author: CUSHING, J.

text:
    CANALS — MUNICIPAL COEPQEATIONS
    [Hamilton (1st) Court of Appeals,
    January, 1922.]
    Hamilton, Cushing and Buehwalter, JJ.
    Cincinnati (City) et al v. John C. Rogers.
    Lessees not Entitled to Compensation from City for Failure of Water Supply through Abandonment of Canal.
    Leases entered into between the state of Ohio and private parties for the use for milling purposes of surplus water from the Miami and Erie canal created no vested rights in the lessees against the city of Cincinnati, and abandonment by the state of that part of the canal running through the city of Cincinnati gave no right of action against either the state, or city to which that part of the canal has been transferred, because of the failure of the water privilege; hence, an arrangement entered into by a municipal board whereby the claim of the owners of said leases were to be compensated because of the diversion of their water supply was without authority of law and is not enforcible.

      Saul Zielonka, for city of Cincinnati, George P. Carrel, auditor, and Alexander Patterson, treasurer.

      Frederick S. Spiegel, for the board of rapid transit commissioners.

      Frost <& Jacobs, for the Atkins & Pearce Mfg. Co.

      Waite, Schindel & Bayless, for Carrie M. Fagin.

      Joseph Heintznum, for Bayard L. Kilgour and Alfred J. Becht, Exrs. and Trs.

      Crosley & Rogers, for defendant in error. . >
   CUSHING, J.

The original action in the court of common pleas was brought by a taxpayer to enjoin the rapid transit commission and the city of Cincinnati from paying $60,483 to the Atkins & Pearce Mfg. Co., Carrie M. Fagin and the Kilgour estate.

The city and rapid transit commissioners, the Atkins & Pearce Mfg. Co., Carrie M. Fagin, and the Kilgour estate are plaintiffs in error. In this opinion the Atkins & Pearce Mfg. Co., Carrie M. Fagin, and the Kilgour estate will be referred to as plaintiffs in error.

Plaintiffs in error claim the right to the money in question on two grounds. That they have a vested, right to the flow of surplus water, as hereinafter described, and that the city and the rapid transit commission entered into a contract of settlement with them, and they are now claiming the money by contract.

Plaintiffs in error claim that on March 26, 1836, the state entered into a contract in writing, by which it agreed to sell or to lease to Clark Williams, subject only to the restrictions, limitations and conditions therein provided, for ninety-nine years, renewable forever, the surplus water for milling purposes, owned by the state at the locks of the Miami and Brie canal, east and south of the east side of Broadway in the city of Cincinnati, and that they are the successors in title to Clark Williams in the right to said surplus water. At the time the lease was entered into the canal extended from north of the city of Cincinnati to the Ohio river. Between the east side of Broadway and the Ohio river there were at that time nine locks.

On April 28, 1863, pursuant to an act of the general assembly, passed March 24, 1863, the city entered upon, occupied and improved, for street and sewer purposes, that part of said canal from the east side of Broadway to the Ohio river. One of the considerations for the grant was, that the city was required to, and did construct, under what has since been known as Eggleston avenue, an aqueduct, as an outlet for the surplus water of the canal, north and west of the east side of Broadway.

After the completion of the aqueduct, it was accepted, occupied and used by the state for its purposes from that time until about October 22, 1919.

As a part of the improvement, the city constructed a sewer under Eggleston avenue, filled in the canal, and used the surface for street purposes. The state used the canal west and north of Broadway for transportation purposes, and the aqueduct as an outlet for the surplus water in the canal.’

On May 15, 1911, the general assembly passed an act, authorizing the governor of the state to enter into a contract of lease with the city for the part of the canal commencing at the east side of Broadway in said city, and extending west and north thereof to a point 300 feet north of Mitchell avenue. The statute authorized the city to use that part of canal for street, sewer, boulevard and subway purposes, and as a part of the consideration for the grant the city was obliged to construct an outlet for the surplus water of the canal at a point several miles north of the east side of Broadway, by which the surplus water in the part of the canal not abandoned was to be turned into Millcreek. The outlet was constructed. The city entered upon the part of the canal so abandoned, and since that time no water has passed through said aqueduct.

The canal was constructed by the state for transportation purposes. Clark Williams’ lease, or license, was only for the use of the surplus water, for milling purposes, that passed the locks in the part of the canal abandoned by the act of 1863.

For the purpose of clarity, it is conceded by the parties to this action that neither Clark Williams, nor any person claiming under him, acquired or had any right to said surplus water, that could not be terminated by the state at will; that the state in leasing or abandoning the canal might create such restrictions, conditions and reservations as its discretion dictated; and that such restrictions, conditions and reservations must be stated in the Act authorizing the lease, and, if not so stated, they do not exist. Hubbard v. Toledo, 21 Ohio St. 379; Little Miami Elevator Co. v. Cincinnati, 30 Ohio St. 629; Fox v. Cincinnati, 33 Ohio St., 492, affirmed, Fox v. Cincinnati, 5 O. F. D. 110 [104 U. S. 783; 26 L. Ed. 928].

It is claimed by plaintiffs in error that by the act of 1863 they acquired as against the city a vested right in and to the use of the surplus water in the canal, and to have it pass through the aqueduct.

The act of 1863 gave the city the right to use the surface of the land owned by the state, and occupied by the canal for but two purposes, the surface for street purposes, and so much of the part below the surface as was necessary for a sewer. The city at no time owned, used or controlled the locks, the aqueduct in question, or the surplus water that might pass through the aqueduct from that part of the canal not abandoned. In the absence of any ownership in, or control over the aqueduct or the surplus water from the canal, a vested right as against the city could not arise from either grant or by prescription.

The claim to a vested right by statute, can be determined only from a consideration of the act itself.

The act of 1863 has been before the Supreme Court in several cases. The reasoning of that court in the case of Fox v. Cincinnati, supra, settles the question of vested rights under the Act. It was held that when the state exercised its reserve right to abandon the canal, and thus cut off permanently the supply of water, there was no right to damages against the state, nor was any liability imposed on the city by accepting the grant. A right or claim that did not subsist against the State could not accrue against the city. Therefore, the plaintiffs in error must rely upon their lease of 1863, and the reservations in the act of 1911 as a basis for their claim, and if none exists they must fail in this action.

The act of 1911 authorizing the lease to the .city specifically provided for the construction of an outlet for the surplus water in the remaining part of the canal, as above stated, several miles north of the east .side of Broadway. The' act of 1911 contained three conditions. A general provision that the city should pro- ‘ tect outstanding rights or claims, if any, and two special conditions that will hereinafter be considered.

Adhering to the rule of construction that in a case of a conflict or inconsistency between general and special provisions, reservations or conditions of an act of the general assembly, the special will control or modify the general reservations and conditions, we come to a consideration of the act of May 15, 1921.

The general condition in that act is stated in the language used in the act of March 26,1864, as follows:

"Subject to all the outstanding rights or claims, if any, with which it may conflict.”

This provision was before the Supreme Court in the case of Hubbard v. Toledo, supra. In that case the court reached the conclusion that the lease so called was a mere license to take, and not an obligation on the part of the state to furnish surplus water.

Another rule of construction is that where the provisions of a statute have been ascertained and made definite by judicial construction in using the same language in a subsequent act, it will be presumed that the general assembly intended to use the language in the same sense, unless enlarged or restricted by tbe context of tbe act. We do not find in tbis act any provision that would warrant us in giving a different construction to the language from that stated by tbe Supreme Court.

Tbe two special conditions in Sec. 2 of tbe act obligated tbe city to construct an outlet for tbe surplus water of tbe canal, and to construct proper works, so that tbe state could carry out its contracts with tbe users of water along tbe portion of tbe canal to be abandoned.

Tbe provisions with reference to tbe construction of the outlet is, that tbe city shall construct a suitable and sufficient outlet for tbe water in tbe canal at a point 300 feet north of Mitchell avenue, so as not to obstruct the flow of water through tbe remaining part of tbe canal, nor destroy nor injure tbe present supply of water for mechanical or commercial purposes. In answer to tbe contention of plaintiffs in error that tbis language secures to them a continuation of tbe flow of surplus water through the aqueduct east and south of the east side of Broadway, it should be observed that tbe first paragraph of See. 2 of tbe act relates only to tbe construction of an outlet for tbe water in the canal. That part of tbe act relates to tbe manner in which tbe outlet shall be constructed — it shall be suitable and sufficient, and it shall not interfere with tbe supply of water for mechanical or commercial purposes in tbe part of tbe canal not abandoned. Tbe location of tbe phrase, tbe subject-matter with which tbe general assembly was dealing, as well as tbe punctuation, all tend to tbe conclusion that it was tbe water in tbe part of tbe canal north of Mitchell avenue.

