author: Hughes, J.

text:
    MINORS UNDER. SIXTEEN NOT COVERED BY THE WORKMEN’S COMPENSATION ACT.
    Court of Appeals for Lucas County.
    (Before Judges Hughes, Kinder and Crow, of the Third District, sitting in place of Judges Chittenden, Kinkade and Richards.)
    Walter Kutz, a Minor, by Louis Kutz, His Next Friend, v. The Acklin Stamping Company.
    Decided, April 5, 1917.

      Boy Under Sixteen—Injured While Employed in Factory During NightTime—No School Certificate Obtained by Employer—Error in Charge of Court as to Status of Minor of that Age Under Worh-, men’s Compensation Act.

    A minor unlawfully employed while under sixteen years of age is not within the contemplation of the workmen’s compensation act; and an employer giving employment to a minor not legally permitted to work is amenable to all the other statutes of the state affecting employment in case of injury to such minor notwithstanding he had complied with the terms of the compensation act.

      S. S. Burtsfield, for plaintiff in error.

      Marshall & Frazer, contra.
   Hughes, J.

The defendant owned and operated a factory or workshop in the city of Toledo, Ohio, with more than five employees engaged. The. plaintiff, a minor between the age of fifteen and sixteen years, was employed by the defendant during the latter part of May, to assist a stamper working on a stamping machine, by carrying what was known as yoke ends or small pieces of steel to him and placing them on a board near the machine. He was employed by the defendant to work during the night, from about six o’clock in the evening until five o’clock in the morning.

.When the contract of employment was entered into, there was . no schooling certificate either produced by the plaintiff .or procured by the defendant, nor was any reference or inquiry made regarding the same by either party.

It is contended on behalf of the defendant that the father of this boy represented to it that said boy was over sixteen years of age, but there is no claim and no evidence to support a claim that any inquiry was made of the boy or any assertion made by him regarding his age at or before the time he was employed.

On the night of June 28th, a ventilating fan was installed by the defendant in an opening in one end of its building. This fan was four and a half feet in diameter, about four feet above the floor and with its steel blades projecting three and a half inches inside the line of the wall. The fan was installed on this day and in operation before guards were placed about it. It is the claim of the defendant that it was started on this night for the purpose of testing and that guards were to be placed about it later.

The plaintiff’s hand, he claims, as he was reaching in a barrel for some of these yoke ends, came in contact with the steel blades of this revolving fan and was so injured that it became necessary to amputate the same. Defendant asserts that plaintiff was throwing paper in the fan and thereby was injured.

..The trial court directed the jury that it should disregard and give no heed whatsoever to the fact that the plaintiff was a minor, in effect charging that he came within the workmen’s compensation laws of this state and having elected to sue instead of asking for compensation out of the state insurance fund, became subject to all of the laws of this act, and that the defendant was entitled to the defenses of the common law, namely, contributory negligence and assumed risk.

There are numerous errors assigned, all of which have been examined into with care, but will not be discussed separately for the rehson that the general discussion following sufficiently disposes óf them all.

If the plaintiff was an employee within the meaning of the workmen’s compensation act, the theory of the defendant and the trial court is correct.

An employer who has complied with the terms of this act is not liable for personal injuries to an employee in a civil action, but sueb employee must receive his compensation out of the state insurance fund. The exception to this is found, however, in Section 1465-76 of the General Code, which reads as follows:

“# >s * And }n case gueh injury has arisen from the willful act of such employer or any of such employer’s officers or agents, or from the failure of such employer or any of such employer’s officers or agents to comply with any lawful requirement for the protection of the lives and safety of employees, then in such event, nothing in this act contained shall affect the civil liability of such employer, but such injured employee, * * * may, at his option, either claim compensation under this act or institute proceedings in the courts for his damage on account of such injury; * * * and in all actions authorized by this section, the defendant shall be entitled to plead the defense of contributory negligence and the defense of the follow-servant rule.” * * *

“A minor luorhing at an age legally permitted under the laws of this state, shall be deemed sui juris for the purposes of this act, and no other person shall have any cause of action or- right to compensation for an injury to such minor workman, but in the event of the award of a lump sum of compensation to such minor employee, such sum shall be paid only to the legally appointed guardian of such minor.”

Another section of this act (General Code, 1465-93) reads as follows:

“Section 1465-93. A minor working at any age legally permitted under the laws of this state shall be deemed sui juris for the purposes of this act, and no other person shall have any cause of action or right to compensation for an injury to such 'minor workman, but in the event of the award of a lump sum of compensation to such minor employee, such sum shall be paid only to the legally appointed guardian of such minor.”

The trial court no doubt assumed that the plaintiff in this case was within the terms of the act and therefore sui juris, and having elected to sue in the civil court, the defendant was entitled to plead the defense of contributory negligence and the fellow-servant rule.

The word “employee” as used in.this act is defined to be, in so far as a minor is concerned, ' ‘ every person, in the services of any person, etc., and also including minors who are legally permitted to work for hire under the laws of the state.” General Code, 1465-61.

It is here observed that a minor who is legally permitted to work for hire under the laws of this state is an employee within the terms of this act, but not otherwise.

There was no intention -of the Legislature to abridge the operation of the other statutes of our state.' This act was passed for the purpose of creating a state insurance fund for the benefit of injured and the dependents of killed employees and to provide for the administration of such fund. The purpose of the law is to compel the industries of the state to bear the burden of accidents- occurring in their operation and the fund is created for this purpose. The right to participate in this fund is given to none other than employees or their dependents.

The act furnishes no excuse to the employer for violating any of the other statutory obligations regarding labor and minors. And under the laws of this state, if the employer does not come within the terms of the workmen’s compensation act he is .amenable to all of the other statutes of the state. He is prohibited by statute from employing minors under sixteen years of age before exacting from the minor the age and schooling certificate provided by law.

Section 12975 reads as follows-.

“Whoever employs a minor under sixteen years of age before exacting from such minor the age and schooling certificate provided by law, or fails to keep such certificate on file,- or who fails to return to the superintendent of schools or the- person authorized by him such certificate within two days from such minor’s withdrawal or dismissal from his services as provided in section seventy-seven hundred and sixty, or to permit a truant officer, upon request therefor, to examine such certificate, shall be fined not less than twenty-five dollars nor more than fifty dollars.”

And by virtue of Section 12994, an employer is not only prohibited from employing a minor in any of the occupations described in Section 12993, but he is also prohibited, from permitting a minor under sixteen years of age to work in connee■tion with any of these vocations .unless such employer has first ■procured from the proper authorities the age and schooling certificate provided by law. These two sections read as follows:

“Section 12993. No male child under fifteen years or female child under sixteen years of age shall be employed, permitted or suffered to work in, about or in connection with any (1) mill, (2) factory, (3) workshop, (4) mercantile or mechanical establishments, (5) tenement-house, manufactory or workshop, (6) store, (7) office, (8) office building, (9) restau:unt, (10) boarding house, (11) -bakery, (12) barber shop, (13) hotel, (14) apartment house, (15) bootblack stand or establishment, (16) public stable, (17) garage, (18) laundry, (19) place of amusement, (20) club, (21) or as a driver, (22) or in any brick or lumber yard, (23) or in the construction or repair of buildings, (24) or in the distribution, transmission or sale of merchandise, (25) nor any boy under fifteen or female under twenty-one years in the transmission of messages.

“It shall be unlawful for any person, firm or corporation to employ, permit or suffer to work any child under fifteen years of age in any business whatever during any of the hours when the public schools of the district in which the child resides are in session.”

“Section 12994. No boy under sixteen years of age and no girl under eighteen years of age shall be employed or permitted ■to work on or in connection with the establishments mentioned in Section 12993 of the General Code, or in the distribution or transmission of merchandise or messages, unless such employer first procures from the proper authority the age and schooling certificate provided by law.”

This certificate the employer is required to file in his office to be kept there subject to inspection upon request.

Section 12995 reads:

“Section 12995. The certificate mentioned in the Section 12994 shall be filed in the office of such establishment and shall be produced for inspection upon request therefor by the chief or district inspector of workshops and factories or a truant officer and shall be returned forthwith to the superintendent of schools or other persons legally issuing it, by the person in charge or manager of such establishment upon the termination of the employment of such minor. Upon failure on the part of the employer so to return said certificate within two days,' the child terminating his employment shall be entitled to recover from such employer in a civil action as damages an amount equal to the wages which he would have earned had he continued in said employment for the period between such termination thereof and the time when such certificate is so returned. If such child at any time fails to appear for work without explanation, the employment shall be deemed within the purpose of this section to have terminated upon the expiration of two days after his so failing to appear.”

An employer of a minor is further prohibited not only from employing a boy under sixteen years of age, but he shall not permit or suffer him to work in or about or in connection with any establishment or occupation named in the above quoted section, among other things, before the hour of seven o ’clock in the morning or after the hour of six o’clock in the evening. This section reads as follows:

“Section 12996. No boy under the age of sixteen and no girl under the age of eighteen years shall be employed, permitted or suffered to work in, about or in connection with any establishment or occupation named in Section 12993 (1) for more than six days in any one week, (2) nor more than forty-eight hours in any week, (3) nor more than eight hours in any one day, (4) or before the hour of seven o’clock in the morning or after the hour of six o’clock in the evening. The presence of such child in any establishment during working hours shall be prima facie evidence of its employment therein. No boy under the age of eighteen years or girl under the age of twenty-one years shall be employed, permitted or suffered to work in, about or in connection with any establishment or occupation named in Section 12993 (1) for more than six days in any one week, (2) nor more than fifty-four hours in any week, (3) nor more than ten hours in any one day, (4) or before the hour of six o’clock in the morning or after the hour of ten o’clock in the evening. Iiy estimating such periods, the time spent at different employments or under different employers shall be considered as a whole and not separately.”

