author: Giffen, J.

text:
    RIGHT OF PURCHASE UNDER LEASE.
    [Circuit Court of Butler County.]
    Frechtling v. Jacobs et al.
    Decided, February 2, 1907.

      Specific Performance — Will not he Granted, Unless — Right of Purchase under Lease — Construction of Conditions Surrounding the Privilege.

    Under the rule that specific performance can not be granted unless the right thereto rests on clear and certain proof, the privilege of purchase forming the basis of the action in the present case can not be enforced after the expiration of the fifteen year period. .
    Swing, J.; Jelke, J., concurs; Gteeen, J., dissents.
    This is an action for specific performance and is in this court on appeal. It was heard on demurrer to the petition, although an answer of the defendant was submitted and contained admitted facts which the court might consider in the event that the demurrer was overruled and leave given the defendant to answer.
    Plaintiff’s right to a specific performance rests on the following agreement:
    “This agreement entered into this June 5th, 1889, between Elizabeth C. Jacobs of the first part and Henry Frechtling and Henry Frechtling, Jr., of the second part shows:
    “That said Elizabeth C. Jacobs has leased, with the privilege of purchase as hereinafter stated, to said Henry Frechtling and Henry Frechtling, Jr., the following described real estate belonging to her, situate in the Third ward of the city of Hamilton, Butler county, Ohio. * *
    ‘! Said real estate is leased to said second parties for the period of fifteen years from and after this date. Said Henry Frechtling and Henry Frechtling, Jr., agree to pay in consideration of said rental the taxes on said real estate for the year 1889, and also for each succeeding year during the existence of said lease; they also agree to pay all assessments that may be made for city improvements on the said premises, and if new pavements are required they agree to furnish the material and to make them.
    “Said second parties further agree to assume and pay William IT. Campbell the principal sum of $3,000 and also interest thereon from this date, same evidenced by note and mortgage held by William II. Campbell on said premises; the interest up to this date to be paid by said first party.
    “For the first five years from this date the interest of said $3,000 is to be treated and regarded as part of the rent of said premises, and in addition thereto said- second parties agree to pay to said first party as rent $125 per month, and after the expiration of said five years said second parties agree to pay to said Elizabeth C. Jacobs as rent for said premises in addition to the interest of said $3,000, which said second parties agree to release said Elizabeth C. Jacobs from paying or accounting for, the monthly rent of $110 per month during the life of said Elizabeth C. Jacobs unless the property is conveyed by her before that period as hereinafter stipulated. But if after said five years have elapsed said Elizabeth C. Jacobs shall pay to said Henry Frechtling and Henry Frechtling, Jr., said principal sum of $3,000, in that event said second parties agree to pay said'first party during her said life an additional sum of fifteen dollars per month. Said second parties further agree and bind themselves to erect before the end of said five years a substantial building of stone or brick as they deem best on said premises. The lease to John N. Hibner on said premises the first party hereby assigns to said second parties and said second parties are to receive all the rents from said Iiibner from this date, and said second parties agree to assume and perform all the covnants in said Iiibner lease which the first party is bound to perform, and to stand in the place of said first party, as to the stipulation of said lease from this date' until the expiration thereof. The second parties agree to assume and perform all the covenants in own use with said Iiibner’s permission all the buildings and improvements on said premises, but said Jacobs reserves the right to remove the shelving cases and drawers at the end of the Iiibner lease. The second parties agree that during the existence of this lease they will not suffer or permit any saloon business to be carried on in any part of the said premises for the sale of spirituous, malt or vinous liquors.
    “It is further agreed that if at any time during her life said Elizabeth C. Jacobs wishes to sell said premises that the valuation thereof shall be fixed by an appraisement to be made by two persons of reputable character, who are agreeable to both parties, one to be selected by said first party and the other to be selected by the said second parties and if they two can not agree they are to select a third party and then all three shall make said valuation of the ground, not including the improvements said second party may have made thereon, and said second party agree to purchase the same at said valuation; and if said purchase is so made, and the purchase money paid said first party agrees to execute and deliver a sufficient deed in fee simple with covenants of general warranty for- said premises to said second party and from that period the rent herein stipulated shall cease. If said $3,000 has not been paid back to said second parties the same is to be treated part of said purchase money and this real estate is to remain liable to said second parties as security for the repayment of said $3,000; and it is further stipulated that said first party shall cause to be removed any other mortgages or liens she may have put on the said premises besides said $3,000 mortgage to said William II. Campbell before she makes the deed for the same.
    “If said first party shall not sell and convey said premises to said second parties during her life then the first party binds herself, her heirs, executors, administrators and assigns that upon payment of said purchase money, which is to be ascertained by an appraisement made by two persons, one to be selected by the second party and one to be selected by the legal representatives of the first party, and if they can not agree then by the addition of a third party to be selected by said two persons, that her said heirs and legal representatives shall execute and deliver to said second parties a good and sufficient deed in fee simple for the said premises with covenants of general warranty, and that out of said purchase money shall be deducted said $3,000. The rent after the death of said Elizabeth C. Jacobs shall continue at the same rate as stipulated above after the expiration of the first five years, but to be paid to her heirs and legal representatives. * * *
    “If said Elizabeth C. Jacobs shall die without having conveyed said property before the termination of said fifteen juears, then and in that event this lease as a lease is to terminate when her youngest child arrives at full age, but all the other stipulations of this agreement shall remain in force.'”
    Mrs. Jacobs did not die until more than seventeen months after the expiration of the fifteen years from the date of the execution of the lease. The youngest child of Mrs. Jacobs was thirteen years at the time of the execution of the lease and would therefore become of age within five years from that time, which would have been the time when said lease would have terminated under certain conditions.
    Frechtling went into possession of the premises and complied .with the terms of the lease until the fifteen years had expired, at which time Mrs. Jacobs notified Frechtling that the lease had expired and that if he remained in possession the rent would be for a year and at $4,000 per year.
    This action was brought after the death of Mrs. Jacobs and is against her heirs asking for specific performance under said agreement. The right to the specific performance must rest on clear and certain proof; if the right is doubtful it can not be the fifteen years, Mrs. Jacobs was entitled to the possession of the premises. She could not compel Frechtling granted. If the plaintiff is entitled to such a relief in this case the right must clearly be shown in the premises of said written agreement.
    If Mrs. Jacobs had died before the expiration of the fifteen years for which the lease was to run at any time after her youngest child had become of age, no doubt Frechtling could have compelled specific performance, but did the right for specific performance continue in either party after the expiration of the lease for fifteen years. After the expiration of the fifteen years, Mrs. Jacobs was entitled to the possession of the premises. She could not compel Frechtling to retain possession and pay the rent, neither could Frechtling prevent her from taking possession. They both definitely fixed the life of the lease at fifteen years from June 5, 1889, but the language used in the lease or agreement in regard to the time when Mrs. Jacobs may compel Frechtling to purchase property is “if at any time during her life said Elizabeth C. Jacobs wishes to sell said premises, ’ ’ this must mean at any time during the life of Mrs. Jacobs during the fifteen years the life of the lease.
    Mrs. Jacobs in the course of nature might have lived many years after the expiration of the lease and after she had taken possession of the property. It would be unreasonable to suppose that the party contemplated at any time during her life after the expiration of the lease she might compel Frechtling to purchase said premises. As a part of this clause of the lease it is provided as follows, “and from that period the rent herein stipulated shall cease” — the “period” referred to in the payment by Frechtling of the purchase money for said premises. This shows that the purchase by said Frechtling was to be during the life time of the lease, while rent would be due by Frechtling to Mrs. Jacobs.
    The next provision of the agreement where provision is made for the possession of the premises at the option of Frechtling contains this statement, “If said party should not sell and convey said premises to said second parties during her life, then the first party binds’ herself, her heirs. * * * The rent after the death of Elizabeth C. Jacobs shall continue at the same rate as stipulated above -after the expiration of the first five years,” showing clearly that the only death contemplated was that of Mrs'. Jacobs during the life of the lease. If her death was after the expiration of the lease, the rent could not continue for the lease had terminated. If this right to purchase by Frechtling was to continue indefinitely after the expiration of the lease, and as long as Mrs. Jacobs should live, certainly some statement to this effect would have been inserted in the lease, for the natural presumption would be that the option to sell and tbe option to purchase would be co-extensive with the lease, and when provisions are found in each that the rent is to cease in one event and to continue in the other, it is conclusive that they refer to the time limit of fifteen years and not to the indefinite length of her life. That neither party should enter into a contract which was in the nature of an option as to both which was to exist as to one during her life and as to the other after her death would be unreasonable, and so much so that if such was the real intention of the parties apt words would have been used indicating such intention and it will not be left to be gathered from words which show that the lease was for fifteen years, and which naturally show that the option was to be exercised within that time, or during the life time of the lease. No provision is made for the rental- after fifteen years, and the lease having terminated Mrs.. Jacobs was entitled to the possession of the premises. It is not to be supposed that for years after Frechtling had surrendered possession of the premises he might be compelled to purchase said premises at Mrs. Jacobs’ option, neither would they be expected to bind her heirs to sell to Frechtling at this option long after the expiration of the lease and after her death. It is meant that these options were to exist during the existence of the lease and not beyond it.
    Although this contract was drawn by a very able member of this bar, it is not accurately and carefully worded. There is quite a difference in the provisions as to both options where no apparent reason exists for such difference. If Mrs. Jacobs desires to sell said premises during her life, it is provided that the valuation is to be fixed by two persons of reputable character who are agreeable to both parties, and they are to make the valuation of the ground alone and not including improvements placed there by Frechtling; and if Frechtling wishes to purchase-the appraisement is to be made by two parties, nothing said about their being reputable or being agreeable to both parties, and no provision is made as to including the value of the improvements, but simply the heirs are to give a good and sufficient deed in fee simple for “said premises.” These words are used in the provision wherein Mrs. Jacobs may exercise her option to sell, and refer by “said premises” to the description of the premises contained previously in the lease, and it must mean the same here. If intended to be definite that word should have been used to indicate such intention. The latter provision being for the conveyance of said premises and there being no provision "that the valuation should be made of the ground alone as in the other provision, the whole value of the property should be-taken, although I can see no reason why such a difference should have been made. I can see no reason to read into this contract what they have purposely left out, but under my view of the contract this becomes immaterial as Mrs. Jacobs lived beyond the life of the contract which included the life of the option.
    The rent chargeable to Henry Frechtling, Jr., since the expiration of the period of fifteen years when the lease terminated until the death of Elizabeth C. Jacobs and the exercise of the option within a reasonable time thereafter, should be the reasonable rental value of the ground, exclusive of the improvements made by Frechtling.
    Judgment affirmed.

