author: Per Curiam.

text:
    AN UNCONSTITUTIONAL FEATURE IN THE NEW SCHOOL CODE.
    [Circuit Court of Washington County.]
    The State of Ohio, ex rel The Board of Education of Waterford Township, Washington County, Ohio, v. James Hickman et al.
    Decided, September Term, 1904.

      Constitutional Law — Schools—Void Provision of the New School Code —Attempting to Legalise Special School Districts.

    The parts of the act of the General Assembly of April 25, 1904 (O. L., 97, beginning on page 334), in so far as they attempt to recreate and legalize special school districts theretofore “existing,” are in conflict with that part of Section 26, Article II of the Constitution of Ohio, which provides that “all laws of a general nature shall have a uniform operation throughout the state,” and are unconstitutional and void. (The State of Ohio, ex rel, v. Spellmire et al, 67 O. S., 77, followed).
    This is a petition in quo warranto to oust from office the respondents, who are acting as directors of a special school district organized by an act of the General Assembly of the State of Ohio, entitled “An act to establish a special school district in Waterford township, Washington county, Ohio” (O. L, 94. pp. 630, 631), passed April 14, 1900, and known as “Coal Run Special School District,” claiming that said act was in violation of Section 26 of Article II of the Constitution of Ohio, which provides that “all laws of a general nature shall have a uniform operation throughout the state.”
    The petition was filed in July, 1903, and service made in the same month. October 30,1903, a supplemental petition was filed averring that one of the respondents had died and one had resigned since filing the petition, and the appointment and acceptance of two persons who are acting as directors. The case stood on the docket practically untouched till this term, when respondents filed an answer saying that—
    ‘ ‘ They admit that on April 14, 1900, an act was passed by the General Assembly of the State of Ohio as alleged in, and set forth in the petition herein; they admit that at the time of the filing of said petition, by authority of said act, said Hickman, Ross and Bartlett had been elected' and then were the acting directors of said Coal Run special school district, and as such directors claimed to have and exercise the authority alleged in said petition, and had in fact done the acts alleged in said petition; they admit that said act was, as held by.the Supreme Court of Ohio, in contravention of and violation of Section 26 of Article II of the Constitution of Ohio; they admit that since the filing of said original petition said respondent, James Hickman, resigned his said office of director of said Coal Run special school district, and the same has been accepted, and that the respondent, David Ross, died, and that said Freeman S. Beebe and Lemuel Rose have been appointed directors of said Coal Run special school district to fill the vacancies caused by the resignation of said James Hickman and the death of said David Ross, and are now filling the office of, and acting as directors of, said special school district, and exercising all the rights and privileges, and doing and performing all the things formerly done and performed by said James Hickman and David Ross, as set out in said original petition.
    “The said respondents, J. Wesley Bartlett, Freeman S. Beebe and Lemuel Rose, aver that they are, under and by virtue of an act of the General Assembly of the State of Ohio entitled “An act to provide for the organization of the common schools of the state of Ohio, and to amend, repeal and supplement certain sections of the Revised Statutes and laws of Ohio herein named,” passed April 25, 1904, and found in Vol. 97 of the Laws of Ohio, at pages 334 to 381, both inclusive, and especially under Sections' 3891 and 3928, as amended by said act, the duly elected, qualified and acting directors of the Coal Run special school district, and the members of the board of education of said special school district, and that under said act said the Coal Run special school district is a legally existing and valid special school district, containing the same territory as the Coal Run special school district intended to be created by said act passed April 14, 1900, set out in the petition herein, namely, the territory described in Section 1 of said act, passed April 14, 1900; that on April 25, 1904, and at all times since the year 1900, there has actually existed in Waterford township, Washington county, Ohio, a special school district, known as Coal Run special school district, containing the territory and having the boundaries set forth in Section 1 of said act passed April 14, 1900, which on April 25, 1904, and for more than three years theretofore actually existed as a complete, active de facto special school district, in charge of an actual, active and de facto board of school directors and board of education, consisting of these respondents and their predecessors named in the original petition herein, containing school houses and schools in charge of and conducted ■by these respondents and their said predecessors as officers and. members of the board of education of said special school dis.trict, and that on April 25, 1904, under and by virtue of said act of April 25, 1904, said territory, which is hereinafter described, became a special school district, in charge of these answering respondents as the directors, officers and members of ■ the board of education thereof, until their successors are elected and qualified as provided by said act, for the reason that these respondents were on said April 25, 1904, and theretofore, the officers and the members of the board of education of said existing special school district, which said existing special school district, existing on and prior to April 25, 1904, and which now existing special school district under said act passed April 25,1904, contained and contains the following described territory situate in Waterford township, Washington county, Ohio, known at all times as Coal Run special school district, to-wit:
    [Description follows.]
    ‘ ‘ These answering respondents allege that under and by virtue of said act of April 25, 1904, said territory now constitutes a special school district, known as the Coal Run special school district, and that they are now the directors and members of the board of education of said special school district, with all the powers and authority conferred upon such officers by the laws of the state of Ohio.
    “Wherefore, these answering respondents pray that the prayer of said original petition and of said supplemental petition may be wholly denied, and said petition and said supplemental petition dismissed at the costs of said relator, and that they may have any and all relief to which they are entitled.”
    The relator demurred to the answer, assigning as reason that the same did not state facts sufficient to constitute a defense to the petition.
    Cherrington, J., Jones, J., and Walters, J.
   Per Curiam.

We are unable to discover any special virtue in the facts set out in the answer, for if it contains a defense it could as well have been made by demurrer to the petition; the gist of the answer as we construe it being besides its admission, a plea of a pre-existing de facto special school district under the special act of April 14, 1900, .and that the..same is now' a legally existing 'and valid special school district under and.by virtue of the act of the General Assembly of 1904, referred to.

The only question now as we conceive is as to whether the special school districts throughout the state created severally by special acts of the General Assembly, and conceded to be in contravention of the Constitution, are recreated and legalized as special school districts by general reference to the same in the general act named of April 25, 1904, or is the part of the act referring to such districts legislation special in character?

Section 3891 of tíie act provides that—

“Any school district now existing other than a city, village or township school district, and any school district organized under the provisions of Chapter 5 of this title shall constitute a special school district.”

Section 3928 provides that—

“Nothing herein contained shall be so construed as to abolish any special school district now existing, but all such districts whether established under the provisions of a general or special act including the territory now constituting such special district shall, unless changed under the provisions of this chapter, continue to be and remain and be recognized and regarded as legal special school districts.”

At 'the passage of the act there were no special school districts “existing”; the acts, by which their creation had severally been attempted, had been declared void, and the reference to them in the sections above must be deemed to be simply a description of territory out of which the certain several special school districts were to be created by the general act. It is beyond the power of the General Assembly to create a single special school district.

Can it create ten or one hundred, if that be the number heretofore attempted to be created ? Certainly not, because such attempt would be special legislation.

Is it any the less special by reason of being edged in between two sections of a general statute following Section 3891 which attempts to mark out an arbitrary classification which we think beyond the legal powers of the General Assembly to make ? We think not.

The holding of this court will be that the features of the act of April 25, 1904,. attempting to recreate and legalize special school districts theretofore existing are in contravention of that part of Section 26, Article II of the Constitution of Ohio, which provides that all laws of a general nature shall have a uniform operation throughout the state, and are unconstitutional and void.

J. C. Preston, for relator.

A. D. Pollett, for respondents.

Demurrer to answer sustained and judgment of ouster entered!


source: Caselaw Access Project

license: Public Domain

text:
    SPECIFIC PERFORMANCE OF CONDITIONS OF STREET RAILWAY GRANT.
    [Circuit Court of Montgomery County.]
    Edwin P. Matthews, City Solicitor, v. Southern Ohio Traction Company.

    Decided, January Term, 1903.

      Street Railways — Specific Performance not the Proper Remedy — To Compel Company to Comply with Conditions of Franchise — Municipal Corporations.

    1. A decree of specific performance will not be granted by a court of equity, where, in order to make the performance effective, continuous supervision will be required over personal acts of faith and diligence, and an exercise of judgment in meeting and adjusting relations to new conditions as they arise.
    2. It follows, therefore, that specific performance is not the proper remedy to compel an interurban railway company, which is operating an electric road under a municipal grant, to announce names of street crossings, to keep tickets for sale on its cars, to limit the speed of its cars, or “to run cars as often as public convenience and the business of the road will justify.”
    Sullivan, J.; Wilson, J., and Summers, J., concur.
    This case comes into this court on appeal. It is an action brought to compel the defendant to perform several of its obligations assumed by its predecessors, and provided for in the several ordinances of the city granting its predecessors a franchise over and upon the streets of the city named in the petition, to construct and operate a street railway.

       Affirmed by the Supreme Court without report (70 Ohio State, 436).

   The violation of the terms of said grant, as charged in the petition, are:

, First. The conductors’ failure to announce the names of the .streets.
Second. Failure to announce the crossings of other railroads.
Third. Not keeping for sale tickets upon the cars.
Fourth. Operating its cars at a rate of speed in excess of six miles an hour.
Fifth. Failure to operate a sufficient number of cars necessary for the public convenience and demand.