These last five sections above quoted are found under the chapter of “Offenses against Minors,” and it will be observed by consulting the Year Book 99, at page 30, that it was the inten- ■ tion of the Legislature to pass this act to provide a complete system of certificates by which employers can determine the age of minor laborers. And also to make tbeir minor labor law conform with our compulsory education law.

It can not be argued with much force, that in the face of this expressed intention, an employer, can ever excuse himself for thinking a minor, under the prohibited age, old enough to enter his employment unless this certificate is produced at the time of employment.

The compulsory education laws provide that no child under sixteen years of age shall be employed or be in the employment of any person during the school time unless the certificate is furnished.

Sections 7765 and 7766 of the General Code as amended in 103 Ohio Laws, page 898, read as follows:

. “Section 7765. No child under sixteen years of age shall be employed or be in the employment of any person, company or corporation during the school term and while the public schools are in session, unless such child presents to such person, company or corporation an age and schooling certificate herein provided for as a condition of employment, who shall keep the same on file for inspection by the truant officer or officers of the department of workshops and factories.”

“Section 7766. An age and schooling certificate shall be approved only by the superintendent of schools, or by a person authorized by him, in city or other districts having such superintendent, or by the clerk of the board of education in village, special and township districts not having such superintendent, upon satisfactory proof that such child is over fourteen years of age, and that such child has been examined and passed a satisfactory fifth grade test in the studies enumerated in section seventy-seven hundred and sixty-two; provided, that residents of other states who work in Ohio must qualify as aforesaid in the proper school authority in the school district in which the establishment is located, as a condition of employment or service, and that the employment contemplated by the child is not prohibited by any law regulating the employment of children under sixteen years of age. Every such age and schooling certificate shall be signed in the presence of the officer issuing the same, by the child in whose name it is issued. The age and schooling certificate must be formulated by the state commissioner of common schools and furnished, in blank, by the clerk of the board of education. Any child between fourteen and sixteen years of age who shall cease to work for any canse whatever shall report the fact and cause at once to the superintendent of schools, or by a person authorized by him, or to the clerk of the board of education in village, township or special districts not having such superintendent; said child shall be requiréd to return to school within two weeks, provided other employment is not secured within such time; provided, that should a child in the opinion of the superintendent or person authorized by him in cities and districts having such superintendent or the clerk of the board of education in village, township, or special districts lose his employment by reason of persistent, willful misconduct or continuous inconsistency, he may be placed in school until the close of the current school year. The superintendent of schools, or the person authorized by him to issue age and schooling certificates, shall not issue such certificate until he has received, examined and approved and filed the following papers duly executed: . (1) the written pledge or promise of the person, partnership or corporation to legally employ the child, also the written agreement to return to the superintendent of schools to issue such certificate, the age and schooling certificate of the child within two days from date of the child’s withdrawal or dismissal from the service of the person, partnership or corporation, giving the reason for such withdrawal or dismissal; (2) the school record of such child properly filled out and signed by the principal or other person in charge of the school which such child last attended, giving the name, age, address, standing in studies enumerated in section seven thousand seven hundred and sixty-two • and number of weeks ’ attendance in school during the year previous to applying for such school record, the general conduct; (3) a passport or duly attested transcript of the certificate of birth or baptism or other religious record, showing the date and place of birth of such child; a duly attested transcript of the birth certificate filed according to law with a registrar of vital statistics, or other officer charged with the duty of recording births, shall be conclusive evidence of the age of the child; or the affidavit of the parent or guardian or custodian of the child applying for an age and schooling certificate showing the place and date of birth of such child, which affidavit must be taken before the officer issuing the age and schooling certificate, who is hereby authorized and required to administer such oath, and who shall not receive or demand a fee therefor; (4) when a reasonable doubt exists in the mind of the superintendent or the person authorized by him that the child has not reached the normal development of a child of its age and is not in sound health and physically able to perform the work which it intends to do, he shall require of the parent or guardian a certificate from the board of health showing that the child is able to perform the wqrk he is to be employed at.”

It is clear from a reading of these statutes providing for compulsory education and also defining offenses against minors, that it was the intention of the Legislature to consider a minor, under the age of sixteen years who was unlawfully employed, to be a person not within the contemplation of the workmen’s compensation act.

These statutes that have been quoted above compelling education and defining offenses against minors were intended to prevent persons of immature judgment from engaging in hazardous occupations, to prevent employment and overwork of children during the period of their mental and physical development, and to prevent competition between weak and underpaid labor and mature men owing to society the duties of citizenship, and the compensation act in no way limits their operation.

An employer who employs a child under the prohibited age must be prepared to show at all times that he is employed lawfully. And When it appears that the minor is unlawfully employed, he is not an employee within the terms of the compensation act and such minor, if injured, has the benefit and protection of the other statutory provisions passed for the benefit of labor. Hillstead v. Industrial Commission of Washington, 141 Pacific, 913.

Section 6245-2 (referring to actions to recover from an employer for personal injuries caused by negligence) provides:

■ 1 ‘ Section 6245-2. That in all such actions where a minor employee has been employed or retained in employment contrary to any statute or law of the state or United States, such employee Shall not be deemed or held to have been guilty of contributory negligence, nor .to have assumed any of the risks of such employment ; but the employer majr show by way of defense any fraud or misrepresentation made by such employee.”

• This being true, the trial court erred in taking away from the jury for its consideration the fact that plaintiff was a minor under the age of sixteen years.

Plaintiff not coming within the terms of the workmen’s compensation act was also entitled to the benefit of Section 1027, sub-division 7, of the General Code. See 89 O. S., 297; Jones v. American Caramel Company, 74 Atl., 613.

The judgment of the court of common pleas is reversed.

Bonder, J., and Crow, J., concur.


source: Caselaw Access Project

author: Kunkle, J.

license: Public Domain

text:
    DETERMINATION AS TO HEIRSHIP.
    Court of Appeals for Montgomery County.
    Catherine Wilson v. Daniel W. Allaman, as Executor of Isaiah Wilson, Deceased et al.

    Decided, June 28, 1917.

      Wills—Widow of a Beneficiary is Sis Seir at Law in the Distribution of Personalty.

    In the distribution of the personalty of a .testator the widow of a beneficiary is one of his heirs at law under the statutes of descent and distribution.

      Powell & Sowell and E. S. <& W. B. Turner, for plaintiff in error.

      Carr, Allaman, Better é Murr, for defendant in error.

       Affirming Wilson v. Allaman, Excr., 20 N.P. (N.S.), 129.

   Kunkle, J.

This case was submitted upon the demurrer of the defendants to the second amended petition of plaintiff.

La brief, the ease involves the construction of item seven of the will of Isaiah Wilson.

The item l’eads as follows:

"Item 7. Should my said wife not survive me or upon her death, I authorize and direct my said executor to reduce all my estate to cash, and after the payment of costs and expenses, to distribute the same as follows: One-third to my sister, Mary Jane Hamilton, or her heirs at law. One-third thereof to the heirs at law of my deceased brother, Ephriam Wilson, and one-third to the heirs at law of my deceased brother, Bartholomew Wilson.”

Bartholomew Wilson was a brother of the testator, Isaiah Wilson, and it is admitted that he died prior to the execution of the will of his brother. Bartholomew Wilson left as his survivors his widow, Catherine Wilson, and certain children and grandchildren, all of whom survived the testator, Isaiah Wilson, and all of whom also survived the widow of said testator.

Item 7 provides that the estate shall be reduced to cash and the fund derived therefrom shall be distributed. The fund for distribution therefore consists entirely of personal property.

Catherine Wilson, as the widow of Bartholomew Wilson, claims an interest in the property so devised to the "heirs at law of my deceased brother, Bartholomew Wilson."

Does Catherine Wilson, the widow of Bartholomew Wilson, come within the description of the "heirs at law of my deceased brother, Bartholomew ’ ’ ?

Did Isaiah Wilson intend to include Catherine Wilson, the widow of Bartholomew, in the class designated as "the heirs at law of my deceased brother, Bartholomew Wilson”?

We have carefully considered the very helpful briefs which have been filed by counsel. All the leading cases in Ohio are therein cited and discussed. We have also read the very exhaustive written decision of Judge Martin of the common pleas court which has been filed with us.

We shall not attempt to discuss or distinguish the various authorities cited by counsel, but will merely announce the conclusion at which we have arrived after a careful examination of such authorities.

We are in accord with the conclusion reached by Judge Martin and as he has so thoroughly analyzed this case and discussed the leading authorities in his decision we do not deem it necessary to further discuss the same, but think the same decision should be rendered in this court as was rendered in the lower court, for the reasons stated in detail in Judge Martin’s decision.

In reference to the Mills case, recently decided by this court in Clark county, we think it sufficient to say that the Mills case related solely to real estate. The ease at bar relates solely to personal property.

In addition to this, in the Mills case there were various other provisions of the will which we thought threw light upon and reflected the intention of the testator. In the case at bar it is conceded that no other provision of the will throws any light upon the intention of the testator.

Decree accordingly.

Allread, J., and Ferneding, J., concur.


author: Powell, J.

text:
    WAIVER IN CASE OF ASSESSMENTS IN EXCESS OF SPECIAL BENEFITS.
    Court of Appeals for Tuscarawas County.
    Winchell v. The Village of Dennison.
    Decided, December 17, 1915.

      Street Improvements'—Limitation of Special Assessments to Benefits— Effect of Signature for Improvement by Abutting Owner—Waiver of Limitation of Assessment.