      Alexander Hume and Clarence Murphy, for plaintiff in error.

      W. J. Davidson, contra.
   Giffen, J.

(dissenting).

The lease was for a term of fifteen years but the option of purchase survived until the death of Elizabeth C. Jacobs, when her heirs and legal representatives were, by the terms of the agreement, bound to execute and deliver to the second party a good and sufficient deed upon payment of the purchase money.

The appraisement provided for, in the event Elizabeth C. Jacobs shall not sell and convey during her life, is of the same premises as the appraisement which is provided for in the event she does sell and convey during her life, to-wit: the ground not including the improvements the second party may have made thereon.

Demurrer to petition overruled, and decree for specific performance.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    QUESTIONS GROWING OUT OF A CONTESTED ELECTION.
    [Circuit Court of Brown County.]
    The State of Ohio, on Relation of Gottlieb Bambach v. John W. Markley.

    Decided, February, 1907.

      Elections — Proceedings for Contest of — Jurisdiction—Appeal from Finding of Board of Deputy State Supervisors — Competency of Oral Testimony as to Ballots Cast — Omission's of Ministerial Duties by Judges of Elections — Surplusage on Ballot — Marlced Irregularly by Voter — Ballpts Illegally Cast by Reason of an UnconstiUitional Statute — Voters who Voted Illegally — Questioned as to how They Voted —Section 2966-39.
    1. In a contest of an election for common pleas judge in a subdivision composed of two counties, failure to aver that the contestee is a resident of the county in which the action is brought does not deprive the court of jurisdiction.
    2. Where ballots have been destroyed by the judges of election, which the statute does, not require shall be destroyed, oral testimony is admissible in a contest of the election to show how these ballots came to be destroyed, and for whom they were voted, and how they were marked.
    3. The will and judgment of voters can not be rendered ineffectual through a disregard by the judges of election of their duty as laid down in the statute, whether such disregard be due to fraud, accident, mistake, misapprehension or negligence; and where such omitted duties with reference to the ballots cast were of a ministerial character, oral evidence is admissible to show the true character of the ballots as to which there is doubt, and to identify with certainty the poll books and tally sheets, and when the ballots in question are found to be truthful, they should be counted for the candidate fqr whom the voters intended they should be counted if that intention can be ascertained.'
    4. Inasmuch as a single candidate on a non-partisan ticket has no party emblem and no one else can go on that ticket, the printing on the non:partisan ticket of words indicating various offices to be filled and voted for, with a circle above and blocks outside of the column will be regarded as surplusage; and if a voter makes a mark above or below or on the side or at the top of the column occupied by the name of -the non-partisan candidate, his intention to vote for such candidate is clearly indicated and the ballot should be counted.
    5. Where territory is transferred from one township to another by an unconstitutional statute, electors in such territory are not thereby made legal voters of the township to which it is sought to attach the territory.
    6. While the law does not permit the questioning of a legal voter as to how he voted, and an illegal voter might decline to answer on the ground that his answer might tend to incriminate him, yet where an illegal voter does not claim his privilege of refusing to testify, but voluntarily discloses that he did vote, he may be compelled to tell for whom he voted.
    Walters, J. (orally); Cherrington, J., concurs; Jones, P. J., concurs in part.
    This case, as specially provided by statute, is in the nature of an appeal from the report and finding of the board of deputy state supervisors of Brown and Clermont counties, which counties constitute a common pleas subdivision.
    The petition challenges the report made by the boards, of the result of the election for judge of common pleas court at the November election, 1906. In brief it states that the relator is an elector of this subdivision; that he was a candidate for judge of common pleas court upon a non-partisan ticket at said election; that the deputy state board of supervisors in making up their report did not give him the required number of votes, and he alleges that if the vote had been counted as cast, he would have received a majority over the defendant. It is also alleged that John M. Markley was the candidate on the democratic, and R. M. McKinley was the candidate on the republican ticket. The relator further states that he applied to the clerk of the board of deputy state supervisors of Brown county, before the election, to obtain from him the form of the ballot that was to be used at the election. He received in answer from the clerk a typewritten'copy of the form that was to be used; and he states that he used that form during the campaign in circulating sample ballots over the district, and representing that that would be the form of the official ballot which would thereafter appear and be voted. He says that it did not appear as handed to him by the clerk, and thereafter at the election, and by reason of that fact, there .arose great confusion in the minds of the voters as to where to place their mark. He further says that in Byrd township, there should ha\re been counted for him one hundred and forty-two (142) votes. That in Hamersville he should have received twenty-nine (29) votes in the'count, and in Mt. Oreb seventy-seven (77) votes, which the board of deputy state supervisors threw out. He further alleges that in the township of Perry John M. Mkrkley received two hundred and five (205) votes which were counted for Mm, when in fact he only received two hundred and one (201) as the report of the judges show. There were sixty-five (65) disputed ballots returned not counted, most of which will show he was entitled to the votes. That a large number of ballots were destroyed by the election judges, which were in dispute, and should have been sent up, but were not, and were votes for the contestor. That minors and non-residents voted for the contestee and other illegal voters.
    The answer protests, first, that this court has no jurisdiction whatever, because the petition does not allege that the contestee is a resident of Brown county, Ohio. He further avers that as to Byrd. Hamersville and Mt. Oreb, he also is entitled to certain votes if they are to be counted at all. He objects to the poll books and tally sheets, alleging that some of them were not properly sealed, or transmitted in the form required by the statute; and that the ballots sent up by the judges did not contain a proper statutory certificate, certifying for whom, or whether they were counted at all by the judges of election, and that some of the ballots had no certificate whatever.
    Some of the contentions on behalf of the contestee have been disposed of by this court during the progress of the trial. The objection to the jurisdiction of this court was so disposed of, the court holding that jurisdiction had been obtained. Also the court ruled during the progress of the trial that oral testimony was admissible to identify the ballots which were destroyed by the judges of election, and for whom said ballots were cast. These ballots were not counted. The majority of the court are still satisfied to adhere to the opinion thus rendered during the trial; and hold that the Legislature having directed that all the ballots which have been counted and read, as provided by Section 2966-39, and as to which ballots all requirements in that section had been complied with should be destroyed. That in the direction to destroy, and the destroying of such ballots, so counted and read, it was evident that the Legislature meant by this destruction of the evidence, the best evidence, that the decision of the election judges should be final. But as to all ballots that were not required to be destroyed, they, after having been destroyed, might be the subject of review in a contest, and that oral evidence was competent to show how they came to be destroyed, and as to whom they were voted for, and how they were marked. The presiding judge has some doubt about a portion of this ruling. lie holding that oral .-evidence was admissible concerning the ballots which the election judges had some dispute about, but did not certify up; and that the inquiry should be limited to that clasá of ballots.
    It is further contended on behalf of the contestee that this court could not take into consideration any of these certified ballots where they have not been certified correctly, or not at all, by the judges, or how they were voted or counted, or whether counted at all, and that the want of such certificate required by the statute can not be supplied by- oral testimony.
    lie further objects that the poll books and tally sheets that have not been properly sealed, and other formalities as required by the statute not complied with, that those omissions by the judges of election can not now be inquired into, nor the want thereof supplied by oral evidence.
    The view this court takes of these propositions, is this: The Legislature has attempted to surround the election with every safe guard, in order to insure that the voter when he casts his ballot in the ballot box, that it shall be thereafter honestly and correctly dealt with, and counted, in order that his individual conscience and will and judgment should be made effectual. The Legislature to that end has provided the forms of ballots, directed how the ballots shall be marked, how the judges shall receive them, in- what manner they shall be taken, counted and read, from the ballot box, how the results thus announced by them shall be recorded by the clerks, the manner and the form of the poll books and tally sheets, in what manner they shall be transmitted to the board of deputy state supervisors, how they shall be endorsed and sealed, and disputed ballots certified, and how, and by whom, and what the certificate shall contain. These safe guards are proper. But, let me inquire, was it the purpose of the Legislature to take away from the voter the privilege of having his vote cast, and his will, and his conscience, and his judgment, or for that matter collectively the judgment of the entire voting precinct, made ineffectual because perchance the judges of election have disregarded their duty laid down by the statute, either through fraud, accident and mistake, or misapprehension or negligence, because perchance they have failed to seal up the poll books in the jackets provided, or to properly direct them, or to properly certify as to the disputed ballots, or to properly address or direct the envelope?
    It would hardly strike the common sense or righteous judgment of any voter that that ought to be done. The voter has a right, having done his part to express his opinion, to have his vote counted and returned correctly. It is not the fault Of the voter "that the poll books, for instance, were not properly sealed; it is not the fault of the voter that the judges did not properly certify the disputed ballots; and it would «seem evident that the negligent acts, omissions and mistakes or misapprehensions of the judges of election in failing to conform to the requisites should not work a disfranchisement of the individual voter, or all the voters of a precinct. To hold otherwise would.seem to shock the sense of right and justice of most men. These acts of the judges which are simply ministerial in character may be inquired into. And oral evidence is admissible, to show the true character of the ballots, and to identify with certainty the poll books and tally sheets; and when so clearly identified and shown to be truthful, they should be received as a verity by the court, and the ballots counted as the voter intended they should be, if that intention can be ascertained.
    The same may be said of the destroyed ballots, if the electors who cast those ballots were entitled to have them counted and read and tallied, we do not see why they should be deprived of their votes because the judges of election, through misappre* hension of the law, or the manner in which they were marked, destroyed them without counting them for any .one; at least evidence should be admitted,- and if of a convincing character, should indicate that the votes should have been counted, the duty of the court would be to do so.