The company by its answer admits the several ordinances containing the stipulations set forth in the petition, excepting that that relating to the number of cars to be operated is not correctly stated.

It avers it has no knowledge as to the failure of the conductors to announce the street crossings and railroad crossings, and therefore denies the same. It claims the right to operate its cars at a speed of ten miles an hour, and if their motormen exceed this rate, they have no knowledge of it, and therefore deny this charge. It avers that it was not aware of the provisions respecting the sale of tickets upon the cars, and,' as soon as advised, they placed the same for sale upon the cars, and will continue to do so in the future. They deny the charge of failing to operate a sufficient number of cars to answer the public convenience, and aver that it was not the understanding between the parties at the time the franchise was granted that the local travel was a consideration of such grant, and declare that the city has adequate remedies at law and a redress for the wrongs charged, and it is therefore not entitled to a decree of specific performance.

The reply of the city is a general denial of all the matters not admitted by the answer.

Testimony was taken upon the several issues, which shows that the rate of speed of the interurban cars at times was in excess of ten miles an hour; that occasionally conductors failed to announce crossings or stop at crossings for passengers to get on and off the cars; and in one instance when tickets were wanted on a car, they could not be furnished because the conductor had sold out. The testimony relative to the operation of a sufficient number of cars to answer the public convenience would not be sufficient to justify a decree requiring more frequent service, if it were within the power of the court to make such a decree.

It is not necessary, however, to discuss the evidence, in view of the conclusion we have reached.

The failure to announce or stop at crossings, or running at an excessive rate of speed, are made misdemeanors by the ordinances of the city, and any motorman or conductor violating these ordinances may be prosecuted and fined.

The ordinance providing for the sale of tickets on cars, provides that a demand for them is made by a passenger, and a failure by any conductor to supply them, for any reason, relieves the passenger from the payment of fare, and he can ride to his destination without paying fare.

In the matter of announcing crossings, rate of speed, and the keeping of tickets for sale upon .the cars, a decree of specific performance would require a personal supervision and control of the employe upon whom the discharge of these same duties devolved.

The operating of a road from necessity requires the employment of subordinates to discharge these various duties. ■ True, the officers of the company make the orders, but the execution from necessity rests upon these subordinates, and it would be their conduct the court would have to regulate and supervise, and not the officers; hence, the court would have to hear and determine every charge of any violation of the ordinances of the city, and the violation of the orders of the railway officials, a duty the court could not undertake.

In the case of Port Clinton Ry. Co. v. Railway Co., 13 Ohio St., 544, 556, it is said:

“Even if the contract were sufficiently specific, so that the party, when ordered to operate the railroad, would know the manner and mode in which the order was to be obeyed, still the question of obedience to the order must necessarily be left open. And the question of obedience to such an order might come up for solution not once, * * * but in instances innumerable, and for an indefinite time.”

Where a remedy by decree of specific performance requires the supervision of personal acts of faith and diligence in the, performance of a personal duty or act, we think in such instance the remedy is invariably withheld.

In the matter of announcing crossings, and the rate of speed, a decree for specific performance would not be any more effectual in securing an observance of these matters than prosecutions under the ordinances making such violations misdemeanors.

The city also claims that the railroad company is violating the franchise granted to it by not operating a sufficient number of cars to answer the demands of the public; that all their cars are held in front of the company’s station in the city, and the intervals between the cars is too great to be a convenience for the local travel. The stipulation respecting this obligation is to be found in the ordinance of June 11, 1869, and is as follows:

“Section 4. (Good ears to be placed on track and run). And provided further, that any company or individual to whom any privilege shall be granted to construct and operate street railways upon the streets and avenues of this city, shall place and continue upon said roads good ears for the convenience and comfort of the passengers, and that they run cars thereon as often as the public convenience and business of the road will justify. ’ ’

This provision, as we consider it, means that as the public demand for the use of the road increases from time to time to a point where the company can, without loss to itself, operate a sufficient number of ears to meet such increase, it must do so. It would be against the interests of the public if the company was required to operate a service entailing loss and eventually bankruptcy. It was therefore contemplated, as shown in this stipulation, that the public convenience or demand, as it may be called, would increase, or conditions might arise that it would diminish, and hence the service was left to be fairly adjusted to meet such changes. How frequently such exigencies might arise would be beyond conjecture, and therefore necessarily uncertain, so that a decree fixing the number of cars to be operated would require the court to continue in the supervision of this part of the business, in order to meet changes that would occur in the future; and so on, so that the control over the road would have to be continuous, a condition that could not be tolerated. It is a rule that when in order to make a decree of specific performance effective it would require continuous supervision over the personal conduct of the parties, and the exercise of judgment in order to properly meet and adjust relations to new conditions as they might arise in the future, a court of equity can not and will not extend the remedy.

E. P. Matthews, for plaintiff.

McMahon & McMahon, for defendant.

The several obligations sought to be enforced in this case are clearly of this character. As the court say, in the case already referred to, instead of the final order being the end of the litigation, it would be itself a fruitful and continuous source; and that, too, not in the regular course of judicial proceedings, but irregularly, and simply on application, and such application to be made by either party, one when he considered there had not been a faithful compliance with the order, and the other when exemption from some provision might be claimed, on the ground of inability.

The complaints of the city relate to the interurban service, and not local service. The grant to the predecessors of the defendant was to operate a street railroad within the city, and not an interurban road. If the complaints of the city are true, it has a remedy, we think, but not the one sought in this proceeding, and therefore a decree of specific performance will be refused.


text:
    “MADE TO ORDER. PROSECUTIONS” IN LIQUOR CASES.
    [Circuit Court of Franklin County.]
    Valentine Kappes v. The State of Ohio.
    Decided, October, 1904.

      Jurisdiction — Justices’ Code — Section 6529 of — Motion for Change of Venue.

    1. Tbe provision of Section 6529 of tbe Justices’ Code does not apply to mayors’ courts in criminal proceedings.
    2. A motion for a change of venue under Section 6529 "and tbe evidence thereunder must disclose, on review, a ground for tbe change.
    3. It is elementary that two courts can not take jurisdiction of tbe same person and tbe same subject matter at tbe same time.

      G. D. Saviers and G. E. Trump, for plaintiff in error.
    W. B. Wheeler and M. E. Thrailhill, for defendant in error.:
    On September 1, 1903 a warrant was secured before James S. Ricketts, Mayor of the Village of Marble Cliff, in Franklin township, Franklin county, Ohio, charging Valentine Enappes with having kept open a saloon on Sunday. He was arrested, and the case was set for hearing on September 8 before the mayor of the village. On September 5, Valentine Eappes was arrested by his porter for the same offense upon a warrant secured before H. W. Gaver, a justice of the peace in the same township. A plea of not guilty was entered, and trial was had; the defendant was found guilty and fined $25 and costs. When the case was called for trial before James S. Ricketts, Mayor of the Village of Marble Cliff, the defendant interposed his prior arrest and conviction before IT. W. Gaver, Justice of the Peace, as a plea iri bar. The mayor of the village rejected the plea in bar; the defendant was tried and found guilty and fined $100 and costs. The defendant then carried the case on error to the Court of Common Pleas of Franklin County, Ohio, which court affirmed the judgment of the mayor of the village. Valentine Eappes then carried the pase to the. circuit court on error. The circuit court affirmed the judgment of the court of common pleas in the following opinion:
    Wilson, J.; Sullivan, J., and Dustin, J., concur.
   The judgment in this case is affirmed. The provisions of Section 6529 of the Justices Code do not apply to mayor’s courts in criminal proceedings. If they did, the motion for change of venue and the evidence do not disclose a. ground for change under that section.

The made to order prosecution in the court of H. W. Gaver, Justice of the Peace, was nullity. Two courts, having concurrent jurisdiction, can not take jurisdiction of the same person and the same subject matter at one and the same time. The jurisdiction of the court first acquiring the same is exclusive. This is elementary. The cause is remanded to the mayor’s court for execution.


text:
    BEAL LAW PROSECUTIONS.
    [Circuit Court of Wood County.]
    Frank Dalrymple v. The State of Ohio.
    Decided, April Term, 1904.

      Seal Law — Election Thereunder — Failure of Record to Show that a Legal Election was Held — Proof of Election and Its Results — Authority of Council to Order an Election — Presumption of Regularity — Sufficiency of Affidavit — Where the Charge is Keeping a Place Where Liquor is Sold — First and Second Offense — Sentence Imposed.

