author: Price, J.

text:
    (Sixth Circuit—Wood Co., O., Circuit Court
    Nov. Term. 1895.)
    Before Haynes, Scribner and Price, JJ.
    (Judge Price, of the Third Circuit, taking the place of Judge King.)
    JACOB STAHL, SAMUEL KNIGHT and JAMES GIBSON, Commissioners of Wood County, Ohio v. THE STATE OF OHIO.

      Misconduct in office — Sufficiency of indictment — Plea in abatement considered — Sections 5111 and 5112 Revised Statutes not repealed —Soliciting a bribe — Forfeiture of office on conviction — Charge of the court.

    Error to the Court of Common Pleas of Wood County.
   Price, J.

At the February term of the Court of Common Pleas of Wood county, Ohio, for the term year 1895, the grand jury presented an indictment against the plaintiffs in error charging them with official misconduct in office as commissioners of said county. Certain acts and proceedings were done and had by the commissioners in the discharge of their official duties which are charged in the indictment as official misconduct.

The prosecution is founded on section C915 of Revised Statutes, which reads as follows: “Whoever, being a county commissioner, is guilty of any misconduct in office, shall be fined not more than four hundred dollars, and forfeit his office. ’ ’

The accused parties each entered a plea of not guilty, and in June, 1895, were brought to trial and found guilty by a jury. A motion-for a new trial was overruled, as was also a motion in arrest of judgment. Jacob Stahl was adjudged to pay a fine of $100, and as his term of office had before that time expired, no forfeiture of office was adjudged. Each of the other defendants were fined $100 and his office declared forfeited.

Exceptions were taken from the first to last in the course of the trial, and error is prosecuted to reverse the judgment .of the lower court to obtain a new trial.

When arraigned, the defendants filed their motion to quash the indictment. That was overruled, and they filed a plea in abatement which was held bad on demurrer, and then they demurred to the indictment. The court; overruled the demurrer, and exceptions were taken to these several rulings.

Inasmuch as counsel argued the same objections to the indictment in support of both the motion to quash the indictment and the demurrer, we will pass upon them together,as both seem intended to raise the same questions, suggesting, however, that as to an objection reaching to the substance of the indictment, a demurrer is the proper pleading.

The first count in the indictment is as follows:

,!The jurors of the grand jury of the state of Ohio, within and for the body of this county of Wood,impaneled,sworn,and charged to inquire of crimes and offenses committed within the said county of Wood, in the name and by the authority of the state of Ohio,on their oaths, do find and present, that Jacob Stahl, Samuel Knight and James Gibson, late of said county, on the 3rd day of May, in the year of our Lord, one thousand eight hundred and ninety three, in said county of Wood and state of Ohio, were then and there the county commissioners in and for said county, having been duly and legally elected and duly qualified to perform the duties of said office of county commissioners, during the term of office to which they had been severally elected as aforesaid; that said Jacob Stahl, Samuel Knight and James Gibson had for a long time before said 3rd day of May, 1893, been and for a long time thereafter, continued to be the county commissioners in and for said county, duly elected and qualified as aforesaid. And the said Samuel Knight and James Gibson still continue to be. and now are county commissioners in and for said county, and are acting in that official capacity. That said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said Wood county, Ohio, acting in their said official capacity, did on said 3rd day of May, 1893, resolve upon and declare their intention to erect a new court house in and for said county of Wood and state of Ohio, under and by virtue of the provisions of an act of the General Assembly of the state of Ohio, entitled ‘An act to authorize the commissioners of Wood county, Ohio, to build a court house”.
Which said act was passed and took effect on the 2nd day of February, A. D. 1893.
‘.‘That thereupon, on said 3rd day of May, A. D., 1893, said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said county as aforesaid, did unlawfully, willfully, knowingly and corruptly make and enter into a certain ■ contract with a partnership, then and there doing business under the firm name and style of Yost & Packard, whereby they employed the said Yost & Packard to make the plans and specifications for and supervise the erection of said new court house. That prior to said last named date, to-wit; on the 28th day of February, A. D. 1893, the judges of the circuit court, in and for said county of Wood and state of Ohio, had duly and legally appointed Earl W. Merry, Frank A. Baldwin, Edward B. Beverstock and John Ault, as the ‘Building Committee’ under and in accordance with the provisions of the aforesaid act of the General Assembly of the state of Ohio, to act and vote with the aforesaid county commissioners in procuring, making and approving plans, estimates and specifications for said court house, and in determining all questions in connection with the erection of said court house, all of which the said Jacob Stahl, Samuel Knight, and James Gibson, then and there well knew; but, they, the said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said county as aforesaid, unlawfully, knowingly, willfully and corruptly failled, neglected, omitted aud refused to act with the aforesaid building committee in the procuring of said plans aud specifications for said court house, and unlawfully, knowingly, willfully and corruptly refused to permit the aforeáaid building committee to act with or to vote with them the said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said county as aforesaid, in procuring the said plans and specifications for said court house and in making the aforesaid contract therefor, and unlawfully, knowingly, willfully and corruptly prevented the aforesaid building committee from, in any manner, acting or voting or participating in the procuring of said plans and specifications for said court house and in providing for the supervision of the erection thereof.
“And they, the said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners as aforesaid, in the manner and by the means hereinbefore stated, and without the co-operation therein by the aforesaid building committee, did unlawfully, knowingljq willfully and corruptly make and enter into the aforesaid contract with said firm of Yost & Packard, and cause the aforesaid plans and specifications for said court- house to be made by said firm of Yost & Packard, and did commence and proceed with the erection of said court house, and did cause the work of the erection and construction of said court house to be done under the supervision of said firm of Yost & Packard.
“And so the jurors aforesaid, on their oaths aforesaid, do find and say that the said Jacob Stahl, Samuel Knight and James Gibson, being county commissioners as aforesaid, are guilty of misconduct in office, in the manner and form aforesaid,contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”

The only objection urged in argument to this court to the indictment was the want of an allegation of venue; that in no part of the indictment which described the body of the crime, is there an allegation of the county in which the unlawful acts of the commissioners are alleged to have taken place.

The general rule of criminal pleading is very familiar, that an indictment, as one of its essential features, must contain the averment of time and place, and having once been properly plead in that regard, that the use of the words “then and there” as to each subsequent fact, will be a sufficient averment of time and place.

If the state had taken the slight precaution to have written in this indictment these three little words, “then and there,” in one or two places in their proper connection, it would have relieved the court of a great deal of labor and embarrassment in coming to its conclusion.

The indictment does allege that these parties were the duly elected qualified and acting county commissioners of Wood county, and alleges that in some place — not, naming the place — on the 3rd day of May, 1893, they passed a resolution to erect a court house under the provisions of the special act set out in the indictment and which -was passed in 1893. It alleges that they willfully, unlawfully, corruptly, and in violation of the provisions of the special act, entered into a contract with Yost & Packard, architects, and, that afterwards they unlawfully, willfully and corruptly refused permission to the building committee to participate in the selection of the plans and specifications and the employment of an architect to supervise the building. There is in these averments no reference to the county and place where their contract took' place, except as we may refer back to the county in which they were elected and were serving and discharging their duties.

Is the indictment sufficient, under the averments, as to the place or venue? It is urged, on the part of the state, that this omission is cured by a provision of the Criminal Code, which provides, in substance, that the indictment shall not be considered defective for want of an allegation of time and place where they have once been stated. See section 7215, Revised Statutes. The intention of the legislature, no doubt, was to cure a great many of the technicalities which had long pertained at common law pleading and practice in criminal cases, and afford relief against rules of procedure which had become, in many instances, a burden to the state and a means for the guilty, in some instances, to escape justice. But speaking for myself, and myself alone, if the case stood simply upon that section, I would doubt whether the indictment is sufficient as to venue. But there are other provisions of the statute which necessarily must have their bearing when we come to construe the indictment. The indictment charges, that the defendants, on the 3rd day of May, 1893, were the duly elected, qualified and acting commissioners of Wood county, Ohio, and that as such commissioners, they did, on the 3rd day of May, 1893, unlawfully, willfully and corruptly. enter into a contract with Yost & Packard, architects, etc., and .that they refused to allow the building committee, appointed under the fifth section of the Special Act, to participate with them, etc. Why is it necessary that an indictment should contain an allegation of place or venue, in describing the offense? First- — That the court may know by inspection of the indictment whether it has jurisdiction or not. Second — That the accused may be advised, when he pleads, of the place or county at which it is expected to be shown he committed the crime.

There is but one place under the law where the public business of this county of Wood can be transacted.

Section 846 of the Revised Statutes reads: “There shall be four regular sessions of the commissioners each year, in their office at the county seat, commencing respectively, on the first Monday of March, June, September and December, at each of which meetings they shall transact such business as is required of them by law.”