Tbe reservation and conditions imposed with reference to tbe part of tbe canal to be abandoned were treated separately. Tbis provision bad to do with tbe water in tbe canal, and not with tbe surplus water that bad theretofore passed through tbe aqueduct, in which plaintiffs in error claim a property right. Tbe language used in tbe act is:

“Tbe city shall adopt and construct appropriate works for the purpose of supplying water to the lessee users of said water along tbe portion of tbe canal to be abandoned, in order to and for tbe purpose of enabling tbe state to fully carry out and discharge all obligations now resting upon it by virtue of certain contracts subsisting and in force between it and said lessee water users. ’ ’

The plain import of this provision is, that the appropriate works were to be constructed for and used by the state in the discharge of its obligations to the persons or firms with which it had contracts. The state has not, and we assume that it will not require the city to construct such works, as it is admitted that all the leases along the part of the canal to be abandoned have expired. The argument that this provision of the act was intended to apply to and protect the water users along the aqueduct east and south of the east side of Broadway is not tenable. The construction of the outlet north of Mitchell avenue, and its use by the state was an abandonment of the aqueduct east and south of the east side of Broadway for all purposes.

The conclusion is, that the language of the act “the part of .the canal to be abandoned” referred only to the part between the east side of Broadway and the point 300 feet north of Mitchell avenue, and that the plaintiffs in error have no claim against the state nor the city on account of the abandonment by the state of the aqueduct.

The remaining contention of plaintiffs in error is, that they presented to the rapid transit commission claim for damages against the city for a diversion of the surplus water in the canal, aggregating about $152,000.00 and that sometime in October, 1919, they and said commission entered into a contract, by which it was agreed that the city should pay them the sum of $60,-483.00, in full settlement of their loss or damage, and that having entered into that contract they have a binding claim against the city for said sum.

We have already determined that the plaintiffs in error did not have a claim against the city, and it is difficult to understand what consideration there was for the payment of so large a sum of money in settlement of an alleged claim or right.

The other question growing out of this contention is, did the rapid transit commission have authority to enter into such a contract? That commission was organized pursuant to the authority given by an act of the general assembly passed May 17, 1915. Its authority to acquire property was contained in the following provision of that act:

‘ ‘ The board of rapid transit commissioners is hereby given power to acquire by purchase, or to appropriate, enter upon and hold any real estate of easements, partial or otherwise, therein, thereon, thereunder, or thereover, or any interest therein, both within and without the limits of the municipality, which it is deemed necessary for the purposes above specified. Such power to be exercised in manner provided by law for the acquisition and appropriation of property by municipal corporations. ’ ’

It is contended that the language “is hereby given power to acquire by purchase, ’ ’ is broad enough to authorize the commission to enter into this contract of settlement. Two cases are cited in support of this contention, Springfield v. Walker, 42 Ohio St. 543, and New Orleans v. Louisville I. & N. Ry., 109 U. S., 221 [27 L. Ed. 916].

The law of Ohio is that statutes conferring authority on municipalities, boards and commissions are to be strictly construed. The cases cited are, in our opinion, not applicable here.

In the case of Springfield v. Walker, supra, Walker had commenced an action in the court of common pleas of Clark county against the city of Springfield to recover damages for personal injuries caused, as it was alleged, by the negligence of the city. Before the case was for trial, the city and Walker entered into a statutory arbitration under the direction and supervision of the court of common pleas. The award of the arbitrators was returned into that court, and the court entered a judgment thereon. The city excepted to the judgment and prosecuted error to the Supreme Court. The claim was made that the city was not a “person” within the purview of the statute authorizing arbitration. The judgment of the court of common pleas was affirmed. The agreement of arbitration was made pursuant to authority in the statute. This was not a settlement between the parties, and the court held that the words “person” used in the Act authorizing arbitration was broad enough to include a municipality.

• In the case of New Orleans v. Louisville & N. Ry., supra, the board of liquidation of debts of the city of New Orleans was speeially authorized by the act creating the board to dispose of the property in question on such terms and conditions as may be deemed favorable. Construing that statute, the Supreme Court of the United States held that under the act in question said board was vested with authority to sell the property. No such authority is found in the act creating the rapid transit commission. That act limits the powers of said commission in the following language, “such power to be exercised in the manner provided by law for the acquisition and appropriation of property by municipal corporations.” Division 3 of Chap. 1 G. C. sets out in detail the steps to be taken in the acquisition or appropriation of property by municipalities of the state. Whether the claim for damages arises from the taking of property or the appropriation of the property right, neither the rapid transit commission nor the city followed the provisions of Sees. 3681 and 3689 G. C., in determining whether or not the plaintiffs in error had a property right, and if they had, its value.

The conclusion is that the plaintiffs in error did not have a vested right as against the city to have the surplus water of the canal pass through the aqueduct east and south of the east side of Broadway, nor have they any claim for damages against the city growing out of the abandonment of said aqueduct by the state; that there was no consideration for the alleged contract under which plaintiffs in error claim the sum of $60,483.00, and that the rapid transit commission did not have authority to enter into such a contract.

The judgment of the court below will, therefore, be affirmed.

Buchwalter and Hamilton, JJ., concur.


source: Caselaw Access Project

author: HOUCK, J.

license: Public Domain

text:
    WORKMEN’S COMPENSATION
    [Delaware (5th) Court of Appeals,
    October 14, 1919.]
    Houck, Shields and Patterson, JJ.
    Eugene Eversole v. Industrial Commission of Ohio.
    Workmen’s Compensation — Spirit of the Act — Must be so Construed as to Carry Out Its Humanitarian Purpose — Injury to a Milk Wagon Driver During a Storm.

      When an employe is injured while about his master’s business, doing the work and performing the duties assigned to him, he comes within the legislative purpose and intent in the enactment of the state compensation law, and is entitled to an award because of such injury. Applied' to milk wagon driver injured in hail storm.

      Eugene Carlin, for plaintiff in error.

      John G. Price, Atty.-Gen., D. M. Cupp, Asst. Pros. Atty., and B. W. Gearhart, for defendant in error.
   HOUCK, J.

The material part of the petition necessary to determine the question involved in this case is as follows: ' •

“Plaintiff states in his petition that on the fourteenth day of February, 1916, he was a regular employee of the Westerville Creamery Co., which had complied with the workmen’s compensation law by paying the required amount of premiums into the state insurance fund, and that on said date while in the course of his employment he was driving a milk wagon for said employer, and while so engaged in the course of his employment sustained an injury to his right eye by particles of hail or sleet striking him in the same, which caused a loss of vision in said right eye.”

A demurrer was filed to this petition and sustained by the trial judge.

Question: did the trial judge err, to the prejudice of the plaintiff in error (the plaintiff below), in this holding?

This question must be determined in the light of the proper construction placed upon Sec. 21 of the workmen’s compensation act (Sec. 1463-68 G. C.), and then properly applied to the facts stated in said petition.

Said section reads:

“Every employee mentioned in subdivision two of section fourteen hereof, who is injured, and the dependents of such as are killed in the course of employment, wheresoever such injury has occurred, provided the same was not purposely self-inflicted, on and after January 1, 1914, shall be entitled to receive, either directly from his employer as provided in section twenty-two hereof, or from the state insurance fund, such compensation for loss sustained on account of such injury or death, and such medical, nurse and hospital services and medicine, and such amount of funeral expenses in case of death as is provided by sections thirty-two to forty inclusive of this act.”

Counsel in support of the demurrer insist that the injury of which Eversole complains was not received by him in the course of his employment, and that it was caused outside of and disconnected with same. Is this claim sound or unsound as measured by the intent and purpose of the Legislature in the enactment of the workmen’s compensation law, and in its use of the words, “in the course of his employment?”

What do these words mean, and what was the legislative purpose of same ?

It is presumed that the legislature had some aim, object and purpose in the passing of this law, and to us it seems clear and plain that the one purpose was to protect and care for the one who “earns his bread by the sweat of his brow,” the one who has not the means to carry indemnity insurance that is expensive and beyond his “purse strings.” Yes, and in ease of death to provide a fund to furnish food, clothing and shelter to the widow and children left behind.

We know of no more humanitarian law. Every word, sentence and line of this act bespeaks such an interpretation, and it must and does follow that it should be liberally construed in favor of a claimant under it.

Counsel for defendant in error rely upon the decision in the case of Fassing v. State, 95 Ohio St. 232 [116 N. E. 104], We have carefully examined this case, and do not think it decisive of the instant case for the reason that the real question at issue was not presented to the court or passed upon by it. The question here to be determined is: was the injury complained of received ‘ ‘ in the course of his employment. ’ ’

In the ease of State v. District Court of Ramsey Co., 129 Minn., 502 [153 N. W. 119], it was held:

‘ ‘ That where an ice man, who was required to follow a fixed route in substantial disregard of weather conditions, when a severe rain storm was in progress left his team and went to a tall tree just within the lot line, either for protection or in the performance of his duties in soliciting orders, and lightning struck the tree and killed him, that his dependents were entitled to the benefits of the workmen’s compensation act.”

In our examination of similar acts in other states, and upon which many of the adjudicated cases base their decisions, the language used in the law is: “that where an injury arises out of and in the course of employment,” etc., but in our act the language used is, “in the course of employment.”

We think that a fair and proper interpretation of the latter language means that if one is about his master’s business, doing the work and performing the duties assigned him, and while thus engaged is injured, he comes within the purpose and intent of the legislative purpose of the act now before us for interpretation and construction. Any other construction it seems to us would be too narrow, and would, in effect, set aside and abrogate the real purpose of the law and what was contemplated and intended by its framers.