    1. The fact that an election was held under the Beal Local Option Law, and also the result thereof, may he established by evidence 'other than the original entry on the records of the municipal council, or a copy thereof certified by the corporation clerk as provided by Section 4364-20», Revised Statutes, which makes such record or certified copy prima facie evidence of such facts. Hence, the failure of the clerk to record, in the proper way and place, the result as reported to him, does not invalidate the election, if an election and the result thereof can be clearly established by other evidence.
    2. Where a duly ’ and legally constituted legal body, such as a city or village council, has acted, the presumption is, in the absence of evidence to the contrary, that it has acted lawfully, and had before it sufficient facts to warrant it in acting. This presumption is in the nature of evidence, and until overcome by other evidence, it stands as proof of the fact in question.
    3. The presumption, is that a petition for an election under the Beal Local Option Law, in due and legal form and signed by forty per cent, of the qualified electors of the municipality, was presented to council as required by Section 4364-20», Revised Statutes, when it appears from the council record that a petition was presented asking for an election, that it was duly acted upon, and that an election' was ordered on a certain date.
    4. The names of persons to whom liquors, were sold need not be set forth in an affidavit charging the offense of keeping a place for the sale of intoxicating liquors, in violation of the Beal Local Option Law.
    5. A fine of $100 on each count of an affidavit charging three separate offenses of keeping a place for the sale of intoxicating liquors, in violation of the Beal Local Option Law, or $300 in the aggregate, is excessive, when there is no charge or claim that defendant had ever been previously convicted of a violation of said law. In such case the entire charge must be treated as charging a first offense, the maximum fine for which is $200.
    6. Where the judgment of a lower court in a criminal prosecution is reversed on error because of the imposition of an excessive sentence, the case will be remanded for proper sentence only.
    Hull, J.; Haynes, J., concurs; Parker, J., not sitting.
    Error to Wood County Common Pleas Court.
   This case, by consent of counsel was heard before two judges —Judge Haynes and myself.

The plaintiff in error, Prank Dalrymple, prosecutes error to reverse the judgment of the court of common pleas and the mayor’s court of the village of Rising Sun, in this county. He was tried before the mayor of the village of Rising Sun for violating the “Beal Law,” so-called, or certain provisions of that law, the charge being that under an election duly held in that village the sale of intoxicating liquors and the keeping of places for the sale of intoxicating liquors had been prohibited, and that the defendant kept and was keeping on the different dates named in the affidavit a place for the sale of intoxicating liquors. There were three counts in the affidavit charging the keeping of a place for the sale of intoxicating liquors on different dates or different periods; in one or two of the counts the period set forth covering more than one day. The defendant was found guilty by the mayor on each one of the three counts; a motion for a new trial was overruled, and he was sentenced to pay a fine of one hundred dollars on each count, making three hundred dollars in all.

The plaintiff in error complains that the record does not show that any legal election had been held in the municipality prohibiting the sale of intoxicating liquors, the chief ground of that complaint being that no evidence was offered that a petition containing forty per cent, of the voters of the municipality had ever been presented to the council praying for an election, and it is claimed that there was no proper evidence before the mayor that any election had been held, or, if there was any election, no proner evidence as to the result of that election.

Section 4364-20a, Revised Statutes, provides that whenever forty per cent, of the qualified electors of any municipal corporation shall petition, the council thereof for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such municipal corporation, such council shall order a special election to be held, and that the result of the election shall forthwith be entered upon the record of the proceedings of the council; and provides that in all trials for the violation of this act, the original entry of the record, or a copy thereof certified by the clerk of the corporation, provided that said record shows that a majority of the votes cast at said election was against the sale of intoxicating liquors as a beverage, shall be prima facie evidence that the selling, furnishing or giving away of intoxicating liquors as a beverage, or the keeping of a place where such liquors are sold, kept for sale, given away or furnished, if such selling, furnishing or giving away or keeping such place occurred after thirty days from the day of holding the election, was then and there prohibited and unlawful.

The clerk of the village, Mr. Parmlee, was called as a witness, and it appeared from his testimony that a report was made to him of the election, and that he entered the result of the election in a book; that it was not the record of the proceedings of the council, but a book that had béen kept and used for the purpose of entering elections of this kind at former times, during the terms of his predecessors. This book he could not find, and it was not produced. The clerk testified, however, that an election was held; that the report was made to him in proper form, and that the vote stood eighty against the sale of intoxicating liquors and seventy-four in its favor, making a majority of six.

The records of a meeting of the council were put in evidence showing that a petition was presented to the' council asking for an election. No certificate of the record showing' the result of the election was produced at the trial except one that the clerk prepared about the time of the trial from the tally sheet or poll book. This certificate was offered in evidence, and is attached to the bill of exceptions.

. We are of the opinion that, while the statute makes the certificate, or what is contained, in the records of the proceedings of the council prima, facie evidence of the election, that is not the only way that an election and its results may be proven; that if the clerk fails to record the result as reported to him in the proper book or any book, it does not invalidate the election, if it can be proven clearly by other evidence that an election was held and what the result of that election was. And in this case the tally sheet or poll book was offered in evidence and is attached to the bill of exceptions, and the clerk testified as to the result of that election as reported to him. The evidence shows that an election was in fact held, and that it was conducted by the regular election officers — all of this being shown affirmatively. The mere fact that the clerk does not make a certificate in proper form, or that he has not recorded the result of the election in the proper book, as he was required to do by statute, does not invalidate the election. It requires more than negligence, carelessness, or dereliction of duty of such an officer as a clerk of a municipality to invalidate an election which has. been duly and regularly held.

It is urged, however, that there is nothing in this record to show that the council had any authority to order an election for the reason that there is nothing to show that a petition signed by forty per cent, of the electors was ever presented to the council asking for such election, and that raises an important question. There being no certificate presented in this case of the council records, showing an election, it was probably incumbent upon the state to show that an election had been held, and that it had been duly authorized and that the council had taken the proper steps.

If there had been a proper certificate as the statute directs, that would have made a prima facie case in itself. The records of the council of June 2; 1902, when this matter was considered, ■ and which were offered in evidence, show that under the head; of new business a petition was presented praying for an election’under the Beal Local'Option Law, and, after due consideration,it . was moved and seconded that the council order an election held in the corporation June 30, 1902; and then follows the vote on the motion, or call of roll, showing all the votes in the affirmative. It is said there is nothing in the record showing that this petition was in fact signed by forty per cent, of the qualified electors of the municipality, and it is true that this does not appear affirmatively from this record. It does appear, however, that a petition was presented to the council praying the council to call an election under the Beal Local Option Law.

The Beal Law provides that when forty per cent..of the qualified electors of any municipality shall petition the council thereof for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such municipal corporation, such council shall order a special election to be held, etc., and it appears from this record of the council that the council did act upon this petition which was presented, and they acted in accordance with the provisions and terms of the Beal Law and ordered an election on the 30th of June following; and we are of the opinion that the council having acted, as the record shows it did, by ordering this election, the presumption is that the petition was in due and legal form, and that it was signed by the requisite percentage of the qualified electors of the municipality, and, in the absence of any evidence to the contrary, that presumption is sufficient. A presumption is in the nature of evidence, and, until it is overcome by other evidence, it stands as proof of the fact in question. We think the general rule is that where a duly and legally constituted legal body, has acted, that the presumption is, in the absence of any evidence to the contrary, that it acted lawfully, and that it had before it sufficient fácts to warrant it in acting. This record shows that the petition was presented to the council, praying that the council fix a time for an election, and the council, acting upon that petition, upon motion duly seconded, and on call of the roll, duly passed the resolution fixing the time, and the presumption is that that petition was in accordance with the statute.

Coombs v. Lane, 4 Ohio State, 112, is in point upon this general question. The first paragraph of the syllabus is:

‘ ‘ In respect to all official acts, the law will presume all to have been rightfully done, unless the circumstances of the case overturn this presumption; and, consequently, acts done which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter.”

The opinion was delivered by Judge Thurman, then Chief-Justice and he says (p. 148) :

“In Ward v. Barrows, 2 Ohio St., 241, 246, this court, speaking of official acts, said: ‘ The law will presume all to have been rightfully done, unless the circumstances of the case overturn this presumption, and, consequently, as stated by the Supreme Court of the United States, in Bank of the U. S. v. Dandridge, 25 U. S., (12 Wheat.), 64, 70, acts done which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter.’
“And, again: ‘Facts presumed are as effectually established as facts proved where no presumption is allowed; and hence, in accordance with this long-established rule of evidence, the court, in Lessee of Winder v. Starling, 7 Ohio (pt. 2), 190, were entirely justified in saying that the act of the auditor in allowing the credit and making the certificate, which could only lawfully be done after the delinquent list 'had been verified by the collector, was presumptive proof that the oath had been administered.’ ”

The court say .the law will presume all to have been rightfully done unless the circumstances of the case overturn this presumption, and, consequently, acts done which presuppose the existence of other acts to make them legally operative are presumptive proof of the latter; and it seems to us where the records of the council show that a petition was presented to the council praying it to call an election under the Beal Local Option Law, and that the council considered the petition, and that after due consideration it was moved that the election be held upon a certain date, and carried unanimously, that this raises a presumption that all had been done that was necessary to authorize the council to order this election; that it raises a presumption that the petition that was presented was sufficient under the law to warrant the action of the council; and there being no evidence to the contrary, no evidence offered by the defendant that this petition was not according to law, that it stands as proved by reason of this presumption.

Another case in point is Reynolds v. Schweinefus, 27 Ohio St., 311, 312. The court say in the third paragraph of the syllabus:

“Where it appears by the proceedings of the city council that a report and recommendation of the board of city improvements had been made to it, and that thereupon the city council proceeded to make the improvement so recommended, it will be presumed, until the contrary is shown, that such report and recommendation of the board of city improvements was duly and properly made.”