The next section provides that a majority of the board shall constitute a quorum. Section 848 provides how they shall organize.

Section 849 reads: “All the proceedings of the board shall be public at the office of the auditor, or ‘the usual office of the commissioners, and not elsewhere, and its proceedings shall, as far as possible, be in conformity with the rules of parliamentary law.”

In addition to the curing effect of the section referred to in the Criminal Code, it appears, by express provision of law, that there is but one place where the county commissioners can. transact their public business, which must be done at the office of the auditor or the usual office of the commissioners, and not elsewhere, and the indictment proceeds to allege that these defendants were the duly elected and qualified county commissioners of Wood county, and were serving as such at the time of committing of the alleged offense, and by every reasonable rule of construction, that means in this county. The only place where the things complained of could be done and transacted was in Wood county. In view of the foregoing sections, we conclude the court was informed by the face of the indictment, as to its jurisdiction, and that the accused was informed of the county where the offense was committed.

Such an averment of time and place in the indictment in the preliminary history of the offense is sufficient, and the demurrer was properly overruled.

The defendants below next filed a plea in abatement. The statute provides what questions may be raised by a plea in abatement. Section 7251 reads: '“A plea in abatement may be made when there is a defect in the record, which is shown by facts extrinsic thereto.”

Now in the light of that provision we find that the first ground for the plea to be this: “Because after said grand jury was impaneled, one of the members thereof, i. e. John Rex, was excused by the court without lawful cause and solely to make room on said grand jury for Thomas F. Conley, then and now the official reporter of the court, he being more acceptable to the prosecution than said John Rex, and said John Rex was solicited and prevailed upon by the prosecuting attorney and others forwarding this prosecution before the grand jury, to surrender his place on said grand jury to said Thomas F. Conley, and because said Thomas F. Conley, who served as one of said grand jury, which found and returned said indictment, was not summoned or selected as a grand juror, as required by law, and said Thomas F. Conley was not legally, qualified to act as one of said grand iury-;’

There is also a similar ground alleged in this plea as to other talesmen who were placed upon this grand jury, and it is claimed that inasmuch as the legislature, at its last session, passed a law making a different and new system of drawing and securing grand and petit jurors, that' the statute authorizing the court to fill the panel from bystanders or by talesmen has been repealed by implication.

Taking these questions, contained in this plea as to impaneling the grand jury all together, we proceed to notice wliat there is in this claim of repeal by implication of the sections which authorizes the court to fill the panel.

Section 7 of the act of 1894,provides that “sections 5168, 5164, 5165 and 5166 of the Revised Statutes, are hereby repealed. This act shall not be so construed as to affect any jury already drawn for the terms of courts about to be in session when the first selection shall be made thereunder.”

' These sections, which are expressly repealed, are a part of a series of sections upon the same subject, and to ascertain the intention of the legislature, it is perhaps well enough to see the location that these sections occupy in the statute. (See Ohio Laws of 1894). Section 5162 of the Revised Statutes, provides for the number and selection of jurors in common pleas court, how that number is ascertained by the clerk, and regulates his conduct with reference to certifying that number to the trustees of the various townships, etc. Section 5168 provided when and how they are to be apportioned throughout the county. Section 5164 provided for the selection of jurors by the trustees. Section 5165 provided for failure to return proper lists, and section 5166 provided for the selection of additional jurors. These, I say, were expressly repealed, leaving section 5162, standing as it is in the Revised Statutes, also section 5167, as to drawing grand and petit jurors; and section 5168 providiug for drawing jurors for a special term of the common pleas and for circuit court still remains. Section 5169 relates to service and return of the venire; 5170 to name of juror dravm but excused, to be returned to box; 5171, when talesmen are to be summoned; 5172, special venire, and 5178, when venire for talesmen to issue; 5174, special venire when sheriff is a party. Now, can it be fairly claimed that because a new system of drawing and furnishing petit and grand jurors has been made by the statute of 1894, that necessarily and by implication, the whole act; embodied in the Revised Statutes regulating the selection and impaneling of petit and grand jurors has been repealed? There has been settled in Ohio, if anything has been settled, by a long course' of decisions, the doctrine that repeals by implication are-never favored. In the case of Heirs of Ludlow v. Johnson, 3rd Ohio Report, page 565, the court say:

“The law in question is not expressly repealed by the last cited act. If repealed at all, it is done by implication. When the provisions of two statutes are so far inconsistent with each other that both cannot be enforced, the latter must prevail. But, if by any fair course of reasoning, the two can be reconciled, both shall stand. When the legislature intend to repeal a statute, we may, as a general rule, expect them to do it in express terms, or by the use of word& which are equivalent to an express repeal. No court will, if it can be consistently avoided, determine that a statute is repealed by implication.”

Also, see the case of The State v. The Commissioners of Franklin County in 20th Ohio State Reports, at page 421. The court, in its opinion on page 424, say:

“The rules for the construction of statutes in cases of this kind have been announced frequently by the court, namely: That the doctrine of statutory repeals by implication is not favored, and that such repeals will not be declared unless they are necessarily implied. And that statutes in pari materia should be construed so as to give effect to all their provisions, and if they can be construed so as to stand well together, there is no repeal by implication.”

In the 22nd Ohio St.. at page 508, the court on page 515 ■ say:

“In thus holding we adopt and approve the principle of the rule laid down in other cases, to-wit: That a subsequent statute, treating a subject in general terms, and not expressly contradicting the provisions of a prior act, shall not be considered as intended to affect the more particular and positive provisions of the prior act, unless it be absolutely necessary to do so in order to give its words any meaning.”

These sections not expressly repealed, especially sections .5170 and 5171, authorizing the court to fill the panel by calling bystanders, were intended to provide for an emergency. It was stated by counsel in argument that in Cincinnati, Columbus and elsewhere, since this statute has gone into effect, it has been the practice in those courts to draw by the use of the wheel; but that would simply prove a practice, and does not, in any way, strengthen the position that these sections are repealed by implication.

To illustrate the predicament that a court might be in: Suppose from sickness or some other cause there should be several vacancies in the panel — either grand or petit jurors. If we vgo by the new law as the only method of filling the vacancies, the proper officer is to use the wheel to ascertain the names of persons who are to be summoned; a venire must issue for the parties who may reside in remote parts of the county, and it would take a number of days before the number of jurors could be brought into court, under the new statute. This is one reason why the legislature would leave the other provisions to remain, to provide for such an emergency. The administration of justice might stop for several days if there was no such relief.

There is no question in our minds but what the sections referred to are still in force,and that the-court had the power to fill the vacancies from the bystanders.

These sections can operate harmoniously with the new system, and were intended to stand as a part of the jury law.

There is no fact in the plea reaching to the disqualification of the parties placed on the grand jury by order of the court. The plea says they were not duly qualified; but for what reason? By reason of non-residence, mental disqualifications, or what? It pleads a legal conclusion, and so on through the entire claim made upon that subject. It states that “B. L. Peters and John Lee, two of the grand jurors regularly chosen and summoned to serve upon said grand jury, were not in any way disqualified from serving thereon, and that they were without lawful reason wrongfully excused.” The record shows that the court, for some reason, did excuse Mr. Peters and Mr. Lee. It is fair in a reviewing court, looking to the action of an inferior court, and it is a rule of law, to presume that there is some good reason existing for the action of the court in thus putting other parties on the grand jury, and it would lead to a very peculiar investigation if the court, under such a plea as this, would go into the motives of the presiding judge for calling in other persons to take their seats on the grand jury. It will be presumed, in the absence of facts appearing to the contrary, that there were proper reasons existing to excuse a member, of the jury and fill his place with another.

There is another ground in this plea: That the indictment is insufficient in law to charge the defendants with a crime. That is not a proper part of a plea in abatement. It is a question to be raised by motion to quash, or by demurrer.

It further sets out at great length the charge that the court gave at the time this grand jury was impaneled and put in charge of this particular investigation. The judge delivered quite an extensive address of a some what inflammatory nature which, it is urged, tended to bias the grand jury in favor of an indictment. We will not take time to read this extended charge, if it can be so called, given by tire court to the grand jury. We infer from the language that the court was wrought up to a very high degree of righteous indignation by what had occurred,and if the language is somewhat florid, and some of it might not be approved if the. members of this court were called upon to criticize it, yet is a matter that cannot avail here.

There are a number of offenses that are by statute made the subject of a special charge to the grand jury,and outside of that we know of no statute that requires the court to give a charge except in defining the character of such offenses as may be brought into court on transcript, or may otherwise come to his knowledge. This charge is not a proper matter of record. It cannot be reached by a plea in abatement. What effect, i£ any, the remarks of the judge had upon the grand jury we do not know, and it is not our province to inquire. These parties had no standing in court as yet, and the good men and true that we presume were selected for the service of grand jurors, under their oaths could do that duty irrespective of any remarks that might be made tending to prejudice their minds.

