text:
    PROSECUTION FOR. CRUELTY TO ANIMALS.
    Circuit Court of Cuyahoga County.
    George W. Wood v. The State of Ohio.
    Decided, December 9,1907.

      Criminal Law — Prosecution under Section 6951 for Cruelty to Animals —Plea in Bar — Based on Conviction of Cruelty to Another Animal —Criminal Liability of Principal — Where Wrongful Act is Done by Agent — Offenses against Public Policy — Prima Facie Case.

    1. Where the owner of several teams, engaged with different drivers on the same work, is prosecuted and convicted of cruelty to a mule that, was being worked with sore shoulders, such conviction can not be set up as a plea in bar to a second prosecution for cruelty on the same day to another mule, which was working in another team and with a different driver.
    2. A primes facie ease of criminal liability is made against a principal, when it is shown that an act which is made an offense under the statutes was done by his agent in the course of his employment and with the apparent authority of the principal.
    Marvin, P. J.; Winch, J., and Henry, J., concur.
    Error to tbe court of common pleas.
   Wood was prosecuted before a justice of the peace for a violation of Section 6951, Revised Statutes, punishing those guilty of cruelty to animals, the charge being that—

“On the 4th day of April, 1907, in the city of Cleveland, in the county of Cuyahoga, and state of Ohio, one George W. Wood, did unlawfully and willfully torture a certain animal, to-wit, one brown mare mule, by then and there causing Robert Magruder to work and drive said brown mare mule, said brown mare mule then and there having her right shoulder and chest sore, caused by the rubbing of the collar and padding against said sore shoulder and chest of said brown mare mule, causing said brown mare mule much pain and suffering. ’ ’

Upon the trial Wood was convicted and sentenced to pay a fine. To reverse this conviction he prosecuted error to the court of common pleas, where the judgment of the justice was affirmed; to reverse which, the present proceeding is brought. Wood set up as a defense, first, a plea in bar, and in support of it offered evidence showing that he was prosecuted and convicted for cruelty to a brown gelding mule, the offense having been committed on the same day that he was charged in this prosecution with having been guilty of cruelty to the brown mare mule.

The evidence on this plea showed that Wood was part owner of several teams of mules, all working on one job of excavation, being handled and driven by different drivers. The mare for cruelty to which this prosecution was instituted was working in a team driven by Magruder. The gelding, for cruelty to which he had already been punished, was working in a different team, driven by a different driver, but the work was all being done, as already stated, on the said job and under the same superintendent or manager.

It is urged that the cruelty to the mare was a part of the same act as'the cruelty to the gelding, for the reasons already stated. This plea in.bar was not sustained by the justice, nor should it have been. The two acts, cruelty to the gelding, and cruelty to the mare, were two distinct and separate acts, done by different agents of the plaintiff in error. As well might it be said that if a saloonkeeper were prosecuted for selling liquor, in violation of law, on the first day of the week, and it should turn out that sales were made by two different bartenders in the saloon to two different people at the same time, that the saloon-keeper had committed but one offense, because both sales were in the same saloon and at the same time. This would border so closely upon the absurd that we suppose no one would make the- claim that a conviction for one of these sales would be a bar to a prosecution for the other. The fact that each of the two mules were working on the same job, so long as they were not in the same team, but were being handled by different drivers, surely does not make the cruelty to the one the same act as the cruelty to the other, and it is the act which was done by the agent of Wood in the prosecution for cruelty to the mare that was on trial in this case; that act being a different one from the act of cruelty to the gelding, and each being an act in violation of the statute, which constituted an offense punishable under the statute.

Suppose the cruelty to the gelding, for which he had. already been punished, was of the mildest form to justify conviction under the statute, consequently such as to justify only the infliction of the mildest penalty provided by the statute; and supposing that the affidavit for cruelty to the gelding had been made by A, and the accused had plead guilty, and this mildest penalty inflicted, and the affidavit for cruelty to the mare had been made by B, and the cruelty to the mare had been such as to justify'the infliction of the severest penalty allowed by law; it would be manifestly a miscarriage of justice to allow the prosecution for cruelty to the mare to be barred by what had been done in reference to cruelty to the gelding.

The court having overruled the plea in bar the case proceeded to trial, resulting in the conviction of Wood. It is urged that upon the facts of the case Wood should not have been convicted, because it is not shown that he had personal knowledge of the condition of this mare at the time when the cruelty is said to have been inflicted. The evidence shows that he was in the city of Cleveland; that he was having this work done; that he had a driver of the team in which this mare worked, and that he was working her in such wise as to clearly constitute cruelty to her under the statute.

In the case of Anderson v. State, 22 Ohio State, at page 305, the court discusses the question of the criminal liability of a principal where the wrongful act is done by an agent. In that case the statute under consideration provided that “it shall be unlawful for any person or persons, by agent or otherwise, to sell intoxicating liquors,” etc.

The claim was made that the agent violated the instructions of his principal, and the court held that if the agent had violated the statute without the knowledge .of his principal, and in violation of his instructions given in good faith, the principal would not be criminally liable, and attention is called to the language of the statute “by agent or otherwise,” which language was used to show expressly and unequivocally that the act was intended to embrace every means that the person charged might employ in effecting the illegal sale. So that that case alone would not be authority for the proposition that the act of the agent is necessarily to be held to be the act of the principal.

In the case of Meyer v. The State, 54 O. S., 242, it is held:

“That the manager of a mercantile corporation is subject to a fine under the provisions of ‘the act to provide against the adulteration of food and drugs,’ when the adulterated article is sold or offered for sale by an agent of such corporation acting within the scope of his authority.”

Applying that principle to the case at bar it would seem that the principal here would be prima facie liable for the act of his agent. That he might defend upon the ground that the agent was acting in violation of his orders, or by showing that he had no knowledge of what was being done, and that he could not by the exercise of reasonable diligence have known of the acts of the driver.

This is held in the case of Muhlhauser v. State, 1 C. C. — N. S., 273. In that case Mrs. Muhlhauser was prosecuted for cruelty to animals which were in charge of her agent on a farm in Lake county. She resided in the city of Cleveland. The evidence tended to show that her agent had been guilty of cruelty to the animals on the farm, in failing to provide them with wholesome water and suitable pasture and other food. The court held, upon the showing on the part of Mrs. Muhlhauser, that she had no knowledge of this cruelty; that she resided at a distance of some twenty-five or thirty miles away, and that as she had given proper instructions for the care of the animals in good faith, it made a complete defense for her; but there is no intimation that a prima facie case was not made against her by showing' the cruelty on the part of her agent.

In Section 746 of Meaeham on Agency, it is said:

“As a general rule, he (the principal) can not be held criminally liable for the act of his agent, committed without his knowledge or consent. There is, however, a class of cases, as has been seen, where, by statutory enactment, the doing of a certain act otherwise perhaps innocent or indifferent, or at the most not criminal, is expressly prohibited under a penalty. Of this class are many of the statutes in the nature of police regulations which impose penalties for their violation, often irrespective of the question of the intent to violate them; the purpose being to require a degree of diligence for the protection of the public which will render violation exceedingly improbable, if not impossible. * * * It is the duty of the principal to see to it that such statutes are not violated by his agents in the course of their employment. * * * Instances of these principles may be found in the case of the publication of libels; the smug-ling of gdods; * * * the sale of unwholesome or adulterated food; the erection or continuance of nuisances; the transportation of forbidden goods; the transaction of business without a license and the like. Frequent illustrations are also found in the statutes regulating the traffic in intoxicating liquors; * * * a baker has been held liable to a criminal charge for selling adulterated bread, although the adulteration was put in by his servant, and although he did not know that it was used in improper quantities; the directors of a gas company have been held liable to an indictment for a nuisance created by their superintendent, acting under a general authority to manage the works, though they were personally ignorant of the particular plan adopted, and although it was a departure from the original and understood method, which they supposed him to be following.
“When the criminal act is committed by a known agent, this is prima facie evidence of the principal’s authority, but he may rebut the presumption by showing that the act was not in fact authorized or assented to by him.”

In the case of Commonwealth v. Nichols, 10 Metcalf, 259, it is said in the syllabus:

“Sale by servant, in the shop of the master, is only prima facie evidence of such sale by the master as would subject him to the penalty for violating the statute forbidding the sale of spirituous liquors without a license.”

Carpenter, Young <& Stocker, for plaintiff in error.

B. J. Sawyer, for defendant in error.

The case of Rex v. Dixon, 4th Campbell, page 12, is the case referred to in Meacham on Agency, hereinbefore quoted, and the syllabus reads:

“A baker who sells bread containing alum in a shape which renders it noxious, is guilty of an indictable offense, if he ordered the alum to be.introduced into the bread, although he gave directions for mixing it up in a manner which would have rendered it harmless.” ,5

This is a very old English case, but it is cited, apparently with approval, by Meacham, and the cases to which attention has been called in this opinion seem to us to justify the holding that whére the act is done by the agent in the course of his employment and with the apparent authority of the principal, a prima facie case is made out against the principal. We reach the conclusion, therefore, that was reached by the court of common pleas, and its judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    APPLICATION OF USURY LAW.
    Circuit Court of Lucas County.
    George B. Boone v. Peter L. Andrews et al.
    Decided, June 27, 1907.

      Interest and Usury — Pleading—Burden and Sufficiency of Proof — Usury Law Not Applicable to Contract for Hamrding Money in Business —Advancements for Joint Venture not Usurious although Profits are Liquidated.