    It is claimed that the vote from Mt. Oreb was thrown out be- - cause it had no jacket; the vote from Byrd township was thrown out because the clerks instead of putting down tallies in the 'boxes used for that purpose opposite the name of the common pleás judge, used numerals. No dispute has arisen from any single source during this trial which impugns the correctness of these poll books and tally sheets; there is no testimony to 'show that the numerals were incorrect; no complaint is made except as to the want of the formalities required by the statute. In Perry township there seems to have been four tallies following the first tally which now distinctly appears in the column opposite John Markley’s name, which four tallies were at some time erased or rubbed out; the poll books now show that there were other marks there at one time. The judges and clerks certified that Judge Markley received two hundred and one (201) votes, which result was carried out in figures, and also written out in long-hand. The board of deputy state supervisors counted these partial or wholly obscured or erased ballot '.marks for Judge Marklejr The contestee has offered no evidence in any way tending to show that those four erased or rubbed tally marks represented votes. The duplicate required to be transmitted to the clerk of the township shows two hun'dred and one (201) votes. Without any evidence that .the count was incorrect we could- not disturb the return and decision of the judges of election.
    Before going further with this opinion it might be well to state, in a general way, the rule which we think should govern this court in the counting of these ballots, supplementing what has already been stated. A large number of these ballots are marked in an irregular way, especially the marks for Mr. Bambach in tlie non-partisan column: some being above his name; Some being in the place where the name of the secretary of state "would appear; some in the circle.in the Bambach column: and -some immediately above Mr. Bambach’s name; some in the block to the left of the Bambach column, but not in the block .immediately to the left of Mr. Bambach’s name; some in the ' block that appears' on the right of the Bambach. column; and in most every ease where a mark is made in the Bambach circle the voter has voted one of'the regular party tickets, by also making a mark in the circle. The contention of the contestee is, that no vote of any voter who voted the straight democratic or republican ticket by placing his mark under the eagle or under the rooster, and then passing over to the circle and making a mark in the non-partisan ticket in the circle, should be Gounted for Mr. Bambach; nor should any other vote be counted for him unless the mark is made where the Legislature directed — in the block at the left hand of the candidate’s name.
    It is a rule of construction laid down by all text-writers upon the subject of counting votes that the primary step is to determine, if possible, the intention of the voter, and where that can be done, no vote should be thrown out. This would seem to be a just rule as we all know that a great many people in this country give but little attention to the manner of voting under the Australian law, and especially where it is desired to vote a mixed ticket, and that a great deal of confusion has arisen., It tabes a pretty intelligent man, from one election to another, his attention not having been called to the matter, and having given no thought to the manner of voting, to step into the voting booth, and without hesitation to vote a mixed ticket, and be sure it is correctly done. The courts, therefore, have construed all those Australian ballot laws in a iiberal manner. The Legislature in adopting that system, and carrying out that idea of construction in Section 6935, provided as follows: “No ballot shall be rejected for any technical error which does not make it impossible to determine the voter’s choice.” In- obedience to this rule of construction, if from an inspection, and from the evidence, it is possible to determine the intention of the voter you must do so. In other words, if it is possible, in the language of the statute, for us to determine for whom he intended to vote, it is our solemn duty to preserve that vote.
    It would seem that this non-partisan ticket might just as well, and rightfully, have been printed without any other designation upon it than simply printing in the column opposite the other designation for the same office, judge of common pleas court, straight across, in simply printing his name there; there need be no circle at the top; no spaced blank places, or printed words containing the words, “for secretary of state” or for anybody else for either the state or county ticket. If a candidate is put upon a non-partisan ticket he is put there by petition; he has no party emblem as the other parties have, and there would seem to be no use for a circle upon that ticket. No other person can go on that ticket excepting they get on by petition as Mr. Bambach did; no other person has a right to have his name printed on that ballot excepting the man who got it up for himself. In the circle above the non-partisan, ticket, around the edge of the same, is printed for a straight ticket, “make mark within the circle.” The voters knew there was but one man upon that ticket, Mr. Bambach, and it would seem to be an error of construction in terms to say, when only one man is upon a ticket, for a straight ticket “make mark within the circle.” The words, “for secretary of state” and other words printed-on the non-partisan ticket indicating the various offices to be filled and voted for, as well as the circle above the column, were simply -surplusage, and that Mr. Bambach, so far as that non-partisan ticket-is concerned, has-the whole of that space above his name, below his name, the blocks at the right and left outside the column, as well as the circle, and if a voter votes, makes his mark in any of those places, his intention can be ascertained and would seem to be clear.
    Why should a voter mark under the eagle for a straight -republican ticket, and then pass over and make a mark in the non-partisan ticket, and make it in the circle where it is not .required to be by law? Why should he do that if he does not intend to'vote for Mr. Bambach? If he puts the mark at the 'top of the column above Mr. Bambach’s name, or below his name, or in any of the blank blocks at the right or left of that column, he knows that there is no other person than Mr. Bambach running on that non-partisan ticket; that no other candidate’s name appears there. On all the rest of the party tickets on the ballot there is a space left to rub out‘or write in somebody else’s náhxe; therefore, that blank in the Bambach column is not necessary for that -purpose. When a voter makes a mark in any of the circles in, the regular party ticket, and then makes a mark in the Bambach- column anywhere, knowing that Mr. Bambach is the only candidate, and the only name on. the whole non-partisan ticket, isn’t it clear that the voter intended to vote for him. We think so.
    Following this rule, it becomes a very easy task to count these disputed votes that were sent up and sealed. Before, however, passing from this subject, while I have these ballots at hand, I will refer to another phase of this case: It seems from the Ripley precinct there are five votes which are either marked in the democratic or republican circle, and then at the .left of Judge Markley’s name is a cross; and also, out some place in all of them but one, on the Bambaeh ticket, is a mark.
    It is claimed by the contestor that the mark at the left of Judge Markley’s name was not there at the time these ballots were sealed, or, at least, at the time they were taken out of the box; that when they were taken out of the box no mark appeared at the left of Judge Markley’s name. This contention is supported by two witnesses, Mr. Hite and Mr. Norris. These gentlemen appear to us to be, and it was conceded in argument that they were, reputable gentlemen, living in the vicinity or village of Ripley. They were intelligent men, whose testimony seemed to’have been given with a sincerity born of truth. Each swears positively, each testifies pointedly and specifically and emphatically that at the time these ballots were turned out of the ballot box they examined each one of them, and that no such mark appeared or was there.
    The testimony of the contestee relating to this point, consisting of the members of the board of deputy state supervisors, the auditor and the treasurer, each and all testified that after the votes were delivered to them they were never since disturbed, and were kept securely in the auditor’s or treasurer’s office in the safe, from that time until the time they were opened in this court.
    During the progress of the trial this court indicated that- counsel for the contestee should go no further on that subject, that they were satisfied that neither the board, the members thereof, the treasurer or auditor, nor anybody else, from the time these ballots were delivered to the board, tampered with them. And we think so now.
    "What is this court, however, to do with the testimony of these two witnesses. Mr. Hite, from recollection, testified as to in what manner the nineteen (19) votes from this precinct were certified up, were marked, and he missed it in three instances only. We have, as opposed to the testimony of these gentlemen, the written record, if you please, of the mark opposite Judge Markley’s name and to the left thereof. Is that written record upon the face of it overthrown by the testimony of these witnesses? One of the judges, Mr. Lemons, in that Ripley precinct, is reported sick, and could not be here. The, other judges and1 clerks were not called. Is the failure of Hite and Norris to recollect to be attributed to the failure and fallibility of the human mind and memory; have they forgotten? They, themselves, do not put it that way.
    Upon this point the case made is not different from any other cases which we have often heard and decided. If, for instance, a petition which contained an allegation therein that the clause in a mortgage was not there at the time the mortgagor executed the same, and the witnesses and notary public should appear before this court and testify that that clause in that mortgage was not there at the time it was signed, that they read it over, and that their object in being there was to see whether or not that clause was there, and would testify positively that it was not there, would that be enough to override the solemnly executed and acknowledged mortgage instrument in writing? The court would have no hesitancy in declaring that the alleged stipulation in the mortgage was not there at the time it was signed. Two judges -of that election were not called upon to testify. We are constrained to believe that that mark to the left of Judge Markley’s name was not there — that the testimony clearly shows that it was not. We are well satisfied that the members of the board of deputy state supervisors kept these ballots securely and safely; that when they came into their possession they were not thereafter tampered with.
    There is another singular thing about Ballot A (1) in this connection, and that is, that in the republican circle there is a mark, there are traces of a mark having been made in the circle under the rooster. There is no mark in the non-
    partisan column whatever. This is a mark to the left of Judge Markley’s name. The judges certified in their certificate sent up that they counted all this ballot 'excepting for judge. The mark being made in the republican circle, and one at the left of Judge Markley’s name, if those were the only marks, there was no necessity of sending this ballot up, as it would be a straight republican ticket except for Judge Markley. They could not' have been in doubt as to the erased mark in the democratic circle, because they certified they counted the ticket for all excepting judge. If there was a mark in both circles, one each in the ■ democratic and republican circles, it would count for nobody. In any event, we can not see how, consistently, with the fact that the ticket was counted for all the candidates excepting judge, that there could be any necessity for certifying this ballot at all. I only refer to this as showing that this ballot appears to have gotten into this package as a stray one, no possible necessity for its being certified at all, as showing that there might possibly have been some little carelessness at that polling precinct on that day.
    There is a further contention here in regard to what may be called the infirmary vote. It seems that in 1900, the township of Lewis, adjoining the village of Georgetown, included a small stream of Avater, and that in that year a special act was passed by the Ohio Legislature detaching that portion of Lewis township on which the infirmary buildings are located from.Lewis township and transferring that territory to Pleasant township, in which township the village of Georgetown is located. It is claimed that that Irav is unconstitutional. I need not here enter into any discussion as to whether that act is so or not, for it is admitted, Being, therefore, unconstitutional and the record showing that since 1900 the voters in the infirmary have been'voting in GeorgetoAvn, would the voter have still a legal right to vote there notwithstanding the act Avas local in character and unconstitutional, until the act was so declared by a court of competent jurisdiction. The Supreme Court in the 66th Ohio State, page 88, in speaking of an unconstitutional law, uses this language:
    “It was void not only from the time it Avas declared unconstitutional, but it never had any validity, and could not be invoked as a foundation of a right to be enforced in a court of justice.’!

