant, should be open to discussion after the arrest, in the presence of the accuser.

      Newspaper comment as to proceedings past, not contempt—
    Newspaper comments,however libelous,having relation to proceedings which are past and ended, are not in contempt of court, or of the authority of the court to which reference is made.
    Error to Court of Common Pleas of Cuyahoga county.
   Hale, J.

The record shows that the plaintiff in error was, in the corrrt of common pleas, adjudged guilty of a contempt of court, and sentenced to imprisonment in the county jail for ten days, to pay a fine of $200.00, and costs of the! prosecution, and stand committed until the fine and costs were paid.

In the bill of exceptions the entire proceedings occurring at the trial were brought into the record. A reversal of the judgment is sought, and several errors are assigned upon the record, and insisted upon as grounds for such reversal.

The alleged contempt of the plaintiff in error was, in writing and causing to be published in The Cleveland Recorder, a newspaper of general circulation in this city, an-article of which the following is a copy:

“Judicial Autocracy,
“Perhaps no class of public officials are more in need of sharp criticism for their disregard of the amenities than judges. For this many reasons might be assigned. Judges hold a position which makes them seem and often makes them feel like autocrats. Their commands are for the time being, law. They are invested with the autocratic power, lodged in no other official, of arbitrarily ordering men into prison — of being at once accusers, juries and judges. Power like this is calculated to impress those who exercise it with exalted notions of their authority and distorted ideals of judicial dignity. The ill effect is heightened when the worries of the court room sour the temper of the autocrat. Some judges then ignore the incidental obligations of their position. Forgetting that they are arbitrators bound to be gentle to everyone, and especially to be solicitous for the 'rights of all whose quarrels come before them, they play the part of the querulous pedagogue. Invested with a little brief authority, they use it as if no one’s' rights were superior to their whims.
“An example was furnished on Monday,by Judge Lamson. For several days an attorney had danced attendance in Judge Lamson’s court, waiting for one of his cases to be called for trial. Up to 3 o’clock on Monday, the case had not been reached, and as only one hour more of the court day then remained, the attorney, reasonably assuming that his case would not be called before adjournment, left the court room to attend to other business. But by one of those accidents which neither lawyers nor judges can anticipate, the trial in progress suddenly ended, and the absent lawyer’s case was called; whereupon Judge Lamson ordered it to proceed, without giving the attorney a chance to be heard.
“Conduct like this on the part of judges, is wholly without justification. To begin with, it is inexcusable, that a judge should keep lawyers and witnesses dancing attendance at court daily, and all day for several days together, awaiting the call of their cases; and when a lawyer, after dancing. attendance, is placed in default because toward the close of a day he happens to be absent when the case on trial ahead ■ of his, comes unexpectedly to an end, the judge who orders the default deserves to be as openly criticized by the press as he is secretly criticized by the bar. Whether intentionally or peevishly, he thereby exposes indifference to the rights which he has been appointed to adjust.
“ We are aware of the complaints of judges that lawyers abuse the courtesies of the bench regarding the calling of cases. But if the bench made reasonable rules upon the subject, there would be no opportunity for abuse.”

No affidavit or information was filed with the clerk of the court, but by order of the court, there was entered on the journal of the court, the following order of judgment:

“It having been brought to the attention of the court, that on the 17th of March, 1897, the said defendant, Louis F. Post, did write and cause to be published in a certain newspaper known as The Cleveland Recorder, published in and of general circulation in the city of Cleveland, and county of Cuyahoga, a contemptuous article of and concerning this court, and one of the judges of this court named in the article, then engaged in holding court in said city and county, and engaged in the trial of causes therein, and which contemptuous article is in the words and figures following, to-wit, ” — then follows the article, and at the close, after the recitation of the article: “It is therefore ordered by this court, that an attachment issue for the person of said defendant, returnable before this court, sitting in court-room No. 4, in the court-house of this county, returnable on the 20th day of March, A. D,, 1897, at 10 o’clock a. m. ”

It will be noticed that the plaintiff in error was not by , this judgment or.order required to appear and show cause why he should not be punished for a contempt of the court, but apparently was adjudged guilty of contempt.-'

In pursuance of this order, the plaintiff in error was arrested by'the sheriff,'and brought before the court. Amotion was interposed by the plaintiff in error to dismiss the proceedings, on the alleged ground that no affidavit or information was filed with the court, or clerk of the court, charging’him with any offense, or specifying the'transaction for which^he was-about to be tried. This^motion was overruled, to which an exception was noted, and this^is the first error assigned upon the record.

When the transactions constitutingjthe alleged contempt do^ not come within the personal cognizance of the court through his own senses, as in this case, the better practice would seem to be to require an.information to be filed by a proper representative of the state, and permit the accused to file an answer to the‘charge made against him in such information, and that all facts not within the”personal knowledge of the court, should be established m open court upon the sworn testimony of witnesses, or other competent evidence, in the ordinary manner of other judicial investigations.

. This precise point has not been determined, so far as we are aware, by any court of this state; but substantially the uniform practice in the cases reported, has been to require an information to be filed. While we are of the opinion that no affidavit was required or necessary, we do hold that the safer and the better practice is, to require an information to be filed specifying the transaction alleged to be contemptuous, unless the court has personal knowledge of such transaction.

Holt’s case, 55 N. J. L., 384, is in point. The defendant in that case had been adjudged guilty of a contempt in a summary proceeding, and sentenced to fine and imprisonment. No affidavit and no information had been filed. On review, the supreme court of that state, in discussing the matters made upon the record, say:

“On this occasion we have no concern with any part of the transaction except such as relates to the course of procedure that was adopted. This was one of the simplest kind possible. An attáchment was issued; resting on no legal basis whatever, for there was no affidavit or other proof. The court acted ex mero motu, assuming as a part of its judicial knowledge, that the abusive article existed in point of fact; that it had been published in a certain newspaper, and that the defendant was responsible in some way for the existence of the libel or for its dissemination. Such a step was altogether abnormal and illegal.
“Nor did the procedure improve as it progressed. The defendant, upon being taken into custody, gave bail, and in due course appeared before the court, and through his counsel, moved to set aside the attachment and all proceedings founded upon it, on the ground‘that the same was issued without any legal evidence of proof of the fact therein recited.’ This motion was overruled, and the court, without proof and again of its own motion, proceeded- at once to judgment, laying a fine of one thousand dollars and cost on the defendant, and directing the imprisonment until the payment of such moneys. Thus, from first to last, the members of the court were the accusers, witnesses and judges; they took no testimony, but convicted the defendant from their own intuitive knowledge.
“It is not necessary to say that such a course has not in any respect whatever, the least semblance of a proceeding in a court of law. The arrest and conviction were altogether arbitrary and illegal.’’