The plea contains other grounds,but they go to contradict the record, and the rule is elementary and well settled, that a plea in abatement which contradicts the record is bad on demurrer. See case of Turk v. The State of Ohio, 7 Ohio Reports, page 240. The demurrer to this plea was properly sustained.

The next important question in the progress of the trial is raised on the admission of testimony, and I may say here that nearly all the questions propounded by the state were objected to.

Counsel for the defendants were diligent and persistent in making all possible objections and taking exceptions.

The exceptions, save the main one, which I will refer to, go to the question as to whether there ought to be any of the evidence of the character offered, go to the jury, viz: they objected to any evidence as to the county' commissioners refusing to co-operate with the building committee, and the refusal to allow them to vote and to participate in the employment of the architect. If these objections are well taken, of course the state of Ohio would have no case in any sense against the defendants, for that class of evidence was essential to make out one against them. But there is an objection to what we will call for convenience, the “Weary” evidence — objection being made to the testimony given' by a Mr. F. A. Weary, of Akron, Ohio. He testified that on the 8th day of April, 1893, a little less than a month prior to the making of the contract with Yost & Packard, the defendants, Knight and Gibson, came to Akron, and at the Empire House one of them made the proposition that they would award to him the contract for the architectural work if he would pay a consideration of $1,500 a piece to them. He further testifies that after the conversation at the hotel, they repaired to his office, and there, Gibson and Knight, both being present, it -was suggested by Gibson to Mr. Weary that he, Gibson, thought that Knight had been entirely too modest; that they would have to have $3,000 apiece before they would award him the contract.

An objection was made to this evidence, but it was admitted, and this ruling presents a serious and important question. As to Stahl, this evidence was clearly inadmissible, as he was not present on either occasion, and of this I will speak later on in this opinion.

It was admitted as against all the defendants. The question as to Gibson and Knight is, was the evidence competent. It must be born in mind that the gist of this charge, is that the county commissioners, willfully, unlawfully and corruptly made this contract with Yost & Packard. Again, in tlie indictment, it is charged in substance, that they willfully, corruptly and unlawfully, in violation of section 5 of the special act authorizing the erection of a court house, refused to allow the building committee to vote with them; refused to allow them to participate, and, in short, charging them with such conduct as would render nugatory and ineffective that provision of the special act. That being the character of the charge, and a motive is to be sought for so doing, if an intent is to be discovered for their action, is this evidence competent? The conversation is laid as of the 8th of April, something less than a month before the contract was made. Suppose that it had occurred, that, after they had left Akron, these two county commissioners had gone to Cleveland to visit an architect, and had made a similar proposition to him, and then they had gone to Cincinnati and made a similar proposition there, and had gone to Toledo on a subsequent date between the 8th of April and the 3rd of May and made a similar proposition, so that on their rounds from place to place they offered repeated inctueements for their own personal emolument in attempting to make the contract — repeated efforts to obtain a bribe, and which the State was able to show — then could any one claim reasonably that such evidence is not competent to fix the motive, especially where it is charged that the motive was unlawful and corrupt? We think the State would be entitled to make such showing. That while it might not be essentially necessary to sustain the indictment in this case that a corrupt motive should exist, yet, if the state can show, and ■offers to show it, the proof is competent. If it was competent in the case I have supposed, and the offer in -this case was shortly before the letting of the contract, does it render the evidence incompetent because the State has only furnished one instance where the offer to accept a bribe was made? A single transaction would be competent. The ■weight would be greater if the act had been repeated more than once, but it does not detract from the rule of evidence that it only occurred on one occasion. Such evidence would tend to show a motive in the minds of the commissioners for desiring the seclusion of their own number rather than the company of the building committee.

We have carefully noted and examined the cases and -other authorities cited by counsel for plaintiffs in error, and have carried our investigation still further, and we think numerous authorities which we have examined justify this kind of testimony as against. Knight and Gibson, and without further discussing this branch of the case, we hold there was no error in admitting that testimony as to Knight and Gibson.

It is said also that the court erred in his charge. We have carefully read and re-read his charge,and if the closing part of the charge is correct, the balance cannot be questioned. This paragraph, with others, was excepted to at the time, and this presents the question .directly, and no doubt it was considered necessary by the trial court to lay down as clearly as possible what the rule should be in the case on trial. The court says: “It has been properly said, and as applicable to cases of this character to establish an evil and corrupt motive, it is not necessary that a person should have acted from a pecuniary consideration alone. If a law which charges a duty upon a public officer, is disobeyed and violated by him, from passion or prejudice, or from a spirit of willful improper opposition, that is just as corrupt as if he had in violation of existing law acted from a money consideration.'-'' That was the highest ground taken by the court, and if that is not error we see no error in the balance of the charge. We can understand very readily that it was a difficult question for he court to define, and it was a difficult thing to lay down the rule in such language as would enable the jury to fully comprehend what acts or omissions of the accused would come within the inhibition of the statute for the violation of which they were on trial.

It has been said that it was necessary to allege in an indictment for misconduct that the conduct was corrupt. If that be so, it was necessary to make some definition of the. place which the word “corrupt” occupied in the indictment. Now, if the parties knowing the requirements of the Special Act, read it, studied it, and fully comprehended its meaning, scope and purpose,and the object sought to be obtained by it; if so knowing, they refused to obey it and bluntly said, we will not obey the law and will not be governed by its provisions; if as sworn officers acting under oath and who ■were charged by the first section of this Special Act with the responsibility of erecting the court house, they set themselves up in defiance of and determined opposition to the requirements of the statute, the court could properly then say that such unreasonable opposition, such bias or prejudice, such stubborn disposition to disobey the law and ignore it, and ignore the part that the circuit court of the county was required to take in the matter, would be a corrupt act, although no money consideration therefor is shown. We think there is no error in the court so defining the offense. We find there is no error in the charge, and as to the special requests asked by the defendants, we simply say that we find almost literally the language of these special requests carried into the body of the charge.

There was a motion for a new trial, one of the grounds of which was that there was misconduct of two of the jurymen. There was some evidence given by the defendants that perhaps would not be admissible if properly objected to, but reading it all over, the jurors fairly met the case that was made against them of their misconduct and we think the defendants entirely failed to sustain that motion.

If what we say is true about the attitude that the county commissioners admit in their own evidence they showed toward the building committee, especially if it is true as disclosed by the evidence given by the State, were the jury justified in their verdict as against Knight and Gibson? Repeating again, that the charge is that they willfully, corruptly and unlawfully made a contract with Yost & Packard; that they willfully, corruptly and unlawfully refused to permit the building committee, appointed by the circuit court, to vote with them as they were authorized by section 5 of the Special Act; then if it was true that they knowingly, persistently and stubbornly stood out as against the operation of that act, were the jury right in their verdict? We think there was ample evidence to justify the finding as against Knight and Gibson, and that the verdict is sustained by the evidence. That brings us then to notice the attitude that Jacob Stahl occupied in the case. The court admitted the disclosures of Mr. Weary as against them all. It is conceded by all that Stahl was not in Akron, and there is not a- circumstance to show that he was in any degree or manner a party to the temptation that was offered to Mr. Weary by these men. There is no link in the evidence by which Stahl was connected with that temptation. It is true the commissioners, Knight and Gibson, deny making such a proposition, and they bring a man byname of Stanley,who testified that he was present and heard all the conversation that passed between them, and there was no such thing said; yet the jury may have believed, and they have the right to believe, one credible witness against several, but as to Stahl, it was admitted, as we have remarked, without any qualification that he was not present, and in the later stages of the case there was no instruction as to how the jury should weigh this evidence as to Stahl. It is very evident that the jury believed the testimony of Mr. Weary, and it had an important bearingin coming to their conclusion, so that under the circumstances of the case, we conclude that as to Jacob Stahl, the sentence of the court should be and is reversed, and the verdict should be and is set aside, and as to him the case is remanded for a new trial and further proceedings according to law. As to Knight: subsequent to the expiration of his term, owing to an amendment of the statute, he was appointed by the proper officers to fill a vacancy, and he held the office of county commissioner by this appointment at the time of trial and sentence. The court fined him $100, and entered a judgment of forfeiture of his office. „ We think that was error so far as the forfeiture of office is concerned. The conviction and sentence under this statute does not disfranchise a man, and does not render him ineligible to hold office, and his constituents, if there had been enough of them, could have elected him as his own successor. We think the court had no right to disturb the office he was holding by said appointment. The purpose of the statute is to break the tenure of the office which the guilty party held at the time he committed the offense and thus terminate his official power. If, by some law, county officers have the authority to filUa vacancy, we do not believe the court had the power to forfeit the office acquired by such appointment.