If we give to the language in question its natural and ordinary meaning, ever keeping in mind the humanitarian purposes of the makers thereof, we can reach but one conclusion, namely, that the claimant is entitled to compensation.

In the case of Industrial Commission v. Roth, 98 Ohio St. 34, 39 [120 N. E. 172], the court, through its learned Judge Donahue, says:

“In the construction of a law it is the duty of a court to give the words their usual and ordinary meaning, such meaning as they import to mankind in general, and not a forced or unusual definition (or construction), which may in its last analysis be technically correct, but wholly at variance with the common understanding of man. ’ ’

If we apply this rule to the language and act now under review, we are bound to find for the plaintiff in error.

The case of Industrial Commission v. Pora, 100 Ohio St., 218, while not decisive of the case at bar, yet it strongly points in that direction, and especially the rule of construction of the act now under discussion.

The chief Justice says:

“The real spirit of this act is to measurably banish technicality and to do away with the nicety of distinction so often observable in the law, and commands a liberal construction in favor of employees.”

The court is unanimous in its judgment in finding error in the record prejudicial to the rights of the plaintiff in error; and having so found, the judgment of the common pleas court is reversed, and it is ordered that this case be remanded to the court below, with instructions to overrule the demurrer to the petition in this case.

Judgment reversed and case remanded.

Patterson and Shields, JJ., concur.


author: BY THE COURT.

text:
    COMPENSATION AND SALARIES — JUDGES
    [Cuyahoga (8th) Court of Appeals,
    January 4, 1922.]
    Crow, Hughes and Warden, JJ., Fourth district sitting by designation.
    State ex rel Pros. Atty. v. John A. Zangerle, Co. Aud., et al.
    Invalidity of Act Increasing Judicial Salaries so far as it Applies to Judges in Office.
    The act of February 4, 1920, (108 O. L., Part 2, 1301), so far as it applies to a judge of the court of common pleas in office at the time the act took effect, is violative of Art. 4, Sec. 14, of the Constitution, and therefore void, regardless of the source of payment of the salary.

      George D. Hile, for plaintiff.

      Willimi H. Boyd and Thomas H. Hogsett, for defendants.
    Crow, Hughes and Warden, Judges of the Third District, sitting in place of the Judges of the Eighth District.
   BY THE COURT.

On February 4,1920, the legislature passed an amending act (108 O. L., Part 2, 1301) to provide for an increase in salaries of judges of the courts of common pleas, and judges of other courts, which act took effect on May 24, 1920.

Under this amendment that part of the salaries of the judges of the court of common pleas of Cuyahoga county, payable out of the county treasury, was increased two thousand dollars. Those of said judges of Cuyahoga county, whose terms of office began before the taking effect of this amending act, claimed to be entitled to the increased salary provided for in said act, and made demand upon the county auditor for his warrant covering same, which he refused to issue.

In June, 1920, these judges who are in this case as defendants, brought their action in mandamus against the county auditor to compel him to issue his warrant for the increase claimed to be due them. This case, of which more will be said hereafter, terminated in favor of the judges, and the writ was issued accordingly.

On April 19, 1921, the prosecuting attorney of Cuyahoga county, upon written demand of a taxpayer, George D. Hile, who is also an attorney at law residing and practicing in Cleveland, brought this action to enjoin the county auditor from making these payments to said judges. Answers were filed in the case by the judges and the county auditor, under which an issue was raised on the merits, and under the second defense the first suit above mentioned, was plead as res judicata, and judgment was rendered in favor of the judges. From that judgment of the common pleas court, appeal was taken and by agreement of all parties the case was assigned for trial before this court at Lima.

None of the judges of this court had any information or knowledge whatever concerning the nature of the case, and when counsel representing both sides appeared at Lima, the court was informed by the prosecuting attorney of Cuyahoga county, that he was convinced there was no merit in plaintiff’s present case, and he consented that a decree be entered in favor of the judges. This being agreed to by all, counsel personally present in the case (Mr. Hile being absent), and the court, having no information regarding any aspect of the case (not having seen the pleadings, nor heard a statement of the facts), instructed counsel to agree upon, prepare and file with the clerk such journal entry as would be appropriate.

Information of this step came to the taxpayer who had made demand for the institution of this suit, and he thereupon made application to this court to be made a party that he might prosecute the suit upon its merits, and by and with the consent of all the parties in the case he was made a party plaintiff with leave to file a reply to the answers filed herein by the defendants.

He' has since conducted the suit in plaintiffs behalf, with commendable skill, courage and fidelity.

With, the other issues raised in his reply, he alleged that the former judgment plead by defendants judges, as res judicata. was a judgment procured by collusion and fraud.

The case was then assigned for trial and heard at Cleveland upon all the issues.

From the pleadings and the evidence the following questions are presented for determination.

■ First, whether Art. 4, See. 14, of the constitution of Ohio prevents judges who were elected or appointed prior to May 24, 1920, from receiving an increase of salary under this act.

Second, whether that point was determined in the mandamus case, and if it was, whether the parties to this case were parties to that case.

Third, whether the judgment in the mandamus case is void on the ground of fraud, and if it is, whether it can be set aside herein.

On the first question in controversy, we are convinced that there is no doubt of the application of the constitutional provision which reads as follows:

“The judges of the supreme court, and the court of common pleas, shall at stated times, receive for their services, such compensation as may be provided by law: which shall not be diminished, or increased, during their term of office; but they shall receive no fees or perquisites, nor hold any office of profit or trust, under the authority of this state, or of the United States. All votes for either of them, for any elective office, except a judicial office, under the authority of this state, given by the general assembly, or the people, shall be void.”

As was said by Donahue, J. in Cleveland Tel. Co. v. Cleveland, 98 Ohio St. 358, 368 [121 N. E. 701], the intent of a constitutional provision must be determined from the language of the same, and the words employed must be given their usual and ordinary meaning. If the words be attended by no ambiguity or doubt, and are plain and distinct, there is no occasion to resort to other means of interpretation. The question is not what is intended by the words, if the latter can be understood, but what is the meaning of the words employed.

The construction urged in behalf of the judges in the present case would limit the interdiction against the increase of salary, to that portion payable from a source other than the state treasury. This is the only reason urged against the application of the constitutional inhibition.

To give such a construction would result in injecting language into the provision, for which no reason whatever has been, or in our opinion none could be, put forth.

Implication of words into a constitutional provision, or statute, can be resorted to only in aid of a doubtful or ambiguous provision, but is never permitted where the language admits of no uncertainty.

To obviate the evil and mischief which might arise from the exercise of legislative power to increase or diminish the salary of any public officer during the term for which he was elected or appointed, the framers of the Constitution, in addition to express provisions such as the one we are discussing, prohibiting such power, incorporated Section 20 of Article I, as an obvious inhibition applicable to public officers generally.

And this latter section has been universally construed to apply, regardless of whether the officers were of the state, or the political subdivisions thereof.

Concerning the question of fact of adjudication in the mandamus ease, of whether the act in issue herein is unconstitutional so far as relates to an increase in the salaries, we find in favor of defendants judges. That is to say, the evidence shows that, .upon submission of the general demurrer the question was specifically decided by the court.

Although in the mandamus case all the judges united as relators, and the petition was verified by only one of them, and notwithstanding the relief sought was payment of but $37.63, the question of misjoinder which might have been raised, was waivable and waived.

We are also of opinion that there is the requisite identity of parties, essential to res fadieata. With the exception of one of the judges who died after the mandamus suit was commenced, the same judges were parties to that case who are parties to the record in the present case. The defendant county auditor was, as already stated, party defendant in the mandamus case, and by his presence there, the public was a party by presentation.

That in the mandamus case the state on whose relation the judges brought the suit, had no direct interest in the controversy, is also true in the instant ease. The public, that is the people of Cuyahoga county, were present in the mandamus case, by the county auditor, and they are. present in this case by the same officer and also by the state of Ohio.

So that, we repeat, there was an adjudication of the issue of whether defendants judges are prevented by the constitutional inhibition, from receiving the increase in salary, which results from the act amending Sec. 2252 G. C.

Coming now to the issue of fraud in the procurement of the judgment in the mandamus case, it is the position of counsel for the judges that the attempt of plaintiff to be relieved from it herein, is a collateral attack.

If the attack be collateral, of course it must fail. But we hold that the attack is direct, and comes clearly within the doctrine established by our Supreme Court. Conway v. Duncan, 28 Ohio St. 102; Kingsborough v. Tausley, 56 Ohio St. 450 [47 N. E. 541], Pomeroy, Equity Jurisprudence (4 Ed.) Sec. 919.

Plaintiff Hile should be permitted to amend his reply, so as to incorporate therein that the judgment in the mandamus case be set aside and held for naught.

Passing to the evidence introduced on the issue of fraud in the procurement of the judgment, the following are among the important circumstances shown by the evidence.

Counsel representing the judges prepared the petition and then prepared a general demui’rer thereto, and a waiver of summons. By an understanding and agreement that he had made with the auditor and prosecuting attorney who was by law counsel for the auditor, he procured the proper signatures to this waiver and to the demurrer and filed the same, and made arrangements with the assignment clerk for an immediate or early assignment before a common pleas judge sent to the county by the chief justice. Under and by virtue of this agreement had with the prosecutor, a hearing was to be had upon, and some kind of a submission was made of, the demurrer, it being agreed that the court should enter final judgment in the case without leave to either side to plead further, which was done by the court issuing the writ of mandamus. No appeal was taken in this case, and error was not prosecuted and thus the case came to an end.