    1. Where usury is pleaded as a defense to a written instrument in contradiction to the terms of such instrument, the burden is on the party so asserting it, and the plea must be supported by clear and satisfactory evidence.
    2. Where one person hazards, in a' business to be conducted by himself and others jointly, or by such others for his benefit, money which is by agreement subjected to the risks of the business, the law as to usury does not apply.
    3.. An agreement whereby the first party thereto advances sums of money to be used by the second parties in conducting a business of making usurious loans and purchasing time certificates of wage earners, the profits and losses of such business to be divided and borne equally by such parties, is not usurious and is not made so by subsequent amendment whereby the first party promises to accept a stated per cent, on the moneys so advanced, as liquidated profits, or in lieu of profits. The original agreement as to apportionment of losses remained unchanged.
    Wildman, J.; Haynes, J., and Parker, J., concur.
    Appeal from Lucas Common Pleas Court.
   This case involves the construction of a written contract entered into by and between the plaintiff, George B. Boone, upon the one part, and Peter L. Andrews and his wife, Clara L. Andrews, on the other part, together with certain amendments to said contract and an oral arrangement subsequently entered into, all read in the light of the circumstances and the acts of the parties thereunder. Briefly stated, in the year 1899 Peter L. Andrews and his wife were engaged in the business of loaning money, at large rates of interest, and buying the time of wage earners, upon which business they were realizing large sums of money and profits. On February 28 of that year the principal contract involved in this case was entered into. The writing before me which embodies this contract and the subsequent amendments, except the oral arrangement to which I have already referred, reads, with said amendments, as follows:

“Toledo, Ohio, February —, 1899.
“This memorandum of agreement, entered into this twenty-eighth day of February, 1899, by and between Geo. B. Boone, of the first part, and Peter L. Andrews and Clara L. Andrews of the second part, witnesseth:
“The first party agrees to advance to the second parties the sum of four thousand dollars ($4,000), if he shall deem it necessary or advisable, and as much more as he may deem advisable, said sum to be used by said second parties in their business as money lenders and purchasers of time orders, said moneys so advanced to be and remain at all times the money of the first party.
“Said second parties agree to take said money and keep it invested as aforesaid for said first party, and if any of said money shall be lost, the second parties agree to pay to said first party one-half of the amount lost, and a loan which is not paid, or the interest not paid for two months, shall be deemed and treated as a loss, but all • so-called losses and interest shall be returned, one-half to first party and one-half to second party, when collected; and said second parties agree to pay to said first party the one-half of said losses determined as aforesaid at the time of each monthly settlement provided for herein.
“The first party agrees to allow to the second parties as compensation for their services herein the one-half of whatever is made as interest or profits on the use of said money and the additional sum of twenty-five dollars ’($25) per month in full payriient of every and all expenses.
“It is further agreed that said second parties shall make a full statement and such showing as the first party may require not later than the first of each month, beginning with the month of April, 1899, and at such other times as first party may request, and shall pay to said first party on said first of each month, one-half the interest or profits for the preceding month, and the one-half of the losses ascertained as aforesaid, less the twenty-five dollars-allowed as expenses.
“It is further agreed that all losses that may arise on loans made prior to March 1, 1899, shall be paid by the second parties, ‘' It is further agreed that the amount of money advanced by first party on this agreement shall be evidenced by notes given by second parties to first party.
“This agreement may be terminated at any time at the option of the first party.
“(Signed) George B. Boone; Clara L. Andrews, P. L. Andrews. ’ ’
“In consideration of the payment by said second parties to the first party on the first of each month of an amount of money equal to 3 per cent, of the amount invested by said first party under above agreement at date of such payment, the first party agrees to release all claim to any share in the profits of said business for the month immediately preceding such payment.
“(Signed) George B. Boone.; Clara L. Audrews, Peter L. Andrews. ’ ’
“4-1, 1899. Toledo, Ohio, March 1, .1904.
“The first party agrees to waive all claim to profits under the foregoing agreement for one year from this date, in consideration that said second parties pay to said first party such an amount as they reasonably can on the first of each month, and first party agrees to surrender to said second parties notes of the second parties or either of them, held by the first party, in the order of their dates, commencing with the oldest note, to the amount of the payments made hereunder. Said payments shall aggregate six thousand dollars for the year.
“(Signed George B. Boone; Clara L. Andrews, P. L. Andrews. ’ ’
‘1 Toledo, Ohio, November 1, 1905.
■ “The first party agrees to waive all claim to profits under the foregoing original agreement as long as the following payments shall be made to him- by the second parties, viz: The second' parties shall pay to the first party on the first- of each month after date an amount of money equal to 6 per cent, on the money invested in the business mentioned in said agreement at the time of such payment, and also such further sum on the first of each month, so that the aggregate of such payments for any one year after date, excluding said interest payments, shall not be less than $1,800 and'said last mentioned payments shall be credited upon the amount invested in said business by first party.
“In case of default by said second parties in either or any of said payments, then this agreement shall terminate and the said original agreement shall become and be in full force.
“(Signed) George B. Boone; Clara L. Andrews, P. L. Andrews.”

The contention of the plaintiff, George B. Boone, is, that this arrangement between him and Mr. Andrews and wife constituted one of three things: First, a partnership; second, a joint venture of money and skill, or third, a trusteeship or agency; and that whichever one of these three alternative constructions be adopted, the plaintiff is entitled to an accounting from the defendants, Andrews, for the moneys placed in their hands by him under'the terms of the contract.

On the other hand, it is insisted by the defendants, Andrews, that the arrangement was merely a loan of $4,000 at or about the time of the entering into this arrangement and of various sums at subsequent dates without any hazard to Boone as to the return of the money so loaned, except perhaps such hazard as may attach to any loan, as to the personal responsibility of the borrower, and that Boone was to receive as consideration for the use of this money, usurious interest. It is further contended by these defendants that Boone has been repaid the entire amount of such loans or advances, with interest at the legal rate, far in excess of that to which he is entitled.

The plaintiff has brought an action not only for an accounting, but for the appointment of a receiver and for an injunction to restrain the transfer or other disposition of any of the assets of the claimed partnership or trust, now in the hands of the defendants, Andrews. The court below appointed a receiver, who took into his possession the property claimed by the plaintiff to belong to the alleged partnership, or 'trustees, or agents, and also a referee to try the issues of fact and law involved in the controversy. The referee reported adversely to the claims of the plaintiff; the receivership, upon motion, was terminated and the receiver discharged and a temporary injunction which had been allowed was dissolved, and, on final decree, the court enjoined the plaintiff from attempting to collect certain notes which had been given him by the defendants, Andrews, under the terms of said contract. From these various orders, so far as they were embodied in the final, decree, plaintiff appealed to this court and the case has been submitted to us upon the pleadings, upon all the evdience taken before the referee and some supplementary evidence orally heard by this court.

It is not of very much consequence, in our judgment, by what name we denominate the condition which arose upon the execution of this contract of February 28, 1899. It is off importance to ascertain the true intent and spirit of that contract as determining just what was the arrangement in contemplation of the parties when the paper was signed. It appears that some years prior to this date the parties had been engaged in a joint business, though they may not have called it a partnership; but it is not disputed by the defendants here through their counsel that they were at this prior time engaged in business together; and while ws are not informed with precision as to the date when that earlier arrangement began, it appears that in June or July, 1898 — if we are to rely upon the testimony of Mr. Boone in this regard — there was a termination of that arrangement, when one Rowland seems to have taken the place of Mr. Boone in the business conducted by Mr. Andrews and wife. Some sort of a settlement was made with Mr. Boone at that time and he was partly paid an agreed indebtedness then existing in his favor. The residue, however, of a considerable indebtedness was unpaid at the time of the execution of the contract of February 28, 1899.

Much stress is laid by counsel for the defendants upon the fact that there is no mention, in terms, of a partnership, nor is the word “partner” used in this contract which is the particular subject of contention and construction; and in the opinion of the referee, or perhaps in his report, some emphasis is placed upon the fact that there had been no talk, so far as appeared by the evidence, of a partnership, so denominated. Our search of the evidence discloses the statement made by Mr. Boone, in cross-examination, I think, that he did not recall that in the conversations between him and Mr. or Mrs. Andrews anything was said about a “partnership.” It is urged upon us with much earnestness and some plausibility, perhaps, that as Mr. Boone was a lawyer and familiar with the law pertaining to partnerships, if he had designed to enter into the relation of .partner with these defendants, that fact would have been expressed with clearness in the contract, -which was written by him. A further examination, however, of this somewhat voluminous record discloses among numerous exhibits an earlier writing, signed by these same parties and written by Boone, which seems to have be&L -made the basis of the original arrangement between them, not the one under which operations were conducted after February 28, 1899, but in the period which terminated with June or July, 1898. This contract is known as Exhibit 24 and is attached to the other evidence offered to the referee. It is brief and I will read it:

“This memorandum of agreement'entered into between Geo. B. Boone of the first part and Peter L .Andrews and Clara L. Andrews of the second part, witnesseth: The first party agrees to advance to the second parties so much money as he may deem advisable, said money to be invested in loans and time certificates, by the second parties. The second parties agree to give to the first party as evidence of said sums of money so advanced their promissory notes, said notes to be payable at any time either of the parties hereto shall so elect. The second .parties further agree to keep said money invested in loans and time certificates, also to furnish to said first party a monthly statement of the amount of such loans and time certificates, and to pay to said first party his proportion of the profits shown by said statements. It is further agreed by the parties hereto that the first and second parties shall bear in equal proportions the gain and the loss on the investments of the second parties. It is further agreed that the title 'to said investments shall be and remain in the first party but shall be made in the name of Clara L. Andrews, trustee, or other proper party.
“(Signed) Geo. B. Boone; Clara L. Andrews, Peter L. Andrews. ’ ’ ■

The similarity of several of the phrases used in this contract to those adopted in the contract of February, 1899, can not be overlooked. In one part of the testimony of Mr. Boone he is asked what form he used in the drawing of the contract of February 28, 1899. It is in the lnie of cross-examination, wherein counsel were seeking to emphasize their claim that he would have been likely to adopt the term “partnership” if the contract had been intended to embody an agreement to enter into such a relation. In answer to one of these inquiries — the inquiry I have referred to — as to what form, if any, he adopted, he said, substantially — I have not his precise words before me at the moment — •that he had the contract which they had used before, or under which 'they had carried on business before, the implication being that he had used that, not perhaps entirely as a form from which to draw a new contract, but as suggestive of some of the phrases in it — and that it was clearly suggestive of some of these phrases, we have no doubt. This earlier contract bears no date, but it was made at any rate some time prior to June or July, 1898, when, according to the testimony of Mr. Boone, the first arrangement terminated. It was, perhaps, not far from the the date when Mr. Boone leased certain property on South Erie street to Andrews, or to Andrews and wife, to enable them to carry on the business in which he was at that time engaged with them or into which he at that time entered, and this was, I think, three or four years prior to 1898.