      . The Supreme Court of the United States in the case of Norton v. Shelby County, decided in 1886, and found in the ■ 318 United States Reports at page 426, in tlie syllabus says:
    “An unconstitutional act is not a law; it confers no rights, it imposes no duties, it affords no protection, it creates no offices. It is in legal contemplation as inoperative as though it had never been passed.”
    The unconstitutional act of 1900 did not operate to make the residents of Lewis township legal voters in Pleasant township or the village of Georgetown. The inmates and others, who voted at Georgetown, were asked by counsel for the eontestor while on the stand whom they voted for in the fall of 1906 for judge of the common pleas court. This testimony, it was claimed on behalf of the contestee, ought not to have been received. It is true that a legal voter can not be asked for whom he casts his vote. The object of: the ballot system now in force is that the voter shall have the right to keep secret all his. life as to whom he did vote for. The same rule does not apply to the illegal voter, the man who has no right to vote his vote in a township or precinct other than that of his legal residence. People v. Pease, 27 N. Y., 45; same case- reported in 84 Am. Dec., 242, which last casé has a voluminous note by Mr. Freeman collating the authorities. See, also, McCrary’s Am. Law of Elections, Section 196.
    It is further contended that the witnesses could not be required to answer as to whom they voted for, because the answer might tend to criminate them. This is a personal privilege on the part of the witnesses. None of the witnesses in this case claimed that privilege until after they had voluntarily testified that they had voted. And, if a witness discloses that he did vote, and it is shown clearly to be an illegal vote, then he may be compelled to answer as to whom he voted for. There may be some doubt as to whether or not the answer to this question disclosing for whom these different witnesses voted would have any tendency to criminate them. In most all crimes the intent is the gist of the crime; and it certainly would be admitted by every one that these electors did not intend to east any illegal vote, but honestly thought they were casting their votes in the proper precinct. We are satisfied that these votes, under the evidence and the law, should not be counted for Judge Markley. See same authorities cited above.
    There was one witness, Mr. Henize, who was not an inmate of the infirmary, but was an employe, a single man, and had lived at the infirmary since 1904; he voted not in the village of Georgetown, but in the township of Pleasant, in which township is situated the voting precinct of the village of Georgetown. He testified that his parents had lived for many years in Pleasant township, and were living there at the time of the election, and that when he left his home to take up the work at the infirmary, or other places, his intention was when out of a job to return to his parent’s home. Under these circumstances we think he had a right to vote where he did. If we had doubts, we should be bound to resolve the doubt in favor of the voter.
    Samuel Smith, an inmate of the infirmary, says he voted the republican ticket; that should be taken off of Mr. Bambach’s vote. This would seem to dispose of most of the disputed ballots in this case; and it seems to be a very easy matter, having once laid down the principle, to count these votes.
    There is another subject, about which there is some difficulty, however, and that is in regard to the destroyed ballots. In Higginsport precinct there were four witnesses; Mr. Lyons testified that there were four destroyed ballots not counted for judge, two under the eagle in the circle, and in the Bambach circle, and one was marked under the eagle, and just above Bambach’s name in the non-partisan column. Mr. Cahill testifies the same as Mr. Lyons as to the two first, and says one was in the democratic circle, and just above Mr. Bambaeh’s name in the center of the column; four voted in the republican circle, one above Markley’s name. Mr. Hanselman also testified in regard to it, and Mr. Schaaf agreed substantially that three votes were marked for Bambach. In Eagle township there are five in question, and destroyed. O. P. Hare testified that two democrats voted in the circle, one in the democratic circle, about where the secretary of state’s name should be, and one in the democratic circle under Bambach’s name, three spaces below, and one was in tbe democratic circle and in the socialist column. Mr. Winters testified to the same thing;.Mr. Hunley does not remember so much about it. Mr. Moore remembers what he heard the judges say during the time they were counting the ballots, and therefore we have disregarded his testimony entirely as hearsay. Mr. Alexander says three were not counted; one was a dean ballot, one marked in the republican circle, and a mark made where the secretary of state’s name should be in the non-partisan column, and one in the non-partisan column in the place for sheriff. We have counted four ballots for Mr. Bambach under that testimony.
    In Franklin township, Dr. W. L. Faul testified that six ballots were destroyed, not counted for anybody; one had a cross-mark in the circle, and one a cross under the eagle and the rooster; those of course could not be counted. On three of the ballots the name of Judge Markley was scratched; two of those were in the Bambach box and one in the Bambach circle. W. L. Kautz, judge, does not remember much about it; the clerk says that there was one under the rooster and in the non-partisan circle, and one under the rooster, and Markley’s name scratched, and at the right of Bambach’s name was a cross-mark. We have given three votes to Mr. Bambach under that evidence.
    In Bardwell precinct, F. M. Kratzer, presiding judge, testified that one was marked in the republican circle and a cross in Bambach ticket in the circle, the other a democratic ticket with cross in the circle and a cross in the Bambach circle. We have given Bambach these two votes.
    In Jefferson township, George B. Carey testified that four ballots were destroyed, one only not counted, the other three counted; one properly should have been counted for Bambach, the other three would be counted ballots. Under the ruling of this court no evidence could be admitted in regard to them; we have therefore thrown them out.
    Tn Washington township, E. P. Calvin testified that there were two ballots certified up, one only reached the board of deputy state supervisors, the other it is shown was clearly identified as marked for judge, Mr. Bambach.