B. S. Parker and Cyrus Hiding, for plaintiff in error.

A. B. Murphy Pros. Att’y and P. A. Baldwin, Alt’ys for State.

That part of the judgment will be reversed as to Knight, leaving the judgment as to the fine standing against him, and the judgment in other respects is affirmed as to Knight and Gibson.


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    (Second Circuit—Darke Co., O., Circuit Court
    May Term, 1895.)
    Before Shearer, Summers and Bussell, JJ.
    (Russell, J., of the Fourth Circuit, taking the place of Allread, J.)
    STATE ex rel. v. BOARD OF EDUCATION OF VAN BUREN T’p.
    1. An injunction will not be granted to prevent a board of education from applying money in its treasury from taxes levied to build a school house to the refunding of money by it borrowed in anticipation of such taxes and used for such purpose, and in. the mode which it lawfully might have used the money arising from such taxes.
    2. The prosecuting attorney, in his official capacity, has no authority to bring suit for such injunction.
   Summers, J.

This suit was brought in the Court of Common Pleas of Darke county by the prosecuting attorney of that county, in the name of the state on the relation of himself as such officer agaiixst the defendant, above named, the board of education of one of the townships of said county, the treasurer of said township and board, and the Farmers’ National Bank of Greenville, O. The averments of the amended petition are, in substance, that the board, in order to provide means to rebuild and furnish a school house in sub-district number five of that township, in August, 1894, executed and delivered to the defendant bank a bond for seven hundred dollars, a copy of which is set cut; that the question of levying taxes and issuing bonds in anticipation thereof for the purpose of building said school house, never had been submitted to a vote of the electors of the township; that said board, between the third Monday in April and the first Monday in June of that year, had estimated and levied the entire amount of money necessary to be levied for said year for all purposes, and that said levy amounted to seven mills on the dollar, etc.; that the board bad made no estimate of the amount of money necessary to build said building and no levy to provide means for the payment of the bond, and that the bond was issued without any compliance whatever with section 3991 of the Revised Statutes, as amended; that the board was without authority to issue and deliver the bond, and that it was illegal and void, and constituted no valid or binding obligation of the board; and that the board, unless enjoined, would misappropriate and misapply the public funds and moneys of said township school district to the payment of the amount due on said bond, contrary to, in violation of and in contravention of the laws of the state. The second cause of action is the same, except that it is on a bond for the same amount, falling due six months later, and an injunction was prayed for.

A demurrer was filed and overruled, and answers were then filed, averring in substance that the school house for said sub-district, having been closed on account of being unsafe, the board decided to build a new one; that plans and specifications were prepared, bids advertised for, and the contract let as provided by law; that to provide the means to pay for the building and to furnish it, the board had included in the levy, which it had made for that year, and which ■did not exceed the rate allowed by law, the sum of eighteen hundred dollars; that the board, at a regular meeting, had decided that it was a matter of urgent necessity that the building should be erected without delay and in time for the use of said sub-district within the coming school year, and •that in order to accomplish this it would be necessary to borrow fourteen hundred dollars in anticipation of the amount which had been levied for that purpose; that the •fourteen hundred dollars were obtained from the defendant bank, upon the bonds set out in the petition; that the building had been completed according to contract to the satisfaction of the board and the taxpayers of said district; that the same had been accepted by the board in October, and then was, and ever since had been, in use for school purposes; that the money so obtained from the bank had been used for paying for said school house and for no other purpose; that in obtaining said money upon said bonds in anticipation of taxes, the board had acted in good faith, to the best interests of the district, and in accordance with a custom which had not theretofore and was not then questioned by the taxpayers of said district; that the obtaining of the money and the use to which it was to be applied were known to the relator before any of it had been so expended, but that neither he nor any one else had taken any steps to prevent such expenditure.

To these answers, general demurrers were interposed and •sustained, and the defendants not desiring to plead further, ■a decree was granted enjoining defendants from refunding the money, and they appeal to this court.

In passing upon the questions raised by the demurrers to the answers, it is not necessary to determine whether the board proceeded in accordance with the provisions of section 3991 et seq., of the Revised Statutes. These sections are not a limitation upon the powers conferred by other sections, but were enacted to enable the board to provide the money necessary to accomplish the objects therein specified when it could not be done by levy; and the board here does not claim to have acted under these sections.

Nor is it necessary to determine whether the board had the implied power to borrow money and issue bonds therefor, for this is not a suit to enjoin the board from borrowing money, or to recover on the bonds, but an action seeking to' enjoin the board from refunding money by it obtained, upon bonds, in anticipation of taxes lawfully levied, and used for a purpose and in a manner authorized by law.

The weight of authority is to the effect that while an action cannot be maintained upon bonds issued without authority by corporations of the character under consideration,, yet it can be to recover the money actually received by the corporation when it remains in its treasury or has been appropriated by it to some authorized purpose. Dillon, J., in Gause v. Clarksville, Federal Cases No. 5276. Borough of Henderson v. County of Sibley, 28 Minn. 15.

Pimental v. City of San Francisco, 21 Cal. 352, was an action to recover money paid into the city treasury on a void sale of real estate by the city to the plaintiff. One of the defenses was that inasmuch as the city officers had no authority to make the sale, they had no authority to pay the money into the city treasury and that therefore no obligation could be fastened upon the city from such unauthorized act. Field, C. J., says: “The position thus restricted in its statement is undoubtedly correct, but the facts' of the case go beyond this state-ment. They show an appropriation of the proceeds, and the liability of the' city arises from the use of the moneys, or her refusal to refund them after their receipt. The cityis not exempted from the common obligation to do justice, which binds individuals. Such obligation rests upon all persons, whether natural or artificial. If the city obtains the money of another by mistake, or without authority of law, it is her duty to refund it, from this general obligation. If she obtains other property which does not belong to her, it is her duty to return it, or if used to render an equivalent therefor, from the like obligation. [Argenti v. San Francisco, 16 Cal. 282.] The legal liability springs from the moral duty to make restitution, and we do not appreciate the morality which denies in such cases any rights to the individual whose money or other property has been thus appropriated. The law countenances no such wretched ethics; its command always is to do justice. ’ ’

So, in Bank of Chillicothe v. Mayor of Chillico he, 7 Ohio, pt. II. 35, decided at the December term, 1836, which was an action upon bonds of the town given for borrowed money, and in which it was held that the town had, by implication, the power to borrow money, and that a contract borrowing money for the use of the town, bound the corporation for repayment. Hitchcock, J., says: “I cannot see the great difference whether a corporation shall be indebted to A.’ for labor in repairing streets or buildings; or to B. for money borrowed to pay A. for this same labor. The moral obligation to pay would be the same in either case. In the cases now before the court, there is nothing illegal in the consideration, and there is no violation of any positive law or moral principle in the premises. The undertakings are not to do an illegal act, but to refund money actually borrowed. The plaintiff violated no principle of law in loannig the money, and certainly there would be nothing immoral in the defendants paying it. On the contrary, we think its payment is required by every principle of moral honesty, and prohibited by no arbitrary rule of law.”

It follows that the court erred in sustaining the demurrers to the answers.

The demurrers to the petitions, in addition to the general ground, stated the following: “That saidS. V. Hartman, as prosecuting attorney of said county, has no authority to1 institute said proceeding.” It is claimed, on behalf of the relator, that if the statutes do not expressly confer the authority, they do so by implication, and that if he has not the authority, then there is no remedy, because the taxpayers cannot maintain the suit. We are referred to sections 866, 1273, 1277 and 3977 of the Revised Statutes. It is, perhaps, sufficient to say that the state is not a party to this suit, excepting as relator of his own motion has made it a party, and that in none of these sections is the power expressly conferred upon him to bring suit under such circumstances as are set up in the petition, and we do not think the authority is derived by implication. We are also referred to The State, ex rel. the Prosecuting Attorney v. The Treasurer of German Tp., 2 O. C. C. 363. That was a suit brought by the prosecuting attorney to enjoin the payment of a warrant, and the question of the authority of the prosecutor to bring the action was not raised, and the injunction was dissolved and the petition dismissed. As to the right to maintain such a suit by a resident taxpayer, while the absence of such right would not change our conclusions, it may be not improper to say that in view of the decision in Weir v. Hay, 35 Ohio St. 143, we do not think the existence of such right would be denied.

Sater & Robeson, for Board of Education.

Knox, Martz & Rupe, for the bank.

S. V. Hartman, Pros. Atty.,.J. E. Broaden, Jr., and Anderson & Bowman, for plaintiff.

(The judgment in this case was affirmed by the Supreme Court, October 1, 1895, 34 W. L. B. 185.)

We think, therefore, the demurrers to the petition should be sustained, the injunction dissolved and the petition dismissed, and such a decree will be entered.


author: Frazier, J. (orally).

text:
    (Seventh Circuit—Ashtabula Co., O., Cir. Court
    Sept. Term, 1895.)
    Before Laubie, Frazier and Burrows, JJ.
    COTTON, Ex’x v. ASHLEY.