This contract, Exhibit 24, provides that the title to the investments shall be in the first party, that is, Mr. Boone, although the investments should be made in the name of Clara L. Andrews, as trustee, or some other proper party. For some reason, Mr. Boone did not care, apparently, to have his name used in connection with the business; whether he did not wish to become liable in connection with it, or whether ■ he did not care to have his name associated with it because of its effect in some other way, it is not necessary to inquire. Three is no hint that it was a usurious contract; there is nothing in the contract to indicate it; there is nothing tending to show anything of the kind; there is no claim by counsel in behalf of Mr. or Mrs. Andrews that there was any usurious contract made at the beginning of that earlier arrangement. The contract provides expressly that there shall be, not only a community of profits, but a community of losses. They áre to share alike and equally in the losses as well as the profits, and, in our judgment, this transaction can have amounted to nothing more and ■nothing less than a partnership, under well-settled rules — I am speaking now, of course, of this earlier arrangement, evidenced by the testimony of witnesses and by Exhibit 24. The same exhibit uses various other phrases, identical or almost identical, with those embodied in the contract of February 28, 1899, and one of them, of much importance, perhaps, or demand of much importance in the contract of 1899, is found embodied in the contract of the earlier date, as follows: “The second parties agree to give to the first party as evidence of said sums of 'money so advanced their promissory notes. ’ ’ * * * It was not then deemed inconsistent with the sharing of losses that the defendants, Andrews, should give their promissory notes to Boone. In the contract of February 28, 1899, we have the phrase:

“It is further agreed that the amount of money advanced by first party on this agreement shall be evidenced by notes given by second parties to first party. ’ ’

In the later contract, it is not stated when those notes should be made payable, whether or not they should be negotiable or what should be their other terms, but in the earlier contract the stipulation was, that they were to be payable ‘ ‘ at any time either of the parties hereto shall so elect.”

We are inclined to think, or, at least it is my judgment, that the construction of the contract of February 28, 1899, would amount to the same result as that which is embodied and expressed in. the earlier contract; that is to say, when the contract provides that the amount of money advanced shall be evidenced by notes given by the second parties to the first party, as no time of payment is given, it is left open to future arrangement between them as to when they shall be made payable. That is perhaps not precisely the ■ arrangement which was made in the earlier contract, but it is near enough to it, so far as the purposes of this case are. concerned. The important thing — and which I repeat for the purpose of emphasis — is that in the earlier contract which is unquestionably a contract in which the parties were to share losses, and under which Mr. Boone might never receive back the moneys loaned or advanecd by him, it was not deemed inconsistent with that arrangement that notes should be given as evidence of the amount which he so advanced or placed in the hands of Mr. Andrews and his wife. If that was true when that arrangement or contract was made, we may fairly infer that it was the intent of the parties in the second contract that they were to divide the profits and losses, if that contract in other respects will reasonably bear that interpretation.

The contract of February 28, 1899, does not expressly say that the first and second parties shall bear in equal proportion the gain and the losses, but it is provided that:

. “Said second parties agree to take said money and keep it invested as aforesaid for said first party, and if any of said money shall be lost, the second parties agree to pay to said first party one-half of the amount lost.” * * *

I tarry there for a moment. By the terms of the notes the second parties would obligate themselves to pay back the entire amount of money received; but here is a provision that if any part of it be lost, they shall pay to the first party one-half of the amount so lost, the implication being, as we think, that they would not be required to pay back the other one-half — in other words, that as between Mr. Andrews and his wife on the one side and Mr. Boone on the other, there would be an equal division of such loss; that is to say, that they would make good to him the money which he had let them have, though lost, to the extent of one-half of it. If all the money should be lost in the venture — a contingency which, unquestionably, they did not contemplate — they would be required to give to Mr. Boone one-half of the amount.

There is a further provision in the contract, however, which I will read: “and a loan which is not paid, or the interest not paid for two months, shall be deemed and treated as a loss, but all so-called losses” (and I invite attention to the phrase “so-called”) “and interest shall be returned, one-half to the first party and one-half to the second party, when collected;” * * *. In other words, at the time of the monthly settlements, as subsequently provided, if there was a default as to either principal or interest, it would be treated, provisionally as a “loss,” and, if subsequently collected, then the matter would be corrected in a subsequent accounting. It has been argued to us with very much earnestness that the fact that notes were given is the controlling fact; that'the money was to be repaid to Boone at all events, that is, the principal, and that they were talking about a loss of interest only when they spoke about a default for two months and then of the payment by the second parties to the first party of only one-half of the amounts as to which there have been such defaults and which they call “so-called losses.” But one trouble with this claimed construction is, that a loan wMch is not paid or the interest not paid for two months shall be deemed and treated as a loss. It is not simply the interest, They evidently had in contemplation a possible loss of some portion of the investment and it would be difficult to see how they could shut their eyes to such a possibility, in view of the kind of business that was being conducted.

Now these circumstances, and perhaps some others to which I might refer, aid us in the construction of this contract and weigh more forcibly with us than could have done the use of the term “partner” or “partnership” in this contract or does the drawing of a subsequent contract in which one Sherer was a partaker, in which there was an express provision for a partnership. That is a circumstance bearing upon the likelihood of Mr. Boone’s drawing a contract with the intent to enter into a relation analogous to that of partner with Mr. and Mrs. Andrews, and omitting all reference, in terms, to a partnership; but it is not more cogent than the making of another contract at a prior date in which a partnership was created with a like omission in terms. A like omission occurs in another contract, which I will not stop to read, attached to these papers and marked Exhibit 23, an agreement which was entered into in 1896, between Mr. Boone on the one side and Mr. and Mrs. Andrews on the other, and in another writing drafted by Mr. Boone in March, 1904, known as Exhibit 25, in which Mr. Boone tendered a sort of readjustment of the affairs created by the facts I have already recited. While he is evidently claiming the relationship to be that equivalent to a partnership, he nowhere refers to it as such, in terms. This may not be an important item of evidence, but it is one of the circumstances to be considered in its bearing .upon the probabilities of the one construction or the other as to the intent of these parties.

We have considered another question of equal importance, indeed possibly of vital importance to the case, and that is, whether, assuming that the contract of February 28, 1899, was not a mere usurious loan, but was one which would be sustained as establishing either a trust or a partnership, the status so created may not have been terminated by the written contract of April 1, 1899, which reads as follows:

“In consideration of the payment by said second parties to the first party on the first of each month of an amount of money equal to 3 per cent, of the amount invested by said fiirst party under above agreement at date of such payment; the first party agrees to release all claim to any share in the profits of said business for the month immediately preceding such payment.
■ “(Signed) Geo. B .Boone; Clara L. Andrews, Peter L. Andrews. 1
“April 1, 1899.” ■

If there was a termination of a relation which the law would protect and if the parties entered into a new contract for the retention of moneys theretofore placed by Boone in the hands of Mr. Andrews and his wife, with an agreement that they should be returned absolutely and that Mr. Boone should receive as compensation for their use 3 per cent, a month, that would be such a contract as would not be protected. It would be treated as one for usurious interest and the law would allow Mr. Boone, under such circumstances, on all the moneys which he permitted to remain in the hands of Mr. and Mrs. Andrews, interest at the rate of 6 per cent, per annum and no more.

Let us analyze this amendment, which has been called the first addendum to the original contract.

It is not stated that Mr. Boone makes a certain promise, -in consideration of a promise on the part of Mr. and Mrs. Andrews; it does not say — to be more specific — that, in consideration of a promise on the part of the second parties that they will pay, the first of each month, 3 per cent, or an amount equal to 3 per cent, on the amount invested; the first party will receive such per cent, in lieu of all profits on the money. It is not recited that what Mr. Boone agrees to do is in consideration of any promise whatever #by Mr. or Mrs. Andrews, but it is only in consideration of payment that he will receive such payments, -we take it, as liquidated profits, and there is no agreement on their part that the liquidated profits shall amount to 3 per cent. In other words, it is a contract all in favor of Mr. and Mrs. Andrews, and there was no occasion for their signing it. They .did sign it and, contemporaneously with it, paid him $120, which was 3 per cent on $4,000 which had been theretofore advanced, but we think no implication arises of a promise on their part that they will continue to do that. It seems to be a sort of a promise on his part that, as the months go by, if they will pay him 3 per cent upon the total amount of money which they shall at such times in their hands, he will componud with them.