It was necessary here that this report should be made in a certain manner, but the council, having acted upon the report, the Supreme Court says it will be presumed until the contrary is shown that such report and recommendation of the board of city improvements was duly and properly made. The court say in the opinion on page 319:

“From these proven facts we are authorized to infer as a fact that a recommendation of the board of city improvements was for this work made at a regular meeting of the board, and that such recommendation was reported to the city council in sufficient form, thereby making a prima facie case in favor of the jurisdiction of the city council over the subject matter. This being the effect of the record evidence, the burden of proof is shifted upon the defendant to make manifest a want of jurisdiction.”

In the absence of any evidence to the contrary, it will be presumed that the council had jurisdiction to act when it ordered this election. A case was cited by plaintiff in error, 1 C. C. — N. S., page 489, entitled “In the matter of the local option election in the village of Huntsville, Logan county, Ohio.” The judge delivering the opinion states that it is necessary that it affirmatively appear that forty per cent, of the qualified electors sign the petition; that that will not be presumed from the action of the council, but the opinion shows that in that ease this matter was referred to a committee, and it reported to the council that forty per cent, of the qualified electors had signed the petition, and the report was accepted and acted upon by the council by unanimous vote, and the court held that was sufficient. So that the question we have here was not squarely -before that court; and the remarks of the learned judge delivering the opinion may have been made without full consideration of the question. After a careful examination of the question . and of the authorities, we are satisfied that the record of the proceedings of the council in this case is sufficient, in the absence of anything to the contrary, to show that the council had juris- ' diction to act.

It is alleged that the affidavit is insufficient for the reason that it does not set forth to whom the liquors were sold. The charge in this case was not selling liquor to any specified person, but the charge was the keeping of a place for the sale of intoxicating liquors, and it was not necessary in such a case to set forth, to whom the liquor was sold. The question was, whether defendant kept a place for the sale of intoxicating liquor. He may have sold to one or more persons, and it was not. necessary to state in the affidavit who they were. It has been held that where the charge was the sale to some specific person, that it was necessary to set forth the name of the person to whom the sale was made, but there is a difference of opinion between courts as to whether it is necessary in such cases to set forth the name or names of the persons to whom the sale or sales were made.

The defendant was fined three hundred dollars — one hundred dollars on each count in the affidavit — and this is claimed to have been erroneous. The statute provides for a fine of not more than ’ two hundred dollars nor less than fifty dollars for the first offense, and for the second offense not more than five hundred dollars nor less than one hundred dollars, and for any subsequent offense a fine not less than two hundred dollars and imprisonment of not more than sixty days and not less than ten days.

There were three counts in this affidavit charging the defendant with the keeping of a place for the sale of intoxicating liquors on different dates. There was no charge or claim that he had ever before been convicted of a violation of this act; no allegation of that kind was in the affidavit, and following a recent decision of the Supreme Court in the case of Carey v. State, found in The Ohio Law Reporter of April 18, 1904 [Carey v. State, 70 O. S., 121], we are of the opinion that the mayor erred in imposing the sentence of a fine of three hundred dollars — one hundred dollars upon each conut. The last two paragraphs of the syllabus of the ease above cited are as follows:

Benj. F. James and Shefler & Campbell, for plaintiff in error.

F. G. McClelland, Prosecuting Attorney, and W. B. Wheeler, for defendant in error.

“The term ‘offense’ as used in the last named section, is the equivalent of conviction. Hence, an affidavit for prosecution, under said act which charges three separate sales to different persons on the same day, but does not allege a previous conviction, is in legal effect a charge of a first offense only, and the party so charged is not entitled to be tried by a jury.
“The maximum fine provided by the act for the first offense being two hundred dollars only, a fine of three hundred dollars is in such case excessive and erroneous. ’ ’
“Judgment of the circuit court, the court of common pleas and the mayor’s court reversed, and the case remanded to the latter court for sentence.”

There being no allegation in the affidavit here of any previous conviction, it seems to us, as said by the Supreme Court, that this entire charge must be treated as a charge of a first offense, and the maximum fine for the first offense being only two hundred dollars, it was error for the mayor to impose a fine of three hundred dollars. It does not vary the rule that the charges were put in the affidavit under separate counts.

The judgment of the court of common pleas and of the mayor’s court will be reversed on account of the error in the sentence imposed by the mayor, and the ease remanded to the mayor for sentence.

The effect of this, of course, is, that while the judgment is reversed and the case remanded, the only thing to be done by the mayor is to re-sentence the defendant in accordance with this opinion, and not to impose a fine in excess of two hundred dollars. In all other things the effect of this judgment is to affirm the judgments of the mayor and of the court of common pleas. This reversal will be at the costs of the defendant in error.


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    ADVERSE POSSESSION OF RAILWAY EASEMENT.
    [Circuit Court of Hamilton County.]
    Harriet L. Smith v. P., C., C. & St. L. Ry. Co. et al.
    Decided, March, 1904.

      Adverse Possession — Parol License Irrevocable — Railroad Easement— Necessities of Company with Reference Thereto — Common User and Mixed Possession — Leeds—Evidence.
    1. An executed parol license in land is irrevocable when granted for a valuable consideration. Such a license is not affected by reason of not being in writing, provided it is founded upon a definite understanding between competent parties; but where such an understanding is lacking, the claimant must establish his right by showing adverse possession for twenty-one years.
    2. To acquire title to a railroad right of way by adverse possession,' an abutting owner, whether the owner of the fee or not, must occupy and use the land in a manner inconsistent with the paramount rights of the railroad company. Possession and use of a part -of the easement not in use and not needed for immediate railroad purposes, and consistent with the company’s right to reclaim the property when it is needed for the purposes for which it was acquired, will be held to be permissive only.
    3. Whether the necessities of a railroad company require exclusive occupancy of its right of way, and what use of the property by an abutting owner is an interference therewith, are questions of fact, and not of law. Evidence of common user is competent to rebut a claim of adverse possession asserted against the railroad company.
    4. The acts of an abutter in accepting and recording a deed for and in taking possession of disputed land can not be construed as the conduct of a mere licensee, and a title by presumption in favor of such grantee is acquired by continuous, hostile and adverse possession for twenty-one years.
    Jelke, J.; Swing, J., and Giffen, J., concur.
    Appeal from Court of Common Pleas of Hamilton County.
   A parol license granted for a valuable consideration when executed is irrevocable (Tytus-Gardner Paper Co. v. Hydraulic Co., 15 C. C., 118; Wilson v. Chalfant, 15 Ohio, 248).

The only difficulty about the application of this doctrine to the case at bar is fundamental' — it is in the absence of sufficient proof of the original contract of license. It would make no difference, having been executed, that such contract was not in writing, if the evidence showed a definite understanding between competent parties.

The testimony of S. M. Ferris shows that he had no definite notion of -what kind of an interest, if any, he was acquiring in part of the railroad’s right of way. There is nothing to show authority on the part of Mr. Williams to grant away an interest in the right of way of the railroad company. The respective rights of Mrs. Smith and the railroad company must rest upon and be determined by what was actually done, rather than upon a contract relation.

This puts the case squarely upon the issue of adverse possession.

The deed made by John J. Ferris and wife to The Little Miami Railroad Company in 1839 begins with the following recital:

“Whereas, it has become necessary and convenient that ‘The Little Miami Railroad Company’ should hold the following described real estate for the purposes prescribed in the act entitled an act ‘To incorporate The Little Miami Railroad Company’ ”—

and then proceeds with the words and terms .which originally would be held to convey a fee in the land.

We incline to the opinion that by this deed The Little Miami Railroad Company acquired a fee simple in its right of way, and, for the purposes of this case, so hold.

Be the nature of the company’s title what it may, it is clear, both from the deed and from user, that the property was acquired for railroad purposes.

Disregarding, for the moment, the recitals of the deed from S. M. Ferris and wife to Harriet L. Smith, made in 1870, which recitals include a four-foot strip of the fifteen herein in controversy, and add an additional feature to such four-foot strip, we think that the facts of this ease bring it within the principle of the ease of Union Pac. Ry. Co. v. Kindred, 23 Pac. Rep., 112, 113 (43 Kan., 134), where it is said:

“Although the abutting landowners have cultivated and enclosed part of the right of way granted by Congress, this possession can not be. considered as hostile or adverse. It must be regarded as permissive only. If the fee of the land belongs to the United States, then the abutting landowners can acquire no title or claim by possession or limitation (Smith v. Smith, 34 Kan., 293). If the abutting landowners own the'fee of the right of way, they may use the land in any way not inconsistent with the paramount rights of the railway company; but such use will not give them adverse -possession, so as to confer title (Kirk v. Smith, 22 U. S., 241; McClelland v. Miller, 28 Ohio St., 488; Railway Co. v. Harris, 28 Kan., 206; Railway Co., In re, 20 Am. & Eng. Ry. Cas., 196; Sapp v. Railway Co., 51 Md., 115).”