We have been unable to find any statute in the state of New Jersey, similar to sec. 5639, under which this prosecution was instituted; however, there is no doubt that the power to punish for contempt, is inherent in a court of general jurisdiction, independent of legislation, and has always existed in the courts of England and in this country. No court can exist without it. The legislature may regulate the procedure under this, but they can in no way abridge ■ that power of the court. And such is the language and doctrine of our own supreme court. But in New Jersey, there is a statute providing that proceedings of a summary character for contempt, may be reviewed on error, as in this state, Our statute is but a declaration of the common law upon that subject, and the case cited is clearly in point in the case at bar.

The supreme court, in the case of Myers v. The State, reported in the 46 Ohio State Reports, 473, in the per curiam opinion, on page 492, say:

“When the court assumed to take judicial notice of the fact which formed the ground of a previous proceeding for contempt against respondent, and of his being adjudged guilty, we think the court erred. If the facts were competent to be taken into consideration, which is, at least, very questionable, they were the subject of evidence, and could not be judicially noticed. ”

So that the procedure seems to be sanctioned by the supreme court in that case, that facts not within the personal knowledge of court, should be established and brought into the record in the ordinary way, by proof upon sworn testimony that is competent.

We desire, however, to add, that in any event, whether the transaction constituting the alleged contempt is brought into the record by information filed, or first entered on the journal of the court by order of the court, before the arrest of the accused, or any notice to him, the fullest opportunity should be given to him to show cause why he should not be punished for contempt; and his guilt should not be determined before such opportunity is given to him.

After the overruling of this motion, the plaintiff in error; appeared and asked leave to file an answer to the charges made against him; but his request was refused, and an ex: ception noted.

These proceedings were brought under sec. 5639, of the Rev. Stats.

It will be observed that for the violation of this section of the statutes under which these proceedings were instituted, the punishment is wholly within the discretion of the court. The statute fixes no limitation to the punishment to beimposed upon the defendant. A proceeding to punish for contempt of court' under this section, including the question whether or not the court in awarding a punishment has exercised a reasonable discretion, may be reviewed on error. And this is held in the case of Myers v. The State, previously referred to.

All the facts and circumstances, therefore, entering into and surrounding the transaction, were competent to be given in evidence. The answer contained allegations of facts clearly proper to be considered by the court, as well as denial of- some of the charges made in the .journal entry referred to. And in refusing permission to file this answer we think the court erred. A copy of the answer is contained in full in the record.

On the trial the plaintiff in error called as a witness one Ward, and offered to show by him, in substance, that the facts referred to or recited in the article alleged to be contemptuous, occurred as therein stated. And this testimony was excluded.

We think this testimony was competent. If not establishing a complete defense, it certainly tended to mitigate the offense, and was entirely proper to be considered in fixing the measure of punishment to be awarded. Nor is this testimony rendered incompetent because the plaintiff in error was claiming it to be a complete defense, and not merely in mitigation of the offense.

In a case reported in 113 Indiana, it was held that in proceedings in contempt, where the accused files an answer, disclaiming any intention to interfere with the prerogatives of the court, or any disrespect to the ccurt, unless the article is libelous per se, it is a 'complete justification, and the'proceeding should be discontinued and dismissed.

We are not disposed to go to that extent, nor will we in the disposition of this case. Rut it clearly is an authority, showing that the answer proposed to be 'filed, was perfectly proper.

At the close of the testimony, counsel proceeding to argue the case upon the law and facts, was interrupted by the court with this inquiry: “What proposition do you propose to discuss?” Counsel for the accused says: “For myself, I intend chiefly to discuss the question as to the jurisdiction of the court: First, as to the form of the record and the proceedings that have been had; and second, as to- the matter complained of, being in law susceptible of being contemptuous.” The court: “That, I would not hearyou upon. When the court issued the writ in this case, it prejudged the language of the article to- be contemptuous.”

It seems to us that it was the right of the plaintiff in error, in showing cause why he should not be punished for contempt, to establish, if he could, the fact that the article published was not in law contemptuous. And it was not in accordance with ordinary precedent to refuse him a hearing on that proposition, for the reason that the court, before the issuing of tho order of attachment, had adjudged the article to be contemptuous.

We are not, however, prepared to say, that this refusal to hear counsel would be error, if the conclusion reached was correct,- — -I mean prejudicial error, and the law rightly interpreted. But, considering the nature of the article and the circumstances of the refusal, we think the court erred in refusing to hear counsel.

The suggestion made, that the court before the issuing of the citation, must settle definitely the law of the case, so that any consideration of that subject after the arrest and appearance of the defendant, could not be considered, has but little weight with the court. All propositions of law and fact necessary to the conviction and punishment of the defendant, should -be open to discussion after the arrest, in the presence of the accuser, in the judgment of this court.

So far, we have considered propositions relating simply to the procedure had. If- we stopped here,- the case would- go back for re-trial. We have therefore considered the important question in the case, and that is, whether the article was, in law, contemptuous. Two classes of cases involving the publication of newspaper comments upon proceedings in court, have been considered in contempt proceedings: those in which it is claimed that the object of the publication was, to affect the decision of a pending cause or action; second, those which have for their apparent purpose, the bringing of courts or judges, or other officers constituting an essential part thereof, into discredit.