But what was it that he really released? What is that he says he will release? Why, he says he will release all claim to any share in the profits of said business for the month immediately preceding said payment. He does not say that he will forego the return of the principal or that he will forego that part of the principal to which he is entitled under the arrangement originally made, to-wit, the principal, less one-half the reduction or impairment by loss. It may be contended that in arriving at the profit which he was to receive in each month, account was to be taken of one-half of the losses, that is, the provisional losses — the so-called losses, or losses arrived at by ascertaining what default had been made in principal or interest — and that such losses were to be taken into account before determining what should be his profit and that he was to receive 3 per cent, in lieu of such profit. And I am not sure but that contention would be right; in fact, I am inclined to think we may carry along that same idea of provisional profits and provisional losses in the monthly settlements under the contract made April 1, 1899, as under the one made February 28. But, under that vjew, there is no provision that they shall be released from their agreement to make good to him in their subsequent settlements whatever has been treated as a loss, but which has turned out not to be so.

Now, in the year 1902 at some time there was an oral arrangement by which the parties agreed upon 2 per cent, interest instead of 3 per cent, as expressed in the contract of April 1, 1899, and, for a time, settlements were made upon that basis as the settlements had been made on the basis of 3 per cent. Those payments seem finally to have stopped, and, on March 1, 1904, they signed another addendum to the contract, reading: “The first party agrees to waive all claims to profits under the foregoing agreement for one year from this date.” He seems to have become worried about his getting anything more out of the contract, or as to what he may get out of it, and he agrees to forego all profits for a year “in consideration that said second parties pay to said first party such an amount as they reasonably can on the first of each month, and the first party agrees to surrender to said second parties notes of the second parties or either of them, held by the first party in the order of their dates, commencing with the oldest note, to the amount of the payments made hereunder. Said payments shall aggregate $6,000 for the year.” This was signed by the parties. This is an agreement that he will relinquish profits if they do what he stipulates there shall be a consideration for such an agreement. It is not contended that in the period of one year from March 1, 1904, they did make payments aggregating $6,000 upon these claims, so that there was no satisfaction, if this was an accord. It was not accord in the sense that it was to be a settlement of the entire claims of Mr. Boone, but it was to be relinquishment of his profits if they would make payments upop the principal to the aggregate amount of $6,000 in that year. On November 1, 1905, the final amendment was made to the contract, in which it is said:

‘ ‘ The first party agrees to waive all claims to profits under the foregoing original agreement as long as the following payments shall be made to him by the second parties; viz.: The second parties shall pay to the first party on the first of each month after date an amount of money equal to 6 per cent, on the money invested in ■ the business mentioned in said agreement at the time of such payment, and also such further sum on the first of each month, so that the aggregate of such payments for any one year after date, excluding said inetrest payments, shall not be less than $1,800, and said last mentioned peyments shall be credited upon the amount invested in said business by first party. In case of default by second parties in either or any of said payments, then their agreement shall terminate and the said original agreement shall become and be in full force.”

This is also signed by all the parties, and the words: ‘ ‘ and said last-mentioned payments shall be credited upon the amount invested in said business, ’ ’ should be, to some extent, emphazised in arriving at the understanding which the parties had as to the transaction at that comparatively late date.

■ 1 will not attempt to, review many of the authorities cited by counsel, but our conclusion is, that the contention of plaintiff that if the money is in any sense placed or invested in the business of Mr. Andrews and his wife, so as to hazard it in the business, then no matter what per cent, is agreed upon as a basis for compensation for the use and hazard of such money, the usuary laws will not apply, is well founded. We think that that contention is supported by the authorities. We need not travel very far away from the authorities of our own state. The decision in the. case of Cunningham v. Green, 23 Ohio St., 296, 298, holds:

“The statute (Rev Stat., 3179), limiting the rate of interest does not apply to an agreement of copartnership, which provides for allowing a partner, who is to bear his share of the loss, interest on the money he invests in the firm. ’ ’

If this is true as to a partnership, it is equally true as to money placed in the hands of another as-an agent or trustee. There can be no escape from the conclusion that the principle which will apply to the one situation applies to the other; whether it bp a relation of trust which is created, or a partner- . ship, or a joint venture, by whatever name we may call it — for there' is no magic in words — the principle is precisely the same.

The decision, Second Nat. Bank v. Bank, 13 C. C., 561, is, perhaps, not in all respects applicable, because that was a case in which the rights of creditors were involved, and sometimes courts will hold parties to obligations as partners, when, inter se, they might not be such. We have here a contest between the parties who entered into the arrangement which, on the one side is claimed to have constituted a partnership and on the other side is claimed to have created the relation of debtor and creditor. The case cited, Cunningham v. Green, supra, however, the syllabus of which I have just read, is a case between partners, and the decision of the court is clear, and, as we believe, is the undoubted law, that where one person hazards in a business to be conducted by himself and another, jointly, or conducted by that other for his benefit, money which may be returned to him but which is subject to the risks of the business, then the law as to usury does not apply.

There remains, however, the consideration of an argument which must not be forgotten, and that is, that whatever may be the proper construction* of this contract, if we are to treat it as meaning what it says, the law will not protect parties from the consequences of illegal contracts, no matter what form they may make their arrangements assume. In other words, we have the claim asserted, not only in argument but also in the answer of the defendants, Andrews, that this was a mere colorable contract and that it was placed in an ingenious, form or phraseology to avoid the consequences of the law as to usury. This is an affirmative claim on the part of defendants and the burden rests upon them to substantiate it. We have no decision in Ohio as to the amount or degree of proof required to sustain such a claim as this. In Jones, Mortgages; Section 643, we have this language:

“The burden of proof that the mortgage is usurious is upon the mortgagor.”

This is a work bn mortgages and the statement of course relates to mortgages but is equally applicable to other instruments.

“He is impeaching his own obligation formally executed under seal, and must establish the facts to constitute asurv beyond a reasonable doubt. An even balance of testimony is not snfficient; there must be a clear preponderance. It is a defense not favored in equity; and especially when the consequence is to forfeit the whole debt, the defense is considered unconscientious. When the penalty is a forfeiture of the illegal interest, or of all the interest, even although the defense is not considered unconscientious, the rule of evidence, that the defense must be clearly made out, is applied both at law and equity. ’ ’

In our state there is no forfeiture of a debt or of all the interest, but there is a forfeiture of the illegal interest, so that the language used by Mr. Jones, if applicable at all to mere demands on notes or loans, has application 'here.

In the case of White v. Benjamin, 138 N. Y., 623, the court held:

“Where usury is pleaded as a defense to an obligation to pay money, as the presumption is against such a violation of law, the defendant must establish it by clear and satisfactory evidence ; all the facts constituting the usury must be proved with reasonable certainty; they can not be established by mere surmise and conjecture, or by inferences entirely uncertain.”

Perhaps this decision is robbed of some of its force by the fact that the law of New York is not precisely the same as in our state as to the result of usurious contracts; but still the suggestion made, that the parties will not be presumed to have intended to do something contrary to law, is just as applicable to the laws of Ohio as of New York or any other state. It is true that no such penalty attached as to make it a crime, either felony or misdemeanor, but it is an illegal contract so that it becomes invalid and the whole contract as to the usury is so tainted that the law will not permit it; it is considered contrary to the policy of the state, and I see no reason why, upon general principles, it may not be said that a party would hardly be presumed to violate such a law or settled policy of the state.

In the case of Morris v. Taylor, 22 N. J. Eq., 438, it was held:

“To support the defense of usury, the evidence must be clear and cogent.”

In the case of Conover v. Van Mater, 18 N. J. Eq., 481, it was held:

“The burden of proof is on the party setting up the defense of usury. He must establish the facts necessary to constitute it, beyond reasonable doubt, and by a clear preponderance of testimony. ’ ’

In Ohio, we have had the rule pretty well established, that, in impeaching instruments solemnly entered into by parties .to evidence their arrangements, the proof must be clear. We have it in the case that engrafts a parol trust upon an absolute deed and in the ease of reformation of a written instrument. In these and some other instances to which I might refer, the courts have established the rule that the proof must be clear and convincing. The parties are permitted to rely upon the obligations which they have deliberately placed upon paper, and not only will there be no presumption of something different from and antagonistic to, that which they have so written, but the proofs must be reasonably clear to establish the claim of a party that something different was intended. Upon this question we have not a word that I recall from Mr. or Mrs. Andrews, to the effect that it was arranged that this contract should-take the form which it was made to take in order to avoid the statute as to usury. It is true, Mr. Andrews says that he was borrowing money from Boone, that Boone was merely loaning it, and he endeavors to make it appear- that there was no such arrangement as that which was embodied in the contract. Mr. Boone, on the other hand, claims that the contract was one, as he . understood it, of partnership; that he was to share in the losses as well as in the profits, and he repudiates entirely the idea that it was. a mere loan. Mrs. Andrews, to a certain extent, corroborates her husband, but there is much in the testimony of both that makes us think, not, perhaps, that they were deliberately fabricating a story, but that their recollection at least, is unreliable as to the transactions on or about February 28 and March 1, 1899. It is their claim that after that written contract was presented to Mr. Andrews, Mr. Andrews signed it,, although, as he asserted, it was not in accordance with the arrangement which had been entered into between him and Boone. Yet he says that before he signed it Mr. Boone handed over $4,000 to Mrs. Andrews and then allowed the contract to go unsigned until April 1, 1899. He makes no reasonable or adequate explanation of the fact that he finally signed a contract which he says was not in accordance with the verbal arrangement which had been made. He says that after he and his wife had signed the addendum which bore the date of April 1, 1899, then Boone said he might as well sign the contract of February 28, and almost without argument or objection, he then signed it. There is no adequate explanation of this fact.