The evidence shows that the judges who are defendants here, knew or had information through conferences, of these arrangements and of these proceedings as they progressed. One of the judges prepared a brief upon the merits which was submitted to the judge in that case by counsel for the judges. The evidence shows that the prosecuting attorney filed no brief or memorandum of authorities whatsoever in that hearing, although he had prepared a written opinion advising the county auditor against payment of the increase.

He gives evidence himself to the effect that he made all argument against the writ, being of the opinion, as he says, at that time that the judges were not entitled to the increased salary. He testifies that he had read with care, the brief of the judge submitted in their behalf, before the arguments upon the demurrer but was still of adverse opinion. He gives as his reason for not appealing or prosecuting error, that when the judge decided the case, the written opinion convinced him that his position was wrong and therefore he was content to abide by the judgment of the court of common pleas.

The testimony of the county auditor, who is also a lawyer, is to the effect that from the time the judges first claimed the right to the increased salaries, he was clearly of opinion that they were not entitled thereto, and that his opinion on that point has never undergone a change; that he did not perceive it his duty to make an effort to protect the county treasurer against the unlawful increased salary, further than as the same might be incidental to his personal protection from liability which might result from his issuing the warrants without sanction of a court.

After the mandamus case had been commenced, the county auditor had no communication whatever with the prosecuting attorney regarding the progress of the suit or any matter connected with it, nor did he have any communication with the prosecuting attorney after the suit was decided in favor of the judges, but promptly issued the warrants in issue in the mandamus suit, and all subsequent warrants covering the increased salaries, until the commencement of this action. And he pleads as a defense herein, the judgment in that case.

We have not attempted to set forth in detail all the testimony bearing on the conduct of the prosecuting attorney and the county auditor, in relation to the conduct of the judges and their attorneys, in the mandamus suit. But on the whole, that conduct compels the conclusion that the judgment was the result of fraud by the collusion at least of counsel for the judges, and the prosecuting attorney with the tacit acquiescence of the judges and the county auditor.

We can not be unmindful of the indifference (if that be the appropriate term) of the county auditor, to the interest of the public in the subject of the mandamus suit and its consequences, and to his entire neglect of the case both before and after its determination.

The opinion filed by the trial judge in the mandamus case, and the brief of the judges, to which we have referred, have also been considered by us as evidence, and from our consideration of them, we find there is no argument nor authority in the opinion of the trial judge additional to the matter set forth in said brief.

Being of such firm conviction that the constitutional inhibition. applies in this case, we are compelled to say that the argument presented in the brief referred to, was so clearly based upon a false premise, that there was no justification whatever for the prosecuting attorney (whose duty under Sec. 2921 G-. • C., is to protect the county treasury against the unlawful withdrawal of money therefrom), in being content with the judgment in that case, especially in the face of the fact that while the case involved only a small sum there, it in reality involved an ultimate withdrawal from the county treasury of more than $62,000 of public money.

If there is any class of people who are presumed to know and revere the law and understand the effect of circumstances and evidence, it surely must be judges and lawyers.

Defendants judges must therefore be deemed to have known that the prosecuting attorney, the auditor (a nominal party only) and their own attorney, were not doing.their duty, and that they were in collusion in the perpetration of a fraud upon the county.

No one circumstance of itself proves the judgment fraudulent, but all the undisputed facts, and such of the testimony as we find to be true, leaves no doubt that the judgment is ineffectual as an estoppel against the public in the case at bar.

It is settled beyond contention that where an attorney fraudulently fails in the performance of his duty to his client, which results in the rendition of a judgment, the latter may set aside at the instance of the client. This principle should be, and we therefore hold that it is, applicable to the conduct of a public officer such as a county auditor in his representative capacity, when the fraudulent conduct of such officer contributes to the entering of a judgment against the public in whose place he stands. Even though the county auditor was free from collusion in the mandamus case, the judgment is still fraudulent.

A perpetual injunction must be allowed against all defendant judges excepting Maurice Bernon, who is entitled to the increase during his incumbency subsequent to the taking effect of the act. Newark v. Richter, 39 O. C. C. 219 [7 App. 328; 27 O. C. A. 385].

The taxpayer who is party plaintiff in this case, aside from meriting commendation for insisting on a decision upon the merits in a case against parties who are judges in a court in which he practices, should be compensated for his services in saving to the public the large sum of money in controversy. Hence this court makes an allowance of an attorney fee to him in the sum of $1,000 which shall be taxed as costs in this case, pursuant to the intent of Sec. 2923 G. C. The costs of the case, including said attorney fee, shall be paid by the county and judgment is rendered accordingly.


author: WASHBURN, J.

text:
    ARREST — INTOXICATING LIQUORS
    [Summit (9th) Court of Appeals,
    March 14, 1922.]
    Washburn, Pardee and Punk, JJ.
    Marcus Veal v. State of Ohio.
    1. Liquor Siezed on Premises of the Accused under Search Warrant Used Evidence against Him.
    When no application is made for the return of goods siezed on a search warrant, and the defendant on trial denies that the goods are his or that they were taken from his possession, it can not be claimed that the goods so seized are incompetent as evidence against him because of Irregularity in the issuance or service of the search warrant.
    2. Validity of Search Warrants Issued by Municipal Court Clerks, Denied.
    The clei’k of a municipal court is probably without authority to issue on his own responsibility search warrants for searches under the Crabbe act.

      Irvin & Laybourne, for plaintiff in error.

      II. M. Hagelbarger and C. T. Moore, for defendant in error.
   WASHBURN, J.

A search warrant was issued, the same being signed by the clerk of the municipal court to search certain premises in Akron for intoxicating liquor. The officer to whom it was issued went to the' premises, found the plaintiff in error, a lessee of the premises, and read, the warrant to him, and thereupon he said to the officer, ‘ ‘ Go and make the search. ’ ’

The search was made, and several jugs of intoxicating liquor were found on the premises and taken to the municipal court.

Three days later a warrant was issued upon affidavit filed, and the plaintiff in error was arrested, charged with having unlawful possession of intoxicating liquor.

No application for the return of the liquor seized was made, either before or during the trial. All that the plaintiff in error did was to object, after the trial had begun, to the introduction of the evidence obtained by the search. He did not, at the trial or at any other time, claim that the liquor seized was his or had been taken from his possession, and ask that it be returned because the search was illegal. But on the contrary, he testified at the trial that the liquor was not his and was not in his possession when seized.

If the liquor was not his and was not taken from his possession, he had no right to have it returned to him, even if the search was illegal, and if the liquor was his, he could not object to its introduction in evidence, without at some time in the proceedings making an application for its return.

The adjudicated eases require him to make a seasonable application, and most of the cases decide, or seem to imply, that the application should be made before the trial is begun. Weeks v. United States, 232 U. S., 383 [58 L. Ed. 652] ; United States v. O’Dowd, 273 Fed. 600. But we are not called upon to decide at what time the application must be made, because in this case no application whatever was made.

What we hold in this ease is that where no application whatever is made for the return of goods seized on a search warrant, and the defendant on trial denies that the goods are his or that they were taken from his possession, he can not object to the introduction in evidence of the goods seized because of illegality in the issuance or service of the search warrant.

He can not inject into the trial questions as to the legality of the manner in which evidence was obtained against him which was not obtained from him or from his possession. United States v. Silverthorn, 265 Fed. 853; Burdeau v. McDowell, 256 U. S. 456 [41 Supt. Ct. 574].

The reason for the rule which forbids the introduction of evidence illegally obtained from the possession of the defendant, is that the use of such evidence violates his constitutional rights by making him, in effect, testify against himself, and where he denies that the goods seized are his or that they were in his possession when taken, he destroys the basis and foundation of the rule which he invokes. If the goods are not his and were not taken from his possession, he is not made to disclose evidence against himself by the introduction of the goods as evidence.

Moreover, it is shown by his own testimony in this case that the plaintiff in error told the officers to go ahead and make the search; the officers testified to the same thing, and the plaintiff in error does not claim that there was any coercion or that his consent to the search was not voluntary.

An officer may search one’s premises without an authorizing warrant, if it is done with the owner’s consent. Black v. Commonwealth, 227 S. W., 455.

It is not necessary, and we do not hold, that if seasonable and proper application had been made for the return of the goods seized, in which he claimed that the goods were his and that they had been wrongfully taken from his possession — we do not hold that under such circumstances the consent shown in this case would alone defeat the right to have the- property returned if the seizure was illegal. Amos v. United States, Advance Opinions Sup. Ct., April 1, 1921, No. 10, p. 316; United States v. Slusser, 270 Fed. Rep., 818; but we do hold that under the circumstances as shown by the record in this case, the trial court did not err in overruling the objection of the plaintiff in error to the introduction of evidence obtained by the search and seizure.

One other question is raised by the record and was argued by counsel, and that is that the conviction of the plaintiff in error is manifestly against the weight of the evidence. The record is short, and we have carefully read and considered the same, and are of the opinion that the trial court was fully warranted in finding the plaintiff in error guilty.