This' is the application to the right of way of a railroad of the éstablished doctrine in Ohio as to public highways:

“L, being the owner of lands adjoining a public highway regularly laid out and used by the public, extended his fence so as to enclose a portion of the ground within the surveyed lines of the highway, which portion was not then used nor required for the public travel, and kept up said fence without any objection for upward of twenty-one years. Held: That, such partial encroachment upon the side of a surveyed and traveled highway, was not necessarily adverse to the public, nor inconsistent with its easement, -and therefore constituted no bar to its reclamation by the supervisor, when required for the public travel” (Lane v. Kennedy, 13 Ohio St., 42).
“An encroachment upon a highway regularly laid out and established, by putting out a fence or planting a hedge within the legal limits of the road, does not constitute such adverse possession as will confer title” (McClelland v. Miller, 28 Ohio St., 488, 489).

The reason for these decisions is that the past user of the property now in dispute has been devoid of the necessary element of hostile adversity, because the railway or the highway did not, up until then, need the property for the purpose for which it had been acquired.

The deposition of Mr. S. M. Ferris shows that he was permitted to do what he did because the railroad did not then need the land for its purposes. He says, on page six of Ms deposition, under examination by Mr. Matthews:

“Q. Mr. Ferris, you said that you did not suppose that you •would -ever have to take that wall down. What led you to suppose that? A. I didn’t suppose that the railroad would ever meed it.”

This shows that the term of his user was defined by the time of the railroad’s need.

It was said in the ease of Kansas Cent. Ry. Co. v. Allen, 22 Kan., 285, 295 (31 Am. Rep., 190):

‘ ‘ The trial court followed the authority of Jackson v. Railway Co., 25 Vt., 150; but that is an exceptional case. It goes too ■far. It transfers an easement into an absolute title. It announces as a matter of law, that a railroad company has the right at all times to the exclusive occupancy of the land condemned for its purposes, and excludes all concurrent occupancy by the landowner in any mode or for any purpose. We are unwilling to approve that doctrine. It is our opinion that it is a question of fact, not of law, whether the necessities of the railroad demand exclusive occupancy for its purposes, and what use of the property by the owner is a detriment to, or interference with, the rights of the road. Again, this authority is in conflict with the majority -of cases, and if adopted as the law of this state, now so sparsely settled, and where in many of the frontier counties but a single track is necessary, and public highways and public crossings are at great distances from each other, would work severe hardship and injustice (Blake v. Rich, 34 N. H., 282; Washburn, Easements, 159, 214 Lance’s Appeal, 55 Pa. St., 16; Evans v. Haefner, 29 Mo., 141; Railway Co. v. Burkett, 42 Ala., 83; 1 Redfield, Railways, 247; Railway Co. v. Kip, 46 N. Y., 546; Cemetery v. Railway Co., 68 N. Y., 591).”

All of this is on the ground that the railroad only had an easement and that any use of the land by the owner of the fee not interfering with the easement when needed, was not adverse. So, whether the' railroad has a fee or an easement, any permitted use by an abutting landowner of part of the right of way up and until needed for the railway purposes exclusively, can not be said to be adverse in any hostile sense.

There is testimony of common user or mixed possession, and if this is so, it would strengthen the railroad case, for, as said above, it is a question of fact, not of law, whether the necessities of the railroad demand exclusive occupancy for its purposes and- what use of the property by the owner is a detriment to or interference with the rights of the road.

As to the inner strip of four feet there is an additional fact which, while not ordinarily controlling, yet is of sufficient importance, when taken with the acts of the abutting claimants, to make a different case. This strip was covered by the deed to plaintiff in 1870. It is said that this deed gives color and meaning to the acts of plaintiff taking possession underwit, and that it is notice to the railroad company that from that time on the plaintiff claimed to be the owner of the property in fee, from any incumbrance or easement, and that her acts, user and possession were as such owner as against the world.

As against this contention it might be said that if the railroad owned only an easement, a deed of the fee and its acceptance and entry thereunder by plaintiff is not necessarily inconsistent with such easement. But it is more strongly contended that the deed adds nothing to the strength of plaintiff’s ease, because color of title is wholly immaterial in Ohio where there has been continuous, exclusive and adverse possession for the requisite time, and such possession is protected whether the entry was with or without color of title (Paine v. Skinner, 8 Ohio, 159; McNeely v. Langan, 22 Ohio St., 32, 37; Humphries v. Huffman, 33 Ohio St., 395, 402; Yetzer v. Thoman, 17 Ohio St., 130).

The foregoing is undoubtedly the law, but there is a well-marked distinction between possession with and one without color of title as to the extent and character of the occupancy, the latter being limited to the part actually occupied, and, whereas occupancy of part under color is constructive of all the color extends to (Humphries v. Huffman, 33 Ohio St., 395, 403).

So, conversely, the same acts may have a different or weightier significance, dependent upon the nature or color of title asserted by contesting claimants.

The acts of an abutter who takes and records a deed for the disputed land can not reasonably be construed as the conduct of a mere licensee. "While the taking of a deed of the fee may have no adverse significance as against the railroad owning only an easement, it certainly has as against the railroad company owning the fee, to the extent of giving character to the acts of plaintiff. This ease, then, must turn upon findings of fact, whether the user by S. M. Ferris and his grantee, plaintiff herein, has been so in conflict with the ownership of the railroad company as to constitute adversity.

It seems to us that, as to the outer eleven-foot strip, this issue, in any hostile or exclusive sense, has never been raised until the beginning of this pending controversy.

As to the inner four-foot strip, we think that the defendant knew that the claim, occupancy and acts of plaintiff were hostile and adverse from the record of the deed in 1870, and we so find that plaintiff’s occupancy of this strip was, since then, hostile and adverse.

As to the eleven-foot strip, we do not find such adversity present long enough to bar the railroad from asserting its right to use said strip of land for the uses for which it was acquired, to-wit, railroad purposes, and as to it we can not, therefore, grant the relief prayed for.

As to the four-foot strip, we find that the plaintiff has maintained a continuous, open, notorious, hostile, exclusive and adverse possession for more than twenty-one years prior to the beginning of this action, and that the defendant company is barred from asserting any claim thereto. As to this latter strip the prayer of the petition for an injunction will be granted.

Decree accordingly.


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    EVIDENCE IN CRIMINAL TRIALS.
    [Circuit Court of Summit County.]
    John - v. The State of Ohio.
    Decided, April Term, 1904.

      Criminal Law — Prosecution for Robbery — Evidence—As to TJse by the Accused of Intoxicants and Drugs — New Trial will not be Granted for the Purpose of Admitting.

    1. Statements of third persons to the accused, charging him with crime, and his conduct or replies in response thereto are admissible in evidence against the accused. The value of such evidence depends upon the circumstances of the case, and it should be received and examined with great caution.
    2. Where inadmissible evidence has been admitted in behalf of one party, without objection, similar evidence may be admitted to rebut or explain it.
    3. After a conviction for robbery, a motion for a new trial based on the fifth clause of Section 7350, Revised Statutes, for “newly discovered evidence material for the defendant which he could not with reasonable diligence have discovered and produced at the trial,” will not be granted, where such evidence consists of affidavits setting forth the accused’s excessive use of intoxicants and drugs, particularly absinthe and morphine, before and at the time of his arrest; that the particular characteristic of the use of such liquor and drug is to make their user and habitue secretive as to their use, deceitful, careless of results, forgetful and irresponsible, and that counsel for the accused had no knowledge of said habits of the accused until after the trial; it appearing that the accused was in jail, denied the use of such drugs, and at the latter date was apparently in possession of all his faculties.
    Winch, J.; Hale, J., and/Marvin, J., concur.
    Error to tbe Court of Common Pleas of Summit County.
   Plaintiff in error was arrested on May 15tb, 1903, charged with having participated with two others in robbing one Robert Spinner. He was incarcerated in the county jail and remained there until his trial at the September Term of the Common Pleas Court of Summit County, and on October 28, 1903, was found guilty by the verdict of a jury. October 29, 1903, he filed a motion for a new trial, which, on November 4, 1903, was overruled by the court, and he was thereupon sentenced to two years in the penitentiary. No exception to the overruling of this motion was taken, but on November 5 another motion for a new trial on the ground of newly discovered evidence was filed, accompanied by many affidavits setting forth, in substance, that at the time the robbery was committed the accused was so addicted to and under the influence of intoxicants.and drugs that he was not accountable for what he did, and this was unknown at the time of the trial and could not with reasonable diligence have been discovered.

It appears from these affidavits that the young man was of good family, was a member of the bar of New York, and had been assistant corporation counsel of New York city, sustaining a good reputation; that on Christmas day, 1901, he met with an accident, was taken to a hospital, was given narcotics to allay his pain, became used to taking morphine, gradually became a slave to the habit, indulging in drinking whisky and absinthe to excess, descended the social and moral scale until he became a tramp, wandering about the country, associating with low and vicious characters, suffered from his excesses to such an extent that his moral and intellectual faculties were blunted; became a wreck, in fact, frequently being in prison, sometimes at his own request, that he might be restrained from himself and sobered up. He made known none of these facts to counsel assigned to defend him, nor did any of his family know that he was charged with a crime until after he had been convicted thereof.

It may fairly be supposed that the numerous affidavits to sustain the last motion for a new trial were procured in an effort by the parents of this young man to save him and themselves from the disgrace of his commitment to the penitentiary.