      As to one v.ote in Higginsport, two in Eagle, and one in Washington, there appears to have been a clear dispute as to whether or not these ballots should be certified up. therefore in the opinion of the presiding judge, these votes could be inquired into and should be counted for Judge Bambach.
    As to the other of the disptited ballots, the presiding judge has some doubts as to whether they could be inquired into.

       Affirmed by the Supreme Court, without report, June 28, 1907 (76 O. S., -).

   Jones, J.

Judge AValters has stated my position in the general rule as to the destroyed ballots, in Avhich I was unable to concur with the majority, but I will concur with the majority of the court, in that four out of these fourteen destroyed ballots were of such a character that they should have been sealed up, but were destroyed, and are proper ballots for determination and judicial investigation; that is, in other words, testimony with reference to these four, consisting of one in Higginsport, two in Eagle, and one in Washington, shows that as a matter of fact, the judge did not consent, or that he voted against the destruction, which in my judgment was of such a character that those ballots should have been brought up, but as to that class of ballots that they unanimously refused to count and Avere destroyed, we are precluded from reviewing; • in other Avords I do not dissent to but ten of the fourteen.

Tabulated Statement of Votes: Supervisor of Elections counted for Judge Markley, 4,686 votes; Supervisor of Elections counted for Judge Bambach, 4,259 votes.

Votes for judge rejected: Markley — -Byrd Township, 61 votes; Mt. Oreb, 48 votes; Hamersville, 22 votes. Total rejected for Markley, 131 votes.

Bambach — Byrd, 142 Arotes; Mt. Oreb, 77 votes; Hamersville, 29 votes. Total rejected for Bambach, 248 votes.

. Total for Markley on face of returns, 4,686 votes. Add number of rejected votes, 131 votes. Total as corrected, 4,817 votes.

Total for Bambach on face of returns, 4,259 votes. Add number of rejected_ votes, 248 votes. Total as corrected, 4,777 votes.

Deducting from Markley’s vote of 4,817, thus corrected, the Bambach votes of 4,777, so corrected, leaves Markley over Bambach 40 votes.

Deduct four votes from Perry township counted for Markley leaves 36 votes for Markley over Bambach.

Disputed ballots: Markley now has over Bambach 36 votes; Union Township Exb. B (9) of sealed ballots, 1 vote; Union Township Exb. B (7) of sealed ballots, 1 vote; Union Township Exb. B (6) of sealed ballots, 1 vote; Union Township Exb. B (3) of sealed ballots, 1 vote; Hamersville Exb. K (1) of sealed ballots, 1 vote. Total 41 votes. Deduct eleven illegal infirmary votes leaves Markley 30 votes.

As to ten of the fourteen destroyed ballots, the presiding judge is doubtful as to whether testimony being introduced should be confined to those ballots concerning which there was a dispute among the judges, and that they should have certified.

Bambach votes: Ripley, A (2), 1; Ripley, A (3), 1; Ripley, A (4), 1; Ripley, A (5), 1; Ripley, A (6), 1; Ripley, A (8), 1; Ripley, A (11), 1; Ripley, A (13), 1; Ripley, A (15), 1; Ripley, A (16), 1; Ripley, A (17), 1; Ripley, A (18), 1; Ripley, A (19), 1; Ripley, A (12), 1; Ripley, B (31), 1; Ripley, B (10), 1; Ripley, B (8), 1; Ripley, B (5), 1; Ripley, B (4), 1; Ripley, B (2), 1; Ripley, B (1), 1; Franklin Township, C (1), 1; Franklin Township, C (2), 1; Huntington Township, seven ballots all marked alike, 7; Aberdeen, I (6), 1; Aberdeen, I (5), 1; Aberdeen, I (3), 1; Aberdeen, I (2), 1; Jackson, G (2), 1; Hamersville, K (2), 1; Feesburg, H (1), 1; AYashington Township, F (1), 1; Russellville, E (1),. 1; Clermont, North Franklin, L (1), 1.

Destroyed ballots: Higginsport, 3; Eagle, 4; Franklin, 3; Bardwell, 2; Jefferson Township, 1; Washington Township, 1. Total, 54.

Deduct from same, Smith, infirmary vote, 1; deduct Markley vote,- 30; Bambach over Markley, 23 votes.

One. Higginsport, disputed; 2, Eagle; 1, Washington; 4 destroyed ballots.

This leaves Bambach over Markley 23 votes in the whole subdivision. A decree will be entered accordingly.

By Judge Jones: I concur in the majority of thirteen votes.


text:
    MANUFACTURING AND WHOLESALE DEALERS NOT LIABLE FOR. DOW LAW TAX.
    [Circuit Court of Putnam County.]
    Diehl Brewing Co. v. Spencer, Treasurer, et al.
    Decided, October, 1903.