    1. 'Special assessments for improvement of the streets of a municipal corporation can not be levied and collected from property bounding and abutting on such streets in excess of the special benefits accruing to such property, from such improvement except by special agreement and consent of the owners of such property.
    2. Where the owner of property abutting on a street in a village signs a petition, with others, to the council of such village, asking for the improvement of such street, under -the provisions of Section 3836, General Code, he thereby waives the limitation of assessments for the method of assessment designated in said petition, not, however, in excess of the special benefits conferred on his property by the construction of such improvement.
    3. The owner of a lot abutting on a street in a village may waive the limitation of a special assessment to the special benefits conferred on his property, but such waiver must be with his consent and agreement, either expressed or necessarily implied.

      J. A. Buchanan, for plaintiff in error.
    . A. W. Elson, contra.
   Powell, J.

This is ail action to enjoin an assessment levied against a lot in the village of Dennison belonging to the plaintiff, A. F. "Winehell, by the council of said village, or so much thereof as is in excess of the special benefits accruing to said lot by the improvement of McCrea avenue, on which said lot abuts.

No question is made as to the regularity of the procedure which resulted in the levy of the assessment sought to be enjoined.' Complaint is made by plaintiff that said assessment exceeds in a substantial degree the special benefits received by the construction of the improvement for which said assessment was made and it is contended by defendant that plaintiff is estopped from complaining of said assessment and from maintaining this action for two reasons'—

1. That he knew of the Construction of said improvement and aided in its promotion without objection until the same had been completed, although he had full knowledge of .the manner in which the assessments for the improvement were to be made.

2. That he with other lot owners filed a petition with the council of said village, asking for such improvement to be made, and by the terms of which he waived all fights as to the limitation of the assessment to be made.

Trial was had in the court of common pleas and a .special finding of fact was made, which, with the court’s conclusions of law and the judgment rendered thereon, is brought to this court for review'.

'The finding of fact shows that the lot of plaintiff was enhanced in value by reason of said improvement in the sum of $175; that the special assessment levied against the same for its proportionate share of the cost of said improvement was the sum of $472.50 or the sum of $297.50 in excess of the special benefits conferred.

The principle on which special assessments may be levied ón private property for the expense of local public improvements is thus stated by our Supreme Court:'

“1. The fundamental principle underlying an assessment .made on property for the cost and expense of a local public improvement is, that the property’ is specially benefited by the improvement beyond the benefits common to the public, and that a ratable assessment of the property to the extent of these benefits violates no constitutional right of the owner, and is just and proper. But it can in no case exceed the benefits without impairing the inviolability of private property.” Walsh v. Barron, Treas., 61 Ohio St., 15.

The authority to levy special assessments to the extent of special benefits is justified in that it is a benefit to the general public as well as to the owner of the property, and it is in legal effect analogous to the exercise of the police power of the state for the general benefit. But any excess of assessment over the special benefits conferred is in violation of the rights of private property and is in conflict with Section 19, Article I of the Ohio Constitution.

This rule applied to this case would show plaintiff entitled to the relief prayed for by him unless it appears that for some act of his own he is not entitled to* the benefits of the rule.

The defense makes this claim upon two separate grounds, viz., estoppel and waiver. If either of these grounds operates to defeat plaintiff’s claim, it must be'by reason of some act of his own, or by some omission to act when he should have acted, whereby the defendant was misled to its disadvantage and loss.

It is contended - by defendant that plaintiff participated in the promotion of said improvement; that he took an active part in inducing the council to order the improvement to be made-; that he watched the progress of the work of constructing it, and had full knowledge of all the proceedings until the work had been completed, including the levying of assessments, the appointment of an equalizing board and the amounts finally assessed and charged to the respective properties assessed, including his own, without objection or protest and without making any claim for damages by reason of an excessive assessment or otherwise. Admitting the truth of all these contentions, are they sufficient to operate as an estoppel-to maintain this action ? It must be remembered that plaintiff is asking only to have the excess of said assessment over special benefits remitted, and that tbe matters relied on to constitute an estoppel are not inconsistent with a willingness on his part to pay the full amount of special benefits received, as an assessment towards the cost and expense of making such improvement, and to this extent his acts would operate as an estoppel. But more than this is necessary to constitute an estoppel as to such excess. As to this, knowledge alone is not sufficient. His consent and agreement to pay such excess must be had, either by express agreement or by necessary implication.

Plaintiff had a right to rely on the assessments being made according to the rule adopted, by the council in its assessing ordinance, and that in constructing said improvement all the necessary proceedings for that purpose would be had according to law, and such reliance on his part would not operate as an estoppel to the maintenance of this action. Our conclusion is that plaintiff is not so estopped.

Bid he waive the statutory and constitutional limitations to special, assessments by signing, with others, and filing with the council of said village, the petition set forth in- the answer and finding of facts?

Said petition was drawn and filed under the terms of Section 8836, General Code, and contained a provision indicating the manner or rule of assessment to be followed in providing for the cost and expense of making such improvement.

There are three methods or rules of making special assessments, viz..- (1) By a percentage of the tax value of the property assessed. (2) In proportion to the benefits which may result from the improvement. (3) By the foot front of the- property bounding and abutting upon the improvement. (Section 3812, General Code.)

-The third method of making such assessments was' designated in the petition filed with the council. ‘ - .

The principles which control in eases of this kind are the same as apply in construing contractual obligations.- Before a party can be held to pay an excess assessment he must consent and agree to paj?- it. The petition presented to council was in tbe nature of the offer or proposition in a contract. To make it binding on tbe party making the offer there must be an acceptance' by the other party. The acceptance must go to all of the terms of the offer. There was no such acceptance here on the part of the village. The plaintiff proposed one form of assessment by which he was willing to abide. The village adopted another form, with a different limitation to the amount that might lawfully be assessed. He can not be held to have assented to such change. It may be said that the village accepted and acted on the petition in so far as it proceeded to construct the improvement prayed for and in making the' assessments so far as thej'' were valid. But to this extent there could be no waiver, as the village had the right to do what it did lawfully do Avithout any such petition having been filed. It is only to the proceedings beyond the statutory limitations that a waiver could be held to apply. The fact that council did not accept the terms of the petition disposes of the claim of waiver in plaintiff’s favor. But if it were not so, this alone would not defeat plaintiff’s right to the relief asked for. The waiver would only be such as would apply to the limitations provided for in assessments by the foot frontage. .This would be only a waiver of the 33 1-3 per cent, limitation up to and including the full amount of the special benefits received, but it would not Avaive anything beyond that. There is no question that a party may, by appropriate terms, waive any civil, statutory, or even constitutional, rights. No such waiver appears in this record.

It follows that the court of common pleas erred in its conclusions of law as applied to the finding of facts, and.that its judgment should be reversed.

■ Proceeding to render the judgment that the court of common pleas should have rendered, we find that the whole of said assessment aboA>-e the sum of $175 is in excess of the special benefits received by plaintiff from the construction of the improvement complained of and is invalid, and that the collection of such excess should be perpetually enjoined.

Judgment reversed and judgment for plaintiff in error.

Shields, J., and Hotjck, J., concur.


author: Kunkle,, J.

text:
    FEES IN NATURALIZATION CASES.
    Court of Appeals for Champaign County.
    Talbott v. State, ex. rel Houston, Prosecuting Attorney.
    Decided, February 15, 1916.

      Naturalization—County Clerks Entitled to One-Half of Fees Earned Prior to Enactment of the General Code.

    Under the salary act of March 22, 1906 (98 Ohio Laws, 89), relating to county officers and prior to the enactment of the General Code of 1910, clerks of the courts of common pleas were entitled to retain one-half the fees received by them in naturalization cases under the federal act of June 29, 1906, in the absence of an averment that the county had provided and paid deputies who performed such services.

      Buroker cb Zimmer, for plaintiff in error.

      Harold W. Houston, Prosecuting Attorney, contra.
   Kunkle,, J.

This action was brought bjr the state of Ohio, on relation of the prosecuting attorney of Champaign county, Ohio, against M. R. Talbott, a former clerk of the courts of Champaign county, Ohio, to recover the sum of $9.50, being one-half of the fees, for the naturalization of aliens, received by such clerk from time to time during his incumbency as such clerk for the period of three years commencing on the first Monday of August, 1906.

The federal act passed June 29, 1906, conferred upon the clerks of state courts the power to file, issue and record naturalization papers and prescribed in detail the fees which should be charged therefor.

The federal act in question further provided that one-half of such fees to the extent of $3,000 in any one year, might be retained by such clerks, and that the balance of such fees should be remitted to the federal authorities. (34 Stats, at Large, 600; 2 U. S. Comp. Stats., 1913, Section 4372.)

Plaintiff in error duly accounted and paid to the bureau of immigration and naturalization one-half of the fees so received.

This controversy relates to the one-half of such fees, amounting to $9.50, retained by Talbott as clerk under the federal act.

Defendant in error claims that the amount so retained by Talbott should be paid into the county treasury of Champaign county, under the provisions of Section 2977 et seq., General Code. ,

Plaintiff in error claims that under the provisions of the federal act in question, as well as under the provisions of the county salary act, he is entitled to retain the sum as his own.

Plaintiff in error in justification of his action and in support of his contention cites an opinion of the Attorney-General of this state, of date January 11, 1907, to the effect that:

“The clerk of the court of common pleas may retain as his own earnings fees allowed him under the naturalization laws of the United .States.” •

The questions so presented are raised by a demurrer to the petition.

The trial court overruled a general demurrer to the petition and rendered judgment against defendant. Error is prosecuted to this court from such judgment.

It is claimed by plaintiff in error, defendant below, that the provision of the federal act, to the effect that a certain portion of such fees may be retained by the clerk, is exclusive, and that the county salary act has therefore no application to such fees.