This last motion for a new trial was overruled, exceptions taken, bill of exceptions prepared and filed with a petition in error in this court.

The prosecuting attorney claims that no exceptions having been taken to the overruling of the first motion for a new trial nothing is before us for review except the ruling of the trial judge upon the last motion for a new trial, but we hold that the entire case is before ns for examination of such rulings as the trial judge made that were excepted to by the accused at the trial. These matters we shall examine in their order..

First. It is claimed that certain declarations of the prosecuting witness, Spinner, made in the presence of the accused should have been excluded. It appears that the accused and one of his companions were arrested in the evening shortly after the commission of the crime alleged, and taken by two officers, Goodenberger and Benson, to the boarding house of the prosecuting witness, Spinner, for identification by him. The questions and answers objected to referred to a conversation of the accused at that time narrated by Goodenberger, and are as follows:

“Q. State what was said? A. We asked Spinner in effect, probably not in the same words, whether these were the parties that robbed him, and he pointed at the accused and said he was one, and he looked at Macklin (Macklin was leaning up against a showcase there), and first he said he didn’t look tall enough, and after Macklin straightened up and turned around so he could get a good look at him, he said he was one of the other men.

“Q. Do you remember any other conversation that occurred in the presence of the accused either between you and the accused or Spinner and the accused in that house? A. Yes, sir.

“Q. You may relate it? A. Just as soon as we got in the house the accused said, ‘I do remember meeting a colored man on some street over here and asking him for some tobacco. ’ ’ ’

It appears that without objection Spinner himself, when on the stand, testified to the same conversation as follows:

“Q. Now, Robert, what is the fact as to whether or not you' identified the accused there as one .of the fellows? A. As soon as I seen him I knowed him. I said, ‘You are the fellow that got my tobacco.’ ‘Yes,’ he says, ‘I did get the tobacco off a colored fellow.’ I says, ‘You are the man that robbed me.’ ‘No,’ he says, ‘I never robbed you. I got tobacco from a little colored fellow, but never robbed you.’ ”

Officer Benson’s testimony on the subject is as follows:

“Q. Tell what was done, what took place? A. Goodenberger told the lady right over there, asked her, ‘ Is Mr. Spinner here?’ She says, ‘I guess he went to bed.’

“Q. Go ahead. A. She went up and got him and he come down. As soon as he come inside the door, as soon as he looked at the accused,. ‘You are the one’ he said ‘that helped to rob me,’ he says.

‘ ‘ Q. Who did he say that to ? A. The accused. ’ ’

It thus appears that the accused at this time made a statement tending to connect himself with the crime. Plis acknowledgment that he had met Spinner about the time and place claimed by the latter, and asked him for tobacco, was significant, tended to identify him as one of the robbers, and was proper evidence for the consideration of the jury.

. The rule that statements of third persons to the accused charging him with crime, and his conduct or replies in response thereto, are admissible, was laid down by this court in the ease of Moran v. The State, 11 C. C., 464, and affirmed by the Supreme Court. The opinion of the court by Judge Hale sets forth -our views of this matter, and we believe fully applies to this case.

“On the night of the homicide and about one hour after the assault, Moran was arrested by two police officers without a warrant, and taken to the house of Theodore Blakeslee, 73 Church street, where the crime was committed. Blakeslee was assaulted and mortally wounded at the same time the assault was made upon Fox, and undoubtedly by the same person.

“At the time Moran was brought to his house, Blakeslee was lying on the floor in a dying condition, and did, in fact, expire a short time thereafter.

“Mrs. Blakeslee claimed to have seen the murderer as he left the house after the assault, and was brought into the room for the purpose of determining whether Moran was the man she had seen. Several witnesses were permitted to testify to what occurred while Moran was there and in his presence, including statements made by Mrs. Blakeslee to or about Moran. The introduction of this testimony was resisted on the ground that Moran was at the time under arrest, and not called upon to make answer to charges made against him, and should not be prejudiced by the fact that he remained silent. •

“When brought into the room Mrs. Blakeslee said, in substance, ‘You are the man that killed my husband; you did it,’ or ‘there is the man that killed my husband; he did it.’ It will be conceded that if Moran had made answer to the charge thus made to him or in his hearing, both the statements made to him and his reply would be competent. -

“It appears from the record that testimony was given tending to establish the fact that Moran did not keep silent, but did speak. One witness says he heard Moran say in a low tone: ‘My God, did I do that?’

“If this be true, the testimony was competent. It was not for the court to say that it was untrue, and therefore reject the testimony.

“Many of the witnesses did not hear the statement of Morán, but that does not affect the competency of the testimony, if there was testimony tending to establish the fact that such statement was made by him and heard by others. Both statements may not be heard or testified to by the same person. Nor does the order in which the testimony goes to the jury affect its competency, if both finally get to the jury. For this reason alone the testimony was properly received.

“But even if no statements were made by Moran, the testimony under the circumstances, was, we think, competent. We know that there is some conflict in the decisions of the different states on this question, and while the precise point has not been determined by the Supreme Court of this state, we think the tendency of the decisions is in favor of the admissibility of this testimony, leaving the weight to be determined by the jury. ’ Murphy v. State, 36 O. S., 628.

“This testimony is of more or less value, depending upon the particular circumstances surrounding the case at the- time, and should undoubtedly be examined with great care and caution, as the jury were told to do in this case.”-

We, therefore, hold that there was no error in the admission of the testimony objected to.

-Second. Exception is taken to the testimony of Detective Doerler in which he gave a conversation with the accused a few days before his arrest, in which the detective claimed he ordered the accused out of town. This testimony was incompetent, but it appears from the bill of exceptions that upon cross-examination of the defendant he was asked if Doerler had not ordered him out of town, and defendant, without waiting for the court to rule upon the question, answered “no.” On redirect-examination, the defendant testified to his conversation with Doerler ancl gave his version of it. In rebuttal the state called Doerler, who gave his recollection of the conversation, to which the defendant excepted.

We think that under these circumstances Doerler’s testimony was admissible.

It has frequently been held that where inadmissible or immaterial or irrelevant evidence has been admitted in behalf of one party, similar evidence may be admitted to rebut it, and where part of an act or declaration is given in evidence by one party, the other party is entitled to inquire into the whole. 20 Am. Dig., 450, and cases cited.

It is said by Jones in the first volume of his Law of Evidence, Section 169, that the reason for this rule is, that it would bé manifestly unjust, if one party is permitted to introduce irrelevant testimony, to prevent the other .party from rebutting or explaining it. So it seems to us, though some courts have held that the introduction of immaterial evidence to meet immaterial evidence, is within the discretion of the trial judge. Treat v. Curtis, 124 Mass., 348; Fushush v. Goodwin, 25 N. G., 425.

In either view of the case there was no error in the admission of the testimony of Doerler, for which this case should be reversed.

It remains to consider the claim of plaintiff in error that the trial court erred in overruling the motion for a new trial, which was based upon the ground of newly discovered evidence. The character of this so-called newly discovered evidence has been given. The motion is based upon the fifth clause of Section 7350, Revised Statutes, which provides that a new trial may be granted for “newly discovered evidence material for the defendant which he could not with reasonable diligence have discovered and produced at the trial.”

Whether this evidence, if it had been submitted at the trial, .would probably have changed the result it is not necessary for us to determine; for we are of the opinion that the evidence set forth in the affidavits accompanying the motion does not come within the provision of the statute that it shall be “newly discovered” and such that defendant “could not with reasonable diligence have discovered and produced at the trial.”

That the accused just before he was arrested had been drinking to excess, and had been twice locked up for intoxication and that he might sober up, was testified to by himself at the trial.

But it is claimed that the use by him of absinthe and morphine was not known to his counsel at the time of the trial. This may be so. It is also claimed that the particular characteristic of the use of such liquor and drug is to make their user and habitue secretive as to their use, deceitful, careless of results, forgetful and irresponsible. Such may be the case.

That counsel for the accused did not know of this evidence does not make it newly discovered, if at any time previous to the trial defendant, who must be presumed to know the most about it, was able to communicate it to him. Isaacs v. People, 118 Ill., 538; Pace v. State, 63 Ga., 159; Russell v. Oliver, 78 Tex., 11.

But was the defendant at the time of the trial able to communicate it to him?

It must be remembered that the accused was arrested May 15, 1903, but not tried until October 28, 1903, over five months later. During all that time he was in jail and must have materially recovered from any bad effects resulting from the use of intoxicants and drugs. There is no evidence that such was not the case. The affidavits all refer to his condition before and at the time he was arrested, and not to his condition at the time of the trial.

He was an attorney and knew the value of such evidence.

He himself testified in the police court the morning after the robbery occurred, and again at his trial before the common pleas court. It appears from the counter-affidavits on the motion that he sat at the trial table with his counsel and made suggestions to him as to the manner of conducting his defense. He argued his own case to the jury. From these circumstances we must conclude that he' was abundantly able to communicate all of the facts as to his previous habits and condition to his counsel and offer them in evidence. That he did not do so was his own neglect, and upon this he can not base his right to a new trial.

The motion will be denied if the mover has been guilty of laches. Moore v. Coates, 35 O. S., 177.