Counsel for both sides have argued a question in reference to the legality of the search warrant in this case, which question, for lack of evidence to overcome legal presumptions, is not raised by the record in the case, but concerning which we are strongly urged to express an opinion for the guidance of the authorities in the future. With the full understanding that a determination of such question is not necessary in the decision of the case, and without attempting to state at length our reasons therefor, we will state our present opinion to be that the clerk of the municipal court, as a designated individual, is not authorized to issue search warrants for searches under the Crabbe act.

The Constitution forbids the issuance of search warrants except “upon probable cause” and an affidavit particularly describing the place to be searched and the person and things to be seized.

Whether there is probable .cause, probably presents a judicial question, for the determination of a judge or court, and our present thought is that such a question can not be determined by a mere clerk possessing no judicial power or authority, People v. Kempner, 208 N. Y. App., 16; United States v. Borkowski, 268 Fed. 408, even if the Legislature so provided, but as to search warrants under the Crabbe act, the Legislature has not attempted to invest a clerk, as a designated individual, with authority to issue search warrants.

The latest amendment of General Code, Section 6212-18, provides that “The officers named herein shall have authority to issue search warrants as provided for in Section 6212-16 of the General Code.” The officers named therein are “any justice of the peace, mayor, municipal or police judge, probate or common pleas judge, within the county, with whom the affidavit is filed, etc. ’ ’ A municipal judge is specifically named as having authority to issue search warrants, but the section does not attempt to confer such authority upon the clerk of the municipal court.

It is true that after the proper affidavit is filed with the judge, and he has determined that there is probable cause, and orders a search warrant issued, the clerk of the municipal court, by virtue of the order of the judge and Sec. 1579-536 G. C., may issue the warrant, or the judge himself may issue it, but the clerk as a designated individual, and separate and apart from the judge or court, does not have authority to issue search warrants under the Crabbe act.

We do not regard See. 4594 G. C., even if it applies to the clerk of the municipal court of Akron, as governing in the issuance of search warrants under the Crabbe act, because the Crabbe act is the latest expression of the Legislature, and that specifically provides who may issue warrants under it.

Judgment affirmed.

Pardee and Funk, JJ., concur.


author: TREASH, J.

text:
    COURTS — SENTENCE
    [Summit (9th) Court of Appeals,
    January 4, 1922.]
    Treash, Pardee and Sullivan, JJ.
    Judge Sullivan of Eighth District Sitting by Designation.
    George Dennison v. State of Ohio.
    1. Amendment Relating to Indeterminate Period's of Imprisonment not Applicable to Offenses and Prosecutions Pending at Time of Adoption.
    The amendment of Sec. 2166 G. C., giving to courts sitting in criminal cases authority to fix, within the limits prescribed by law, a minimum period for duration of the sentence pronounced, does not apply to pending prosecutions or to offenses committed prior to adoption of the amendment, which went into effect July 3, 1921.
    2. Jurisdiction of Appeal Courts to Review not Ousted by Board of Pardons.
    The jurisdiction with which the courts of appeals of Ohio are vested by the constitution “to review, affirm, modify, or reverse the judgments of the courts of common pleas,” would not be ousted in such a case even if the legislature should undertake to provide that the board of administration or board of pardons may correct a sentence imposed by a court in excess of its authority, nor could it he presumed that such a board would properly interpret the law and correct the error complained of.

      Artee Flemvmg, for plaintiff in error.

      Arthur W. Doyle, Pros. Atty. for defendant in error.
   TREASH, J.

At the July, 1921, term of the Summit county common pleas court, plaintiff in error was indicted by the grand jury for second degree murder for having shot and killed one Charles F. Johnson on May 8, 1921. Immediately following the commission of the offense he had been arrested and bound over by the municipal court of Akron to await the action of the grand jury. On September 1, 1921, he pleaded guilty to manslaughter under this indictment, and the second degree charge of the indictment was nulled, and the court thereupon sentenced him to the Ohio penitentiary for a term of not less than twenty years.

An exception was taken to the judgment of the court, and the case has been brought here on petition in error to reverse that judgment.

Two assignments of alleged error are noted, first: that the sentence of not less than twenty years imposed by the court is against the law and illegal: and second: abuse of discretion on the part of the court in sentencing the defendant to the maximum period allowed by law when the circumstances surrounding the commission of the crime did not warrant such punishment.

First. The indeterminate sentence law, Sec. 2166 G. C., was passed March 15, 1921, and filed with the secretary of state, April 4, 1921, and not having an emergency clause attached, went into effect July 3, 1921, before sentence was imposed upon plaintiff in error but after the commission of the offense charged. This amendment is as follows:

“Courts imposing sentences to the Ohio penitentiary for felonies, except treason, and murder in the first degree, shall make them general, but they shall fix, within the limits prescribed by law, a minimum period of duration of such sentences. All terms of imprisonment of persons in the Ohio penitentiary may be terminated by the Ohio board of administration, as authorized by this chapter, but no such terms shall exceed the maximum term provided by law for the felony of which the prisoner was convicted, nor be less than the minimum term fixed by the cmirt for such felony.”

Prior to this amendment, the section provided that sentence could only be imposed for an indeterminate period of not less than the minimum nor more than the maximum limit provided by law.

The question is presented: Do the provisions of this amendment apply to pending actions and offenses committed prior to the going into effect of the amendment, but where sentence was not imposed until after it went into effect?

If the amendment applies to offense committed and proceedings thereon pending at the time it went into effect, then the court was authorized to fix a minimum period of imprisonment in imposing sentence. If the amendment does not apply to offenses committed before the amendment became effective and pending cases, then he had no such authority.

We are of the opinion that the amendment does not apply to prior offenses and pending proceedings.

It has been held that a prosecution for crime is pending as soon as the accused is arrested and committed. Hartnett v. State, 42 Ohio St. 568. Since the accused was arrested and committed before July 3, 1921, the prosecution was pending against him at the time the amendment became effective.

Section 26 G. C. provides that an amendment, either to the substance or the remedy of the statute, shall not affect pending actions, proceedings or causes of actions or prosecutions, unless so expressed; and the prosecuting attorney in his ax'gument to this court agreed that this section covered the present ease. There is no attempted reservation in the amendment as to pending proceedings, prosecutions or causes of actions then existing, and therefore we hold that this criminal prosecution, then existing, and this proceeding being then pending, the former provisions of the indeterminate sentence law applied and the court had no authority or power under the amendment to impose a minimum term under the provisions of the amendment.

It has been suggested, however, that even if the court did err in imposing sentence, that such error is not prejudicial and reversible error, and that this court has no jxxrisdiction in this matter, since the latter part of See. 2166 G. 0. provides as follows :

“If through oversight or otherwise a sentence to the Ohio penitentiary should be for a definite term, it shall not thereby become void, but the person so sentenced slxall be subject to the liabilities of this chapter and receive the benefits thereof, as if he had not been sentenced in the manner required by this section,” the iixference being that the board of administration or board of pardons would correct the sentence. The jurisdiction of the court of appeals is fixed by Art. 4, Sec. 6, Constitution of Ohio, not by the legislature, and provides by that the court of appeals has “jurisdiction to review, affirm, modify or reverse the judgments of the court of common pleas, etc., ’ ’ and jurisdiction of this court can not be ousted even if the legislature undertook to provide that such board or commission could connect or revise the judgments of the courts. Nor are we warranted in assuming that such board or commission would properly interpret the law and correct the error complained of.

Because the judgment will have to be reversed on account of the court below having exceeded its authority in imposing sentence, it will not be necessary to consider tbe second assignment of error claimed by the plaintiff in error.

Judgment of the court of common pleas in imposing a minimum sentence of not less than twenty years upon plaintiff in error is accordingly reversed, and the cause is remanded to the court of common pleas for sentence according to law.

Pardee and Sullivan, JJ., concur.


author: PARDEE, J.

text:
    CRIMINAL LAW — HOMICIDE
    [Summit (9th) Court of Appeals,
    December 12, 1921.]
    Washburn, Treash and Pardee, JJ.

      Edward Moffett v. State of Ohio.
    1. Continuances in Criminal Prosecution in Discretion of Court.
    The discretion lodged in trial courts as to the granting of continuances will not be regarded by a reviewing court as abused, when six weeks intervened between the date counsel were appointed to defend the accused and the day when the case was brought to trial and a continuance was refused.
    2. Finding Accused in Homicide Sane Admissible on Trial on Indictment.
    The special proceeding provided in Sec. 13608 G. C., for determining whether an accused person is sane before putting him to trial under an indictment, is in the nature of a preliminary hearing in the principal case which can be invoked only by the defendant; and when such an inquiry, conducted in accordance with statutory provisions, results in a verdict declaring the defendant sane, objection does not lie on his part to the introduction by the state of such finding in his trial under the indictment.

      Owen N. Roderick and Ray B. Watters, for plaintiff in error.

      Arthur W. Doyle, Pros. Atty., and Edward 8. Sheck, Asst. Pros. Atty., for defendant in error.

       Motion to certify overruled by Supreme Court, March 14, 1922.

   PARDEE, J.