      Common law remedy against attorneys who withhold money or papers from clients — Statutory remedy is cumulative.

    Where an attorney has received, by reason *of his employment, money or papers belonging to his client, which, after demand, he wrongfully withholds, courts of common pleas have, independent of statute, the right to compel him to pay over or deliver the same to the client, and upon refusal to comply with the order of the court, to punish him for contempt. And such right does not depend upon the fact that the money was collected upon a judgment, or received upon a claim upon which suit has been brought.
    The right of the court to compel its officers to do their duty has not been taken away by section 56á of the Revised Statutes, providing for summary proceedings against attorneys receiving money for clients and refusing or neglecting to pay the same when demanded.
    Error to the Court of Common Pleas of Ashtabula County.
   Frazier, J. (orally).

The case of Alice S. Cotton, executrix of Marvin S. Cot- _ ton, deceased, against S. D. Ashley, Esq., attorney-at-law, is a petition in error to reverse a judgment of the court of common pleas.

The proceeding before the court of common pleas was commenced by he filing of a motion which sets out at great length, not only the facts claimed, but also the evidence by which it is proposed to support them; and asks that the defendant, Ashley, be ordered to pay to the plaintiff certain moneys, which it is claimed were received by him in his -character of attorney-at-law, and to deliver up certain papers which it is claimed he wrongfully obtained from the minor son of plaintiff in her absence, and which contained memoranda left in possession of her deceased husband,relating to the claims placed in defendant’s hands for collection; or that he show cause why he should not be attached for his refusal to do so.

Plaintiff also claims in her motion, that defendant received from the testator, her deceased husband, certain mortgages, to collect and pay over to the testator the interest as it became due, and that he continued to collect and pay over to plaintiff in her character as executrix, interest by him collected the same as he had done in the lifetime off her husband, retaining the same percentage (5 per cent.) upon the sums collected by him.

The motion further charges that the defendant, Ashley, wrongfully conducted himself in his 'said employment and character of attorney; in that said testator, in and as a part of the transaction and employment of the defendant, and the-better and more readily to enable him to collect the interest under his employment as attorney as it became due, assigned to said Ashley a certain mortgage, and that defendant, as such attorney and in violation of his employment,' did, before the same became due and payable according to its terms, accept a less sum than was due thereon, although the security was ample and the makers abundantly able to pay, and wrongfully entered the mortgage satisfied upon the records of the county, and refuses to pay to plaintiff the money so received by him; and asks that defendant be compelled to pay plaintiff the amount he should have received thereon.

Upon the filing of the motion, the court of common pleas made and entered upon its journal an order requiring the-defendant at a time named therein, to appear and show cause why he should not pay to plaintiff the money claimed, and deliver the papers demanded, or be attached for his refusal to do so.

A copy of the order was served by the sheriff on the defendant Ashley, and he appeared in court in obedience-thereto, and, as stated in the bill of exceptions, the petition was read and the relator offered to read affidavits sustaining; the motion.

At this point a motion was made on the part cf the defendant to dismiss the action, or in the language of the bill of exceptions.

“And thereupon the defendant, by his counsel, then and there moved the court to dismiss said petition and said proceedings for want of jurisdiction on the part of said court to hear and determine said cause, and the said motion to dismiss was thereupon argued by counsel and submitted to the court; upon consideration whereof the court granted said motion, and thereupon ordered, adjudged and decreed that said petition and proceedings be and the same were by said court dismissed.

“That said court refused to hear said supporting affidavits, or any of them, but dismissed said petition as aforesaid, upon said motion as aforesaid; to all of which the plaintiff, by her counsel, at the time excepted, and presents this, her bill of exceptions.”

There was no written motion filed, but there is a statement in the journal entry that the motion was made for the reason that it appears that the money was not collected upon any judgment in any court, and that the court refused to hear the motion because it was admitted in open court that there was an assignment, absolute on its face, of the mortgage, upon which it was claimed the money was received. The law prescribes what may be shown by the journal, and no certificate or statement of a fact not required to be shown by the journal can supply the place of a bill of exceptions, or serve to bring upon the record any fact which should appear in the bill.

Some confusion seems to have existed in the minds of counsel as to the nature of this proceeding. It is said in argument, that it was treated in the court below as a proceeding under sections 563 and 564 of the Revised Statutes of Ohio, but counsel for the plaintiff in this court claim it is a proceeding not under the statute, but at common law.

It is sufficient to’ say it is not an action for the suspension or removal of the defendant, Ashley, under section 563 of the Revised Statutes. In this-state the provisions of the statute for the admission and suspension or removal of attorneys is exclusive, and prescribes the forms and manner of proceeding to disbar an attorney, and in such proceedings the statute must be strictly followed, and if commenced in the common pleas court, an appeal may be taken to the circuit court.

Nor is this a proceeding to amerce the defendant for re-' fusing or neglecting to pay over money when demanded, under section 564 of the Revised Statutes.

Counsel for the relator claims it to be a proceding by motion or petition addressed to a court proceeding under the forms of the common law, and having the inherent right, without the aid of a statute, to compel its officers to do right and to compel them in a summary manner to do their duty or to summarily punish them for the refusal to obey its orders.

Counsel for the relator in argument state, the court below said he would treat the verbal motion to' dismiss as a demurrer, and held:

“First — That the proceeding is not in accordance with the Revised Statutes, section 563.
“Second — Because it is not for any definite sum of money.
Third — “That this proceeding cannot be maintained, as it is not authorized by law, or by any statute of the state conferring power and jurisdiction upon the court of common pleas. “

Has the court of common pleas, independent of any statute, the right to punish its officers for misconduct; or in other words, is an attorney-at-law amenable to the court, and is it the right when invoked, as well as the duty of the court, where it is admitted by an attorney that he has money which he collected for his client and which he wrong-full withholds from the client, or has papers he received by reason of his employment and wrongfully withholds on demand, the right to order the attorney to pay it over or deliver them up, or is the client relegated to his rights either of an action at law, cr the more summary proceeding by way of amercement? In either of these cases there is a judgment .that may be enforced by execution; but thet right to enforce such judgment is but the right which a judgment creditor has to enforce any judgment, and might be a poor compensation to the client, where the attorney is insolvent or the papers might be desired as evidence, or where a consideration in money would be wholly inadequate.

Counsel for the defendant urge that the defendant’s liability, if any, arises under section 564 of the Revised Statutes, which provides that: “ Every attorney receiving money for his client and refusing or neglecting to pay the same when demanded, shall be proceeded against in'a summary way, on motion, before any court of record; either in the county in which such judgment has been rendered,or in which such money has been collected, or in the county in which such attorney resides, in the same manner and be liable to the same penalties as sheriffs and coroners are for money received on execution.”

Has the court the right at common law, independent of statute, to compel in a summary manner an attorney to perform his duties to his client in the matters in question?

I shall endeavor to be quite brief in my reference to authorities; although there has been a great number' cited. Counsel upon both sides have been very industrious in the citation of authorities.

In 2.Greenleaf on Evidence, section 147, it is said: “An attorney being an officer of the court in which he is admitted to practice, is held amenable to its summary jurisdiction for every act of official misconduct. The matter is shown to the court by petition or motion ordinarily, supported by affidavit; and the order of the court, after hearing, is enforced either by attachment or striking his name from the roll if he neglects.”

In the case cited by counsel for plaintiff from The American Law Register, volume 17, new series, page 759, an opinion by the Supreme Court of Rhode Island, in the case of James Orr v. Oscar A. Tanner, the syllabus of the case is:

“An attorney who refuses to pay over money belonging to his client will be ordered to do so on motion of the client.”
In Weeks on Attorneys, section 97, it is said: “If an attorney misconduct himself in his profession he is, in many cases, liable to an attachment. Attachments against them are also moved for in cases of unfair dealings towards their clients, as for delaying suits, putting the parties to unnecessary expense, demanding fees for business not performed, refusing to surrender papers or money recovered and received for clients. A rule to show cause or deliver up is generally first made. But the money or writings must be received in the capacity of attorney, otherwise the party will be left to his ordinary remedy by action.”

In the matter of Dakin, an attorney at law, 4 Hill, 42, Bronson, J., in delivering the opinion of the court, says: “The summary jurisdiction exercised by the courts for the purpose of compelling attorneys -to perform their duty to clients, is not only just in itself, but it exerts a wholesome influence upon the whole body of the legal profession. If the client were driven to the dilatory and sometimes inefficient remedy by action when the attorney improperly neglects to pay over money, a few unworthy members of the bar would bring odium upon all the rest.