It was held in the case of Nesbit v. People, 19 Col., 441, that—

“A motion for a new trial, on a charge of murder, for newly discovered evidence will not be granted where it consists of the professional opinion as to the mental condition of defendant, and no efforts were shown to obtain it before trial.”

In the case of Cooper v. State, 122 Ind., 377, the court says—

“Where the defendant, in a trial for murder, testifies as to all the circumstances of the homicide, which occurred more than three years before, and seeks .to justify it on the sole ground of self-defense, a new trial will not be granted on the ground of newly discovered testimony to the effect that defendant had been drinking to excess for several months before the homicide, and was on the verge of delirium tremens.”

The affidavits filed in this cause make a ease very similar to the case of People v. Hovey, 30 Hun., 354, from which I quote as follows:

“The defendant was tried and convicted of murder in the first- degree for shooting his sister-in-law on April 20, 1882. There was present at the time of the shooting of the deceased, the defendant and his wife. The defendant was examined in his own behalf and testified that the shooting was accidental, stating in detail how it occurred and what he did and said on that day. It appeared by the testimony of.several of the witnesses, and to some extent by the testimony of the defendant himseif, that he had been drinking for some days before the commission of the crime, and that he was intoxicated at the time of its commission. The conviction was affirmed by the General Term on March 22, and by the Court of Appeals on July 5, 1883.
“On July 11, 1S83, the defendant moved for a new trial upon the ground of newly discovered evidence. The affidavits, which were made by public officers attached to the police and prison force of New York, tended to show that the defendant was arrested on April 15, 1882, and committed to prison for three days for intoxication; that at the time of his arrest and while in prison he talked wildly and acted violently so that it was necessary to confine his hands, and that at the time of his discharge he was not fully recovered from the effects of the liquor; that upon the day after his arrest for the homicide the city physician visited him and found him in a highly nervous and excited condition, the result of the excessive use of alcohol; that he complained of being unable to sleep or control himself, which symptoms resulted from the abuse of alcohol and the deprivation of sedatives he had been in the habit of taking; that he was under treatment for these troubles for some two weeks; that in the opinion of the said physician at the time of such examination thu mind of the prisoner was in such a condition that he was oblivious of his actions during the week preceding said examination. These facts were not communicated to the defendant’s counsel until the latter part of June, 1883.
“Held: That it was not probable that the evidence, if received, would have changed the verdict.
“That the evidence had not been discovered since the trial within the meaning of the said section, inasmuch as the facts of ¡his arrest, confinement and sickness must have been known to the defendant, although he might not have known the exact condition, physically and mentally, in which he then was, and that it was his duty to have made these facts known to his counsel if he deemed them important; that the only fact newly discovered was that it might have been of some importance to himself if evidence of these facts had been produced on the trial.

Rogers, Rowley, Bradley & Rockwell, for plaintiff in error.

H. M. Eagelbarger, Prosecuting Attorney, for defendant in error.

“That as the condition and mental operations of the defendant were questions necessarily involved upon the trial the evidence was cumulative. .
“That the failure of the defendant'to produce the evidence upon the trial was due to his want of diligence.”

In this state it has been held by the Circuit Court of the Fifth Circuit (11 C. C., 18), that—

“Motions for new trial, based upon newly discovered evidence, are usually addressed largely to the discretion of the trial court, and that court having passed upon the case in all its aspects, a reviewing court will not interfere with the action of the trial court, especially if it sees no ground for such interference.”

We think this well states the law and adopt it. Believing that the trial court properly overruled said motion, we find no error in its so doing.

Our attention has been called to the fact that the plaintiff in error for about a year has been imprisoned in the county jail, no part of which time counts as part of his sentence of two years in the penitentiary.

It has also heen" suggested that the young man has been rehabilitated, has overcome his bad habits, recovered from the use of drugs and stimulants and been sufficiently punished; that confinement in the penitentiary will not further reform him nor benefit society; that such confinement may have the opposite effect. While feeling the weight of these suggestions, we know of no jurisdiction this court has to reduce the sentence, and suggest that such representations should rather be made to the pardoning power, in which we have no part.

Judgment is affirmed.


author: Swing, J. Jelke, J.

text:
    JURY FEES IN CONDEMNATION CASES.
    [Circuit Court of Hamilton County.]
    Alice Hosbrook et al v. The Loveland & Cincinnati Traction Company.
    Decided, November 30, 1904.

      Costs — Jury Fees in Appropriation Cases — Talesmen—Provisions of Section 5165 and of 6421 — Jurors from the Wheel Talesmen within Section 6425 — Error Proceedings — Brought for Protection of the County — Where County Officers are not Parties.

    1. Although no substantial right of the plaintiffs in error is affected by the order made below, yet where they are original parties to the suit, it is permissible that they should file a petition in error to protect officers of the county, who were not parties to the action, but will be affected by the order made.
    2. Jurors drawn from the wheel are talesmen within the meaning of Section 6425, and in an action for the appropriation of property the fees of a jury thus impanneled should be taxed as part of the costs.
    Giffbn, J.
    This action originated in the court of insolvency and was commenced to appropriate property by the traction company, a corporation. The court sustained a motion to make the petition more definite and certain, and the plaintiff not desiring to amend, the action was dismissed. Error was prosecuted, the judgment reversed, and the cause retained in the court of common pleas for trial and final judgment. That court having first determined the right of the corporation to make the appropriation of the property described in the petition, ordered that the names of sixteen jurors be drawn from the box to assess compensation, and that a venire issue for their appearance. Upon return of the writ, and it appearing that the panel was incomplete, the clerk was directed to draw forthwith from the jury box the names of fifty persons to serve as jurors in this case and a venire ordered accordingly. The panel being thus filled, each juror selected was interrogated as to whether he was in any way interested either as owner or agent or otherwise in the property sought to be condemned and appropriated, and each answering in the negative, and neither party excepting thereto, said jurors were duly sworn.
    After a verdict by the jury a motion was made to retax costs, and it was ordered that the fees of the jury be not taxed as an item of costs against plaintiff but that the same be paid as provided by Section 5182, Revised Statutes. To this order the defendants below prosecute error.
    It is claimed by the defendants in error that no prejudicial error is stated in the petition in error, and that the plaintiffs in error are not the proper parties. The question concerns the traction company and the county, which is -in no way represented in this proceeding, except as the plaintiffs in error may be said to represent all persons interested in the costs of the suit.
    In the case of Fiedeldey v. Deserens, 26 O. S., 312, a master commissioner sold certain real estate under foreclosure proceedings, but before the sale was confirmed the defendant paid to the plaintiff the amount of the judgment. The court thereupon set the sale aside and ordered the defendant to pay the costs. On motion of the defendant, the court ordered a retaxation of the costs by striking out an item of $70 as poundage. To this order the master excepted and filed his petition in error in the district court. Welch, C. J., says on page 314:
    “But there is another ground on which it seems to us the judgment of the district court must be held erroneous, and that is that the proper parties in error were not before that court. The petition in error should have been prosecuted by a party in the action, and, not by the master. To hold otherwise would be to hold that every officer, and every witness entitled to costs in a ease, might prosecute a proceeding in error to reverse the court’s order disallowing his claim for costs.”
    In that case, the order was in favor of the defendant, who was therefore not complaining. The plaintiff could not be affected by the order in any event. None of the parties were interested in prosecuting error, the master alone being concerned.
    So in this case, no substantial right of the plaintiffs in error is affected by the order; but being the original defendants in the action, they file a petition in error to protect the officers of the county, who, although not parties to the action, will be affected by the order made.
    The policy of avoiding a multiplicity of suits is a sufficient reason for allowing the original parties to file a petition in error for the protection of persons interested in the costs of a cause.
    Did the court err in making the order?
    As a basis for the order the court found that “the jury impanneled in this cause over the objections of the plaintiff- was the regular jury provided for by Section 5165, Revised Statutes, and not the jury provided for by Section 6421, Revised Statutes. ’ ’
    In the first place, there is no substantial difference in the proceedings under these two sections, except as to the time when the jurors shall attend.
    Section 6421 provides that sixteen names shall be drawn by the clerk and sheriff from the jury box, and the writ served and returned as in other cases.