      Liquor Laws — Storage Souses for Beer — Not Liable for Dow Law Tax, When — Intention of the Parties as Revealed by Their Acts Controls —Sandling of Beer Distinguished from, the Independent Business of Trafficking Therein — Section 4364-9.
    A manufacturer and wholesale dealer in beer, who maintains a storage house at a place where beer is stored, and from which deliveries are made only to local retail dealers upon orders solicited by the traveling sales agent of the manufacturer, does not thereby become a trafficker in intoxicating liquors within the meaning of Section 4364-9, and is not subject to the Dow tax.
    Day, J.; Mooney, J., and Norris, J., concur.
    This case comes into this court on appeal. The petition is lor injunction to restrain the county treasurer of this county from collecting certain taxes and assessments and penalties which are alleged to be illegal and unauthorized.
    The plaintiff declares in its petition that its business consists wholly in the manufacture and wholesaling of beer, which business is carried on at its manufactory and office in Defiance, Ohio, and by its traveling salesmen employed to solicit business in the counties of Defiance and. Putnam in said state and elsewhere. That it listed and made true returns of all its personal property in Monroe township, Putnam county, Ohio, for the years 1899, 1900 and 1901 and was duly and fully taxed and assessed thereon, and fully paid said taxes and assessments and fully paid for those years all taxes and assessments legally levied against its manufacturing business. Plaintiff says that the county auditor and his predecessors have illegally assessed, against it for the years 1899, 1900 and 1901 a sum aggregating $700 and charged the same on the tax duplicate of Putnam county, Ohio, together with penalties amounting to $140, and that each and all of said assessments and penalties are wholly illegal and without authority of law.
    Said county treasurer is attempting to collect the - amount of this illegal tax and assessment and penalties, and has entered upon premises in Putnam county, owned and controlled by plaintiff, and has distrained certain goods and chattels of plaintiff for the payment of said sum, and will, unless enjoined, sell said property as upon execution at law. And plaintiff prays that said defendant may be enjoined from doing any of those acts, and from collecting or attempting to collect said illegal taxes' and assessments and penalties or any part thereof and asks that the same may be declared to be illegal and void.
    The answer admits the official character of defendant; that plaintiff has its manufactory, office and place of business in Defiance, and admits that it listed and made return of all its personal property in Monroe township, subject to taxation for the years 1899, 1900 and 1901 under the laws of Ohio, to the assessor of Monroe township, Putnam county, Ohio, and that it paid to the treasurer of Putnam county all taxes and assessments levied thereon. The answer denies that plaintiff’s business consists wholly in the manufacturing and wholesaling of beer, and that said business is carried on in Defiance, Ohio, by its traveling salesmen, and asserts that plaintiff, during the years 1899, 1900 and 1901, was conducting the business of trafficking in intoxicating liquors on in-lot-in the village of Continental, Putnam county, Ohio, and that sales of intoxicating liquors have been and were made at said place of business during said years by persons employed by the plaintiff for said purpose, both at wholesale and retail, and that plaintiff has refused to pay and has not paid the taxes and assessments on said business during the years 1899, 1900 and 1901.
    That said county auditor upon satisfactory information of these facts entered said tax and assessments and penalties upon the duplicate and upon the treasurer’s copy thereof under Section 4364-14, Revised Statutes, all of which, and the collection thereof is lawful, and asks that if said amount be not paid by plaintiff that the goods and chattels held and distrained be sold and the proceeds applied in payment thereof. All else in the petition is denied. The allegations of the answer are denied by the reply.
    This is claimed in the answer that the plaintiff in the years 1899, 1900 and 1901 was engaged in, and carried on, the business of trafficking in intoxicating liquors at the village of Continental, Putnam county, Ohio, as contemplated by Section 4364-9, Revised Statutes, -known as the Dow law — this being pleaded in defense of the remedy sought in the petition, and upon it defendants claiming the right to recover said amount of tax, assessments and penalty. This allegation of the answer is denied in the reply; so, upon the fact as to whether the business claimed in the answer to have been carried on by plaintiff was thus carried on at Continental in the years named, rests the proper determination of the case.
    The law in such case has been clearly settled by the Supreme Court in a number of decisions and there can be very little, if any, difference of opinion as to what the law applicable is.
    In the case of Reyman Brewing Go. v. Bristor, 92 Fed. Rep., 28, the Circuit Court of the United States held that — ■
    “A manufacturer of beer who leases a room in a cold storage warehouse at a certain railroad station, in which to store beer shipped to that station, which has not been ordered in advance, and from which beer is delivered which is sold upon solicited orders, and from which it is sometimes sold directly, is a trafficker subject to taxation.”
    This was a case in which the provisions of Section 4364-8 were applied to the facts, and among the facts to be found' and that were dwelt upon that court were these — I quote again from the ease, page 30:
    ‘ ‘ The packages not delivered directly from the railway station to purchasers are delivered from the said storage house or room, upon orders solicited as aforesaid, and upon sales then and there at said storage room made, ’ ’ and again, ‘1 in 'other instances such collections are made by said agent, Bert Meyers, at the time of sale and delivery at said storage room. i:< * i;! The barrels and eases of beer described in the bill were * * * placed in the storeroom above mentioned, and were to be there sold and delivered,” and again, page 29: “Said agent also makes sales of said packages at, and delivers the same from, the place where stored at Steubenville.”
    The court, upon these facts, held the brewing company to be a trafficker in intoxicating liquors, having a place in the city of Steubenville where the traffic is carried on within the meaning of the Dow law.
    The case of Tillage of Beliefontaim v. Tassaux, 55 Ohio St., 323, is an interesting one, and while the proposition upon which the case was decided is not presented here, the law, as announced by the Supreme Court, is in line with other decisions of that court, on the proposition presented in the case at bar, and is decisive of it. The syllabus is as follows:
    “1. The general rule is, that title to goods intended to be transported passes from the vendor to the purchaser upon delivery by the former to a common carrier, consigned to the-purchaser, whether paid for or not. But if the vendor consigns the goods nominally to the purchaser, but actually in care of his own storekeeper, who is to retain them in control and give possession to the purchaser only on payment of the purchase price, then the delivery to the common carrier is not, in law, delivery to the purchaser.
    “2. Under such circumstances, the shipment being in effect to the vendor himself, the delivery, when it occurs, would be at the storehouse of the vendor-; and the transaction would not be a completed sale at the point of shipment.
    “3. As a general rule, a sale of personal property is not completed when anything remains to be done to identify the thing sold, or discriminate it from other like, things. ”
    The effect of this holding is, that the place where the seller relinquishes possession and control of the beer to the purchaser and the purchaser assumes possession and control thereof and pays the purchase price is to be regarded as the place of sale; and that is the single question presented in the case under consideration: Was the plaintiff company the keeper of a place where intoxicating liquors were sold at retail other than at the manu-’ factory, etc. ?