Plaintiff in error, referred to herein as the defendant, was indicted by the April, 1921, grand jury of Summit county, Ohio, for the crime of murder in the first degree, for the killing of his wife, Nora Moffett, on March 29, 1921. On April 28, 1921, he was arraigned, entered a plea of not guilty, and being unable to employ counsel to defend himself, on May 2, 1921, the court appointed counsel for that purpose. Thereafter, a special venire was issued for jurors to try said case, returnable on Monday, June 6, 1921. On June 3, 1921, the attorneys for said defendant suggested to the trial court that he was not sane, and presented to the court a certificate of Dr. D. IT. Morgan, a reputable physician of said county, as provided by law in that respect. On said day the court ordered a special jury to be impaneled to try the question of whether or not said defendant was then sane, and the hearing on this question was set for June 7, 1921, and a jury was drawn and a special venire issued, returnable on that day. On said last above named date a jury was impaneled and sworn to try said issue, and evidence was offered by the accused and the state, and said case was continued from day to day until Saturday, June 11, 1921, on which day, after arguments of counsel and the charge of the court, a verdict was returned by the-jury finding the defendant sane. On Monday, June 13, 1921, the case went to trial upon the indictment, a jury was impaneled and sworn, and after hearing the evidence both for the state and the defendant, the arguments of counsel and the charge of the court, on June 7, 1921, the jury found the defendant guilty of murder in the first degree, as charged in the indictment. A motion for a new trial was duly filed by the defendant, which was overruled, sentence ordering execution was pronounced upon him, and the ease is now here on a petition in error to reverse that judgment.

The defendant in his trial on the indictment did not deny that he billed his wife in the way and on the date set forth in the indictment, but, as his defense, claimed that he was insane at the time of the act and was therefore not responsible for the crime he committed. The defendant claims as grounds for setting aside the judgment entered in the case, and for a new trial, the following, to-wit:

(1.) That the court erred in refusing to grant the defendant a week’s time after the case was heard on the question of the insanity, for the further preparation of his case, and for the purpose of procuring one of his witnesses;

(2.) That the court erred in refusing to allow the defendant to inquire of prospective jurors on their voir dire, if they would consider the various degrees of murder that would be explained to them by the court, even though it had been shown beyond a reasonable doubt that the defendant killed his wife;

(3.) That the court erred in the rejection and admission of evidence, prejudicial to the rights of the defendant;

(4.) That the attorneys for the state were guilty of misconduct in referring to the trial in which the defendant was adjudged sane;

(5) That the attorneys for the state were guilty of misconduct in their argument to the jury.

We will consider the several points raised by the defendant in the order above named.

As to the first assignment of error: The ease went to trial upon the indictment, on June 13, 1921, and on that date the defendant asked for a continuance of one week for further preparation of the ease, and for the reason that Dr. Morgan, one of the doctors who examined the defendant for insanity, and a material witness, was out of the state, and would not be able to be present. The defendant was indicted on April 23, 1921, and on May 2, 1921, the attorneys for the defendant were appointed by the court. Whether the court should give the defendant further time rested entirely in the sound discretion of the court, and we feel that the time allowed between the appointment of counsel and the day of trial gave the defendant ample time to prepare his case and procure the attendance of his witnesses, and the court did not err in refusing to grant the continuance.

As to the second assignment of error: We do not believe that it is a rule of law that the defendant is entitled to pick out questions of this kind and submit them to prospective jurors, as the presumption is that the jury will follow the instructions of the court as given to them, and the proper way to test them on this point is to ask them generally in reference thereto. Any other rule would result in needless questions and confusion. We find no error in this respect.

As to the third assignment of error: We have been over all of the various questions asked in the trial and all the objections and exceptions referred to, and about which the plaintiff in error complains, and while we find some errors in the rulings of the court upon the admission of evidence, we do not find any errors, singly or together, which we consider prejudicial to the defendant and which prevented the defendant from having a fair trial.

As to the fourth and fifth assignments of error: The fourth and fifth errors complained of by the defendant will be considered together, as they principally grow out of alleged misconduct by the prosecuting attorney, made in reference to the special trial had in regard to the sanity of the defendant. If the trial court was right in keeping out reference to this former trial, then the prosecuting attorney was wrong in making reference to the same, and it would be such prejudicial error as would require a reversal of the judgment on that account, and the admonition of the court to the jury in his general charge to disregard the same could not and would not cure such serious errors. If the trial court was wrong, then the prosecuting attorney had a right, under general rules applicable thereto, to refer to the former trial, in his examination of prospective jurors, examination of witnesses, and in argument to the jury, and it would not be error for him to do so, although the trial court had ruled otherwise.

These alleged errors arise from the statements of the prosecuting attorney in the examination of prospective jurors and during the trial of the case and in argument to the jury, about the special jury trial where the defendant was found sane. In the trial upon the indictment, the defendant relied entirely upon the plea of insanity as a defense and offered in evidence the testimony of many witnesses in that respect. The state then in rebuttal offered in evidence the testimony of many witnesses to overcome that defense, and offered in evidence the verdict of the jury in the special trial in which the defendant was found sane. This latter evidence offered on behalf of the state was excluded by the trial court. In the argument to the jury by the state, frequent reference was made to this trial, notwithstanding the trial court had excluded it, and each time the attorneys for the defendant promptly directed the court’s attention to the same and in each and every instance the trial court ignored the objection, and defendant each time took exception. The trial court in his general charge attempted to correct this seeming neglect on his part by directing the jury to disregard the same.

In order to arrive at a proper conclusion as to these errors it has been necessary to study the statutes of Ohio and other states authorizing- a special jury to be impaneled to try the question of whether the defendant is sane at the time of such special trial, and the general rules of evidence in regard to proving insanity as a defense to crime. Under the Ohio rule, insanity at the time of the commission of the alleged offense is a complete defense, but the burden of proving the same rests upon the defendant and he must prove it by a preponderance of. the evidence. In order to prove and disprove it, evidence of the conduct, sayings and actions of the defendant on the day of the crime and both before and after that day is properly admitted as tending to show and prove his mental condition at the time of the crime. This is generally shown by the testimony of witnesses who have known him and been in such association with him as to be able to say whether he has acted rationally or irrationally. Frequently adjudications have been allowed to be offered in evidence to prove or disprove insanity of the accused at a time not too remote from the date of the commission of the crime. These adjudications in both civil and criminal cases have been admitted solely upon the ground that they prove the mental condition at the time the special finding was made, and only tend to prove and have a bearing upon the mental condition at the time of the alleged crime, and are in no way conclusive of the mental condition at that time, and are admitted only as one item of evidence bearing thereon, and like all other evidence, the jury is to be the sole judge of the weight to be given to the same. Adjudications of this character are not even prima evidence of the mental condition at the time of the offense set forth in the indictment, and frequently are of little weight as evidence. In the early case of Wheeler v. State, 34 Ohio St. 394, an inquisition of lunacy held four years before was held admissible :

“On A’s trial for a crime, he relied on insanity as a defense, and as evidence tending to prove the defense offered a record from the probate court, showing that four years previous to the commission of the alleged crime an inquest had been held in that court, and that he had been adjudged insane and confined in an asylum. Held, that the evidence was admissible.”

In another case recently decided by the Supreme Court of Washington, being the case of State v. Champoux, 33 Wash. 339 [74 Pac. 557], the court says in the fourth paragraph of the syllabus :

“Where, on a prosecution for murder, the defense was insanity, the main trial being suspended while a special jury tried the issue of sanity, it was proper to admit in evidence the record of such proceedings, showing the verdict of sanity, though such record was not conclusive. ’ ’

And in the opinion, the court says:

“We think the testimony was properly admitted, as other testimony was admitted, bearing on the question of insanity— not as conclusive evidence but simply as competent evidence, although some courts hold such testimony to be conclusive of insanity at the time the special verdict was rendered. Thus, in People v. Farrell, 31 Cal., 577, the court held that the verdict of a jury called to try the question of the sanity of the defendant, the verdict .being that he was insane, was conclusive that he was insane at the time the verdict was rendered, and was therefore admissible in evidence on his trial for the offense, as tending to show that he may have been insane when the offense was committed. Of course, the same reasoning would sustain the admission where the verdict was one of sanity. Under this authority the following instruction asked by the counsel for appellant: ‘The court instructs you that the verdict of sanity returned by the jury is only presumptive evidence, but not conclusive, of the defendant’s sanity upon the day when the said verdict was rendered, and said verdict shall not have any bearing upon the question of defendant’s sanity or insanity at the time he was accused of assaulting Lottie Brace’ — was properly refused, for, while a portion of the instruction may have been correct, the latter portion, which was the most pertinent to the issues involved, did not state the law. In Wheeler v. State, 34 Ohio St. 394 [32 Am. Rep., 372], where the defendant relied on insanity for a defense, and as evidence tending to prove the defense, offered a record from the probate court showing that four years previous to the commission of the alleged crime an inquest had been held in that court, and that he had been adjudged insane and confined in an asylum, it was held that the evidence was admissible.”

In Smedley v. Commonwealth, 139 Ky. 767 [127 S. W. 486], the court holds :

“Where accused relied on insanity at the time of the commission of the crime, and there was evidence that during the time of the commission of the offense he was addicted to the use of drugs impairing, if not destroying, his mind, the inquest of lunacy, held at the same term of court at which the trial occurred, was admissible.”