It is held in many of the states, that newspaper comments, however libelous, having relation to proceedings which are past and ended, are not in contempt of court, or the authority of the court to which reference is made. I refer to only a very few cases: A case reported in the 50 American State, 538, and 45 Nebraska, 568, in which that court held, that a newspaper publication is a contempt of court only when it has reference to matters then pending in court, and is of a character tending to the injury of pending cases and subsequent proceedings upon such matters. This related to a proceeding in a criminal case. In a case reported in the 40 Iowa, 207, it is said, that criticism of court in a case determined, is not contemptuous. The same holding was had in 110 Indiana, 301. In 48 N. H., 428, the publication in that case, related to a case then pending. It was a severe cirticism of the methods employed in the prosecution under the liquor law of that state. After some discussion, the court reaches the contusion, that the article was contemptuous, but adds: “It must not be inferred that we question the right to criticize and censure the conduct of courts and parties, when causes have been finally decided. The question in this case is, whether publications can be permitted which have a tendency to prejudice the decisions of pending cases.” To a similar effect is 79 Ill., 45; 85 Cal., 603; and in our own state, the case of Myers v. Ohio, the court in disposing of the case, say:

“Though the libel was,in large part,against the presiding .judge, that fact did not disqualify him from trying the proceeding in contempt. It was not the libel against the judge which constituted the offense for which the respondent was liable as for contempt of court. The offense consisted in the tendency of his acts to prevent a fair trial of the cause then pending in the court. It is this offense which constitutes the contempt, and for which he could be punished summarily; and the fact that in committing this offense, he also libeled the judge, and may be proceeded against by indictment therefore, is no reason why he may not and should not be punished for the offense against the administration of justice.
“The statute clearly authorizes, as did the common law, courts to punish summarily, as contempts, acts calculated to obstruct their business. They could not be maintained without such power, nor could litigants obtain a fair consideration of their causes in a court where the jury or judge should be subject during the trial to influences in respect to the case upon trial, calculated to impair their capacity to act impartially between the parties.”

This is a statement of the whole court in a per curiam opinion, and is entitled to much weight. It is apparent to us, that this language of the court was intended to, and the court does hold that the libels upon the court which do not relate to cases pending, are not a contempt, and concur with the adjudications in those states which so hold,

The article alleged in this case to be contemptuous, so far as it attempts to state facts, has a reference to a transaction wholly past and ended. The article, it is true, in some respects is unjust and unreasonable. The writer had no just appreciation of the subject upon which he was commenting. The statute provides that causes shall be tried in the order in which they stand upon the docket. This is provided by the Rev. Stats., sec. 5134. They are placed upon the docket in the order of time in which the issues are made up^ The trial court, in proceeding with the trial of his cases on his docket, is not responsible for the preparation of the case next to be reached for trial; nor can he' fix the exact time in which a case will be reached for trial. Counsel representing the parties of the case next to be tried, must necessarily exercise their own judgment in the preparation of their case. No rule can be devised by which a court can know whether the case on trial will or will not come to a sudden termination. Counsel do not “dance attendance” to the court, but in their own way prepare to go forward with their case when reached in its regular order. No rule ever was or ever can be devised by which a trial court can be kept busy, and witnesses called only for the moment when they are needed, It may well be doubted whether, under the requirements of the statute, better or more just rules can be adopted than those provided by the court of common pleas. But whether that be so or not, it is beyond dispute that these rules are adopted by an intelligent bench for the purpose, and the purpose only of facilitating the business of that court, protecting the rights of the litigants and of the people. Under the code of civil procedure in this state, causes are commenced by filing a petition with the clerk of the court; issues made up,the cause is placed upon the docket for trial; if a law case, tried to a jury, and a verdict rendered. On the rendition of the verdict, the statute provides for immediate rendition of judgment. The Revised Statutes, sec. 5326,provides that when a trial by a jury has been had, judgment must be entered by the clerk in conformity with the verdict, unless the verdict is special, or the court order the case reserved for further argument or consideration. After the trial, judgment and verdict, certain proceedings may be had; for the most part proceedings after judgment. With the judgment upon the verdict the case ends, unless there shall be a re-examination of some part of the.proceedings already had. '

Johnson & Hackney, and Blandin & Rice, for Plaintiff in Error.

T. L. Strimple, Prosecuting Attorney, for Defendant in Error.

The theory that, although the trial had ended, the time within which a motion for a new trial could be made had not expired and, therefore the case was pending in court, has but little weight. There is not the slightest intention disclosed in the language of the article, to in the least degree influence or embarrass the court in the disposition of such motion, if one should be made. We doubt if the writer Knew that such motion could or was to be filed or made.

The tendency of the article was not to embarrass the court in the disposition of the case then pending before the court. A considerable part of the article was general in its terms, and intended to and was a criticism upon all judges and their methods. And a single transaction of one judge was stated and commented upon. In both the general discussion and in the specific instance referred to, the reference was to a past transaction, to matters done and ended. It will not be claimed that the publication of this article had, or could have had, the slightest influence on the judge named therein, in the disposition of a case then pending, or in any way embarrass him in the disposition of any case thereafter to be tried. It did not, therefore, within the meaning of the statute, in the judgment of this court, obstruct the administration of justice. It was an unjust criticism of a faithful and upright judge, but not a contempt of court.

The judgment of the court of common pleas will be reverseG, and the plaintiff in error discharged.


author: Mabvin, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Jan’y 1897.)
    Before Hale, Marvin and Caldwell, JJ.
    DAVID BARNHISEL v. THE COMMERCIAL NATIONAL BANK.

      Endorsement of note by one “as agent” — Effect
    1. Where an agent makes a promissory note, signing-the same by Ms name “as agent,” he is liable as maker of the note,notwithstanding the fact that that the payee knew he was acting as such agent at the time.

      Same — Parol evidence inadmissible to relieve endorser “as agent” of personal liability.

    2. The addition of the word “agent” to his name by the endorser of a promissory note, without anything- else on the instrument indicating his principal, does not relieve him from personal liability as endorser, and parol evidence is not admissible to vary the legal effect of such endorsement v or to explain the endorser’s signature by showing that he actually acted as the agent of another, and that the endorsee was aware of the fact of such agency.
    Error to the Court of Common Pleas of Cuyahoga county.
   Mabvin, J.

These two cases are here upon petitions in error. In the first of these cases, thirty-seven causes of action are set out in the petition, all of them upon promissory notes made by various parties, payable to “David Barnhisel, agent,” and endorsed in the same way. Most of these endorsements were actually endorsed by W. E. Cruse, who was authorized thereto by David Barnhisel, and the notes were, being thus endorsed, discounted at the Commercial Bank.