There is another pregnant circumstance testified to by Mr. Boone and hardly contradicted by Mrs. Andrews or by her husband, which is not explainable upon any hypothesis that Mr. Boone was intending merely to loan these various sums of money and to receive pretended profits, but really usurious interest, and that fact is this: That, upon the suggestion of Mrs. Andrews, as he was a partner in the business, owning a part of the furniture which wras used in it, he- readily assented to pay and paid over $40 as the owner of one-half of such furniture. He is corroborated in his statement by the testimony of Mr. Sherer, that Mr. and Mrs. Andrews -admitted that Mr. Boone had paid for one-half of the furniture. If he was merely loaning the money, it is hard to explain "why he should be asked to pay for any part of the furniture which belonged to them and was used in the business.

One suggestion made by the referee below is worthy of notice. He says, in substance, that no accounts were made of losses from month to month. A sufficient answer to that is, that we have no evidence that there were losses which necessitated the making of such showing from month to month. On the other' hand, Mrs. Andrews, wffio was a sort of bookkeeper for her husband, or for the concern, did make repeated statements as to the condition of the business and amounts of loans, and the testimony clearly indicates that even if there were losses, there ■were no net losses — there were net profits. The moneys were loaned, according to the evidence, at 10 per cent, a month, so that after taking an account of any losses by reason of bad débts, after taking account of any expenditures for the business and after paying over to Mr.' Boone his 3 per'cent., or 2 per cent., as the ease might be, as liquidated profits there still remained a large profit to the defendants, Andrews.

J. A. Barbar, for plaintiff.

Clarence Broten, D. G. Mitchell and L. T. Williams, for defendants.

I do not know that it is worth while to dwell further upon the diverse aspects of this controversy. Doubtless I have omitted the consideration of many items which, in courtesy to the attorneys and to the court below, might be mentioned; but sufficient at least has been said to indicate the strong conviction of this court that the plaintiff should succeed in his claims as asserted in his petition. We think that the evidence does not support the claim of the defendants that the parties to this instrument intended it to amount only to a loan. We think that the evidence does not sustain the other contention of the defendants, that the contract was a shift or device, a mere colorable contract, to avoid the consequences of the statute against usury. Perhaps if the defendants could maintain their claims in this regard, they might defeat the action of the plaintiff, and yet it is difficult for us not to say that the defense of usury does not come with the utmost grace from parties whose main business seems to have been the taking of usurious interest upon contracts. Our view of the whole controversy is, that the prayer of the plaintiff’s petition should be granted. The judgment will be for the plaintiff. We have not attempted to make an accounting; we understand that the parties can either agree upon that and embody the result in the journal entry or, if they are unable to agree, a reference may be had.


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    ASSIGNMENT OF LIFE INSURANCE POLICY.
    Circuit Court of Lucas County.
    The Mechanics Banking Company v. The Equitable Life Assurance Society et al.
    Decided, October 5, 1907.

      Life Insurance — -Assignment of Policy without Delivery — Subsequent Assignment with Possession — Conflicting Claims of Assignees to the Proceeds — Priority—Collateral.
    The proceeds of a policy of life insurance are payable to tbe extent of his claim to an assignee of the policy without delivery, in preference to a subsequent assignee in whose possession the policy was placed. r

    Haynes, J.; Wildman, J., and Parker, J., concur.
   This is a petition in error; brought by the Mechanics Banking Company, to reverse the judgment of the court of common pleas. The case arises from, substantially, this state of facts:

George W. Dean took out a policy of insurance on his life, on the tontine savings fund plan, in the Equitable Life Assurance Society. He had not held it a great while before he wanted some monejq and thereupon proceeded to borrow from Horace N. Gilbert, his brother-in-law, two thousand dollars, to secure which loan he executed a third mortgage upon certain real estate which he had, and also assigned to the brother-in-law this policy of insurance, as collateral security for the amount of his loan. Subsequently a prior mortgage upon the real estate was foreclosed, and the third mortgage did not receive anything, and the only claim which Gilbert had remaining for his security was the assignment of the insurance policy.

Subsequent to the time of the assignment of the policy to [Gilbert, Dean, who still had the policy in his possession and / had not actually delivered it to his. brother-in-law, went to the I plaintiff banking company in Fostoria .and borrowed $600 on ‘ the same tontine policy, and made an assignment of the policy and delivered possession of it to the bank. The twenty years which the policy had to run expired in the meantime, the amount of the policy became due and has been paid, and this is a suit brought for the purpose of deciding who shall have the preference out of this fund. The bank claims- that it should have payment of its money first, and the balance should go to Gilbert. Gilbert claims that he is entitled first to the amount of his claim by virtue of the foregoing facts.

The point that is made and relied upon largely by counsel for the banking company, is that there was no delivery of possession of this policy of insurance to the brother-in-law at any time, and they claim that in justice and equity and as a fair rule of law, that the policy of insurance, having been left in possession of Dean and by him transferred to the bank, that it therefore acquired the superior right. The court below held in favor of the brother-in-law.

Counsel for plaintiff in error have cited some cases which he claims bear in his favor upon this question. On the other hand, counsel for defendant in error have cited a large number of authorities which they insist tend to support their claim. Without 'discussing those eases, or citing them, we simply say this : That it seems to us that, in an assignment of this kind, the assignee stands in the shoes of the man who makes the assignment, and we think that the brother-in-law, to the extent of his claim, by this assignment stood in the shoes of Dean and is entitled to be first paid out of the moneys. There is, of course, apparently some force in the argument which is made in which counsel for the banking company claim relief — that, because there was no delivery of actual possession of this policy of insurance to the brother-in-law, therefore the banking company who took the policy of insurance from Dean would be entitled to a preference, but we think that is not good law; in our opinion, it is not in accordance with the principles that properly govern that class of assignments. The bank, when it took this claim of Dean, took the interest that he had, and was bound to know the extent of his interest. If he misled them or misrepresented the facts to them, that was.their lookout; it was not a matter that bound the person who already had an assignment. We think "this should be so; we think that under the authorities cited by the defendant in error that the large weight of authority, if not almost the entire weight of authority, is .in favor of the position that I have stated — in favor of the position claimed by the brother-in-law — and those authorities can be gathered from the written briefs filed by the respective parties. We, therefore, come to the conclusion that the 'judgment of the court below should be affirmed.

Stephens & Losee, for plaintiff in error.

Doyle & Lewis, for defendant in error.


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    ALLOWANCE OF EXPENSES TO SHERIFFS.
    Circuit Court of Mahoning County.
    State, ex rel Frank L. Denormandie, v. Commissioners of Mahoning County.
    Decided, October Term, 1907.

      Construction of 98 O. L., 98, Providing Additional Compensation for Maintaining Horses and Vehicles.

    In Section 1296-29 (98 O. L., 96), which makes an allowance to sheriffs for “all expense of maintaining horses and vehicles necessary to the proper administration of the duties of his office,” the word “maintaining” is used in its ordinary meaning, and only expenses incurred in supporting, sustaining and supplying horses with the neceessaries of life and in keeping them and their vehicles in good condition, can be allowed; it does not mean that a sheriff may purchase at the county expense the necessary horses and vehicles.
    Laubie, J.; Burrows, J., and Cook, J., concur.
   The relator, sheriff of this county, asks this court to issue a writ of mandamus to compel the commissioners to approve his bills of expense in purchasing two buggies and a double set of harness alleged to be necessary in the performance of the duties of his office, and to pay the same out of the county funds; claiming that they are required to do so by the provisions of act 98 O. L., 89, 96, Section 19; Revised Statutes, 126-29.

That section provides that — •

‘ ‘ The county commissioners shall, in addition to the compensation and salary herein provided, make allowances quarterly to every sheriff for keeping and feeding prisoners under _ Section 1235 of the Revised Statutes, and shall allow his actual and’ necessary expenses incurred or expended in pursuing or transporting persons accused or convicted of crimes and offeuses, * * * and all expense of maintaining horses and vehicles necessary to the proper administration of the duties of his office. Every sheriff shall file under oath with the quarterly report herein provided for, a full, accurate and itemized* account of all his actual and necessary expenses, mentioned in this section, before the same shall be allowed by the county commissioners. ’ ’

The whole question depends upon the construction of the words “all expense of maintaining,” as used in this section; and counsel for the relator contends that they mean, and should be construed to mean, all money expended in the purchase of such horses and vehicles.

For this construction he relies largely upon the opinion of Attorney-General Ellis rendered upon this question, and published in 4 O. L. R., 669, which is as follows:

“In my opinion the word ‘maintaining’ as used in this section should be so construed as to authorize the county commissioners to furnish at the county* expense the necessary horses and vehicles for the use of the sheriff in the discharge of his duties, or, if the sheriff owns a sufficient number of horses and vehicles, to allow the expense of maintaining them.”

We do not quarrel with the idea that such word should be so construed, if possible, at least in some instances, as a sheriff’s compensation now, by the statute is made to depend upon the population of his county; but that is not the question before the court. The question here is, can such word legally be so construed — legally bear such a construction in determining the sense in which the Legislature used and intended it?