“It is not essential to the exercise of this summary remedy that the attorney should have received the money in any suit or legal proceeding, or that he should have been employed or instructed to commence legal proceedings. It is enough that the money was received in his character of attorney, as where a demand is left with him with instruction to call for payment, or obtain better security, but without any directions to sue. When the attorney is also engaged in other business, and the particular character in which he was retained does not affirmatively appear,it may be inferred from the nature of the employment, and the other circumstances of the case. In DeWoolfe v. --, 2 Chit. R., 68, Bayley, J., said ‘the recent doctrine was, that whenever a person had been employed in consequence of his being an attorney, though not in an action, the court would interfere •summarily to compel him to do what was right. In that case the attorney had received money under a power which described him as a counselor and attorney, and the court said it was otherwise manifest that the employer contemplated the party’s professional character, and he was ordered to account and pay over the money. ’ The rule was well stated by Abbott; Ch., J., in the matter of Aitkin (4 Barn. & Aid. 47): ‘Where,’ he says, ‘an attorney is employed in a matter wholly unconnected with his professional character, the court will not interfere in a summary way to compel him to execute faithfully the trust reposed in him. But where the employment is so connected with his professional character as to afford a presumption that his character formed the ground of his employment by the client, there the court will exercise this jurisdicion. ’ The defense of the attorney in that case was put wholly on the ground that he had not been employed to prosecute any suit; and as that position was untenable, the motion was granted. In ex parte Staats, 4 Oowens, 76, a like objection by the attorney was overruled.”

In ex parte, Staats, supra, "it is stated: ‘‘The relator, Staats, had left a bond with J. W. Edmonds, Esq., an attorney of this court, to the end that he should write the obligor to pay him (Edmonds) for the use of Staats who was the obligee, the money due upon the bond; but he did not direct Mr. Edmonds to commence a suit upon it, in case the obligor should make default in paying it according to such written request. The obligor paid the money to Mr. Ed-monds, who had neglected to pay it over to the obligee, though repeatedly requested by the obligee to do this. * *”

Upon these facts the court held, ‘‘Curia, the motion must be granted. It is plain that this bond was left with Mr. Edmonds in his character of attorney, though no specific directions were given to bring a suit, it turned out there was no need of a suit. The money was paid in; and the relator is entitled to our aid in obtaining it, in the same manner as if collected by suit.”

■ We hold that the court of common pleas of this state being a court of general jurisdiction and proceeding according to the course of the common law, has, independent of and without the aid of statute, the right to compel an attorney who has received money or papers be longing to his client, by reason of his employment as attorney, which he wrongfully withholds or refuses on "demand to pay over or deliver to the client; and upon his refusal to hand over when'ordered to do so, may punish him as for contempt. And such right does not depend upon the fact that the money was collected upon a judgment, or received upon a claim upon which suit has been brought; it is sufficient if it was received by reason of his employment as attorney. Has such right been superseded or taken away by section 564 of the Revised Statutes? We hold it has not.

Birchard, J., in Darling v. Peck, 15 Ohio, 71, says: “Where a statute gives a new remedy without impairing or denying one already known to the law, the rule is to consider it as cumulative, allowing either the new or the old remedy to be pursued at the option of the party seeking redress, ’’ — which has been followed and approved in State ex rel. v. Railroad Co., 36 Ohio St. 442, and in Commissoners v. Zeigelhofer, 38 Ohio St. 528.

We do not say the court of common pleas could have granted the relator all the relief asked in her motion. We think the weight of authority is that the .court upon such summary proceeding could only compel the attorney to pay over the money he has received, and to deliver the papers in his possession; and that for his wrongs, or any failure to-perform his duties as an attorney, she is remitted to her action at law, and after the court has granted all the relief in its power, the relator to obtain full relief may still be compelled to seek her remedy by action.

It has been intimated in argument that the defendant claims to be the owner of the mortgage in question, instead of the attorney employed to collect it. We do not say that if the defendant in answer to the rule issued should make such a showing, the court in its discretion might not refuse the summary remedy and compel the plaintiff to seek her remedy upon proper issues in an action to be tried by a jury. We do not desire in this to be understood as holding that the mere denial of employment as attorney, or the claim of ownership, would take from the court the right to hear the motion, or make the order; nor as holding that the relator in a doubtful case, may in this form of procedure upon affidavits taken ex parte, deprive the defendant of the right of trial by jury in the ordinary forms of procedure.

Northway & Perry, Wade & Betts, for plaintiff in error.

Newton Sawyer, L. S. Sherman, Hoyt & Munsell, and Charles Savoyer, Jr., for defendant in error.

It appears from the record that the court, in the absence of any showing against the rule or claim of plaintiff by answer or otherwise, and with the apparent or implied admission of the plaintiff’s claim, held it had no jurisdiction to hear the case or make the order.

In so holding and deciding, we hold the court of common pleas erred, and the cause is reversed and remanded.


author: Summers, J:

text:
    (Second Circuit—Montgomery Co., O., Circuit Court
    Dec. Term, 1895.)
    Before Shearer, Summers and Wilson, JJ.
    STATE ex rel. v. THE CENTRAL UNION TELEPHONE CO.
    The right to occupy the streets of a municipal corporation by a telephone company for its use is conditioned upon its agreeing with the municipal authorities as to the mode of use ; or, failing so to agree, upon the direction of the probate court of the county as to the mode of use, in a proceeding instituted for that purpose; and such agreement or direction is inseparable from such right, and such right terminates with such agreement or direction.
   Summers, J:

The petition in this case is filed by Charles H. Kumler, prosecuting attorney for Montgomery county, state of Ohio, and upon the relation of Edwin P. Matthews, city solicitor of the city of Dayton, in said county, and states, in substance that the telephone company is a corporation of the state of Illinois, and is exercising a franchise, privilege and right in contravention of law and without authority, in that it is occupying and using sundry of the streets of said city with its poles, wires, etc., and by-means thereof is carrying on the telephone business in said city; that in 1883 the city passed a certain ordinance to control and regulate the use of its streets by telephone companies, in which ordinance 'it was provided that, before any corporation should enter upon any of the streets of said city for telephone purposes, an ordinance should be passed by the city council granting it such right subject to such rules and regulations as might be therein prescribed; that in 1884 said city, by ordinance passed by its council, granted said telephone company the right to use certain of its streets for telephone purposes for the period of ten years, subject to the provisions of both of said ordinances, and that said company, under said ordinances, entered upon said streets and used them for such purposes; that said term of ten years has long since expired;. that no other ordinance has been passed by said council, or any agreement entered into between the city and said company, extending the grant or giving it any rights or privileges in said streets, and that no such proceeding as is authorized by section 3461 of the Revised Statutes has been had; that on the 15th day of November, 1895, the council of said city, by resolution reciting said facts as to the expiration of said term, directed its city solicitor to commence such proceedings as would oust said company from such occupancy and use of its streets, and the prayer is for such ouster.

To the petition the defendant filed á general demurrer,

Without undertaking to notice all of the many questions ably considered in the briefs of the learned counsel for defendant, we may say they are, if we understand them, in substance to the effect: that the right to use the streets of the city for telephone purposes is a franchise which can be con-f erred only by the legislature; that the legislature has conferred the right or franchise to so use the streets, by sections •3454 and 3456, and that section 3461 authorizes or prescribes an agreement with the city only as to the mode'of use; that, being in possession, the telephone company holds under the state; and that the city has no right to interfere with its occupancy, but is limited or restricted to an effort to direct or control the mode of use.

The right to use the street by the company for telephone purposes is a franchise,and as such can only emanate directly •or indirectly from the sovereign power of the state. State ex rel. v. Cincinnati Gas, Light & Coke Co., 18 Ohio St. 292.

Section 3461 reads: “When any lands authorized to be appropriated to the use of a company are subject to the ease■ment of a street, alley, public way, or other public use, within the limits of any city or village, the mode of use •shall be such as shall be agreed upon between the municipal authorities of the city or village and the company; and if they cannot agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court of the county, in a proceeding instituted for the purpose, shall direct in what mode such telegraph line shall be constructed.” * * *

The words “When any lands authorized to be appropriated,’ etc., imply that the authority has been previously •conferred; but, in our opinion, this is of little if any signifi•cance, for the sections are in pari materia, and the franchise to so use the streets, conferred by the state, is upon the express condition that the mode of use shall be such as shall be agreed upon between the city and the company, and in the event they cannot agree, that the probate court shall direct in what mode the telephone line shall be constructed along such street. This deary contemplates an agreement -as to the mode of use prior to any occupancy of- the streets by the company, and such agreement with the council or direction by the probate court as to the mode of use is inseparable from the right to use the street for telephone purposes, and the right ceases with the expiration of the agreement or direction upon which it is conditioned.

We do not understand counsel to claim, that the company could have entered upon the streets and erected its poles and strung its wires without an agreement with council or direction in a proceeding in the probate court. If then it enters upon the streets, erects its poles and strings its wires under and by virtue, of an agreement between it and the city council, which limits its right to such occupancy to a period of' ten years, how can it claim ■ its right still stands when the foundation of it is gone?