This view has been taken by the supreme courts of various states: the Supreme Court of New Jersey in the case of Freeholders of Passaic v. Slater, 84 N. J. Law, 589; the Supreme Court of Oregon in the case of Fields v. Multnomah County, 64 Ore., 117; the Supreme Court of Massachusetts in the ease of Inhabitants of Hampden County v. Morris, 207 Mass., page 167; and in other cases cited by counsel.

The Court of Appeals of California in the ease of City and County of San Francisco v. Mulcrevy et al, 15 Cal. App., 11; 113 Pac. Rep., 339, held that the clerks of courts were required to account under the salary laws of that state for the amount retained by them from naturalization fees under the federal act in question.

'This case was taken to the Supreme Court of the United States from California, and is reported in 231 U. S. Reports, page 669: Justice McKenna in delivering the opinion of the Supreme Court in the above-mentioned ease, among other things, says, at page 674:

“The act is entirely satisfied without putting the officers of a state in antagonism to the laws of the state—the laws which give ■them their official status. It is easily construed and its purpose entirely accomplished by requiring an accounting of one-half of the fees to tne United States, leaving the othei half to whatever disposition may be provided by the state law.”

This decision by the highest federal authority settles the question that the liability of the clerk, as to the one-half of the fees received in naturalization cases and retained u..der the federal act in question, is controlled by the state law upon that subject.

Counsel for plaintiff in error contend that under Section 2977, General Code, the clerk is required to account only for fees, etc., collected or receii ed by law, meaning such laws as are enacted by the Legislature of the state.

In support of such contention counsel cite the case of Freeholders v. Slater, supra, in which a similarly-worded statute was under construction by the Supreme Court of New Jersey.

Section 2977, General Code, reads as follows:

“Section 2977. All the fees, costs, percentages, penalties, allowances and other perquisites collected or received by law as compensation for services by a county auditor, county treasurer, probate judge, sheriff, clerk of courts, or recorder, shall be so received and collected for the sole use of tin, treasury of the county in which they are elected and shall be held as public moneys belonging to such county and accounted for and paid over as .such as hereinafter provided.”

f Counsel for .defendant in- error claims that Section 2977, General Code, should be read in connection with Section 2996, General Code, which latter section reads:

, “ Section 2996. Such salaries shall be instead of all fees, costs, penalties, percentages, allowances and all other perquisites of whatever kind which any of such officials may collect and reeéive, provided 'that in no case shall the- annual salary paid to any such officer, exceed six thousand dollars.”

Counsel for defendant in error insist that when Section 2977, •General Code, is so read in connection with Section 2996, it includes fees "received from all sources, and therefore falls within the California ease and other cases cited.

In this connection we call attention to the recent decision of our Supreme Court in the case of State, ex rel Enos, Pros. Atty., v. Stone et al, 92 Ohio St., 63. In this case our Supreme Court has construed the county salary law broadly in order to effectuate the purposes of the act.

The same position was taken by our Supreme Court in the case of State, ex rel Lyne, v. Kennedy et al, 90 Ohio St., 75.

It must be remembered that in the case at bar the fees in question were received between August, 1906, and August, 1909. The question of liability, therefore, depends upon the provisions of the salary act of March 22, 1906, and not upon the provisions of the General Code as adopted in 1910.

Sections 1 and 18 of the original county salary act (98 O. L., :89) read as follows:

“Section 1. All the fees, costs, percentages, penalties, allowances and all other perquisites of whatever kind which by law may now be collected or received as compensation for services by any' county auditor, county treasurer, probate judge, sheriff, clerk of courts or recorder, shall be received and collected by all of said officers and each of them for the sole use of the treasury of the county in which they are elected and shall -be held as public moneys belonging to said county and accounted for and paid over as such in the manner hereinafter provided.”

“Section 18. And said salaries shall be in lieu of all fees, costs, penalties, percentages, allowances and all other perquisites of whatever kind which any of the officials herein named may now collect and receive, provided, however, that in no case shall such annual salary payable to any of the officers aforesaid exceed the sum of $6,000.”

The above-mentioned sections were included in and superseded by Sections 2977 and 2996 of the General Code, adopted February 14, 1910.

When the General Code was adopted in 1910 the word “now” was omitted from Section 2977 and also from Section 2996.

The case of State, ex rel Locker, v. Horner, 16 N.P.(N.S.), 449, arose since the adoption of the General Code.

That ease holds that the clerk is required to account for the portion of the fees from naturalization retained under the federal act. The case, in so far as we are advised, has not been taken to a higher court, and the decision has been accepted by counsel and the parties thereto as containing a correct construction of the present sections of the code.

That case is largely relied upon by counsel for defendant in error, and while we express no definite opinion thereon, yet after a careful consideration of that decision and the authorities therein cited, we are inclined to the view that the case was correctly decided under the present provisions of the General Code.

It appears from the statement of the case, however, that Horner’s term of office did not commence until the first Monday in August, 1911—more than a year after the present provisions of the General Code took effect.

Where a substantial change is made in the revision of statutes it amounts to an amendment thereof. See State v. Toney, 81 Ohio St., 130.

What effect-, therefore, has the word “now” in Sections 1 and 18 of the county salary act of 1906?

We can not escape the conclusion that the word “now” must be given some meaning.

It is a word which is not ordinarily found in statutes of this character.

It is a word not found in the California law or in the statutes involved in any of the other cases cited.

Why was the word “now” used in both of these sections?

' It must be presumed that the Legislature used that word advisedly and with some object in view. It was undoubtedly used to exclude sources of revenue not then in existence.

‘ ‘ The term now signifies time present.

'"The word now, in its ordinary acceptance, means at this time, or at the present moment, or at a time contemporaneous with something done. It relates to the actual existence of the fact at the time and place mentioned.”

For further definitions of the word now, as used in statutes and elsewhere, see 5 Words and Phrases, 4851.

We are unable to reach any conclusion except thát by the use of the word now in Sections 1 and 18 of the act in question the Legislature intended to exclude from the provisions of the county salary law new and independent sources of official rever nue such as naturalization fees under the federal act in question, which federal act was not in existence when the county salary act of 1906 was adopted.

The ease of State, ex rel Lyne, v. Kennedy et al, supra, involved a contract for indexing, made by the county auditor with the county commissioners, but the authority therefor existed under statutes in force at the time the county salary law was enacted. There was no new source of revenue.

The case of State, ex rel Enos, Pros. Atty., v. Stone et al, supra, involved a question of construction between apparently conflicting provisions of the General Code, and the general policy of the county salary law was allowed to outweigh or over-balance the conflicting provision which apparently revived the fee system.

The general policy, the spirit and the reason of an act may properly be applied to reconcile conflicting or doubtful provisions of an act, but can not be permitted to override the effect of words of clear import.

Construing the county salary law of 1906 as adopted, we think plaintiff in error, under the averments of the petition, was not required to turn such fees into the county treasury.

There is no averment in the petition that the work involved in the naturalization fees in question was performed by deputies provided and paid by the county, and we express no opinion as to the effect of such an averment.

It therefore follows that the judgment of the court of common pleas should be reversed and the cause remanded with instructions to overrule the demurrer, and for such further proceedings as may be provided by law.

Judgment reversed and cause remanded.

Ferxeding, J., and Allread, J., concur.


author: Lieghley, J.

text:
    P.LD3ECJTI3N FOR. OPERATING A MOTOR. VEHICLE WHILE INTOXICATED.
    Court of Appeals for Cuyahoga County.
    George C. Hoffman v. State of Ohio.
    Decided, March 5, 1917.

      Criminal Law—Jurisdiction of the Municipal Court of Cleveland to Pronounce Sentence—Where the Record hails to Show Waiver of Trial by Jury.

    The Municipal Court Act of Cleveland provides that the court, which is made a court of record by the act, shall try the accused in misdemeanor unless a jury be demanded. And in a case of a record of such conviction or review being silent as to whether the accused demanded a jury, it will be presumed that the court below required the necessary prcof and all requisite things done to enable the court to enter ■ the judgment rendered, and the accused will be deemed to have waived a jury in the absence of a contrary showing.

      Marvin & Marvin, for plaintiff in error.

      J. L. Lind, contra.
   Lieghley, J.

Error to the municipal court.

George C. Hoffman, hereafter designated as defendant, was arrested upon an affidavit filed in the municipal court of Cleveland, charging him with the crime of unlawfully operating a motor vehicle while in a state of intoxication, under Section 12628-1, General Code, tried, convicted and sentenced to thirty days imprisonment in the county jail and to pay a fine of $50 and costs. Error is prosecuted to this court to reverse the judgment below, challenging the jurisdiction of said court for the reason that the record does not disclose that the accused waived a jury. 'The record is silent upon the subject of a jury. Whether a jury was demanded by the accused or whether the accused refused to waive a trial by jury is not disclosed.

It is urged by counsel for the defendant that this is a jurisdictional fact, and the record being silent on the subject of a jury, it fails to disclose the jurisdiction of the court below to try, convict and sentence said defendant.

An examination of the statutes is necessary in an investigation and decision of this question.

Jurisdiction in criminal matters is conferred upon the municipal court of Cleveland, Ohio, by the following section:

“Section 1579-12. The municipal court shall have jurisdiction of all misdemeanors and of all violations of city ordinances of which police courts in municipalities now have or may hereafter be given jurisdiction. In felonies the municipal court shall have the powers which police courts in municipalities now have or may hereafter be given.”

It will be noticed that the court is given jurisdiction in misdemeanors and violation of ordinances in the first sentence. The second sentence relates to the jurisdiction of the court as an examining magistrate.