As we view it, there is nothing in the section which indicates an intention on the part of the Legislature in the use of the word “maintaining,” of using it in, or giving to it, any other than its ordinary meaning. On the contrary every word in the section indicates otherwise.

There is no provision in it for the allowance of expenses in the purchase of any articles by name, but feed; and all other intended articles can be ascertained only by implication. Public officers can be allowed only such compensation, or fees, as are provided for in express terms, or by necessary implication from the terms used, and the words “expense of maintaining,” as applied to horses and vehicles, can not, by implication, include, or refer to, the expense of their purchase, If the Legislature intended to have county commissioners supply sheriffs .with horses, vehicles and harness, or to allow them the expense necessarily incurred in their purchase, it certainly would have so provided in unambiguous terms. Simple words only were needed to make such a provision.

IS. H. Moore, for plaintiff.

W. H. Graham, Prosecuting Attorney, for defendants.

What, then, is the definition — the ordinary meaning — of the word "maintaining,” especially when applied to animals and vehicles ?

All lexicographers define maintenance as "maintaining; supporting ; upholding; keeping up; sustenance; supply of the necessaries of life; subsistence;” and the word maintain, "to hold or keep up in any particular state or condition; to support; to sustain; to keep up.” So that the meaning of the word "maintaining” as used in this sectiion in reference to horses and vehicles, means supporting; sustaining; keeping up; supplying with the necessaries of life; and the Legislature therefore in this provision only meant and intended that sheriffs should be allowed the necessary expenses incurred in supporting, sustaining and supplying their horses with the necessaries of life, and in keeping their vehicles in good condition, and not in the purchase of them.

The opinion of the Attorney-General is peculiar, in 'that it seems to put. a double and inconsistent meaning to the word "maintaining”:' first, that it should be construed to mean that the commissioners should furnish the necessary horses and vehicles; and second, but if the sheriff owns a sufficient number of horses and vehicles.the commissioners should only pay the expenses of maintaining them. So that if two horses were necessary to the discharge of the duties of his office, and the sheriff bought two for such purpose, he could not be allowed the expenses of the purchase, under such construction, if he then owned two horses. ,

We are not able to see how such a double construction can be placed upon the word in question as used in. this section.

As we view the question, we can not grant the relief asked for and the demurrer is sustained and the proceeding is dismissed at the costs of,the relator.

Dougherty & Moore, for relators.

Chas. M. Calckvell and Eylar é Douglass, contra.


author: Walters, J.

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    FORM OF COUNTY COMMISSIONERS’ ANNUAL REPORT.
    Circuit Court of Pike County.
    State, ex rel The News Publishing Company, v. The Board of County Commissioners of Pike County, Ohio; and State, ex rel J. W. Johnson, v. Same.
    Decided, January, 1908.

      County Commissioners — Annual Reports of — Construction of the Phrase “Itemized as to Amount” — Turnpike Directors’ Reports — Mandamus • — Sections 917 and J/S98.

    Tlie provision of Section 917, as amended, requiring county commissioners to file an annual report “itemized as to amount,” does not necessitate the statement of expenditures with the explicitness of an account, but permits the entering of itemized bills as one transaction, and payments to the same person for a single purpose as one item without separation of dates and amounts.
    Relators filed their separate petitions in the Circuit Court of Pike County, Ohio, alleging that the board of commissioners of Pike county had failed and refused to file a detailed report of their financial transactions for the year ending August 31, 1907, itemized as to amount, for what purpose and to whom paid, as they are required to do by statute; that the report already filed by them was so condensed as to defeat the object of the statute requiring such report.
    The commissioners answered, setting up four defenses, viz.:
    1. That relators had no legal capacity to sue, not being officers, but private individuals.
    2. That there was a defect of parties defendant, because the board of turnpike directors were not made parties defendant.
    3. A denial of the material allegations of the petitions, consisting of legal conclusions merely.
    4. Alleging that they had already fully complied with the law, and had filed the required report, and that in making same they had followed the form prescribed by the bureau of inspection and supervision of public offices.
    To this answer was- attached a copy of the report of said commissioners; also a copy of their report as turnpike directors; also a copy of the form prescribed by said bureau of inspection, July 25, 1905.
    The case was heard upon demurrer to this answer.
    Jones, J.; Cherrington, J., concurs; Walters, J., dissents in part in a separate opinion.
    The relator seeks a peremtory writ of mandamus to compel the defendant to publish a fuller and more complete report of their financial transactions during the year preceding the third Monday of September, 1907. He states that he is the owner and publisher of a newspaper, and by proper allegations in his petition, establishes his right to publish the report in question.
    Defendants answer, the answer containing four defenses. The fourth defense attaches a copy of the report to the pleading.
    Without stating specific reasons therefor, the court will content itself by saying that the demurrer to the first, second and third defenses respectively, is sustained.
    The fourth defense, having the copy of the report attached, however, is considered-upon its merits, the sole question being whether the commissioners have complied with the law in publishing their report.
    Objections have been urged by counsel for the relator, because the report has grouped under various heads and sub-heads the amounts, thereby showing for what purpose they were expended. We think that, by this means, the report is a substantial compliance with the statute, and that a reference to such heads and sub-heads will sufficiently show the purpose of the several expenditures. Especial objection is made, for instance, to the items under the sub-heads “allowance to counsel” and “allowance to justices and mayors,” etc. The item “allowance” so used, is information to the effect that they were statutory allowances, and more specific terms were not absolutely necessary. Other items appear showing various amounts were paid out under the head of “insurance.” We do not think it necessary that the report show upon what property the insurance was effected; neither under the head “boarding in county jail,” do we think it necessary to state explicitly what prisoners were fed. In such and other similar items the report shows substantially the purpose of the expenditures, and that is all the statute requires.
    Upon the question, however, of what constitutes “a detailed report in writing, itemized as to amount, to whom paid, and for what purpose,” the members of this court are not in full accord. It is contended by counsel for relator that, under a proper construction of Section 917, Revised Statutes, that the amounts shown to have been paid out must be itemized and that instead of the aggregate sum allowed and paid out, the report should show upon its face the several distinct items composing the aggregate sum. For example under the heading of “stationery and supplies for county officers,” various expenditures appear showing an aggregate sum paid out to Barrett Bros., for the use of the probate judge, and others paid out for the use of the other county officials. It is insisted that the report show the various items of stationery and supplies; that the statute now requires this to be done with the explicitness of an account. This is but one instance of the character of the report. An inspection of the report shows, that if these aggregate sums found throughout were so itemized, the report would be greatly lengthened.
    The majority of the court are unable to concur in this view. Neither does the strict reading of Section 917, Revised Statutes, nor a proper construction of that section require the minute itemizing of each bill passed on, allowed and paid out, -when paid to a single person. In the first place Section '917 merely requires a report of the “financial transactions” of the commissioners. Section 850, Revised Statutes, provides for the keeping of a record by the county commissioners of their proceedings, which record shall be received as evidence in every court in the state. By that section the “financial transactions” mentioned in Section 917, are entered on that journal. And in the instance mentioned, where the board audits the itemized bill of Barrett Bros., for stationery and supplies furnished the probate judge, and allows the bill in the aggregate, the act is but one “transaction,” and the allowance of the aggregate sum is all that is necessary to be placed on its journal.
    Again, the strict reading of Section 917, Revised Statutes, does not require the amount to be itemized if paid to a single person. The word “itemized” modifies the word “report,” just preceding. The statute requires the report to be itemized in three particulars — amount, to whom paid, and, for what purpose. In other words the natural reading of this section requires the report to be itemized: first, as to amount paid; second, to whom paid; third, for what purpose.
    In construing this statute before its amendment, as to what constitutes a “detailed report,” Judge Bradbury, in State, ex rel, v. Commissioners, 56 Ohio St., p. 646, uses this pregnant language:
    “It is, of course, within the power of the General Assembly to require such minuteness as this in the report made by the commissioners, but unless the language chosen by that body imperatively demands such construction, the section should not, in our opinion, be so construed. ’ ’
    Judge Newby, in construction of this feature of the section in Fayette county, held the same view, for he says:
    “I do not think this contention well founded, provided the aggregate amount.was paid for a single purpose, for the statute goes no farther than to require that the name of the person receiving the money, the amount paid, and the purpose for which paid be stated, and does not require the dates and amounts of several payments to one person for a single purpose to be given, but permits the several payments to be stated in the aggregate, because by such a statement, the public are advised as to the amount paid, the name of the person to whom paid, and the purpose for which paid, and the detail contended for is not necessary to serve any purpose of the statute. ’ ’
    Attached to the commissioners’ report is the turnpike directors’ report of receipts and expenses made in conformity to Section 4898.

      We all agree that the latter section governs the preparation of such turnpike directors’ report, and that the particularity of statement required by Section 917, Revised Statutes, does not apply thereto. This section was not amended, as was Section 917, and the construction adopted by the Supreme Court in State, ex rel, v. Commissioners, 56 Ohio St., 631, applies thereto.
    Finding that there has been a substantial compliance with the statutes, the demurrer to the fourth defense will be overruled, the prayer for a peremptory writ of mandamus refused, and the petition dismissed.
   Walters, J.

I differ from my associates as to the construction or, rather, meaning of the language employed in Section 917, as amended.

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

The Legislature can provide that all these items shall be set out, as the Supreme Court in 56 Ohio St., say, but unless it does so in such clear and unmistakable language, that a court, without judicially legislating, find and decide that it does mean such detail and itemizing, it will not so construe it; but if the language employed is so clear and plain that it needs no construction, and means what the words clearly interpret, this effect should be given to such language.