In the second of these cases, there are sixty causes of action set out in the petition, twelve of which are upon notes as in the other case, and forty-eight upon bills drawn by “David Barnhisel, agent,” on various parties,and discounted at the same bank; and a considerable number of these bills,if not all of them,(my recollection is, not all of them,) are thus drawn, and the name “David Barnhisel, agent,” signed by W. E. Cruse, — he adding to the words, “David Barnhisel, agent,” the words, “by W. E. Cruse.” These several pieces of commercial paper were all dishonored; and as we think fairly shown by the pleadings, they were all properly protested. The suits were each brought by the bank against Barnhisel upon these several pieces of commercial paper,and tried to a jury,and in each case judgment was for the bank.

The real question in the case arising upon the admission of evidence and the charge of the court, is whether the endorsement upon these notes, and the signing of the bills by the maker, “David Barnhisel, agent,” are such as charge Barnhisel, personally, for the several amounts of the bills and notes. It is settled in Ohio,that if the notes were made and signed “David Barnhisel, agent,” as the maker, that he would be personally liable upon thenr. That is fully settled in the case of Collins v. Buckeye State Insurance Company, 17 Ohio St. Rep., page 215. In the opinion in that case,however, the court used the language which seems to make a distinction between the maker of such paper and the endorser. In that case, however, it is settled that so far as the maker is concerned, it is indifferent whether the holder of the paper had knowledge of the fact that he who made the paper was agent of somebody and knew who the principal was, that in anj- event, the man signing the paper followed by the word “agent, ” is still personally liable. Judge Welch, on page 223 of the opinion in that case, says: “The first question made in the caséis, whether there is sufficient proof of the insurance company’s knowledge, that Collins was acting as agent.

“That question we need not discuss, unless we think the fact of such knowledge would make a defense for Collins against an action on the notes. Would it make such defense? In other words: Where at) agent makes a promissory note in the form of these, is he liable as maker of the note, notwithstanding the fact that the payee knew he was acting as such agent at the time? We .are of the opinion that he is so liable. To hold otherwise, it seems to us, would be to make a new contract for the parties.”

He then goes on to discuss the question of whether,if he were an endorser, the law would be the same; and says:

“The cases cited, in which the agent was held not liable, appear to be those where he was sought to be charged as endorser of negotiable paper, or — which is much the same thing — as drawer of bills of exchange. The difference between that class of cases and the present, is also quite obvious. Where an agent has the legal title to a note or bill, his endorsement is indispensible to pass that title.. The endorsement, like the deed, is a simple transfer of title. The liability of the endorser arises, mainly, outside of the endorsement, That liability may be changed without changing the endorsement itself. It is a mere implication of law, arising upon the endorsement, No question of the admissibility of parol evidence is involved in such cases.' ’

Without stopping to read further, if the reasoning in that case — the language which'I have just read — is the law in Ohio, it would seem to follow that it would have been admissible to show in these cases, that Barnhisel was actually the agent of his wife as it is claimed that he was, and that such agency was known to the bank, and that he would not be liable. In the case of Robinson v. The Kanawha Bank, 44 Ohio St., page 441, there is a similar reasoning; but in neither of those cases was it necessary to determine that question in order to determine the cases.

In the case of Bank v. Cook, 38 Ohio St. Rep., page 442, the syllabus reads as follows:

“The character of the liability of the drawer of the bill of exchange must be determined from the instrument itself;' and the addition of the word ‘agent5 to his name, without anything else on the instrument indicating his principal, does not relieve him from personal liability as drawer of the bill.”

That was a case where Cook signed his name to the bill, “W. P. Cook, Treas.” Suit was brought against Cook. Without stopping to read from the opinion — I have read the syllabus in that case — the court held him liable as maker.

In the 46 Ohio St. Rep., the case of Farr v. Ricker, page 265, was a case where a note was endorsed in blank, and it Was sought to show that the endorser was not liable because the endorsement was to have been “without recourse;” and the court held in that case, Judge Minshall delivering the opinion: •

“The case presents' the question, whether parol evidence is admissible for the purpose of varying the legal effect of such an endorsement. There has been some conflict in the decisions as to this, but it now seems that the decided weight of authority is against the admission for such purpose, Its admission has generally been placed on the ground, that the contract of endorsement is an implied one, not in writing, and so not within the rule excluding parol evidence offered for the purpose of varying, or contradicting the terms of a written agreement. .But this is not the generally received opinion, and is contrary to the usage and understanding of the commercial world.”

It is said by Justice Matthews, in the 104 U. S., at page 37:

“The contract created by the endorsement and delivery of a negotiable note, even between the immediate parties to it, is a commercial contract, and is not in any proper sense a contract implied by the law, much less an inchoate or imperfect contract. It is an express contract, and is in writing, some of the terms of which, according to the custom of merchants and for the convenience of commerce, are usually omitted, but not the less on that account perfectly understood. ”

Now, from these two cases, it seems to us, that in this case and the one which I read from the 38 Ohio State Reports, the question was distinctly made as to whether the drawer of a bill may escape liability where he signs his name as “agent” or as “treasurer,”by showing that he was actually acting as the agent of another party; and it was held that he could not; and in the latter case it is held that the endorsement is not to be inquired into; that is to say,that the contract made by endorsing cannot be explained by parol. It seems to us, that these authorities warrant us in saying that there was no error on the part of the common pleas in holding, as it did, that the maker, Barnhisel, was, liable upon these notes and bills, and could not be heard to explain that he was the agent of his wife, and known by the bank to be such agent when he drew the bills and endorsed the notes.