    Second. The record shows that the names of the jurors were drawn from the jury box to assess the compensation and not to serve as regular jurors.
    Third. The jury fees which shall be taxed as costs against the corporation, under Section 6451, Revised Statutes, are those of “jurors summoned, and attending or serving, in accordance with the provisions” of Chapter 8, Title II, Revised Statutes; and it is not claimed that the jurors were not summoned or did not serve in accordance with the provisions of that chapter.
    Nor is any prejudice to the defendant in error shown, by reason of the selection of the twelve jurors that tried the case, but it is claimed only that by reason of the omission of some form in impanneling the jury the fees of the jurors should not be taxed as a part of the costs against the corporation. Section 6436, Revised Statutes, contemplates a first and second jury trial in the common pleas court, and provides that if the verdict be more than first rendered, the costs of the second trial shall be paid by the corporation.
    Section 6440, Revised Statutes, provides that, in case the probate judge is disqualified, the case may be commenced in the court of common pleas, and the proceedings shall conform in all respects, so far as applicable, to the provisions of Chapter 8, Title II, Revised Statutes.
    It seems clear, therefore, that the provision in Section 6438, Revised Statutes, that the court of common pleas “shall retain the cause for trial and final judgment, as in other cases,” does not authorize a judgment for costs other or different from that prescribed in that chapter; but directs that the case be retained and tried as other cases so far as the proceedings are applicable and not inconsistent with the provisions of the statute for the appropriation of property.
    The only exception taken was to the order directing the clerk to draw fifty names from the jury wheel to fill up the panel— some of those originally drawn being not found or for good cause excused. From this venire a sufficient number to fill up the panel were accepted and sworn without any objection to the jurors so selected, and defendant in error accepted the benefits of a jury trial without any prejudice to its rights appearing. It did not request the court to order the sheriff to fill up the panel with talesmen or in any other manner, but was content with reserving an exception to the order of the court, without showing in what way it would be prejudiced. The primary object of drawing the names from the wheel is to insure a better class of jurors, and the original venire being made up from names so drawn, no good reason appears why vacancies may not be filled in the same way, except the delay in the trial of the cause, which was evidently the reason why the Legislature provided in this one instance, that the panel might be filled up with talesmen. The purpose of the Legislature was therefore more completely effected, without prejudice to the rights of the defendant in error,, by selecting all the jurors from names drawn from the wheel, and none from the bystanders.
    .The order complained of is a final one within the meaning of Section 6707, Revised Statutes, as it was a summary application in an action after judgment.
    The defendant in error by answer admits that judgment was rendered on the verdict in favor of certain plaintiffs in error, and if it elected to settle with other plaintiffs in error without a judgment being entered, it can not thereby avoid the payment of costs after receiving the benefits of a trial.
    We are of opinion therefore that the court erred in ordering that the fees of the jury be not taxed as an item of costs.
   Swing, J.

This was an action by a corporation for the appropriation of private property. 6414, Revised Statutes, provides as follows:

“Appropriations of private property by corporations must be made according to the provisions of this chapter.”

The first proposition of the syllabus in the case of Dayton & Western Railroad Company v. Hugh Marshall, 11th O. S., 497, is as follows:

“The probate court under the act of 30th of April, 1852, to provide for compensation to owners of property taken for use of corporations, has a special and limited jurisdiction to be exercised in the ease and in the mode prescribed in the act, and that court can not under an order of the court of common pleas and to carry into effect that order, take jurisdiction of a case or proceed in a mode not authorized by the act.”

Revised Statutes, 6421, provides as follows:

“If the judge determine these questions for the corporation, as to any or all of the property, and persons interested therein, he shall issue an order to the clerk and sheriff to draw sixteen names from the jury box, as in other cases, and within two days after the receipt of thé same they shall execute the order, and the clerk shall forthwith return it to the probate judge, with a list of the names drawn indorsed thereon; and the judge, shall issue to the sheriff a venire for the jurors so drawn to attend at his office, at a time to be fixed by him, and named in the writ, not exceeding ten days from the date thereof, which shall be served and returned as in other eases. ” • .

Revised Statutes, 6425, provides:

“When, by reason of non-attendance, sickness, or other cause, any of the sixteen persons are not present and in condition to serve as jurors, the judge shall order the sheriff to fill the vacancies with talesmen.”

Revised Statutes, 6451, provides:

“The jurors summoned, and attending or serving, in accordance with the provisions of this chapter, shall each receive the same fees per day as are provided by law for jurors in the court of common pleas, and also five cents per mile for each mile of the distance they are compelled to travel in the discharge of their duties; the witnesses shall be allowed the same fees and mileage as are allowed for attendance at the court of common pleas; the sheriff shall be entitled to such fees as he is allowed by law for similar services in other cases, but he shall not be allowed anything in the way of poundage, except on money made on execution; the clerk shall be entitled to a fee of one dollar and fifty cents for drawing, and certifying to the probate judge, the list of jurors; the probate judge shall be allowed to enter a charge of five dollars in the cost bill for each day occupied in the trial of a cause, in addition to his other fees provided by law; and the whole cost so taxed shall be adjudged against and paid by the corporation, except as provided in the next section.”

The record in this case shows conclusively that the court did not in any way attempt to comply with Section 6425. But the record clearly shows that the court under the general provision of the statutes applicable thereto summoned a jury to serve as a regular jury for the term of its court.

The only provision of the statute which authorizes the taxing of the costs of a jury against the prevailing party is where a jury has been summoned in accordance with the provisions of the chapter for the appropriation of private property. Against the objection of the corporation the judge did not order the sheriff to fill up the vacancies with talesmen as the statute plainly directs, but on the contrary under the general provision of the statute had a venire issued for fifty jurors, and from the venire all of’ the jurors but two were selected which tried the case.

The substantial difference between a jury made up from talesmen and those made up by a venire is shown in the case of The Passenger Railroad Company v. Young, 21 O. S., 518. In the opinion of the court, at page 525, Judge White says:

“That whenever in any civil suit or criminal prosecution hereafter tried in any court of this state, it shall become necessary to summon a talesman or talesmen, either party may make a summary ■ application to the court to issue a venire, and the •coart, when so requested, shall, as a matter of course, immediately issue a venire containing the names of so many discreet and suitable persons having the qualifications of electors, as the court shall deem expedient. But if no sucn application be made, the sheriff shall summon talesmen as heretofore.
“When the struck jury was 'reduced by excusing seven of them, the plaintiff in error requested the court to issue a venire under this statute; and the court selected seven names, and issued the venire. Upon its return the jury was again reduced by excuses and challenges, so that it became necessary to summon talesmen, and the court ordered the sheriff to fill up the panel by talesmen; but the counsel for the company objected thereto, and moved the court to issue another venire; but the court overruled the motion and directed the sheriff to proceed as already directed; to which the company excepted.
‘ ‘ Several reasons are urged by the defendant in error against the Validity of this objection: (1) that the issuing of a second venire is not required by the statute; (2) that the application came too late; and (3^ that the disregard of the statute constitutes no ground of error.
“It seems to us neither of these reasons can be allowed to prevail. The statute is imperative, and its meaning plain. Whenever there arises a necessity for summoning a talesman or talesmen, and there is the proper application, it is made the duty of the court, as a matter of course, to issue the venire.* * *
“We can not assent to the position that the denial to a part of his right under this statute, is no ground of error. The sole object of the act is to secure to a party jurors selected by the court, when, for? any reason, he is unwilling to submit to a selection by the sheriff. To refuse his application when properly made, is to subject him to the very evil from which it was the design of the statute to relieve him. The effect of such refusal is to compel a party to submit the trial of his ease to jurors selected by the sheriff, when the law required the selection to be made by the court. The right is as important to the party as the right to peremptory challenge, the refusal to allow which, as well as its unauthorized allowance, has been held, in this state, to be good grounds of error.”

The statute governing that case was the converse of Revised Statutes 6425, but the principal must remain, not having pr^ceeded in accordance with the provisions of this chapter, I can not understand how the costs of a jury can be assessed against a corporation, when the statute provides that in order to tax the costs of the jury against the corporation, it must be summoned in accordance with the provisions of that chapter. For this reason, I can not concur with the foregoing conclusion of this court.

Jelke, J.

I concur in the conclusion reached by G-iffen, J., for the following reasons: I am of opinion that every doubt should be resolved in favor of drawing juries from the wheel, and every statute on the subject should if possible be interpreted in favor of that course.

The case of The Railroad v. Young, 21 O. S., page 518, was decided in 1871 and the legislation which has culminated in the present statute law on the subject of drawing juries was not begun until 1873 (70 O. L., 167).

The case at bar does not present to my mind a true converse of Railroad v. Young, supra. The proposition there decided is that jurors summoned by the sheriff are not talesmen of a venire issued by the court under the act of March 22, 1849 (S. & C., 757).

The question here is: Are jurors drawn from the wheel “talesmen” within Revised Statutes, 6425? That talesmen are not bystanders in contemplation of the law of Ohio is shown by Revised Statutes, 5173, which provides:'

“When it is necessary to summon talesmen, the court, on motion of either party, shall select them, and cause to be issued immediately a venire for as many persons having the qualifications of a juror as, in the opinion of the court, may be necessary, which jurors shall be required to appear forthwith, or at such time as may be fixed by the court; but no person known to be in or about the court house shall be selected without the consent of both parties.”

Why, then, are not jurors drawn from the wheel talesmen in a sense to satisfy every requirement of the law ? Why should the judge in making his selection not have recourse to the wheel as well as to the city directory or his own recollection.

Ampt, Ireton, Collins & Schoenle, for plaintiffs in error.

Wallace Burch, for defendant in error.

The word “tales” from the Latin “talis” means such, like; in this connection signifies such men or men of like qualifications with those of the original panel, and there is no suggestion that the men here used were not such.

If it is urged that the selection of talesmen requires an exercise of judgment or discretion on the part of the trial judge, non constat, but that it was the exercise of such discretion and the deliberate judgment of the judge that he would select the names in this manner. The wheel is brought in by the sheriff and the clerk and in the presence of the judge the names are drawn, the judge thereby makes it his act, and it seems to me that the rights of the parties are in the highest sense safeguarded.