Section 3283 provides: “If it be necessary, in the location of any part of a railroad, to occupy any public road', street, alley, way, or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities, owning or having charge thereof, and the company may agree upon the manner, terms and conditions upon which the same may be used or occupied; and if the parties be unable to agree thereon,and it is necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way or ground, such company may appropriate so much of the same as may be necessary for the-purposes of the road.” * * *

These provisions are not unlike those of the section under consideration, and we think the construction we have given, the latter warranted by that given by the Supreme Court to the former. Railroad v. Commissioners, 31 Ohio St. 338; State, ex rel. v. Railroad Co., 36 Ohio St. 434; Railroad Co. v. Cobb, 35 Ohio St. 94.

“Every grant in derogation of the right of the public in. the free and unobstructed use of the streets, or restrictive of the control of the proper agencies of the municipal bodies, over them, or of the legitimate exercise of their powers in the public interest, will be construed strictly against the grantee, and liberally in favor of the public, and never extended beyond its express terms when not indispensable to give effect to the grant.” Railroad Company v. Defiance, 52 Ohio St. 262.

Edwin P. Matthews, City Solicitor, Chas H. Kurnler, Prosecuting Attorney, for relator.

A. A. Thomas, General Solicitor, Chicago, Gilbert H. Stewart, Columbus, L. G. Pichardson, Toledo, for defendant.

As to the right to maintain a suit in quo warranto, Ohio ex rel. v. P. C. & St. L. Ry., 34 W. L. B. 15.

The demurrer will therefore be overruled.


author: Scribner, J. (orally.)

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    FRANZISKA GAWLACK, Adm’r v. THE MICHIGAN CENTRAL R. R. CO.

      Negligence — Degree of care or caution — Correct rule as to. — A request to charge the jury and which is given to the effect that “reasonable or proper care and caution is that degree of care ánd caution that reasonably prudent persons should exercise under the same or Similar circumstances,” is a mere truism and erroneous. It should be “what reasonably prudent persons are accustomed to exercise.” But where the court afterwards in its general charge to the jury states and explains the rule of law correctly, such error is cured.

      Same — Employe of railroad not understanding the English language. —Facts under which the railroad company will not be held liable as for negligence in causing death of an employe, where such employe did not understand the English language and did not understand the call of warning in the English language by the foreman.
    Error to the Court of Common Pleas of Lucas County.
   Scribner, J. (orally.)

This is a proceeding in error brought to reverse a judgment rendered in favor of the railroad company, by the court of common pleas,in an action brought therein by the plaintiff in error against the railroad company, to recover damages occasioned, as was claimed, by negligence on the part of the railroad company which resulted in the death of the decedent, who was the husband of the plaintiff in error, the plaintiff below. On the trial in the court below evidence was submitted by both parties bearing upon the question of alleged negligence upon the part of the company, and alleged contributory negligence on the part of the decedent. The bill of exceptions taken in the case embodies all the testimony, and also the charge of the court, and exceptions taken on .the part of the plaintiff below to certain requests given for the defendant below touching questions of negligence on the part of the decedent. The verdict of the jury was in favor of thé railroad company. A motion for a new trial, filed by the plaintiff below, was overruled, and judgment rendered upon the verdict.

I avail myself of a statement of the leading facts in the case as contained in the brief filed by the counsel for the plaintiff in error. It is there said, which is substantially correct, that “the deceased was a Polish man, who had come to this country but a few days prior to his death, and who had entered upon his first work here when he began work for the defendant at seven o’clock, and was killed at nine o’clock the same day. He was one of a gang of twelve men who were engaged at the work of leveling off the ground about a spur track, and shoveling the dirt upon cars standing on the spur-track. While engaged at this work the deceased had occasion to step behind the cars upon which he was working for a certain purpose, and while there, these cars, without any warning to him, were suddenly moved back upon him. The men engaged in this work, so far as the evidence discloses, were all Polish except the foreman of the gang, Mr. Bradley. None of the gang who testified in this case were able to speak or“understand the English language, and gave their evidence through an interpreter, and the deceased did not speak or understand English. This gang began their work of leveling this bank and loading these cars, three in n.umber, at seven o’clock,¡¡¡andjjat nine o’clock, the time of the injury, had the cars nearly loaded with dirt and the ground nearly leveled. The tracks where the injury occurred consisted of a main track, a side-track, and the track upon which the dirt cars stood, called a spur-track. These dirt cars were put on this spur-track on the' morning of the injury, and were not pushed in on the spur-track far enough so that cars could pass on the side-track, with which the spur-track was connected by a switch. The tracks run north and south, and cross Phillips avenue, a street in West Toledo, at right angles., The main track is at the west. The side-track, o^ main siding, as it is called, is next east of the main, and is connected with the main by a switch about 150 feet south of Phillips avenue crossing. The spur-track, the track upon which the cars were standing, is next east of the side-track, and is connected with it by a switch a few feet north of the Phillips avenue crossing. The negligence complained of is. first, the negligence of the engineer; that the engineer knew that this gang of men was working about these dirt cars is admitted by him; that the engineer knew that these dirt cars stood out on the spur-track so that he could not push^cars by on the side-track without striking them, is testified to by the fireman and admitted by the engineer; that jthe¡¿ engineer did not back against these cars carefully isjshown by his own evidence. ’ ’

Counsel jfor ¡¿plaintiff in error then proceeds to quote largely from thecrecord the testimony bearing upon the propositions stated by him. It is proper to say also that this brief does noCshow^all the facts connected with the situation there on the occurrence of this accident, but it shows enough of them to present the questions which were relied upon to enable us to dispose of the case.

Now, as statedjjin this brief, a train was coming down upon the main track. It was proposed to push it in upon the side-track. There'jwere standing upon the spur-track, which led into and was connected with the side-track, these three dirt cars, which were being loaded, and one of these cars at least, projected across the side-track so that it was impossible for a train coming down to enter upon the sidetrack without coming 'in contact with the cars extending across the side-track, and then pushing it further in on the spur-track. The decedent was standing at the moment of the collision behind the rear car, behind and close to the rear car of the three cars passing the dirt train — standing there for a purpose of his own, not at all connected with the business of the company. The train backed down, came in collision with car on the spur-track, threw it back, threw down the young man who was standing there, and the wheels passed over his body, so that death resulted. It further appears in the record, and is so stated here, that before this collision occurred the foreman of the gang, a man named Bradley,had endeavored to make some arrangement by which the train should not pass down upon this side-track, but this effort had not been successful; and it appears from the record that when the train came up and stopped there, and the cars were cut off, “I said” — this is Mr. Bradleys language — “this train is coming in with some cars on the siding; they are coming in to shove in these cars; watch yourselves.” This was the warning of the foreman of the gang of men who were engaged in this work on that occasion to the men. It appears from the testimony in the case that the gang of men who were at work were Polanders, and could not understand English. That, of course, is a matter to be taken into consideration in disposing of the case.

Upon these leading, facts in the case, it is claimed that the company, for the reasons above shown was negligent; that the engineer was negligent; that the brakeman was negligent; and that the foreman was negligent. All this matter and all this testimony was submitted to the jury, and the jury, under instruction from the court, found a verdict in favor of the defendant. They found tlj.at the company had been guilty of no negligence; they found that the engineer and the other parties connected with the management of the train were not chargeable with any neglect of duty; that they had no knowledge that this man was standing behind these cars at the time this collision occurred —had no reason to suspect that anybody was behind the •cars. This young man at the time was not there on the business of the company; he was not engaged in loading the ■cars or in doing anything connected with the business of the ■company. It was his misfortune — a sad accident, of course —that he happened to be standing there at the time the accident occurred. But we can see nothing in the case which would require the jury to find that the accident occurred by reason of any negligence on the part of the company or its servants. And especially do we believe that we would not be warranted in disturbing the verdict of a jury rendered under the supervision of the trial judge, upon the ground that the jury had disregarded the weight of the testimony in the •case.

The only other point arises upon the charge of the court. After the testimony had been concluded, certain requests were submitted on the part of both parties. One of the requests submitted by the counsel for the defendant reads thus:

“Reasonable or proper care and caution is that degree of care and caution that reasonably prudent persons should exercise under the same or similar circumstances.”