The case of Babcock v. Beman, 11 N. Y., page 200, is cited in a number of cases which bear upon this subject; and in that case, it was held that: “An officer of a corporation, to whose order, as such, a note executed to it is payable,and who endorses the notes, adding to ,his name his official character, and negotiates it on behalf of the corporation, is not personally liable as indorser.” The reasoning of the court is — and I read from page 202, as follows:

“The case of Mott v. Hicks, is, therefore,a direct adjudication upon this very point, by the highest court of original jurisdiction in this state; and it has been acquiesced in and regarded as the law for a great length of time. The question was in the highest degree practical, and of more frequent occurrence than almost any other. It moreover, related to commercial paper, in respect to which it is of the utmost importance that the decisions of the courts should be stable, so that they may be relied on with the confidence of the community. We should be, therefore, most reluctant to depart from the principles of the case, even could it be successfully questioned as not in harmony with the legal analogies'or antecedent cases. We think, however, it is not subject to any such criticism. It has been followed in principle in Brockway v. Allen, (17 Wendell, 41,) and in Hicks v. Hinde, (9 Barbour’s S. C. Rep., 528), and has not been questioned, so far as we know, by any case.”

Phillips & Phillips, Attorneys for Plaintiff in Error.

Hoyt,Dustin & Kelley,Attorneys for Defendant in Erroy.

Now, it will be seen that one of the reasons given by the court, in that case, is, that the law has been for so long a time recognized in the state of New York, ever since 1828, that it ought.notto be disturbed. The case of Brockway v. Allen, 17 Wendell, 41, cited in this case as supporting th,e proposition, is a case that goes so far as to hold that th,e maker of a promissory, note may show that he was acting as an agent, and was known by the payee .to beso acting when he signed his name as agent; so that that authority goqs much beyond what is claimed on the part of the plaintiffs in error tó be the law in Ohio.

We think we are justified,as I have already said,in holding on the authority of the cases cited in the 88th and 46th of the Ohio State Reports,that the signing of these various instruments by Barnhisel, as agent, does not relieve him from liability, even though the court had allowed it to be shown that he was acting as agent of his wife, and that that was known to the bank.

Upon the question made as to whether Gruse was authorized by Barnhisel to sign and act for Barnhisel, we are content with the finding of the jury, and the cases are affirmed.


author: Price,-J.

text:
    (Third Circuit — Hancock Co., Ohio Circuit Court
    May Term, 1896.)
    Before Seney, Day and Price, JJi
    JOSEPH E. EBBENPOWELL v. THE STATE OF OHIO.

      False Registration — What indictment must state—
    An indictment under sec. 2926w of Rev. Stats, of Ohio, for falsely and fraudulenty obtaining registration, which alleges as the only representation made by the accused: “that he represented to the registrars that he was then a qualiüed'elector of Precinct “A”of the.th.ird ward in said city of Findlay, Ohio, and thereby falsely, fraudulently and unlawfully, did obtain registration in said precinct, ” is bad on demurrer.
    Error to the Court of Common Pleas of Hancock county.
   Price,-J.

.The plaintiff in error was indicted at the January term 'of the court below of the present year, for false and fraudulent registration, to which charge he plead not guilty, and the case was continued to the March term, when leave "was obtained to withdraw the plea of not guilty, and file a ; demurrer to the indictment. This was done, and the court overruled the demurrer, and the plea of not guilty was renewed, and the case went to trial, and the jury returned a ' verdict of guilty as charged in the indictment. The court ' sustained the verdict, and passed sentence of imprisonment of one year in the penitentiary.

: Error is prosecuted in this court to reverse the judgment ■' and proceedings below, and a great many things are assigned for error, among which are the overruling of the demurrer to the indictment, the unconstitutionality of the registration law of this city (Findlay), errors committed during the trial, and so on.

If the demurrer to the indictment ought to be sustained, we need not consider the other questions presented by the record.

The prosecution is founded' on sub-division 3 of sec. 2926w, which reads:

• “Whoever falsely and fraudulently obtains registration, as an elector, in any precinct in which he is not a resident and qualified elector, shall be imprisoned in the penitentiary not less than one nor more than three years.”

The indictment charges:

“That Joseph E. Ebbenpowell, late of the county of "Hancock aforesaid, on the 25th day of October, in the year of. our Lord, one- thousand eight hundred and ninety-five, at the county of Hancock, aforesaid, said day being one of the days fixed and authorized by the laws of the state of Ohio for the registration of the electors of the city of Findlay, in said county and state, not then and there being a resident and qualified elector of precinct ‘A’, of the Third ward, of the city of Findlay, Ohio, did appear before the duly appointed, qualified and acting registrars of election in said precinct ‘A’ of the Third ward of said-city of Findlay, and did then and there represent that he, the said Joseph E. Ebbenpowell, was then and there a qualified elector of said precinct‘A’of the Third ward in said city of Findlay, Ohio and then and thereby falsely,fraudulently and unlawfully, did obtain registration as an elector in said precinct ‘A’, of the Third ward of the city of Findlay, in which, then and there he was not a resident and qualified elector, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”

Does this indictment allege facts sufficient to charge a violation of the statute already quoted?

The rule still prevails, that it is necessary to aver in an indictment, each material fact to be established at the trial, —not the evidence to support the facts, but all the material facts necessary to constitute the crime.

Our criminal code has not changed or modified this principle of pleading, so long recognized and enforced. s

In the case of Ellars v. the State, 25 Ohio St. 385, our supreme court has.clearly stated this rule.

On page 388, the court say:

‘‘It is a well settled rule of criminal pleading,that an indictment must aver, with reasonable certainty, all the material facts which are necessary to be proven,, to procure conviction, and this rule has not, in our opinion, been changed by the code of criminal procedure.”

’ The rule is stated in another form when we say, that thi'e purpose of the indictment is to inform the accused of the nature of the offense charged against him, and advise him •of the facts expected to be established a-t> the trial,■ ; • t

' Hence it is that our courts have repeatedly held, that that part of an indictment,wherein the grand-jury makes its general finding as to the guilt of the accused, is simply a conclusion, and, if it is not preceded by sufficient averment of facts to sustain such conclusion, the indictment is bad.