The jurisdiction of police courts referred to in the above section is provided by the following section:

“Section 4577. The police court shall have jurisdiction of, and to hear, finally determine, and to impose the prescribed penalty for, any offense under any ordinance of the city, and of any misdemeanor committed within the limits of the city, or within four miles thereof. The jurisdiction of such court to make inquiry in criminal cases shall be the same as that of a justice of the peace. Cases in which the accused is entitled to a jury trial, shall be so tried, unless a jury be waived.”

It will be noticed that the first sentence in this section confers jurisdiction upon the police court to hear, finally determine and impose the penalty for any offense under the ordinances of the city, and of any misdemeanor. The second sentence relates to the jurisdiction of the police judge as an examining magistrate. 'The third sentence necessarily relates to the first sentence in respect to a jury trial.

The practice and procedure and the manner and extent of exercising the same is provided for in the following section:

“Section 1579-20. In all criminal cases and proceedings the practice and procedure and mode of bringing and conducting prosecutions for offenses, and the powers of the court in relation thereto, shall be the same as those which arc now, or may hereafter be, possessed by police courts in municipalities.”

The following section specifies that the court shall exercise the jurisdiction of the municipal court unless a jury be demanded by the accused:

“Section 1579-24. All causes in the municipal court shall be tried to the court unless a jury trial be demanded by a party. The time for making a demand for a jury trial may be fixed and limited by rule of court. In all civil actions, where a jury is demanded, it shall be composed of six lawful men, having qualifications of electors, unless the parties agree on a less number. Provided, however, that any party may demand a jury of twelve men. In all actions and proceedings of which police courts in cities have or may be given jurisdiction, where a jury may be and is demanded, it shall be composed of twelve lawful men having the qualifications of electors. In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. Whenever over three-fourths of the jury, as herein provided, shall not consist of an integral number, the next highest number shall be construed to represent three-fourths of such jury.”

It will be observed that the first sentence of this section confers jurisdiction upon the court to try all causes unless a jury trial be demanded by a party. The second sentence states that the time for making a demand' may be fixed by the rule of court. The third and fourth sentences relate to civil causes. The fifth sentence applies to criminal causes, and provides that a jury of twelve men shall constitute a lawful jury in the event the accused exercises his option to demand a jury. 'The remaining sentences apply to civil causes.

The authorities cited, with others examined by the court, may be grouped into the following classes:.

First. Those in which the courts reviewed the transcript of a justice of the peace. t

Second. Those in which the courts reviewed the records of courts of record.

Under the first classification the following cases were cited or examined by the court: Simmons v. State, 75 O. S., 346; Edminston v. Edminston, 2 Ohio, 251; Robbins v. Clemens, 41 O. S., 285; Jomes v. Toledo & Ohio Central R. R. Co., 20 C. C., 63; Chapman v. Seely, 8 C. C. 179-186; Uihlein v. Gladeaux, 74 O. S., 232.

The following eases are those which were cited or examined by the court in which the court reviewed the records of courts of record appertaining to this question: Dailey v. State, 4 O. S., 57; Billigheimer v. State, 32 O. S., 435; Evans v. State, 3 C. C.(N.S.), 23, affirmed, no opinion, 68 O. S., 700; In re George Hildebrand, 15 C.C.(N.S.), 187; Petri v. State, 25 C.C.(N.S.), 255.

In the case of a review of the transcript of a justice of the peace, the authorities are unanimous that the facts necessary to confer jurisdiction upon the trial court must affirmatively appear upon the transcript. This is the unanimous holding of the courts in the eases cited under the first .class.

An examination of the authorities above.referred to in the second class will disclose that it is the unanimous holding of the courts that the record of a court of record need not necessarily disclose that the accused waived or failed to demand a trial by jury, with the exception of the eases In re Hildebrand, supra, and Petri v. State, supra.

Defendant urges that Simmonds v. State, supra, is decisive of this case, relying on the language in the opinion at pages 351 and 352. This was a trial by a justice of the peace, and the language used by the court is clearly referable to the facts of that case. The court holds that the waiver must affirmatively appear upon the record. Observe the language of the court at page 353: “This conclusion is not in conflict with Dailey v. State, 4 O. S., 57, or Billigheimer v. State, 32 O. S., 435. Both of these cases having been prosecuted under statutes which conferred upon the court jurisdiction to try the complaint, if the defendant did not demand a jury trial, are clearly distinguishable from the case at bar.”

It was urged by counsel that the case of Billigheimer v. State, although apparently decisive of this question, should not be regarded as an authority for the reason that the crime charged in that case was not one in which imprisonment was a part of the penalty, and that therefore what was said by the court upon the question here involved is obiter dictum. Conceding the claim of counsel that the crime charged was a misdemeanor with only a fine imposed as a penalty, yet the record reviewed by the court was from the police court of Cincinnati, and we think what the court decided in respect to that record should be regarded as the law of the state. Although the record is silent as to a jury, the court definitely decides that, unless the record shows that the defendant demanded a jury, he will be deemed to have waived it. On page 441 the court says:

“The only question, therefore, is, did the defendant waive his right. As has been said, the record indicates nothing on the subject. It merely shows that when the court ordered the plea of not guilty filed, the cause proceeded and evidence was heard. It docs not show that defendant demanded a jury, nor that he excepted to proceeding without one. This failure to avail himself of his rights must be held to be a giving of consent.”

Further quoting from page 443:

“We think a defendant may waive his rights impliedly as well as expressly, and if he remains silent when by speaking he could have obtained' what he desired, it is too late to complain after Lis cause has proceeded to final adjudication.”

The probate court is given jurisdiction to try the accused “if the defendant does not demand a trial by jury.” Dailey v. State, supra. The juvenile court act has a similar provision. In the case at bar, it is not claimed that the court below did not have jurisdiction of the person and of the subject-matter. By Section 24 of the act, jurisdiction is expressly conferred upon the court to hear the cause. Option is given to the aecused to demand a jury. So long as a trial by jury is provided for the accused and a trial by jury is available to him, the constitutional guaranty of a right of trial by jury is preserved inviolate. Quoting from page 28, Evans v. State, supra:

“So we have a case where the court had jurisdiction of the crime and of the person, and a court that is a court of record; and, therefore, the general rule may be invoked, that in a court of record where jurisdiction is shown, it will be presumed that all the necessary proof was made or things done in order to enable the court to arrive at the judgment at which it did arrive, unless the contrary is shown; that is to say, it may be said that the principle should be invoked in favor of the waiver of a jury. The court will presume that a jury was waived, unless by a proper bill of exceptions it is shown that the party demanded his right to a trial by jury, or unless it is shown that he refused to waive his right, which amounts to the same thing.”

The facts of the ease last, above referred to are identical with the case at bar, excepting that the record under review was from the police court of the city of Toledo. In this case the record is of the municipal court of Cleveland, with reference to which sub-section 24 of the act expressly provides that the court shall try the cause, which is substantially the same as the probate court and juvenile court acts. Said Section 24 specifically designates who shall exercise the jurisdiction of the municipal court.

It is claimed that Sections 12, 20 and 24 of the municipal court act of Cleveland are inconsistent and repugnant. With this claim we are unable to agree. Section 12 by reference defines what the jurisdiction of the municipal court is in criminal matters. Section 20 by reference prescribed what practice and procedure and the nature and extent of the same shall be pursued and adopted. Section 24 defines who shall exercise that jurisdiction.

We think that Billigheimer v. State, supra, Dailey v. State, supra, and Evans v. State, supra, affirmed by the Supreme Court in 68 O. S., 700, fix the law of this state upon the question involved in this law suit.

We hold, therefore, that when a misdemeanor is prosecuted in a court of record upon which jurisdiction is conferred by statute to try the complaint, unless the accused shall demand a jury, and the record of the trial upon review is silent as to whether the accused demanded or expressly waived a jury trial, the accused will be deemed to have waived a trial by jury.

For these reasons, upon rehearing, the former judgment of reversal of this court is hereby vacated, and the judgment of the court below is hereby affirmed, with costs assessed against the plaintiff in error.

Grant, J., and Carpenter, J., concur.


author: Alleead, J.

text:
    APPEAL IN CASE OF REMOVAL OF CHIEFS OF POLICE OR. FIRE DEPARTMENTS.
    Court of Appeals for Miami County.
    Landrey v. Harmon, Mayor, et al; and Weddle v. Harmon, Mayor, et al.
    Decided, April 26, 1916.

      Civil Service—Right of Appeal to Common Pleas Court—When Chief of Police or Chief of Fire Department Has Been Removed—When the Appeal is Perfected.

    1. Section 486-17», General Code (106 Ohio Laws, 412), providing for an' appeal from the' municipal civil' service .commission to the court of common pleas in case of removal of the chief of police or the chief of the fire department, gives jurisdiction to the court of common pleas to try the question of removal de novo.

    2. The appeal is perfected when the necessary papers and transcript are filed in the office of the clerk of the court of common pleas within the prescribed time.

      G. T. Thomas and William H. Gilbert, for plaintiffs in error. J. C. Fullerton, Jr., W. A. Haines and Kenneth Little, contra.
   Alleead, J.

George Landrey, as chief of the lire department, and John W. Weddle', as chief of police, of the city of Troy, were removed from office by the mayor, Clay E. Harmon.

They each appealed to the municipal civil service commission, where the orders of the mayor were affirmed.

Appeals were then taken to the court of common pleas, where the proceedings were dismissed upon the ground that the court had no jurisdiction to review the evidence before the commission or to try the questions of removal de novo.

These proceedings in error are brought to obtain reversals of the judgments of the court of common pleas with instructions to try de novo the questions of removal.

The right of appeal depends upon the following portion of Section 486-17«, General Code (106 O. L., 412):

"Provided, however, that in the case of the removal of a chief of police or ehief of the fire department of a municipality an appeal may be had from the decision of the municipal commission to the court of common pleas of the county in. which such municipality is situated to determine the sufficiency of the cause of removal. Such appeal shall be taken within ten days from the finding of the commission.”