It is insisted upon the part of counsel for the plaintiff in error that this instruction is erroneous, in this: that the jury should have been instructed that “reasonable care was such as persons of ordinary care are accustomed to exercise, under the same or similar circumstances, ’ ’ adopting the decision of the Supreme Court in Terry v. R. R. Co., 8 Ohio St.; and that the court erred in saying it was that degree of care that a reasonably prudent person should exercise. When we come to reflect for a moment, we find that the court has here stated a mere truism, that really amounts to no definition of the degree of care that should be exercised. Strictly speaking, it is, as stated by the court, ‘! that degree-of care and caution that reasonably prudent persons should exercise.” Of course, it is true that the care that a man. should exercise is the care that a reasonably prudent person should exercise. There is no doubt about this. But the-jury received no light, in the judgment of this court, from the instruction so given. But when the court came to charge the jury in its own language, the learned judge said this:

“And here, gentlemen, it is proper that the court should give you a definition of what is negligence. It is not claimed by the plaintiff that the wrongful act which caused the death of Joseph Gawlack was wilful, or a criminal act; but it is. claimed that it was negligence — that the acts were negligently performed or done; that they were done without proper attention to the care which the law imposes upon the defendant in the operation of its cars. Now, gentlemen, the rule-in regard to this matter has been stated by our Supreme Court substantially as follows: Negligence is the failure to exercise ordinary care. The law imposed upon the defendant the exercise of ordinal care, for the protection of not only its own property and interests there, but for the protection of the men employed there, as well as the public who have business with them. Ordinary care is defined to be that degree of care which men of ordinary prudence customarily exercise under similar circumstances, consistently with the carrying-forward of their business successfully and prosperously, and with a care not to injure others unnecessarily and improperly. This definition of negligence, gentlemen, applies not only to the defendant, the railroad company and its servants, but it applies also to the decedent, who was in their employ —the same measure of care which the. .law required of the defendant, the railroad company, it also required of Joseph Gawlack — that degree of care which men of ordinary prudence customarily exercise under like circumstances.”

Geo. B. Boone, for plain tiff.in error.

E. D. Potter, Jr., for defendant in error.

The court in this instruction has embodied substantially the language of the decision of the Supreihe Court in the Terry case. So that, while in the request given, as asked by counsel for the defendant below, the court really gave nothing that would enlighten the jury as to what measure of care ■should be exercised, in this instruction of its own the court gave distinctly to the jury the law as it was laid down by the 33upreme Court, and as is applied daily in our courts in the Trial of cases of this character: It is that degree’of care

which men of ordinary prudence are accustomed to exercise in the management of their own affairs.

We find, therefore, no error in the record in this case, ■and the judgment will be affirmed.


author: Day, J.

text:
    (Third Circuit—Hancock Co. O., Circuit Court
    May Term, 1895.)
    Before Seney, Day and Price, JJ.
    JOHN W. BEARD v. THE STATE OF OHIO.
    IProsecutions under the provisions of “An act to prevent abandonment and pauperism, ’ ’ passed April 16, 1890, 87 O. L. 216, can only be instituted and maintained in courts which, by law, are provided with a clerk. Inferior courts, or courts without clerks,' are with out jurisdiction to try and sentence persons accused of violating the provisions of said act.
    Error to the Court of Common Pleas of Hancock County.
   Day, J.

The plaintiff in error, John W. Beard, was arrested on a ■charge of violating the provisions of “An act to prevent ■abandonment and pauperism,” passed April 16, 1890, 87 •O. L. 216. He was taken before the mayor of the city of Findlay, O., arraigned, tried, found guilty and sentenced by the said mayor to the Toledo work house for six months at hard labor and directed to pay the costs of the prosecu-. tion‘. Beard protested against the action of the mayor, excepted to his rulings, findings and judgment, procured the allowance of a bill of exceptions containing all the evidence had on the trial and the rulings of the mayor on the various-motions submitted, and prosecuted error in the common 'pleas court. That court affirmed the judgment of the may- or’s court, and plaintiff prosecutes error here to obtain a reversal of the judgment of both the lower courts.

' Numerous errors are assigned. The action of the mayor is criticised in many regards, raising complicated and nice questions of practice, which, if deemed material, would require careful consideration for their proper elucidation, and which we do not decide; for, in the view we take, they do-not appear to be at all material or necessary to be noticed in the proper disposition of the case.

The prosecution was before the mayor of the city of Findlay. The law does not make provision for a clerk to the mayor or the mayor’s court, in cities of that class and grade; and so, in law and in fact, the court of the mayor of the city of Findlay has no clerk. There is no such officer— no clerk of the mayor's court. A very important part of the-statute creating and defining the offense for which the plaintiff in error was prosecuted and sentenced in the mayor’s court, is the following provision pointing out what the course of procedure may be by a defendant, after conviction and before sentence, viz: “Provided, however, if after such conviction, and before sentence, he shall appear before-the clerk of the court in which said conviction shall have-taken place, and with good and sufficient surety, to be approved by said clerk, enter into bond to the state of Ohio in the penal sum ,o£ one thousand dollars, conditioned that he-will furnish such child or children with necessary and proper home, care, food and clothing, the said court may suspend! sentence therein.’’

A very casual reading of this provision of the statute-makes the legislative purpose quite plain. While- defining a distinctly new offense and prescribing a punishment, it ■ was also manifestly the'intent to specify, with particularity, and limit the courts in which prosecutions therefor might be ■ instituted and maintained. By broad and fair inference, if not by express provision, this statute, by the provision just quoted, confers the right to try a person accused of the offense created, and upon conviction to sentence him, only, upon a court or tribunal having, under aud by virtue of the provisions of law, a clerk, before whom the-convict can appear and give bond with security if he so desires and can, and .thus avail himself of the valuable rights and privileges accorded him by the law, in permitting a suspension of sentence.

G. H. Phelps and Franklin Franks, for plaintiff in error.

Albert Zugschwert, for defendant in error.

As we have seen the mayor’s court is without a clerk .and, as we think, without jurisdiction to try and sentence a person accussed of violating the provisions of the act in question, and it follows that its judgment and sentence is invalid and ought to be annulled. The judgment of the common pleas affirming the judgment of the mayor is reversed, with costs, and this court, rendering the judgment the common pleas should have rendered, reverses the judgment and sentence of the mayor’s court,.and discharges the defendant from custody.


text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Haynes, Scribner and King, J. J
    MARGARET McCARTY v. THE CITY OF TOLEDO.

      Payment by mistake of excessive assessment for street improvement — ■ Excess cannot be recovered. — Where an assessment made by mnuicipal authorities to repay the cost of a street improvement, has been voluntarily paid by the owner of the property assessed, the . money so paid can not be recovered back.

      Error to the Court of Common Pleas of Lucas County.
   Scribner, J. (orally.)

The action below was brought by the plaintiff in error to recover from the city of Toledo the sum of $429.75, and accrued interest, alleged to have been wrongfully paid, by the plaintiff to the city in satisfaction of an assessment made by the city upon property belonging to theplaintifif for the improvement of Putnam street in this city.. The proceedings for this improvement were taken by the common council in the season of 1892; the street was improved and the property of the plaintiff assessed the sum of $553.32, payable in ten annual installments, as designated in the ordinance making the assessment. I should say that the legislation of the council provided that upon the payment by the property owners of a sum of money specified in the ordinance, within ten days after its passage,' there should be issued to the party paying — the property owner- — -a receipt in full for the assessment. The plaintiff, seeking to avail herself of this provision of the council, contained in the ordinance levying the assessment did,on the 18th of January, pay to the city, in conformity to the ordinance, the sum of $429.75, in full settlement and payment of the assessment of $553.32. This was done because, by receiving such payment, the city was enabled to take up a bond or raise money to provide for the improvement. Some time afterwards the plaintiff brought this action, alleging that said assessment was illegal, on the ground, as it was claimed, that much of the property was what was known as corner lot property and was wrongfully assessed upon the lengthwise side of the property, when it should have been assessed only upon the frontage. It is not suggested that any coercion was used on the part of the city, nor that any objection was interposed upon the part of the plaintiff or of any property owner against the improvement or against the assessment; but the plaintiff desired to avail herself of the provision which permitted the abatement for prompt payment of the assessment made, and made the payment in full as provided by the ordinance of the council— in full satisfaction of all her assessment, and received her receipt in full for it from the city authorities, and this the city has never questioned. We have held heretofore in this class of cases, that where an assessment has been voluntarily paid in full by the propery owner, an action to recover back the money so paid cannot be maintained; and we think that this doctrine is in plain conformity with the rules of law; the voluntary payment of a tax, although it was wrongfully laid, no steps having been taken to enforce payment, and no fraud or imposition having been practiced, the parties are thereby precluded from recovering back the money so paid.

T. J. McDonnell, for plaintiff in error.

C. T. Watis, City Soliciier, for defendant in errror.

It is alleged here that the plaintiff was mistaken and paid' the money under a mistake; that is to say, she supposed the city might lawfully make the assessment, and therefore she paid it. She now finds *that they had no authority to make the assessment. But this furnishes no excuse; it is not such a mistake as entitles a party to relief where it was voluntarily made, and this payment was voluntarily made.

It is clear, therefore, to us that the judgment must be affirmed, but without penalty.