      In the case of Hanson v. Luce, 50 Ohio St., 440, the court defines traffic contemplated by the statute as:
    “Consists in the purchase and sale or barter of the liquors named therein, and the place of the traffic is the place where such purchase, sale or barter is had, and not the place where the liquors are stored for cooling or safe-keeping.”
    The facts which called forth this definition are:
    “That the beer was put from the ears into the cooler where it remained until delivered by the driver of the beer wagon to customers, but no beer was sold at said cooler. The traffic was carried on elsewhere than at the cooler which was not a place of business but a place for storage, there being no buying and selling there.”
    In the case of Jung Brewing Go. v. Talbot, 59 Ohio St., 511, it is not alleged in the petition or claimed and it does not appear that the sales were made' at the manufactory. The driver of the beer wagon made the sales to the retail dealers. The court held that if the customers had made their purchases or received the beer at the storage house, then the storage house would undoubtedly be the place of traffic, and that the driving of the wagon and the hauling of the beer has reference merely to the method of carrying on the business. That in determining the place of traffic the delivery related merely to the place or building from whence the delivery was made; and not being in connection with a business on which the proprietor paid the tax as in Hanson v. Luce, supra, but as a separate and independent business of trafficking upon which no tax was paid, when this is done, whether from a wagon or at a place, the condition arises which creates the liability to pay the tax. And so the court announces in its syllabus that—
    “A manufacturer of intoxicating liquors who carries on the business of selling them elsewhere than at the manufactory, is engaged in the traffic within the purview of Section 4364-9, Revised Statutes, and subject to the tax thereby imposed.”
    The eases all hold that the traffic consists in the purchase and sale-or barter. The place of traffic is the place where such purchase and sale or barter is had, or to which it is referred. That the cooler or storehouse at which no buying or selling is done and which is not a place of business but which is used merely as a place of storage and safe-keeping is not a place of traffic, and so, that handling the beer is not the independent business of trafficking in intoxicating liquors as contemplated by the law. The intention of the parties as discovered from their acts controls. When their acts indicate an independent business of trafficking, the payment of the tax can not be escaped. Then let us apply the law, as settled by the Supreme Court, to the facts appearing in this case.
    The plaintiff brewing company was, during the period named in the petition, engaged in the business of manufacturing and wholesaling beer at its manufactory or brewery in the city of Defiance, Ohio. It had a bold storage house.for the storage of its beer in the village of Continental in this county. It shipped its beer by the ear load to Continental, took it from the cars and placed it in the storage house. The storage house was in charge of one Philip Wolsifer, and from this storage house it was his duty to deliver the beer. The customers to whom he was charged to make these deliveries of beer were those who trafficked in intoxicating liquors at retail, and were subject to the tax imposed by the statute. It appears that he was only thus in charge safely to keep and make deliveries. With fixing prices and making sales he had nothing to do. Tie was especially instructed not to make sales. It was no part of Wolsifer’s duty to receive from the customers the purchase price of the beer, though at times upon specific order from his employer, the brewing company, or from Mr. Smith, their traveling agent and trade solicitor, he made some collections, but whatever collections were made by him were an additional duty, in no wise "referable to the sale or the delivery of the. beer, and not in the light of payments and were not payments which in any wise accompanied or accomplished a change of ownership or a change of possession of the property, but were all after the sales and after the delivery and after ownership of the property and the possession of it had passed to the purchaser, and the collections were made strictly as a collector and in that character, and in no wise as a deliverer, or a seller of beer. He was acting as a collector of claims which had arisen upon promises to pay for property before that time sold and delivered to the purchasers. The money thus collected was by order of his employer placed on deposit to the credit of his employer in the bank at Continental, and these, as the evidence shows, were the acts done and the duties performed by Wolsifer under his employment.
    A witness, Mr. Ladd, testifies that at one time Mr. Wolsifer sold him a keg of beer at the storehouse. This Wolsifer denies and the evidence tends to show, by the testimony of Wolsifer and Mr. Conn that the witness, Mr. Ladd, was mistaken as to the vendor, and that the beer was purchased by Coons, a retail dealer, and was not sold by Wolsifer. In any event and if it were even sold by Wolsifer, it was not within the scope of his authority but was in disobedience., of .the instructions of his employer, who enjoined upon him to make no sales to anybody.
    Mr. Christ Diehl is a member of plaintiff’s firm. Mr. Andrew C. Smith is the agent of the firm, whose duty is to solicit orders in the territory comprising Continental and to make collections for beer sold. By the testimony of these two witnesses, the storehouse at Continental was a place of deposit from whence convenient delivery might be made to customers at Continental and in that vicinity. The customers were retail dealers and traffickers who were subject to the tax. The trade was solicited through this territory which Mr. Smith says he visited every thirty days and the sales were made by orders to the home office and there confirmed, and orders- went either directly or through the agent Smith to Wolsifer to make delivery. Each sale was not a specific quantity" but the price was fixed and the delivery was ordered to be made from the cold storage house to suit the needs of the customers; that these were the conditions is corroborated by the testimony of other witnesses in the case, but no sale was made, no money was paid at the storehouse, no change of ownership, no change of possession; no right of possession arose because of anything done at the storehouse, or from any act of Wolsifer, the man in charge, that he did do or could do within the scope of his employment or instructions.

      The things he did were not to sell or barter or traffic. The storehouse of which he was in charge was not a place of sale or barter, for he made no sales and no sales were made at that place. And so it is the opinion of the court that in no conceivable view of the situation shown by the evidence, and in no sense as defined by the courts, can plaintiff be deemed to be a trafficker as claimed by the defendant and as contemplated by the statute, and as such held to the payment of the tax.
    . The finding is, therefore, for the plaintiff, granting the perpetual injunction prayed in the petition. Costs are adjudged against the defendant. Execution for costs is awarded, and the case is remanded for execution.

      B. F. Enos and J. P. Bailey, for plaintiff.

      Bisser <& Smith, for defendants.


text:
    TAXABILITY OF MONEYS INVESTED IN MUNICIPAL BONDS DURING TAX YEAR..
    [Circuit Court of Clark County.]
    Mary E. Whitely v. Clarence W. Arbogast, Treasurer of Clark County, Ohio.
    Decided, May, 1907.

      Taxation — Monthly Average of Moneys Invested in Municipal Bonds During Tax Year Exempt — Uniformity of Tax Laws — Paragraph 16 of Section 2737 Construed — Constitutional Law.

    Since the amendment to the Constitution exempting municipal bonds • from taxation, a person is not required, under paragraph 16, Section 2737, to list “the monthly average amount or value, for the time he held or controlled the name, within the preceding year, of all moneys, credits or other effects within that time invested in, or converted into bonds of any municipality of this state, not taxed, to the extent he may hold or control such bonds or securities on said day preceding the second Monday of April,” etc.
    Dustin, J.; Wilson, J., aud Sullivan, J., coucur.
    Appeal from Clark County Common Pleas Court.

      This case is here on appeal. The plaintiff brought an action to restrain the collection of certain taxes placed against her. She alleges that in April, 1905, she returned all of her property — some $13,000 — for taxation; that between listing day in 1905 and listing day in 1906 she purchased certain municipal bonds, giving the dates and amounts; some were purchased in December, 1905, others in January, 1906, and others in March, 1906; that they are now exempted from taxation, but notwithstanding that, there has been placed against her for collection, the average, or suppo’sed average value of the money or securities which had been, between the listing days, placed by her in these non-taxable securities, amounting to some $7,000, and that the officer in doing so relied upon the sixteenth paragraph of Section 2737, Revised Statutes, which reads:
    “The monthly average amount or value, for the time he held or controlled the same, within the 'preceding year, of all moneys, credits or other effects, within that tihie" invested in, or converted into bonds or other securities of the United States or of this state, not taxed, to the extent he may hold or control such bonds or securities on said day preceding the second Monday of April;” etc.
    The official obtained an opinion from the Attorney-General of Ohio, of the proper interpretation of this law. The Attorney-General held 'that money invested in municipal bonds would not (under the above section) be exempted from taxation — municipalities being divisions of the state; and that, at any rate, any other interpretation would be unconstitutional because it would, give to municipal bonds a more favorable position than United States or state bonds, since the money invested in United States or state bonds, between listing days, would have to be reported —the average amount — but not so as to municipal bonds; and in accordance with that opinion, the official acted.
    Now the language is not obscure or ambiguous in any way; it reads, “bonds of the United States, or of this state.” In.our view, that does not cover bonds of municipalities. But it is claimed that we should so hold because that is, or should be the intention of the Legislature, and if the Legislature has not amended this section (which, was last amended in 1868, I believe) , it has been an oversight and the courts, in behalf of the taxing power and to make a uniform application thereof, should hold that these municipal bonds are included.
    We think we have no right to read anything into the statute, except in cases where we find the legislative intent to have béen to include other words or phrases.
    It is very manifest that the legislative intent was not to include municipal bonds, because municipal-bonds ivere at that time taxed. We have no right, therefore, to read'that into the statute.
    It is claimed that this interpretation would destroy the uniformity of the tax laws. That may be, and it probably is true that this act, since the amendment to the Constitution relieving municipal bonds from taxation, is unconstitutional; but it is not for us so to declare, because the language of the section does not include municipal bonds, and it is therefore of no concern to us in the determination of this case.
    Some holder of United States or state bonds, who has invested in the same between listing days, and who is taxed the average amount or value of the money invested therein, may bring an action, and upon such action possibly that section may be declared to be unconstitutional, but that is of no concern to' us, because municipal bonds are not mentioned.
    We -are unable to take any other view than that taken by the common pleas court in this case. As it came up on demurrer to the petition, the demurrer will be overruled, as it was by the court below.


text:
    VOLUNTARY ASSOCIATIONS OF BUSINESS CONCERNS.
    [Circuit Court of Summit County.]
    J. H. Webster et al v. Taplin, Rice & Co.