Counsel for defendants in error contend that the absence of a provision fixing the details as to the transfer of such case renders the appeal provision ineffective and invalid.

We think there is sufficient in the statute to make the appeal effective.

The statute is quite as definite as Section 2461, General Code, in relation to appeals from the board of county commissioners to the court of common pleas, the validity of which has been repeatedly affirmed by our Supreme Court.

The appeals in the court of common pleas in the eases at bar were complete when the appellants caused to be filed in the court of common pleas the papers; or copies thereof, upon which the cases were heard. before the municipal commission, and transcripts of the decisions of such commission.

It is next contended by counsel for defendants in error that the appeals invoke the jurisdiction of the court of common pleas merely to review the sufficiency of the charges or reasons for removal, but do not confer jurisdiction to try the questions of removal de novo.

This question is not free from difficulty. Counsel for defendants in error in support of their view cite the case of State, ex rel Atty.-Genl., v. Hawkins, 44 Ohio St., 116; State, ex rel Atty.-Genl., v. Hoglan et al, 64 Ohio St., 545, and State, ex rel. Nolan, v. ClenDening, 93 Ohio St., 264.

It must be kept in mind, however, in considering the Hawkins, Hoglan and ClenDening eases, that they were not under statutes providing for appeals.

They were quo warranto, mandamus or prohibition cases in which the court determined only as to the jurisdiction of the tribunal to hear and determine the charges presented.

The I egislature by the appeal provision above quoted evidenUy intended to change the rule represented by the Hawkins, Hoglan and Cien Dening cases and to confer a more extensive jurisdiction upon the court of common pleas, as the court of final appeal where the grounds of removal might be tried and considered as a judicial question.

An “appeal” from the “decision of the municipal commission” would imply that the ease be heard de novo.

The Legis’ature is presumed to have used the word “appeal” in Aiew of its accepted and established meaning.

In the case of Zanesville v. The Zanesville Telegraph & Telephone Co., 64 Ohio St., 67, on page 83, Williams, J., says:

“An appeal is the removal of a cause or matter from an inferior jurisdiction after its decision, to a superior jurisdiction for retrial on its merits.”

In Aultman, Miller & Co. v. Seiberling, 31 Ohio St., 201, 204, it is said:

“The effect of an appeal, under our system, is to vacate the order, decision, or decree appealed from, and to carry the cause into the appellate court, both upon the law and facts, the same as if no decision had been made.” ■ ■

The same definition is found in other reported cases.

It is contended that the appeal clause conferring jurisdiction upon the court of common pleas “to determine the sufficiency of the cause of removal” is a limitation of the jurisdiction of the court of common pleas to a determination of the sufficiency of the reasons for removal or of the written charges upon which the case was heard before the municipal commission.

We think, however, upon careful consideration, that this clause does not coniine the jurisdiction of the court of common pleas to a mere review of the sufficiency of the written charge filed or the reason assigned as a ground for removal.

The “cause of removal” referred to in the statute lies back of the written charge and is the act or conduct of the official upon which the removal was founded.

There are many pertinent definitions given by jurists and text-writers, but we find it unnecessary to go further than to quote from Judge Spear in the ease of B. & O. Rd. Co. v. Larwill, 83 Ohio St., 108, on page 115, as follows:

“A cause of action is the fact or combination of facts which gives rise to a right of action, the existence of which affords a party a right to judicial interference in his behalf.” .

So, in each of the cases at bar, the cause of removal must necessarily antedate the proceedings for removal and consist of the fact or combination of facts upon which the order of removal was made.--

'The fact that the appeal is the second appeal in the same proceeding goes only to the construction of doubtful terms, if any, in the statute authorizing it. If the statute is sufficiently clear, as we think this statute is, the scope of the appeal should not be unduly limited.

We have considered the sufficiency of the reasons for' removal, which with the explanations would probably constitute the issues, and are of opinion the same are sufficient.

The judgments of the court of common pleas in the above cases should be reversed and the causes remanded with instructions to proceed to trials de novo.

Judgments reversed.

Ferneding, J., and Kunkie, J., concur.


author: Shields, J.

text:
    PROCEEDINGS BEFORE THE CONSERVANCY COURT.
    Court of Appeals for Montgomery County.
    County of Miami et al v. Deeds et al.

    Decided, May 18, 1916.
    • Jurisdiction of the Conservancy Court—Authority to Permit Amendment to Petition—Whereby Certain Territory Was Eliminated and the Judge Representing That Territory Withdrew from the Court.

    1. A conservancy court may permit the filing of an amended petition eliminating territory which was included in an original petition for the establishment of a conservancy district.
    2. Where territory has been eliminated from a conservancy district and a judge representing such territory withdraws, the remaining members of a conservancy court are not divested of jurisdiction.

      Frank C. Goodrich, Prosecuting Attorney of Miami county; D. Finley Mills, Prosecuting Attorney of Shelby county; Charles E. Ballard, Prosecuting Attorney of Clark county, and P. R. Taylor, for plaintiffs in error.

      J. A. McMahon and Brown & Frank, for defendants in error.

       Motion to require the Court of Appeals to certify its record in this-case overruled by the Supreme Court, November 28; 1916.

   Shields, J.

A petition in error is filed herein to reverse the judgment of the court below on substantially three grounds:

1. That the court below erred in allowing the plaintiffs below to file an amended petition by eliminating certain territory embraced in the original petition.

2. That said court was without jurisdiction to hear and determine the matters in controversy after Judge Hoover retired from and severed his connection with the court hearing said ease.

3. That the finding of said court establishing the district is based upon insufficient evidence in contemplation of the fact authorizing the organization of conservancy districts in the state of Ohio.

The object of the conservancy act of Ohio is so clearly defined in its title that we find it unnecessary to make any reference thereto, and, its constitutionality having been passed on and upheld by the Supreme Court of this state, it is likewise unnecessary to discuss anything outside of the assignments of error in the petition in error brought upon the record before this court for review.

1. At the threshold of the hearing of the ease it appears that “the petitioners filed a motion requesting leave of the court to amend their petition to reduce the size of the proposed district by eliminating Logan county and part of Shelby county, as set forth in said motion, ’ ’ which motion was by the court sustained and leave granted. This action of the court was duly excepted to at the time, and is assigned as error. It is the policy of the law and the practice of courts, in the exercise of a sound discretion, to act liberally upon applications for amendments to pleadings; for, as was held by our own Supreme Court in Snider’s Exrs. et al v. Young et al, 72 Ohio St., 494, 509, quoting from Shamokin Bank v. Street, 16 Ohio St., 10, “the general power of amendment given to the courts by the code is very broad, and is only limited by the ‘justice’ of the case.” The object of the exercise of this discretionary power is too apparent to merit discussion, but if anything- was lacking in this respect, as afforded by general statutory authority conferred on courts to grant amendments of this character, the provisions of Section 3 of said conservancy act expressly warrant it. Ordinarily, before trial, amendments are allowed upon oral statements of counsel, when the same do not have the effect of changing the cause or causes of action stated, and, even after trial to conform to the facts proven; and when so allowed before trial the event of the trial demonstrates whether or not such action is or is not wisely taken. • Nor do we think that, under the inherent authority of the trial court to deal -with amendments, any hearing based upon testimony is necessary for this purpose. Here the object of the amendment was to eliminate certain territory embraced in the original petition. The record shows that the motion to amend was duly filed and argued by counsel, and that after ten days thereafter the court. allowed the amendment to be made, at which time it appears that an amended petition was filed, issue 'joined by the refiling of the pleadings and other papers to the petition originally filed, and the case heard on the evidence. It appears that no objection was made to the form of such amended petition at the time of filing, hence such objection afterwards raised will be considered as having been waived, especially in view of the action of the defendants below in refiling their answers to such petition. In thus allowing this amendment we think the court did not abuse its discretionary power, and we therefore hold that there is no substantial foundation shown for the first allegation of error recited in said petition in error.

2. It was argued that because of the withdrawal of Judge Hoover as a member, said court had no jurisdiction to' hear said case, and that its finding establishing a district as a conservancy district is a nullity.

It appears that in conformity with the provisions of the conservancy act the common pleas judges in the counties composing the proposed original district convened at the court house in the city of Dayton, Montgomery county, Ohio, where the original petition for the establishment of a conservancy district was filed. Judge Broderick, a resident of Union county, represented Logan county, which at the time constituted a part of his judicial district ; but he was afterwards succeeded on the conservancy court by Judge Hoover, who had been elected common pleas judge of Logan county under the new constitutional amendment, and who at the time of commencement of the hearing took the place of Judge Broderick. These judges, representing their respective counties, were authorized to sit, and constituted a conservancy court, under Section 6 of said act, which provides:

“In case of a district lying in more than one county, one common pleas judge of each of the counties having land in the district shall sit as a court in the court ho.use where the original petition was filed, to make the findings required by this section and by Section 12 herein. A majority of said judges shall be necessary to render a decision.”

Stating the facts as they actually occurred, as shown by the bill of exceptions, we quote from pages 3 and 4 of said bill of exceptions, which recite the following:

“Be It Eemembered, That at the trial of this cause, In the Matter of the Miami Conservancy District, at the April term, A. D. 1915, of the Common Pleas Court of Montgomery County, Ohio, said hearing beginning Thursday, June 24, 1915, before 'Their - Honors, Judge Sprigg of Montgomery County, Judge "Wright of Warren County, Judge Geiger of Clark County, Judge Murphy of Butler County, Judge Kyle of Greene County, Judge Jones of Miami County, Judge Hoover of Logan County, Judge Mathers of Shelby County and Judge Cosgrave of Hamilton County, the following proceedings were had, and the petitioners, to maintain the issues on their part, offered and introduced the following evidence and testimony:

“10 a. m., Thursday, June 24, 1915. Hon. Carroll Sprigg, Judge of the Common Pleas Court of Montgomery County, Ohio, presiding.