: Looking again at the statute we find that the crime defined, is the falsely and fraudulently obtaining of registration. Each of these qualifying words has significance in the language of the statute, for it implies that there may be registration by mistake, or without any fraudulent purpose or intent. The charge, and the only charge of false representation to the board is, that, he, Ebbenpowell, apoeared before it and “did then and there represent that he, the said Ebbenpowell, was then and there a qualified elector of said precinct ‘A,’ etc.” This is all the representation charged that he made, and it is not charged that it was “falsely and fraudulently’’ made. For aught that appears in the indictment, the representation that he was a qualified elector, might have been honestly made; or, such a representation might be a matter of opinion, for a mere mistake in which a party is not subjected to punishment, It i^ not charged that he told the registrars that he was a resident of the precinct ‘A’,of the third ward,nor is there any other fact given upon which he obtaiued registration.

Let us see who is a qualified elector. His character is defined in section 1, article 5, of the constitution of the state, which is:

“Every male citizen of the United States of the age of •twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward in which he resides, such time as may be provided by law, shall have the qualifications of an elector and be entitled to vote at all elections.’’

¡ Here we have-the several conditions upon which suffrage is based and, of course, upon which the right of registration is also based, ■ What one of these conditions was represented to the registrars, according to the indictment? None. What important or essential fact was represented? Nothing but the statement that he was a qualified elector of that precinct. Subdivisions 2 and 3 of section 2926i of Revised Statutes, prescribe the mode of registration— the making up of the record by questions and answers, and how the same shall be signed by the applicant.

By subdivision 2, it is required that the registrars shall,

“In the presence of the applicant, enter in the registers, his answers to their questions pertinent to the heading of each column, in their order . * * * In the column as to ‘residence’ shall be stated the name of the street, avenue, alley or way in which his dwelling is located, * * and the number of the house if it have one. * * * In the column as to term of residence the periods of years and months of his residence in the precinct and the state must be stated.”

It must appear, also whether the applicant is a native or naturalized citizen. When .all this.information shall have been entered, it must be signed by the applicant.

Now, what one of the representations so entered do we find in this indictment?

Did he represent even, that he was a resident of precinct ‘A’ ? Did he represent anything as to his nativity — whether a citizen of the United States, — whether foreign born, — if so if he had been naturalized? Did he represent his age, or term of residence in the state, county or precinct? On all these things the indictment is silent, and yet their disclosure to the board, are the legal means whereby registration is obtained.

■ With the careful guards placed upon the right to register and vote, and that too, by a record, there is no reason of either public policy or necessity to excuse compliance with the ordinary rules of criminal pleading.

John Poe, E. T. Dunn, W. M. Betts, Attorneys] for Plaintiff in Error.

Theodore Totten, W. BE. Kinder, Attorneys for the State.

On the representation of the accused alone, that he was an elector, he could not have obtained registration, because that would be the expression of a conclusion, or opinion merely. There might well be circumstances where an applicant could, in good faith, make that statement, and yet be mistaken in his judgment, and not liable to a criminal prosecution. This plaintiff in error may have made the false statements which would render him amenable to law, and for which he should answer, but they are not embraced in this indictment. For want of a sufficient indictment, the judgment of the lower court is reversed, and the verdict set aside.

The demurrer to the indictment is sustained, and the prisoner discharged, We have not found it necessary to consider or decide the other questions raised and argued.


text:
    (First Circuit — Hamilton County, O., Circuit Court
    Jan. Term, 1897)
    Before Cox, Smith and Swing, JJ.
    HELEN KEMPER, et al. v. THE VILLAGE OF ST. BERNARD, et al.

      Street Improvement— Holder of perpetual leasehold signing petition for— On forfeiture of lease, lessor not bound for more than 25 per cent of value of property—

    Where a street is improved on the petition of the owners of the property abutting thereon, the signature to such petition by the holder of a perpetual lease-hold in some of the lots abutting on such street, will only bind his interest therein, so far as any excess of the cost over twenty-five per cent, of the value of the lot after the improvement is made is concerned. And where such lessee forfeits his lease for non-payment of rent, the lessor coming again in possession of the lot, is not liable for any such excess of the cost over twenty-five per cent, of the value of the lot. The lessee is not the agent of the lessor for such purposes.

      Error to Court of Common Pleas of Hamilton County.
   Smith, J.

On the hearing of this case but one question was submitted to us for decision, viz: — Whether the lots and lands in the petition described, which had been assessed by the village of St. Bernard for the improvement of certain streets in said village, were now, as against the plaintiffs,the present owners of them, liable to an assessment for more than the one-fourth of the value thereof, severally, after, such improvements were made.

The material facts in the case, briefly staled, are these: The plaintiffs owned the whole thereof, in fee simple,as one tract. They sub-divided the same as an addition to the plat of said village, laying it out into lots and streets, dedicated to the use of the public. After this was done, and before any proceedings were had for the improvement of said streets, the plaintiffs leased the said premises to one Henry Bostwick, for the term of 99 years, renewable forever, and which lease gave him the privilege of the purchase thereof on certain terms. Bostwick, by the terms of the lease, was to pay all taxes and assessments against said property, and such lease was duly executed and recorded, and Bostwick took possession of the premises. Afterwards petitions for the improvement of those several streets, signed by Bostwick and other lot-holders, abutting thereon, (but not by plaintiffs, or either of them,) were presented to the council of the village, praying for the improvement of the streets, as was subsequently done. If the lessee, Bostwick, under the provisions of sec. 2272, Rev. Stats., was the owner of this property for the purpose of signing this petition, and making the assessments binding upon the interest of the plaintiffs in those lots, then the petition was signed by three-fourths of the owners, and the lots were bound for the whole assessment. But if this is not the case', under the subsequent provisions of the same section, as to the plaintiffs,and their interest therein, the assessment is not to exceed 25 per cent, of the value of the lots after the improvement was made.

The improvements were made under these petitions, and the lots in question assessed in the name of Bostwick for the cost thereof. Default was made by Bostwick in the payment of the rent to plaintiffs, and of the assessments, and thereafter the plaintiffs filed their petition in the court of common pleas, making the village a party, asking for the sale of the interest of Bostwick therein, under the lease to pay the rent, taxes and assessments, and the village filed an answer and cross-petition,setting up is lien for the assessments,and praying for the sale of the lease-hold, and the application of the purchase money to the payment of the assessments thereon. Such sale was ordered and a sale of the lease-hold made to the plaintiffs,for the sum of $2,666.67, which sale was duly confirmed and a conveyance of the lease-hold made by the sheriff to the plaintiffs, who thereby became the owners of the whole estate, The proceeds of the sale were applied to the payment of the assessments.