    Decided, September 30, 1904.

      Partnership — Associations of Business Firms Formed for Mutual Protection — Liability of Members for Dues and Assessments — Exhaustion of Remedies within the Association — Forfeiture of Membership by Failure to Pay Dues.

    1. A voluntary' association of business concerns, formed for the purpose of adopting-a uniform basis of dealings between the members thereof and their employes, and the investigation and adjustment of questions arising between them, is not a partnership.
    2. Benefits to be received from the membership, in an association of business concerns for adjustment of difficulties between members and their employes, are sufficient consideration for an agreement to pay dues and other sums required by the constitution.
    3. In an action for dues and assessments due a beneficial organization, the objection that all the remedies within the organization have not been exhausted, should be raised by answer and not by demurrer.
    4. Membership in such an association does not cease from the mere non-payment of dues, so as to relieve a member from the liability therefor.
    This action was' originally brought in the Common Pleas Court .of Summit County, Ohio, by. the district committee for the fourth district, to recover, on behalf of the National Founders’ Association, dues and assessments, quarterly and special, and the equity in the reserve fund, amounting to a little over $1,000.
    Taplin, Rice & Company had joined the association in the early part of. 1900, signing the usual application form and reporting on May 1 the number of molders and others employes in their employment. They paid the quarterly dues up to the first of October, 1900, but had never paid any other dues or any other regular or special assessments, nor had they' ever paid their equity for the reserve fund.
    The defendant filed a demurrer on the ground that the petition did not constitute a cause of action, and raised two points:
    First. That the association is a partnership and can not sue one of its members at law.
    Second. That the agreement of the members to pay dues, assessments, etc., was without legal consideration.
    The trial court sustained the demurrer and the association took the case to the circuit court, the opinion of which court, delivered by Winch, J., on the 30th day of September, 1904, was as follows:
    Winci-i, J.; Hale, J., and Marvin, J., concur.
    Error to the court of common pleas,
    lihe only error complained of in this ease is the sustaining of a general demurrer to the amended petition. It is set forth in the plaintiff’s petition that plaintiffs, defendant and over five hundred others are members of the National Founders’ Association, which is a voluntary association formed for the purpose of adopting a uniform basis of just and equitable dealings between the members of said association and their employes, and not for the purpose of business adventure, trade or profit, whereby the interests of both may be properly protected, and the investigation and adjustment by the proper officers of the association of any question arising between the members of said association and their employes.
    It is further stated that the action is brought by plaintiffs in membership in the association, which application was duly received, and that defendant was elected and became a member of the association, and promised to pay it, or its duly authorized officers, all dues, assessments, quarterly or special, and other amounts payable by reason of the action of .said association.
    The petition further sets forth articles of the constitution of the association providing for the payment of dues, assessments, a reserve fund based on the proportion of molders employed by the member, initiation fees and special assessments, the several amounts due and payable in accordance with said articles, demand therefor, and refusal of defendant to pay.
    It is further stated that the action is brought by plaintiff in their own names, being duly authorized by the association to do so, and that the suit is brought in behalf of the association and all its members.
    The objection to the sufficiency of the petition is based upon two propositions, the first of which is that the plaintiffs’ association is in law a partnership, and as such, can not sue one of its members.
    Definitions of partnership found in the text-books and adjudicated cases uniformly include the characteristic of a sharing in profits. Parsons, in his work on Partnership, 2d. Edition, page 69, says:
    “A community of interest in the profits is essential to a partnership.” •
    Voluntary associations with many members may be organized for the purpose of sharing in the profits of some venture, or they may be organized without such purpose.

      The following is to be found in Lindley on Partnership, Vol. 1, page 50:
    “No partnership or quasi partnership subsists between persons who do not share either profit or loss and do not hold themselves out as partners.
    “Societies and clubs, the object of which is not to share profits are not partnerships.”
    It appearing affirmatively from the petition that the National Founders’ Association is not organized for the purpose of business adventure, trade, or profit, the objection that it is a partnership is not well taken.
    The second objection'to the sufficiency of the petition is that, even if the association is not a partnership, there is no consideration shown for the promise to pay the assessments and other charges.
    -We think the benefits to be received from membership in the association are sufficient consideration for the agreement to pay the dues and other sums rerpiired by the constitution.

      Quoting from the case of Palmetto Lodge v. Eubbell, 49 Am. Dec., 604:
    “Conceding that the liability of the defendant depends on contract, requiring a consideration, the consideration of his undertaking to support the constitution and by-laws, and pay all legal demands, was that he should be admitted a member of the lodge and possess the rights and capacity of a corpora-tor. ’ ’
    The suggestion that the remedies within the organization for the collection of these payments have not yet been exhausted, and that an action can not be maintained until they have been, we think should be made by answer, and it is not necessarily raised by demurrer. The demurrer should have been overruled, and for error in sustaining it the judgment is reversed.
    The case then went back to the trial court, where the defendant filed an answer, setting up Section 8 of Article IV of the bylaws of the association, which provides that: “The secretary shall notify the members of all dues or assessments as they become payable, and if the same are not paid to the treasurer, within thirty days from the date of such notice, the treasurer shall make draft for such unpaid dues, and any member failing to honor such draft shall cease to be a member of this association,” etc., and claiming that, by the refusal of the defendant to pay dues after October 1, 1900, it had ceased to be a member of the association.
    The plaintiffs filed a reply in which they denied that Section 8 of Article IV applied to this case; denied that any draft had been issued, and set up Article XV, Section 1 and Section 2, and Article XVI, .Section 1, which provide that:
    “No member shall be relieved or absolved from the duties, obligations, requirements and agreements connected with his membership in this association, unless he shall have given four weeks’ notice in writing to the secretary of his intention to resign from the said membership, whereupon said resignation may be accepted by the sanction of the committee of "his district, at the expiration of the notice, provided that such member shall not be in arrears .for any dues or assessments, and shall pay any expenses for assessments incurred prior to his resignation, that may be made upon member at or before the next annual meeting of the association.”
    Also that: “No member shall resign during the existence of a strike. ’ ’
    And also:
    “Should any member refuse or fail to comply * * * with the obligations of membership of this association, the president shall have power to suspend his membership until the next annual or special meeting of the association, when in case of continued contumacy he may be expelled by a two-thirds vote of the members present.”
    The reply also set up that the defendant never notified the secretary or the association in writing, of its intention to resign, never did resign, and that at all times the defendant had been in arrears for assessments and dues. ‘
    The case was tried to a jury and the trial court instructed ■ the jury that, under Article IV, Section 8, Article XV, Sections 1 and 2, and Article XVI, Section 1, there were only two methods of terminating membership in the association. One was by resignation, the member having complied with the requirements of Article XV, Sections 1 and- 2; the other by expulsion, as provided by Article XVI, Section 1, and that Article IV, Section 8, merely gave the association the right to expel a member.
    The jury found a verdict in favor of the plaintiffs, and defendant took the case to the circuit court, the opinion of which court, rendered September 30, 1905, by Henry, J., is as follows:
    The Taplin, Rice & Company v. J. H. Webster et al.
    Henry, J.; Marvin, J., and Winch, J., concur.
    Error to the court of common pleas.
    Plaintiff in error operates a foundry in this city and was a member of a certain foundrymens’ association, of which defendants in error are also members. Judgment was recovered against the former for arrears of dues to said association. Its defense was that under the rules of the association it ceased to be a member when it failed to pay its dues, and was thus relieved of liability therefor. There are other provisions of the rules relating to resignation and expulsion of members. But it is admitted that the plaintiff in error’s membership has not been discontinued under either of these sections. Literally, there is some color for the contention that there Avas a third method of terminating membership, but, reading all the rules together, we think the court beloAV Avas clearly right in holding otherwise, and the judgment is affirmed.

      Stuart c§ Stuart, for plaintiffs in error.

      Squire, Sanders c§ Dempsey, B. F. Denison, and Allen, Waters, Young & Andress, for defendant in error.
    The defendant then took the case to the Supreme Court, Avhere the errors complained of were the two points raised the first time in the circuit court, and the one point raised the second time in the circuit court. The Supreme Court affirmed the court below on all three points without report.

       Affirmed by the Supreme Court without report, April 9, 1907 (76 Ohio State, --)