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    STREET IMPROVEMENT WITH WOOD BLOCKS.
    Circuit Court of Hamilton County.
    State, ex rel Anna G. Dolle, a Tax-Payer, etc., v. Charles A. Miller et al.

    Decided, December 28, 1907.

      'Specifications for Street Improvement — Preparation of Wood Blochs— Bevier Patent not Infringed — Requirements as to the Quality of Oil Used — Practicability of Specifications — Bids and Bidding.

    1. The specifications as to wood blocks to be used in tke street improvement involved in this case are not an infringement of the Bevier patent, but refer to a different process for the preservation of wood, which is not new.
    2. The court finds that the pure coal tar creosote oil required by the specifications may be obtained in the market, notwithstanding testimony of experts to the contrary, and bidders were therefore not shut out of the competition by reason of being unable to'obtain oil of that' character and quality.
    Smith, J.; Gieeen, J., and Swing, P. J., concur.

       Affirming State, ex rel Dolle, v. Miller et al, 5 O. L. R., 260.

   Plaintiff in her action seeks to enjoin the board of public service of the city of Cincinnati from entering into a contract with the Kirchner Construction Company for the improvement of McMillan street with wood blocks as set forth in the specifications under said contract.

The grounds upon Avhieh said injunction is sought are:

First. That the specifications so far as they relate to ivood blocks are so devised and prepared as to exclude any and all real competition therefor, the preparation of the same being covered by letters patent issued to the United States Wood Preserving Company and owned and controlled by it.

Second. That the specifications provided that the oil used in the treatment of the wood blocks shall be pure coal tar creosote distilled from illuminating gas tar or coke oven tar and shall contain no oil derived from water gas tar, oil gas tar or other tar; and that the specific gravity thereof at 68 degrees Fahrenheit shall not be less than 1.10 and that when distilled in a retort with a thermometer suspended one inch above the oil up to 600 degrees Fahrenheit it shall not lose more than 35 per cent, in quanity and that the specific gravity of the residue shall not be less than 1.125; and that the .said specifications further provide that the oil must be clear; that is, that there must be no substances in suspension, and that if must be absolutely soluble in benzoil so that it will readily penetrate the wood; that the requirements of the specifications in this regard can not be fully and accurately complied with; that oil such as is mentioned in the specifications can not be obtained and for this reason prevented persons and firms from bidding and thus shut out competition.

As to the first claim, we are of opinion that the specification relative to the wood blocks is not an infringement of the Bevier patent as claimed by plaintiff. The process contained in the Bevier patent as compared with that mentioned in the specifications is not the same. The vaporizing and the moistening of the wood, the impregnation with the creosote-resin mixture and the pressure to which the blocks are subject, together with the quantity of the creosote injected are entirely different; besides the preservation of wood in this manner is no new thing.

As to the second claim, to-wit, that a pure coal tar creosote oil such as is mentioned in the .specifications can not be obtained, we are of opinion is not tenable. The weight -of evidence upon this point is with the defendants. While the testimony of the experts tended to sustain plaintiff in this regard, yet the evidence of the defendants by practical distillers of this article satisfies the court that such an oil with the specific gravity and all the requirements contained in the specifications not only can be obtained but is now being distilled and on the market. This therefore would indicate that the specifications can be complied with in this regard. They do not admit of fraud being practiced or that persons were prevented from bidding owing to the impossibility of compliance with said specifications.

■ For these reasons the injunction prayed for will not be granted.

’Waller C. Taylor, for plaintiff.

Cabell Kohl and George K. Katienhorn, contra.

The motion of the plaintiff to strike the appearance and answer of the United States Wood Preserving Company from the files will be sustained.


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    QUALIFYING THE POWER OF PRIVATE CORPORATIONS.
    Circuit Court of Lucas County.
    James A. Stewart v. J. N. Gardner et al.

    Decided, 1907.

      Constitutional Law — Denial in Section 3231-1 of the Inalienable Right to Contract as Applied to Corporations — Legislative Power over Corporations — Injunction—Laborers’ and Mechanics’ Liens — Municipal and Private Corporations on the same Plane.

    1. The inalienable right to acquire property involves the right to make contracts with reference'to property, and that right appertains not only to individuals but to private corporations and to municipalities; and applying the holdings of the Supreme Court (55 0. S., 423, and 67 O. S., 197) the Legislature is as destitute of power to alienate or qualify the right of a private corporation to contract as it is to alienate or qualify the rights of individuals in the same respect.
    2. Section 3231-1, Revised Statutes, relating to liens for labor and material furnished certain public works, under the principles enunciated in the cases cited, is unconstitutional.
    Wildman, J.; IIaynes, J., and Parker, J., concur.
   This is a proceeding in error to reverse the judgment of the court of common pleas. The issues arise upon the claims of James A. Stewart and P. F. Sullivan, a cross-petitioner, of alleged liens against the property of the Cincinnati, Toledo & Detroit Short Line Railway Co., for services rendered to principal contractors. Certain work was to be done for the company, and J. N. Gardner, at first, and subsequently the Gardner Company, were the principal contractors. The services of Stewart were rendered to the one and those of Sullivan to the other eon-tractor. The claims of the plaintiff and the cross-petitioner, P. F. Sullivan, are based upon Section 3231-1, Revised Statutes. It provides, in substance, and so far as it is necessary to recite any of its provisions, that:

‘ ‘ Any person who shall have performed common or mechanical labor upon, or furnished supplies to, any railroad, * * * turnpike, plank road, canal or on any public structure being erected, or on any abutment, pier, culvert, or foundation for same, or for any side-track, embankment, excavation or any public work, protection, ballasting, delivering or placing ties, or track-laying, * * * shall have a * * * lien on the whole of the property on which said work is done,” etc.

Whether the labor is performed for, or the supplies and material furnished to, the company itself or to any contractor or sub-contractor. The court below held this section to be unconstitutional, and, in so holding, disposed of the claims of the plaintiff and the cross-petitioner named. It is hardly worth while to enter upon what might be a very interesting discussion of the various provisions embodied in this section, in view of the adjudication already had in our court of last resort as to statutes so analogous as to be, in our judgment, determinative of the question involved here. The sole issue presented for our determination involves directly the constitutionality of this section. There is a decided conflict in the authorities as to the legislative power to qualify the right of individuals or corporations to enter into contracts. The ease relied upon by counsel for the defendant in error and followed by the court below, is Palmer v. Tingle, 55 Ohio St., 423. The court in that case held:

“1. The inalienable right of enjoying liberty and acquiring property, guaranteed by the first section of the Bill of Rights of the Constitution, embraces the right to be free in the enjoyment of our faculties, subject only to such restraints, as are necessary for the common welfare.
“2. Liberty to acquire property by contract, can be restrained by the General Assembly only so far as such restraint is for the common welfare and equal protection and benefit -of the people, and such restraining statute must be of such a char-, acter that a court may see that it is for such general welfare, •protection and benefit.. The judgment of the General Assembly in such eases is not conclusive.
‘ ‘ 3. While a valid statute regulating contracts is, by its own force, read into, and made a part of, such contracts, it is otherwise as to invalid statutes.
“4. The act of April 13, 1894, 91 O. L., 135 (Revised Statute 3184), in so far as it gives a lien on the property of the owner to sub-contractors, laborers and those who furnish machinery, material or tile to the contractor, is unconstitutional and void. All to whom the contractor becomes indebted in the performance of his contract, are - bound by the terms of the contract between him and the owner.”

This would seem to dispose of the question of the validity of the section under consideration so far as the view entertained by our Supreme Court is concerned, except for the contention of plaintiff in error, that the decision of the Supreme Court in the case just cited does not reach so far as to apply the rule enunciated to corporations. It is earnestly, and with much-force, urged that that legislative power which gives life to the corporation and has power to take it away, may at any time by legislative enactment restrict the powers of the corporation so by the legislative act created. Indeed, it is asserted in general terms that a corporation has no inalienable right to contract; and it might, by force of the same reasoning, be insisted that a corporation has no inalienable right at all; that all its rights are subject to be divested by acts of the Legislature; that it can not claim even the right to exist; and that it must, at any time, at the legislative behest, surrender its life. The act which the Supreme Court held to be-invalid was, it is true, an act which did not, in terms, especially relate to corporations, and one of the cases under consideration by the Supreme Court affects only the rights of individuals. The other case had for one of its pax’ties a corporation, bxxt it was not the power of that corporation to contract that was being considered.

In the act now under consideration we have a provision which relates especially to corporations, although not necessarily entirely so. It evidently refers mainly to structures axxd improvements made by railway companies, but it also relates to public structures of all kinds. Incidentally, some consideration has been given, in argument, to the provision in this section for its enforcement — for the foreclosure of the lien or for the collection of the debt sought to be secured by the lien; and no attorney in the case contends for any validity to the section so far as its remedial part is concerned, or, rather, as to the enforcement of its remedy. It is provided, in substance, that the entire operation of the railway — if it be a railway — no matter what its length, no matter what the extent of its business, may be tied up by injunction until the claim of the lienholder, no matter how small or insignificant, shall have been adjusted and paid. This is “government by injunction” with a vengeance, and, as I say, no attorney in the case contends that a provision such as that will stand under the law. But, it is urged that this part of the statute may be eliminated from it without emasculating the statute — that the statute so far as concerns the establishing .of a lien may 'still exist and the lienholder may have recourse to a court of equity in proper proceedings for its enforcement.