Thereupon the plaintiffs filed their petition in this case, alleging that the remaining assessments were more than 25 per cent, of the value of the lots on which the assessments were made, and seeking to enjoin the collection of all over that amount.

On this state of facts, we are of the opinion that the plaintiffs are entitled to the relief claimed, if it should be made to appear that the residue of said assessments amounts to more than 25 per cent, of the value of the property after •the improvement was made. That the lessee could only represent his own interest therein, and not that of his lessors, and that the lessors were not bound by his act in signing the petition. That his title being shown by the record, the village was bound to take notice of the extent thereof, and that if it desired to have the interest of the lessors in the lots bound for the full amount of the assessment therein, if it exceeded 25 per cent, of the value thereof, that it should have required the petition to be signed by them also. But this was not done. We know of no law which makes the lessee the agent of the lessors for this purpose. And the village having received the full amount which the interest of the lessee sold for, cannot now look to the property of the lessors for more than 25 per cent, of the value of the property to pay the residue of the assessments.

Mr. Gasser, for the Plaintiffs.

. Gorman & Thompson, for the Village.


author: Day, J.

text:
    (Third Circuit — Allen Co., Ohio, Circuit Court
    Nov. Term, 1896.)
    Before Day, Price and Finley, JJ.
    MARY E. COOK v. JEMIMA PROSSER, et al.

      Porrection of mistakes — Power of courts—
    1. Mistakes of whatsoever kind or nature will be corrected and relieved against in courts possessing arid exercising general equity powers and jurisdiction, by decree reforming the instrument or deed into which the mistake has been carried, or otherwise, wnether the transaction in which it occurred, is between private ■ persons, or is a judicial proceeding, whenever it is made clearly manifest, by competent evidence, that a mistake has occurred, that all the parties concerned intended otherwise, and -the probable effect of such mistake will be injury to one of the parties to the transaction, and its correction will do no harm to either, or to innocent third persons.

      Tax title — Burden to prove validity of proceedings on holder—

    •2. An auditor’s deed to a purchaser of lands or lots at a delinquent tax sale, carries with it no presumption of validity. The presumption is to the contrary; and a person asserting the validity ■ of such instrument, and claiming title under it, has the burden of showing the regularity and legality of the proceedings on which it is based, in every minute detail, from the valuation of the property for taxation, to and including, the sale; arid the least irregularity or defect in any of the steps required to be taken, is fatal, and renders-the deed unavailable to cast title.-

      Life tenant, can not acquire title by buying in the estate on lax sale after his delinquency to pay the taxes—
    3. The owner of an estate for life, in possession of lands or lots, who makes default in paying current taxes, so that the lands or lots, become delinquent and are offered for sale at delinquent tax sale cannot enlarge such life estate, or in any way increase such interest, by becoming purchaser at the sale, or by the receipt of a deed therefor from the auditor. Such transaction would be in substance, in fact and law, only the performance of a plain duty ■ in the proper payment of taxes by the ovner.
    Appeal from the Court of Common Pleas of Allen county.-
   Day, J.

The subject matter of controversy in this case,is two lots, No. 30 and 31, in Weyer’s south addition to the town of Lafayette, in Allen county. The action is: 1. To reform several deeds of conveyance of said lots,by correcting a mistake in the description. 2. To procure of the court declaring a certain delinquent tax sale and an auditor’s deed made in pursuance thereof, invalid; and 3. For an order of partition of the said lots between the parties entitled in the proportions set out in the second amended petition. There is also a prayer .that the title of William Hall’s heirs, and all claiming under Hall, be quieted as against Jacob Kohler, as guardian of the Ruchti heirs, and the Ruchti heirs, who are named and made parties defendant to the action.

There is practically no dispute as to the facts. In the beginning of the transaction, title to lots 30 and 31, w,as in the Ruchti heirs,and Jacob Kohler was their guardian,duly qualified and acting. He filed a petition in the probate court of Allen county, properly describing the lots, and on proper grounds, asked an order to sell them. ■ An order of sale was duly made by that court, and in which the lots were ■ also correctly described. A sale 'was duly made, in pursuance of the order, to one John Monahan, reported to-the court, approved and a deed ordered and. made to’ the purchaser. Soon thereafter, Monahan sold and conveyed the lots to William Hall, who was put in possession, and improved and occupied them until his death. In making the return of sale to Monahan, the guardian, through inadvertance and mistake, failed and omitted to correctly describe the lots, but left out the essential words: in Weyer’s south addition. The same error crept into the deed to Monahan, the purchaser, and also was carried into the deed from Monahan to Hall. Hall died testate. By the provisions of his will, an estate for life was vested in his widow, Clarinda Hall, with remainderr to his heir-at-law. Clarinda accepted the provisions of the will, and occupied the lots until her death in 1892. Prior to 1889, the life tenant failed to pay the taxes on said lots,and allowed them to become delinquent; and at a sale by the constituted authorities, on account of such delinquency, in 1889, she, herself, became purchaser, paid the taxes, penalty and interest then due, and received from the auditor, a (leed for said lots as such purchaser. Later she conveyed the lots to defendant, Jemmia Prosser, who now claims title by virtue of the tax sale and deed.

If the delinquent tax sale and deed was invalid to cast title,then all the parties defendant, except the Ruchti heirs, are interested in having the conveyances from Kohler, guardian, to Monahan, and from Monahan to William Hall, .reformed so as to convey the real estate intended; for, barring the claim of title through the delinquent tax sale and deed,all the parties, both plaintiff and defendant, except the Ruchti heirs, derive whatever of title or interest they may have from Wm. Hall, deceased; and a correction of the error in description contained in the deeds to Hall and his grantor, Monahan, would' seenx to be necessary to entitle them to the relief they seek, as against the Ruchti heirs.