And the court in its opinion says:

“We are further of opinion that appellant’s complaint of the exclusion by the court from the consideration of the jury of the record containing the writ, judgment, and other proceedings in the inquisition of lunacy offered in evidence by appellant to show that he had properly been found and adjudged of unsound mind shortly before his trial is well founded, for the exclusion of this evidence was error.”

In Bond v. State, 129 Tenn. 75 [165 S. W. 229] in the third paragraph of the syllabus the court holds:

“Evidence of insanity after the commission of the offense charged is competent to enable the.jury to determine the state of accused’s mind at the time the offense was committed.”

And in the opinion the court says:

“Upon the foregoing authorities, we also think that the court should have admitted the verdict of the jury and the judgment of the court upon the defendants plea of present insanity. This was a judicial declaration that the defendant was insane. It is true that it established his insanity at a period of time subsequent to the date of the alleged offense; but evidence of subsequent insanity is competent for the consideration of the jury in determining the state of the defendant’s mind at the time of the offense.”

See also: Reeves v. State, 65 South, 518; People v. Farrell, Supra; State v. Bowsher, 7 Dec., Re. 442 (3 Bull. 187); State v. O’Grady, 5 Dec. 654 (3 N. P. 279).

If the findings in a lunacy inquest in an ex parte proceeding are admissible in a criminal case, as was held in our own state in the ease of Wheeler v. State, supra, where the patient was not represented by counsel, and the proceedings were conducted without a jury, it seems to us that a regularly constituted and conducted adversary proceeding between the same parties, especially provided by law, to determine the sanity of the defendant at that time, demanded by the defendant as a matter of right, in a court of justice presided over by a judge, where the defendant was present in person and by counsel and where he had a jury impaneled and sworn and met the witnesses face to face, that the result of such a trial finding the defendant sane would be competent and proper evidence under proper instructions on the trial uhder the indictment, as bearing upon the mental condition of the accused at the time of the perpetration of the crime. This special proceeding is provided for the benefit of the defendant and is a preliminary hearing in the principal case, to determine whether the defendant is sane befox’e putting him upon trial under the indictment. This special proceeding cannot be invoked by the state, and before the jury provided for therein, can be called, affirmative action must be taken by the attorney for the defendant. The Secs. 13608 G. C. et seq., under which the special proceedings were conducted, were originally passed by the legislature of this state to provide a quick and uniform rule for the determination of the question as to whether the defendant was then insane. We do not believe the legislature intended to give the accused the right to invoke this special privilege and then have him repudiate the result when that result is unfavorable to him. We therefore find that the court did commit error in refusing to allow the state to offer such finding as evidence and to refer to it in the trial, unless it is prohibited by Sec. 13610 G. C., which reads as follows:

“If three-fourths of the jurors do not agree, or the verdict is set aside, another jury shall be impaneled to try the question. If the jury find the accused to be sane and no trial has been had on the indictment, a trial shall be had thereon as if the question had not been tried. If the jury find him to be not sane, that fact shall be certified by the clerk to the probate court, and the accused, until restored to reason, shall be dealt with by such court as upon inquest had. If he is discharged, the bond given for his support and safe-keeping shall contain a condition that, when restored to reason, lie shall answer to the offense charged in the indictment, or of which he has been convicted, at the next term of the court thereafter and abide the order of such court. ’ ’

The words of the above section upon which the defendant relies are as follows:

“If the jury find the accused to be sane and no trial has been had on the indictment, a trial shall be had thereon as if the question had not been tried.”

If this contention is true, the general rule as heretofore found by us is completely nullified. If the trial shall proceed as if the question had not been tried, then no reference whatever could or should be made to anything that transpired in the preliminary trial. When the jury is being impaneled and though one or more of them are disqualified because of some connection with the preliminary trial, reference could not be made to these facts of disqualification and the defendant as well as the state might be prevented from having a fair trial.

Again, a witness for the state might be called who had testified to something in the former trial directly opposite or contradictory to his present testimony, and yet the defendant would be deprived of the right to impeach his testimony under the well known rules of evidence. Other instances might be given, but we think the foregoing are sufficient to demonstrate clearly that the legislature did not intend by the use of these inapt words to bring about any such condition in so important a matter as the prosecution of a man for felony, where his very life might be at slake, as in this case. But we do believe that these, words were intended to have a broader and more useful purpose and that they are intended to preserve and secure to the defendant the protection of the defense of insanity which he had before these sections were enacted, and that those sections should not impair that right. Any other rule would nullify some of the most sacred rights of the accused and could easily prevent him from having a fair and impartial trial. We therefore hold that these words do not and that the legislature did not intend to have them construed in the narrow manner contended for by the defendant.

Upon the testimony offered as to the insanity of the defendant at the time of the crime, we feel that the defendant did not sustain the burden of proving it by a preponderance of the evidence as required by law, and in our judgment the evidence was not sufficient to raise a reasonable doubt in the mind of the jury in relation thereto.

The other errors complained of by the defendant have been noticed by us, but we do not think -they are of enough importance to require especial notice here.

The defendant in our judgment has had a fair and impartial trial. He has had able attorneys appointed by the state to represent him, they have been diligent and painstaking in the preparation of his case, they have presented it to two juries and to two courts ably and well, and that he must now suffer is because of his own act in violation of the laws of God and man. We have given considerable time and thought to the law and evi- ' dence in this case and do not find any errors which were prejudicial to the defendant and which prevented him from having a fair trial. The judgment is therefore affirmed.

This court having on the application of the defendant granted him a stay of execution in order that he might prepare and present his case to this court, it is now ordered that the execution of sentence pronounced upon him by the trial court be carried out as provided by law on Friday, March 24, 1922, and a journal entry may be prepared accordingly.

Washburn and Treash, JJ., concur.


text:
    DEEDS — ERROR—EVIDENCE
    [Morrow (5th) Court of Appeals,
    February 3, 1922.]
    Shields, Patterson and Houck, JJ.
    Charles R. Smith v. Moses C. Rogers et al.
    1. Remarks of Court in Presence of Jury to be Prejudicial must Relate to Material Matter.
    The dialogue between counsel and the court, at the trial below of the case at bar, related to an immaterial question not decisive of any issue in the case, and does not afford a basis for reversing the judgment on the ground of misconduct. Moreover, in order to preserve the rights of one claiming to have been prejudiced by such conduct, the record must affirmatively show the matter objected to, the court’s ruling thereon, and the entering of an exception thereto. Such rights are not preserved by the mere statement of counsel, “I want to take exception to the remark of the court.”
    2. Oral Testimony of Statute of Another State Admissible.
    The method of proving the written law of other states, provided by Sec. 11498 C. C. is not exclusive. Oral testimony may he introduced in that behalf, and it is not error to admit the testimony of an attorney, learned in the law of another state, as to the law of that state on the point in issue.
    3. Striking out Testimony of Joint Maker of Deed Attached for Fraud in Title, Erroneous.
    In an action involving land in which it is claimed a fraud was perpetrated with reference to the title, it is error to strike out the testimony of a witness who was a joint maker of the deed and who said in effect that “she was afraid the sale of the land would get them into trouble.”
    T. B. Mateer, for plaintiff in error.
    W. P. Vaughan and J. C. Williamson, for defendants in error.
   HOUCK, J.

The parties bere stand in the same position in this court as they stood in the court below, and will be referred to hereafter as the plaintiff and defendants.

The plaintiff brought suit in the common pleas court to recover damages in the sum of $1,568.88, by reason of his eviction, from a certain tract of land, lying and being in the state of Tennessee, and for, which he had obtained from defendants, for a good and valuable consideration, a deed of general warranty.

Defendants in their answer aver, in substance, that in the suit in which plaintiff claims to have been evicted from the lands in question, that said plaintiff conspired with said evictors, and for the purpose of defrauding and wronging defendants, and for the sole purpose of constituting a breach of the covenant of warranty in the deed of plaintiff, agreed with evictors that he would not appear in said trial and defend same, and that he did not appear, but permitted default judgment to be taken against bim and in favor of said evictors; that said agreement was a fraud upon the rights of defendants, and that said pretended decree of eviction against said plaintiff was fraudulent and void, and of no legal force.

The plaintiff in his reply makes a general denial of all charges and claims of fraud, as set forth in the answer of defendants.

Trial was had to a jury in the common pleas court, and a verdict returned for the defendants. A motion was filed for a new trial, which was overruled, and the case is here on a petition in error and a bill of exceptions for review, the ultimate relief sought being a reversal of the judgment entered for the defendants.

The errors for which it is claimed a reversal of said judgment should be had are as follows:

1. Misconduct on the part of counsel for defendants, in the presence of the jury, aided and abetted by the trial judge, in which the attorney for plaintiff was charged with altering the pleadings, without the consent of the court or the approval of opposing counsel.

2. Error in admitting testimony offered by defendants.

3. Error in rejecting testimony offered by plaintiff.

We have carefully read all the testimony taken in the case, and examined all the exhibits offered in the trial; also read with-much interest the briefs filed by counsel.