“A motion was filed by counsel for the city of Troy and the county of Miami asking that the counties of Darke, Auglaize and Champaign be made parties defendant for the reasons stated in the motion filed. Said motion was overruled by the court at the time, and exception noted by counsel for the city of Troy and county of Miami.

“Counsel for the petitioners filed a motion requesting leave of the court to amend their petition to reduce the size of the proposed district by eliminating Logan county and part of Shelby county, as set forth in said motion. Said motion was argued by counsel on both sides. The motion was then sustained by the court, and exceptions noted by counsel for objectors.

“'Thereupon His Honor, Judge Hoover, of Logan county, - withdrew as a member of the court.

“Thereupon counsel for Shelby county and .Miami county noted an exception to the court continuing any further.”

'The good faith shown in eliminating Logan county from the territory embraced in the original petition appears to find support if not justification, in the evidence adduced in support of the petition as amended. With the petition before the court as amended, and Logan county no longer in the enumeration of counties “having land in the district,” was Logan county thereafter entitled to representation on said court? Was it then a part of the district to be benefited, and part of the lands, occupied by said district to be held liable to assessments for the construction and maintenance of said proposed improvement? Under the provisions of Section 6 of said act such a claim would scarcely be made. But it is contended that Judge Hoover, having been a member of the court, could not be deprived of the legal right of sitting as a member thereof by reason of any change in the pleadings in the case. It is apparent that Judge Hoover shared the view that the right of Logan county to be represented on the court rested on its inclusion among the counties to be embraced in the proposed district, “having land in the district”; and when Logan county by said amendment was eliminated from said counties such right of representation ceased and Judge Hoover thereby became disqualified to further participate in the hearing and “withdrew as a member of the court.” Such withdrawal was wholly voluntary and undoubtedly was prompted by a sense of duty under the circumstances. But plaintiffs in error urge that the court as originally constituted having acquired jurisdiction of the case can not be ousted of such jurisdiction by amendment of the pleadings. Ordinarily jurisdiction continues when it once attaches, but the fact is not to be lost sight of that the foundation and right of jurisdiction here lies in the qualification imposed by the express terms of said section of said act, namely, that “one common pleas judge of each of the counties having land in the district shall sit as a court.” With Logan county no longer in the ease, its elimination, and the voluntary withdrawal of Judge Hoover as a member of the court, in our judgment, could not and did not affect or deprive the remaining members of the court of jurisdiction of the case. Without discussing the question raised by counsel as to the intervening rights of parties to prosecute error herein, we hold that said hearing was had and a decision was reached and rendered by a constitutional majority of such members of the court, that the proceedings of said hearing were regular, and that said judgment of said court so rendered is valid.

3. As to the finding of said court establishing said district, the act conferring as it does jurisdiction on courts of common pleas to establish conservancy districts when the conditions stated in said act are found to exist, and said court in the exercise of such jurisdiction having found such conditions to exist in this case—based upon the facts found from the evidence and applying the provisions of said act to the facts so found—we have no hesitancy in saying that the action of said court in this respect is warranted both by the evidence and the law.

Finding no error in the record prejudicial to the legal rights of the plaintiffs in error, it follows' that the judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Powell, J,, and Hotjck, J., concur.


author: Pollock, J.

text:
    WRITTEN CONTRACTUAL AGREEMENT TO MAKE A DEVISE.
    Court of Appeals for Carroll County.
    Ralston v. McBurney.
    Decided, April 5, 1917.

      Contracts—Promise to Devise Specific Property—Based on a 'Valuable Consideration—May he Enforced, When—Devise so Made, hut Revolted in a Subsequent Will—Treated as a Contract and Title Decreed to the Disappointed Devisee.

    1. A promise, for a valuable consideration, to make a will, devising specific real estate to a certain person, is valid if evidenced as required by the statute of frauds, and upon failure to perform the promise, specific performance may be had against any one having the title thereto except an innocent purchaser for value.

      2. A will devising real estate, executed and delivered to tbe devisee in pursuance of a parol agreement by wbicb tbe testator for a valuable consideration agreed to devise that real estate to tbe devisee, can not be revolted by a subsequent will so as to escape tbe obligation, but may be enforced as a contract.

      W. L. Handley and U. C. DeFord, for plaintiff.

      McDonald & Oglebee, contra.
   Pollock, J.

This case comes into this court on appeal from the court of common pleas of this county, and was submitted to the court on the pleadings and the evidence.

The action was begun in the court of common pleas by plaintiff against Elizabeth McBurney and T. C. and Levi Blacklege to prevent the defendants from disposing of the real estate described in the petition, alleging that there was an agreement between Elizabeth McBurney and Levi Ralston by which, for a valuable consideration, she agreed to convey this property to Ralston by her will; that subsequently Miss McBurney, in pursuance of this agreement, made her will and delivered' it to Ralston, devising to him this real estate; that after the making of this will, Miss McBurney conveyed the land described in the petition by deed of trust to her co-defendants, T. C. and Levi Blacklege, and made a second will devising this property to other parties and revoking the prior will, and that Elizabeth McBurney so conveyed this property by deed of trust and made a second will for the purposes of fraudulently avoiding her contract and defeating' his right to the property under the agreement.

Before the trial of the action in the court below, Elizabeth McBurney died and her co-defendants were appointed executors of the second will.

Plaintiff by amended petition then prayed that the property devised to him by the first will be decreed to him in accordance with the agreement made between him and Miss McBurney.

The answer of the defendants, so far as we are now concerned, is a denial of the material allegations of the petition.

Elizabeth McBurney’s deposition was taken prior to her death and admitted in evidence and plaintiff Ralston testified at the trial. There is a sharp conflict in the testimony in regard to the agreement for the purchase and conveyance of the property described in the petition. We will not set out or attempt to discuss the testiimony, but only the facts relating to the transaction as we have found from the testimony.

Elizabeth McBurney was a maiden lady without any near relatives. For some time prior to 1898 Miss McBurney had been taking care of a man and his wife by the name of Patterson. Mr. Patterson died in that year, and by his will he devised property to Elizabeth McBurney of about the amount of $2,500. Near the time of the death of Patterson, Ralston commenced to look after the business affairs of Miss McBurney. Mrs. Patterson was an invalid requiring constant care and, after the death of Mr. Patterson, Elizabeth McBurney continued to take care of Mrs. Patterson until about 1899. After the death of Mr. Patterson, Thomas Donaldson had been appointed guardian of Mrs. Patterson, and at the time above referred to trouble arose between the guardian and Miss McBurney about the care of Mrs. Patterson and her compensation therefor. A settlement was arrived at between the guardian and Mss McBurney, Ralston, the plaintiff, representing Miss McBurney. In that settlement Miss McBurney was paid, through Mr. Ralston, $100 in money and a note given by the guardian for $443. After this settlement Miss McBurney gave Ralston $500 out of the amount received in that settlement for the services he had then rendered her. Ms. Patterson died in January, 1899. Soon after that, Mr. Donaldson, representing the heirs of Mrs. Patterson, offered the property described in the petition at public sale. Prior to the sale Elizabeth McBurney and Ralston agreed between themselves to purchase this property jointly, if it could be done for not over $1,600. At this sale it was bid off by Ralston at $1,500.

After the time that this property was bid off by Ralston and before the deed was made, Ralston and Miss McBurney entered into a further agreement in regard to the property, by which it was agreed that the property should be conveyed by the heirs of Mrs. Patterson to Miss MlcBurney, and that Ralston was to apply the $500 already received from Miss MeBurney for services, to the payment of the purchase money, and that Miss MeBurney was to furnish $775, Ralston paying $25 more; that $200 should be borrowed by Ralston, and that Ralston was to care for the property during the lifetime of Miss MeBurney and to attend to any other business that she might desire, and after paying the $200 borrowed to complete the purchase money from the proceeds of the property, Miss MeBurney was then to have the entire use of the property during her lifetime, and in consideration therefor Miss MeBurney agreed to make a will devising this property to Ralston at her death. About the first of April of that year Ralston, with the money thus furnished, paid the purchase money and caused the property to be conveyed by the heirs of Mrs. Patterson to Elizabeth MeBurney. In April, 1901, Miss MeBurney made a will devising this property to .Ralston in accordance with her agreement. After she had executed this will she handed it back to him with the remark, “It is of more interest to you than to me.” Some time after the making of this will Miss MeBurney conveyed the property described in the petition to her co-defendants in trust, and also executed a second will revoking the former will and devising the property described in the petition to others than Ralston. Ralston fully performed his agreement in so far as Miss MeBurney would permit him to do so.

From these facts Ralston is not entitled to have a judgment decreeing this property to him upon the verbal arrangement which was made between him and Miss MeBurney, that the title should be placed in her name.and then that she should will it back to him. This arrangement was not engrafting a trust upon this property in the hands of Miss MeBurney, but it was making a verbal agreement for the conveyance of property to Ralston by the will of Miss MeBurney. Sueh a verbal agreement can not be enforced in this state, although the plaintiff has fully performed his part of the agreement. Howard v. Brown, 37 O. S., 400; Carbill v. Mark, 38 O. S., 331; Shahan v. Swan, 48 O. S., 25.

It next remains to be determined whether the plaintiff is entitled to relief asked by reason of Miss McBurney having made a will devising this property to Ralston, in pursuance of their verbal contract, and delivering the will to Ralston, which was afterwards revoked by a subsequent will of Miss McBurney.