Counsel for the Ruchti heirs seem to make the claim, that a reformation of the guardian’s deed cannot be made in this proceeding; that the said deed cannot be corrected, in the matter of description, without first correcting the guardian’s return of the sale; and that can only be. done in the probate court, where the original proceeding was had. If this action was, alone, to correct the'record of the probate court in the matter of the return of the sale, and neither fraud or manifest mistake was made to appear, perhaps the claim would have to be allowed; but this is not an action so limited. It is very much broader than that, and includes subjects and matters touching, which there is a demand for relief that can' only be afforded in a court possessing and exercising general equity powers and jurisdiction — powers and jurisdiction not possessed or exercised by the probate courts of this state, as now constituted. The court of common pleas, and this court on appeal, has such power and jurisdiction in ample form;' and that this court, in this case', is fully authorized and empowered tocorrect mistakes,adjudicate the validity or invalidity of delinquent tax deeds, and make, or cause to be made, partition, of real estate between tenants in common, admits of no contention. This is clear, and we think it is equally clear, that ihe relief prayed for in the petition, — correction of the description in the Monahan-Hall deeds, — ought to be granted on the undisputed fact. It may be stated, as a general rule, that mistakes of whatsoever kind or nature, will, by courts possessing and exercising general equity powers and jurisdiction,be corrected'and relieved against, by a decree ordering the reformation of an instrument' or deed into which the error or mistake has crept, whether the transaction in which the mistake occurs, is between private persons or is a judicial proceeding, whenever it is clearly manifest that a mistake has been made ; that all parties concerned intended otherwise, and that the' probable effect of the mistake, will be an injury to one' of the parties interested, and its correction will be no wrong*"to either. The evidence is clear, and all to the purport and effect that a mistake was made by the guardian, onlyj iff the return of the sale, and in the-deed to Monahan, in the matter of description of the lots sold. With this single exception, the entire proceeding and sale was regular and correct. It was a good faitfy proceeding, under the provisions of law, by a guardian to effect a sale of his ward’s property, for the benefit of the wa'rd. The wards had title to lots 30 and 31, in Weyer’s soüth addition to LaFayette; - and the prayer, which the court, granted, was for an order to sell these two lots, and nohé other. The two lots were correctly described in the petition, and in the advertisement; and with the understanding ’that they were correctly described,Monahan became the purchaser and paid the price agreed upon. He purchased, in good faith, lots 30 and 31, in' Weyer’s south addition to LaFayette. The court approved the sale and ordered that a proper deed be made to the purchaser for the lots so purchased^ which the guardian undertook to execute and deliver, and only failed because of an intervening mistake in writing the description, This we hold, both in law and equity, was sufficient and effectual to divest the Ruchti heirs of their -title and to vest it in Monahan; and such clearly was the intention of all the ■parties to the proceeding and sale in the probate court.

.The omission in the description .was a mutual mistake or over-sight by all the parties, that should of right be corrected. Not to correct it, would . prbbably entail loss on one •of’ the interested parties in the ’transaction; and to correct it, will do no wrong to the other-party, or to any person. The incomplete description, perpetrated by the guardian in the deed to Monahan, was inadvertently copied into the deed to Wm. Hall, under such, circumstances as to make a mutual mistake in the description in that instrument also, and requiring that a correction bfe’made in the interest of justice; and there may be entered' a decree reforming the 'deeds in accordance with the prayer of the petition.

In the event partition is to be-made, there is no controversy as to the portion® each party is entitled to receive. The proportions stated in the second amended petition, is conceded to be correct, and partition, if ordered, will be in accordance[therewith.

If the proposition as to the rights of the Ruchti heirs is correctly¡.disposed of, the only other obstacle to a partition of]the¡lots 30 and 31,is the claim of title asserted by Jemima Prosser, in virtue of the delinquent tax sale and deed to the tenant for life, Olarinda Hall,widow of Wm. Hall,deceased, and [so] the only remaining question for consideration and decision, is, as to^the validity or invalidity of the auditor’s delinquent tax deed.

An auditor’s deed for lands, based on a sale made by that officer,on account of a delinquency of the owner in the payment of taxes, carries with it no presumption as to its validity and effectiveness in conveying title to the purchaser. Indeed,] it might, with utmost propriety, be said the presumption, if there is any raised, is against the validity of such conveyance. A party asserting the validity and claiming title under such an instrument, has the burden of showing the regularity and legality of the proceeding resulting in the sale[and conveyance, in every minute detail, from the valuation of the property for taxation to the last act in the drama, that of the sale. The least irregularity, or defect, is fatal and destroys the usefulness of the instrument as a means of casting title. If this statement is correct, it becomes very clear that the claim of tide through the delinquent tax sale and auditor’s deed to Olarinda Hall, in this case, has no solid basis upon which to rest; at least, such basis has not been made to appear by any competent evidence. Indeed, no effort at all was made to show the regularity or legality of the proceeding, and the claim was left to fall of its own weight

We might with entire propriety base our finding of tne invalidity of the tax deed upon this ground alone, and so 'decide the case; but our conclusion can as well be based upon another ground, equally as strong and incontrovertible. The owner of the two lots,- Wm, Hall, died testaté'. By the provision of his will, Clarinda Hall, his widow, became seized of an estate for life and in possession of the property in question. As such life tenant, it was incumbent on her to pay the current taxes, and her estate for life,under the law, became forfeit, in the event of a valid sale for nonpayment of taxes, or for waste. So it was her duty to pay the current taxes and keep the estate free from sale on account of non-payment of taxes, else it became forfeit in the interest of the reversioners; and in paying the taxes and penalty, although done in the guise and form of a purchaser at a delinquent sale, still she was only discharging a plain duty, and preserving her own interest by paying her taxes. Only this, and nothing more. She was not acquiring a new and independent title, but was only saving from forfeiture the estate she already had. She could not be allowed, as against the remainder-man, and for her own benefit,to avail herself of her own laches and wrong, to convert a limited estate for life into' an absolute estate in fee. So, from any point of view, we are unable to hold that the auditor’s deed to Mrs. Hall was.effectual to cast on her anjy added title or interest to the lots, but only to preserve, intacj:, the estate for life which came to her by the will of her deceased husband. *

Smith, Ridenour & Half hill, for Plaintiffs.

Prophet & Eastman, for Defendants,

There may be entered a decree in accordance with t¿e findings herein, and an order of partition may be issued, and made returnable to the common pleas court,, in the proportions stated in the second amended petition. .