The decision of our Supreme Court, supra, has been subjected to sharp criticism, and the reasoning, so far as we are apprised, does not appear to have been followed, to any extent, outside of Ohio. It is urged upon us that we should not enlarge this decision — go any farther along the line which has been followed by our Supreme Court. The reasoning of the judge who announced the opinion upon which the decision is based may not bear critical investigation. If the decision stood alone, in view of our notions of this class of legislation, it is altogether likely that we might adopt the suggestion of counsel, and, following the Supreme Court no farther than was necessary, hold that, while under our Bill of Rights men have an inalienable right to contract, artificial persons have not. But this case does not stand alone as an expression of the views of our court of last resort, and notwithstanding the high authority of the Supreme Court of the United States, and the Circuit Court of Appeals, whose decisions have been cited to us as in conflict, to some extent, with the case of Palmer v. Tingle, supra, we feel bound to follow the authority of the Supreme Court of Ohio as to Ohio statutes, and the application of the Bill of Rights embodied in our Ohio Constitution. It is not a question affecting the validity of an act of Congress, nor is it one in which a question has been presented of claimed violation of the Federal Constitution, but the case relates solely to the Ohio jurisdiction; and in such cases, we have uniformly held the decisions of our own Supreme Court to be binding upon us, leaving that court to revise and reverse its own conclusions at any time when it may deem that it has gone wrong.

In the case of Cleveland v. Construction Co., 67 Ohio St., 197, the Supreme Court has, in effect, refused to adopt the contention of counsel for plaintiff in error here' — that the principle of an inalienable right to contract, even if applied to individuals, will not apply to corporations. I read a part of the syllabus:

“1. The act of April 16,1900, 94 O. L., 357 (Section 4364-62a et seq., Revised Statutes), entitled: An act to provide for limiting the hours of daily service of laborers, workmen and mechanics employed upon public work, or of work done for the state of Ohio, or any political subdivision thereof, providing for the insertion of certain stipulations in contracts of public works; imposing penalties for violations of the provisions of this act, and providing for the enforcement thereof, is in conflict with Sections 1 and 19 of Article I of the Constitution of Ohio because it violates and abridges the right of parties to contract as to the number of hours of labor that shall constitute a day’s work, and invades and violates the right, both of liberty and property, in that it denies to municipalities and to contractors and sub-contractors the right to agree with their employes upon the terms and conditions of their contracts. -Said act is therefore unconstitutional and void.”

It is held, also, that the act is not a valid exercise of the police power, thereby disposing of one of the questions urged upon us and based largely upon the case of Branin v. Railway, 31 Vt., 214. It will be noted that here we have a municipality which is not only a political subdivision of the state, but is also a corporation having certain property and business rights, a corporation representing a large number of individuals, just as a private corporation does, and, when we leave out of consideration its governmental powers, standing towards its citizens very much as a private corporation stands towards its shareholders.

• In the entire argument of the questions in Cleveland v. Con struction Co., supra, it seems tp have been assumed that the Legislature had no power to restrict the right of private corporations as to contracts or as to fixing the hours of labor of their employes1; but the question under consideration was mainly whether the Legislature could enact legislation restricting the right of municipalities so to contract or fix the hours of labor. The Legislature had attempted to fix a limit to the hours of labor, just as in previous enactments it had fixed the rate of interest beyond which contracting parties were not permitted to go. It has seemed to the members of the present court who have considered this question, a matter of some difficulty to distinguish between that spirit of paternalism by which the legislative body of a state attempts to protect the ignorant or improvident against the adroitness and skill of the educated or experienced in the matter of usury laws, and the kind of legislation which we are here considering in which the Legislature has sought to protect workmen who may be ignorant of the laws of business and not accustomed to making contracts, as against the shrewdness and skill of employers. But the Supreme Court has attempted to draw such a distinction and has held that, even in the case of municipal bodies, a legislative provision that they shall not make contracts with employes for work days of more than eight hours, is invalid because of its attempted restriction of the power of the contracting parties, including the municipalities themselves, to enter into such contracts.

On page 231, Judge Crew, who announces the opinion of the court, quotes approvingly this language from the case of People v. Coler, 166 N. Y., 1 (99 N. E. Rep., 716) :

“The city is a corporation possessing all the powers of corporations generally, and can not be deprived of its property without its consent or due process of law any more than a private corporation can.”

And on page 215 he quotes from the case of Atkins v. Randolph, 31 Vt., 226, 237, this language:

‘ ‘ It. is true, as was urged in argument by the learned counsel for plaintiffs, that in some respects the Legislature has a power in respect to municipal corporations that they have not in respect to private corporations or individuals. They may alter or abolish municipal corporations at pleasure, but, yet, not so as to defeat the pecuniary rights of individuals, as against such corporations, or as depending upon their existence. The Legislature have the same power in respect to private corporations, when that power is reserved in the law creating them. So far as a municipal corporation is endowed by law with the power of contracting, and, as such, is made capable of acquiring, holding and disposing of property, and subject to the liabilities incident to the exercise of such power and capacity, thus being invested with legal rights as to property and contracts, and made subject to legal liabilities in respect thereto,' to be ascertained and enforced by suit in the ordinary judicial forums, upon the same principles and by the same means as in case of a private corporation, such municipal corporation must stand on the same ground of exemptions from legislative control and interference as a private corporation. As to third persons who seek to enforce pecuniary liabilities against towns, arising upon contract, such towns are merely private corporations or individuals, and in this respect, they are not affected by the purely municipal public and political features that appertain to their corporate existence in virtue of, and in reference to which alone, they are subject to the absolute control of legislation.”

Judge Crew cites to the same effect the case of People v. Detroit, 28 Mich., 228, and adds:

“This distinction as to the powers delegated to municipal corporations was clearly recognized and commented upon by this court in the case of Western College v. Cleveland, 12 Ohio St., 375.”

I need not follow his elaboration of this distinction, which has become quite familiar to the bench and bar of this state, the distinction between governmental powers and the proprietary and business powers of a municipality. This language which I have selected because of its manifest treatment of municipal corporations as upon the same plane as private corporations, and its treatment of private corporations in the same paragraph as upon the same plane as individuals, so far as regards the legislative lack of right to alienate or qualify the power of such individuals or private corporations or municipalities to contract. In the case of Cleveland v. Construction Co., supra, Judge Crew cites, as bearing more or less directly upon the questions in it considered, numerous cases, and among them State v. Iron Co., 51 Ohio St., 632; see, also, memorandum note reported in 33 Bull., 6, which shows it to be a case involving the right of a private corporation to enter into contracts and the la^k of power in the Legislature to interfere with the exercise of that power.

Malcolm McAvoy and A. S. Brumback, for plaintiff in error.

L. W. Morgan, for defendant in error.

L. P. Conway, for P. F. Sullivan, cross-petitioner.

In the case of Palmer v. Tingle, supra, Judge Burket, in his opinion, on pages 441-442, refers to this same unreported case of State v. Iron Co., supra, as follows:

“Many other like cases of restraint as to contracts are to be found in our statutes, but all of them, in so far as they are valid, depend for their validity upon the same principle. It was the infringement of the liberty of contract that induced this court in State v. Lake Erie Iron Co., unreported, to hold the statute unconstitutional which' required corporations to pay their employes at least twice in each month.”

We have, then, the very definite expression by our Supreme Court that the inalienable right to acquire property involves the right to make contracts with reference to property, and that that right pertains not only to individuals but also to private corporations and to municipalities. The federal courts and the courts of many of the states, with very forcible reasoning, have adopted the contrary view. We feel bound, however, to follow the decisions of our own Supreme Court.

I wish to add, before dismissing the case entirely from our thought, that the statute which is involved in the present inquiry is no more a statute affecting corporations exclusively, or their right to contract, than was the statute considered by the court in Palmer v. Tingle, supra. That was an act as to liens generally, acquired by persons contracting with sub-contractors, and so is this, although it may pertain to certain kinds of structures and improvements not contemplated by the act with regard to which the Supreme Court has adjudicated this question. So far as their affecting corporations and individuals alike is concerned, the two statutes are practically upon the same footing.

The judgment of the court below is affirmed.


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    CONDEMNATION BY MUNICIPALITY.
    [Circuit Court of Hamilton County.]
    The City of Cincinnati v. Philip Morton.
    Decided, May 18, 1907.

      Eminent Domain — Property Taken for Park Purposes — Separate Parcels Involved — Fixing the Assessment Therefor — Section 1536-109.
    In condemnation proceedings involving a number of separate pieces of property, it is not error to single out one parcel and bear tbe testimony and fix tbe damages as to that parcel before proceeding with the inquiry as to the remaining parcels, provided the whole inquiry is before the same jury.

      City Solicitors, for plaintiff in error.

      E. L. Gordon and Albert E. Morrill, for defendant in error.
    Smith, J.; Swing, J., and Giffen, J., concur.
   We see no objection to tbe procedure had in. the trial court allowing the jury to hear the testimony as to the value of one piece of property separate from the others, and then assessing the compensation for the same to the owner before proceeding to ascertain the value of another piece.

Condemnation proceedings must be brought before a single jury, which was done in this case; and when the jury was impanneled it was sworn but once to make the whole inquiry and assessment.

Section 1536-109 provides that “the assessment shall be in writing, signed by the jury, and shall be so made that the amount payable to the owners of each lot or parcel of land may be ascertained.”

As disclosed by the record herein, we think the action of the court below is in conformity with this section, and can not be complained of by the city.

Judgment affirmed.