The provisions of the will which plaintiff claims carries into effect the contract that they made read as follows:

“I give and devise to Levi Ralston, of Mechanicstown, Ohio, the thirty-five acres of land, and appurtenances thereunto belonging and known as the William P. McClain land, and lying and being in the northeast corner of the southwest quarter of section twenty-nine in Fox township, Carroll county, Ohio, I give this to him absolutely as his own forever in consideration of his kind attention in looking after, taking care of and attending to my business affairs during my lifetime.”

While the paper writing executed by Miss McBurney as her will devising the property to Ralston in pursuance of their verbal agreement can not be probated as her last will, the question arises whether this provision of the will may be used in equity to specifically enforce the contract between the parties on the ground that it is written evidence of the agreement, which complies with the statute of frauds.

A verbal contract existed between these parties by which Miss McBurney agreed to devise this land to Ralston, but before a court of equity could enforce this contract, proof thereof is required by written memorandum signed by Miss McBurney. The writing is not the contract but the evidence by which it may be proven.

Williams, J., in the case of Heaton v. Eldridge et al, 56 O. S., 87, says at page 101:

“The memorandum, which is merely the evidence of the contract, may be made and signed after the completion of the agreement, and even a letter from the party to be charged, reciting thé terms of the agreement, is sufficient to satisfy the requirements of the statute; but it can not be said that the letter constitutes the agreement; that was made when the minds of the parties met with respect to its terms, and the letter furnishes the necessary evidence to prove the agreement in an action for its enforcement.”

The paper writing in this case is in form a will, but it was made for a valuable consideration, in pursuance of their prior verbal agreement, signed by the party to be charged therewith and delivered to Ealston.

Our attention has been called to the case of Bolman v. Overall, 80 Ala., 451 (60th American Reports, 107). The syllabus of this case reads as follows:

“A will giving property to one in consideration of personal services, rendered and to be rendered to the testator, is valid and may be enforced as a contract after the testator’s death.”

The facts as set out in the opinion in this case are very similar to the facts in the case that we are now considering. It seems to be a well considered case and sustains the principle that where a party has entered into a verbal agreement that in consideration of services rendered or to be rendered a party agrees to make their will devising certain property to the other party to the contract, and when the verbal arrangement is completed by the making of a will, that it can not afterwards be revoked by the testator, but may be enforced as a contract.

In the case of Lowe v. Bryant, 30 Ga., 528 (76th American Decisions, 673), where, by an ante-nuptial verbal agreement, the husband had agreed to afterwards make a will devising to his wife and her children all the property which he might receive from the wife. This became an executed and enforcible agreement, by the execution, after the marriage, of the will, and the husband was excluded from afterwards making a different disposition of this property.

The same principle has been announced in the following cases: Anding v. Davis, 77th Am. Dec., 658; Naylor v. Shelton, 143rd S. W., 117-121; Baker v. Syfritt, 125 N. W., 998; Carmichael v. Carmichael, 1st L. R. A., 586; Maddox v. Rowe, 68th Am. Dec., 535; Schouler on Wills, Section 542.

A person may for a valuable consideration bind himself by contract to make a particular disposition of their real estate by will. Johnson v. Hubbard, 10 N. J. Eq., 332.

If the contract is evidenced as required by the statute of frauds, equity will decree specific performance of the contract against the heirs or devisees of the contracting party.

'The Supreme Court of this state in Emery v. Darling, 50 O. S., 160, held that specific performance should be decreed under a contract in writing, whereby one sister agreed to give and bequeath to another sister all her real estate and personal property of which she might die siezed or possessed in consideration that 'her sister should .stay with her as long as she might live.

In the case at bar the contract to compensate Ralston by devising the property to him was verbal, but the contract was after-wards carried into effect so far as the parties could carry such a contract into effect by Miss McBurney making her will containing a devise as provided for in such verbal contract, and delivering the will to Ralston. This will can not now he probated as a will of Miss McBurney for the reason that it is not her last will and testament, but we think it should be enforced as a contract made upon a valuable consideration. This is not enforcing a verbal agreement for the conveyance of this property, but it is treating this paper writing, purporting to be a will, as a written contractual agreement between these parties. The devise refers to the fact that it is made “in consideration for his (Ralston’s) kind attention in looking after and taking care of and attending to my business affairs throughout my lifetime.”

Minshall, J., in the opinion in Emery v. Darling, supra, says:

‘ ‘ But it is of the essence of a will that its dispositions should be in the nature of gifts. Schouler on Wills, Section 451. When it is made to carry out or perform some obligation, made and entered into by the testator, it is not essentially a will, but in the nature of a contract, and its validity as an instrument will not in such case depend upon its conformity to the requirements of a will, but to those things which the law deems essential to the making of a valid contract.”

The devise in the paper writing executed by Miss McBurney was not made as a gift but to carry out an obligation previously entered into by her, and it conforms to all the legal requirements to make a valid contract for the conveyance of real estate.

“But in equity a will which is once formally made in conformity to some agreement may be upheld as originally executed on the strength of some valuable consideration therein interposed, the effect of which might possibly be to make the will practically irrevocable, unless some matter of form, some technical arbitrary rule springing out of the statute, or the necessary form or construction of the will should defeat what the parties had mutually intended. There is nothing unlawful in such a compact, nothing contrary to good morals. ’ ’ Sehouler on Wills, Section 454.

It can not be said that enforcing in equity a contract contained in this devise violates the provision of the statute of frauds. It is in writing, executed, and witnessed by the party to be charged, and delivered. When one party has fully performed a verbal agreement by which the other agreed to compensate him for the consideration received by executing a 'will devising property to the other and that agreement was carried into effect by the party making the will and delivering it, its provisions become irrevocable and enforcible against the devisees in a subsequent will or the heirs of the party.

Judgment in favor of the plaintiff decreeing the property described in the petition to him.

Metcalfe, J., and Farr, J., concur.


author: Allread, J.

text:
    DETERMINATION AS TO WHETHER/LANGUAGE IS LIBELOUS PER SE.
    Court of Appeals for Cuyahoga County.
    (Judges Allread, Kunkle and Ferneding of the Second Appellate District sitting in place of Judges Meals, Grant and Carpenter of the Eighth Appellate District.)
    Tratnik v. Kalish et al.

      Libel and Slander—Meaning of the Word “Take" Determined from the Context—As Used in the Case at Bar Its Use Constitutes Libel Per Se.

    Publication of the following is libelous per se:

    “An honest man is M. Tratnik, whom I noticed take some» money from me and from somebody else. Therefore countrymen beware of him.”

      H. L. Eastman, for plaintiff in error.

      Patterson & Neiding, contra.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, February 15, 1916.

   Allread, J.

M. Tratnik brought suit in municipal court against Edward Kalish and others, doing business as the “ Slevelamha-Ameriha,” to recover damages for the publication of an article in the Slavonic language, of which the following is an English translation:

“An honest man is M. Tratnik, whom I noticed to take some money from me and from somebody else. 'Therefore countrymen beware of him.

“Mih Bucar.”

It was averred that the publication was false and malicious and that the intended meaning was that the “plaintiff was a thief, and therefore not a' safe man to be trusted by his fellow countrymen.”

There was a verdict and judgment in municipal court for $125 and costs. ’This judgment was reversed in the court of common pleas: ! ‘ For the reason, that the statement of claim is not sufficient in law, and is erroneous in refusing to direct a verdict for defendant below.”

The sufficiency of the statement of claim and of the evidence depends largely, if not wholly, upon whether the publication is libelous per se.

The rule many times announced in Ohio is thus stated in the recent case of The Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St., page 118:

“In an action to recover for an alleged libel the question whether the publication is or not libelous per se is a question for the court. (Mauk v. Brundage, 68 Ohio St., 89.) And where the publication is, as matter of law, not libelous per se, and no evidence has been given tending to show special damage, it is the duty of the court to sustain a motion by defendant, made at the close of the evidence, to direct the jury to return a verdict for defendant.”

The innuendo as to the intended meaning is sufficient to charge a libel per se, providing the published words are fairly susceptible of such meaning.

This brings us to the meaning of the published words.

There was some controversy in oral argument over the translation, but the English translation seems to be conceded in the answer, and the question of translation raised in argument is therefore not before us.

The arguments of counsel are directed chiefly to an interpretation of the word “take.”

The counsel for plaintiff in error contends that the word “take” has a criminal meaning, while counsel for defendant in error insist that its meaning is innocent.

Many adjudicated cases are cited involving an interpretation of the word “take,” when used in the discourse in libel and slander eases. Some of these cases sustain the contention of the plaintiff and some that of the defendant.

'The adjudicated cases may be reconciled upon the theory that the meaning of the word “take” is flexible and controlled by the context.

The introductory clause in the discourse declared upon was undoubtedly used in an ironical sense, and to give coloring to the specific acts. This laconic sentence descriptive of the man first strikes attention and prepares the reader’s mind for the specific charge. The concluding anathema is intended to leave the final impression.

The intermediate clause forming the gist of the charge makes prominent the detection and thereby leaves a possible inference of stealth and secrecy in regard to the taking of the money.

'The word “take” as controlled by the context we think is susceptible of a criminal meaning and may sustain the innuendo charged in the petition. The publication as charged in the petition was therefore libelous per se.

We are of the opinion that the statement of claim in the municipal court was sufficient and that the court properly overruled the motion to take the ease from the jury.

We are of the opinion that there was no prejudicial error in the rulings and charge of the court and that the evidence was sufficient to support the verdict of the municipal court.

It therefore follows that the judgment of the court of common pleas should be reversed and that of the municipal court affirmed.

Judgment reversed.

Ferneding, J., and Kunkee, J., concur.