Coming now to the alleged errors upon which it is sought to reverse the judgment below, let us first discuss the charged'error as to the misconduct of counsel and trial judge.

The following is the entire record, and all that occurred at the time:

"Be It Remembered, That at the October term, 1920, to-wit: Tuesday and Wednesday, December 14 and 15, 1920, before the Honorable C. IT. Wood, and a jury, the plaintiff by his attorney, T. B. Mateer, took exceptions to the following statement made by attorney for defendants, W. P. Vaughan, viz.:
Atty. Vaughan: There is one thing I want to call the attention of the court to in this matter. After this petition was filed there was a motion filed to require the plaintiff to separately state and number his causes of action in his petition, and to show what, if any, expense was incurred by plaintiff under each cause of action. 2. Jn case the above request is not granted, then defendants move the court to strike out of the petition all that portion beginning with the words: ‘plaintiff says that relying on said deed,’ and ending with the words, ‘in defending his rights to said lands. ’
And the court on that motion sustained the defendants, and plaintiff was given leave to amend by interlineation; the interlineation, which was made at the time, is in these words, after alleging they had been to the expense down there: ‘which defendant agreed to repay to plaintiff.’ We let that pass and filed our answer. After the answer was filed, in which we set up the statute of limitations of the state of Tennessee, without any permission from the court somebody has interlined in this petition in these words:, ‘prior to the 1st day of May, 1916.’ That was not in the petition at the time it was filed and was not there at the time we filed our answer, but is there now.
Atty. Mateer: The entry will show it; the entry will show leave was taken to insert those identical words, and I was just looking for the entry.
Atty. Vaughan: These were the words entered at the time the motion was sustained: ‘which defendant agreed to repay to plaintiff.’ At that time we had not set up the statute of limitations, and I do not know as it would be material in this case.
Court: I noticed that last evening in looking over the case; I did not remember it before.
Atty. Vaughan: It was not put there at the time.
Atty. Mateer: There is an entry authorizing this interlineation.
Atty. Vaughan: The entry is on the court docket, made by the court itself.
Court: You say you do not think it will be material?
Atty. Vaughan: I do not think it will be material, but do not like to have pleadings tampered with in that way.
Atty. Mateer: I object to that remark of counsel. I do not want any insinuations; but it is in my handwriting.
Atty. Vaughan: I say, I saw the pleadings at the time the answer was filed, and it was not there.
Atty. Mateer: ‘ They were all inserted at the same time.
Atty. Vaughan: There was nothing of that kind there when we filed our answer.
Atty Mateer: There is such a motion on file. Where are the papers? And leave given by the court to amend by interlineation. I will go and see if I can find the papers.
Court: Mateer, you better come back and try your case.
Atty Mateer: I want to take exceptions to the remark of the court.”

Was this colloquy between counsel, and the remark of the trial judge, all of which occurred in the presence of the jury, prejudicial to the rights of the plaintiff in error?

The rule is weli settled that errors or irregularities, which do not within themselves. establish and clearly show prejudice to the substantial rights of the losing party, are not grounds for setting aside the verdict of the jury. Even substantial errors will not warrant such action on the part of the reviewing court when no injustice has been done the party complaining. Any improper remark made by the trial judge in the presence of the jury, which has a tendency to prejudice their minds in favor of the prevailing party, and against the unsuccessful party, is erroneous, yet such will not warrant a reviewing court to feet aside a verdict and judgment in a case, unless it clearly appears that such remark or statement of the judge was materially prejudicial to the losing party, and made with reference to something that was decisive of the ease.

In the instant cause it will be observed that the dialogue between counsel was as to an immaterial question — one conceded not to be decisive of the issues raised by the pleadings — but, upon the other hand, one not determinative of any material fact or legal question in the case. It will further be observed that there was no ruling of the court upon the claimed exception. Therefore, if we had been inclined to do so, we might have passed this claimed error, but we have not done so, but have given it attention because counsel for plaintiff relied so much upon it as one of his grounds for a reversal of the judgment below.

An objection and exception are necessary in order to lay the foundation for a review of the rulings of the trial court. Objections are made to the court, and after its ruling upon the question an exception may be noted. Objections are to the court, and the exception is and must be taken to such ruling. In the case at bar the judge — so far as is disclosed by the record — never ruled upon the remarks and statements claimed to have been prejudicial to plaintiff’s rights. In order to have preserved the rights of plaintiff the record should and must affirmatively show the matter objected to by plaintiff, the court’s ruling thereon, and an exception noted thereto. Counsel’s statement, “I want to take exceptions to the remark of the court, ’ ’ is not sufficient to present for review the question here attempted to be raised. But passing this, we find no error prejudicial to the plaintiff in the statements of counsel for defendants, and none in the remark of the trial judge.

2. Did the court err in admitting the testimony of E. E. Henry ?

Mr. Henry testifies that he is a lawyer, of Pikeville, Tennessee, and has been since 1897, and as such is familiar with the laws of said state on the question of limitations in real actions, but more commonly known as the seven-year limitations as to real estate, coupled with adverse possession for said time. He then quoted Sees. 4456 and 4457, Thompson and Shannon’s Code of Tennessee, 1917 edition.

Counsel for plaintiff urges this was prejudicial error, and insists that Sec. 11498, G-. C., provides the exclusive method of proving statutory law of other states.

This is one of the methods, but we do not think it is exclusive. But, upon the other hand, we find and hold that the proof offered in the present case was proper and sufficient, and clearly establishes the statute as claimed by the defendants.

We cite the following authorities as being decisive of the question here raised:

“Notwithstanding the provisions of Sec. 5244 B. S. (See. 11498 G-. C.), which provide the method by which the statutes of other states may be proved in Ohio, they may also be proved by oral testimony of persons learned in the law who testify as experts with respect thereto.” Brady v. Palmer, 9 Circ. Dec. 609 (19 R. 687).
‘ ‘ On the trial in the common pleas court, to prove the existing law of Pennsylvania governing savings institutions in making loans on interest, both sides produced -evidence in the shape of printed copies of statutes, and books o-f reports of cases adjudicated in the local tribunals; and plaintiff introduced the depositions of witnesses learned in the law, and of long and extensive practice in the courts of that state. In the light of the evidence thus furnished by the record, we are not disposed to reject the conclusions arrived at by the court below. ’ ’ Larwell v. Hanover Savings Fund Society, 40 Ohio St. 274, 280.

3. Was it prejudicial error to exclude the testimony of Susannah Smith as to a conversation had with Martha M. Bogers, one of the defendants ?

At pages one and two of the record Susannah Smith testified as follows:

“Q. You may state your name to the jury.
Ans. Susannah Smith.
Q. What relation are you to the plaintiff, Charles R. Smith ?
Ans. I am his wife.
Q. Do you remember the occasion of his purchasing of land in Bledsoe county, Tennessee ?
Ans. Yes sir.
Q. Where was the deed, or in whose office was the deed prepared?
Ans. Mr. Powell’s office.
Q. Who was present besides you and Mr. Smith ?
Ans. Mr. Rogers and Mrs. Rogers.
Q. Did you have any conversation with either Mr. or Mrs. Rogers that day?
Ans. Not with Mr. Rogers, but with Mrs. Rogers.
Q. When was it relative to the time of the delivery of the deed?
Ans. It was after the deed was made and we were going home.
Q. And what did she say to you? (Question objected to by the defendants.)
Court: That was after the delivery of the deed?
Atty. Mateer: Yes sir.
Court: Was she a joint maker of this deed?
Atty. Mateer: Yes sir, a joint maker all the way through.
Court: She may answer. Objection overruled. Defendants except.
Ans. As we were leaving Mr. Powell’s office, Mrs. Rogers said to me, she said, ‘I am sorry I sold the land,’ she said. ‘I am afraid it may get us into trouble.’ And I said, ‘Why?’ She did not answer me.
Atty. Williamson : We ask that that be stricken out.
Court : That may go out, and the jury will not consider it.
Atty. Mateer : Upon what theory ?
Court : What she might have thought would not have any bearing in this case.
Motion to strike out sustained, to which ruling of the court the plaintiff at the time excepted. ’ ’

From the pleadings and the evidence it is clear that the real issues in the case were as to whether or not defendants had the legal title to the land in question, and whether or not plaintiff perpetrated a fraud upon the defendants in his suit to quiet the title to said premises, which resulted in the eviction of plaintiff from same.

The conversation of the witness, Susannah Smith, was with one of the defendants herein, Martha M. Rogers, and á joint maker of the warranty deed upon which the recovery in this case is predicated. We are clearly of the opinion that the answer of the witness Smith, in which she stated what Mrs. Rogers told her about the transaction, was proper, and related to a fact that was in issue, and was concerning a fact to be established in the case by the evidence, and was proper testimony to go to the jury for its consideration.

We find and hold the action of the trial judge in this respect was erroneous, and prejudicial to the rights of plaintiff, and the judgment of the common pleas court should be reversed.

Upon a careful review of this case, as presented by the record before us, we are of the unanimous opinion that the judgment of the common pleas court should be reversed, upon the ground and for the reasons hereinbefore set forth.

Judgment reversed, and cause remanded to the common pleas court for a new trial.

Shields and Patterson, JJ., concur.