text:
    AUTOMOBILES — ASSAULT AND BATTERY.
    [Hamilton (1st) Circuit Court,
    August 1, 1911.]
    Smith, Swing and Jones, JJ.

      A. B. Fishwick v. State of Ohio.
    Conviction for Assault and Battery of Pedestrian Run Down and Struck by Automobile Exceeding Speed Restrictions Not Reversed,
    Since Gen. Code 12603, 12604, regulating the operation and speed of automobiles are constitutional, a conviction for assault and battery of one violating such speed restrictions in a city and running down and striking a person rightfully passing upon or across a street, though unintentionally done, will not be set aside.
    Error to cohimon pleas court.
    The defendant below was accused of having unlawfully assaulted William Ryan, a young lad, while' attempting to cross one of the streets in the residential part of Cincinnati; the lad upon emerging from behind a wagon driven along the street being struck and injured by an automobile. .On the trial in the police court it appeared that the automobile was driven at a high rate of speed, one witness testifying to a speed of forty miles an hour, and on the wrong side of the street as prescribed by the city traffic ordinance. No question of intent to injure young Ryan appears.
    Attention was called in the trial court to Gen. Code 12603, “Whoever operates a motor vehicle on the public roads or highways at a speed greater than is reasonable or proper, having regard for width,.traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person, shall be fined not more than twenty-five dollars, and for a second offense shall be fined not less than twenty-five dollars nor more than fifty dollars,” and,
    Gen. CodeT2604, “Whoever operates a motor cycle or motor vehicle at a greater speed than eight miles an hour in the business and closely built-up portions of a municipality or more than fifteen miles an hour in . other portions thereof or more than twenty miles an hour outside of a municipality, shall be fined not more than twenty-five dollars, and, for a second offense , shall be fined- not less than twenty-five dollars nor more than fifty dollars.”
    This question was raised 'in the common pleas on error:
    ‘ ‘ Can a person be guilty , of assault and battery who, while intentionally violating a statute of Ohio prohibiting the driving of an automobile, beyond certain speed limits, upon the street of a municipality in this state, unintentionally runs into, strikes and injures a person rightfully passing upon or across said street?”
    That court answered in the affirmative, Fishwieh v. State, 21 Dee. 127 (10 N. S. 110), and error is prosecuted here.
    • Thomas E.t Darby, for plaintiff in error.,

      G. E. Urban and W. G. Lambert, for defendant in error.

      Affirming, Fishwick v. State, 21 Dec. 127; State v. Fishwick, 57 Bull. 59.

   SMITH, J.

As the court is of the opinion that Gen. Code 12603, 12604, are constitutional, it would seem that the judgment of the court below is correct.

The cáse we think is fully within the rule laid down in Johnson v. State, 66 Ohio St. 59 [63 N. E. Rep. 607; 61 L. R. A. 277; 90 Am. St. Rep. 564].

Swing and Jones, JJ., concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    DAMAGES — EVIDENCE—MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    June 26, 1905.]
    Marvin, Winch and Henry, JJ.

      Cleveland (City) v. D. Connelly, doing business as Cleveland Steam Boiler Wks.
    1. Provision in Municipal Contract to Furnish Fire Engines Imposing Damages for Delay in Deliveries, Ambiguous in Terms or Exorbitant in Amount not Enforcible.
    A printed provision in a bid for supplying several fire engines on installment deliveries at certain fixed dates, prescribing that the "contractor shall pay” to Jhé city a sum of $25 per day “as liquidated damages” for failure to deliver “said engine or engines” at the time designated, to which no reference for identification is made in the contract to which the hid is attached. notwithstanding another printed part of the bid makes the bid part of the contract to which attached, is a formal provision not applying with precision to the plan of delivery written in the bid by the contractor and is uncertain and ambiguous. To deduct $25 per day on failure to deliver any one engine is exorbitant and since it evinces no deliberation in advance to estimate and adjust damages upon the’ entire contract and each installment thereof the provision cannot be enforced.
    2. Evidence of Provision in Subcontractor’s Agreement to Pay Damages Similar to That in Original Contractor’s Contract with City not Admissible to Show Mutual Interpretation by Original Parties.
    Evidence that a contractor, agreeing to furnish a city with a certain number of fire engines at different dates or pay certain damages per day for failure to deliver “said engine or engines” at the time fixed, imposed on his subcontractor a contract similar in respect to payment of damages is,not admissible in an action by the contractor to recover money deducted by the city pursuant to such provision to show mutual interpretation by the original contracting parties.
    [Proof of this decision was submitted to Judge Henry and corrected. — Bd.]
    Error to common pleas court.

       Affirmed, no op., Cleveland v. Connelly, 75 O. S. 590.

   HENRY, J.

The facts in this ease are that on August 6, 1900, the Cleveland Steam Boiler Works, by D. Connelly, proprietor, entered into a contract with the city of Cleveland to furnish seven steam fire engines, five being of the second size and two of the third size, for the use in the fire department of the city. The contract was made pursuant to competitive bidding, the advertisement being authorized by resolution of the council passed in June, 1900. The advertisement required bids to be tendered not later than 12 o’clock M., July 12, 1900, and contained a stipulation that each bid should be accompanied by a certified check on a solvent bank in the -sum of $2,000 as a guarantee, if the bid were accepted, that a contract would be entered into, that the performance of the contract would, be secured to the satisfaction of the city, and that, in addition to such guarantee, said check should be forfeited to the city as liquidated damages for any failure to comply with the terms of the proposal. By resolution of the council, of July, 1900, the bid of the Cleveland Steam Boiler Works was declared the lowest and best bid, and the director of fire, service was authorized to enter into a contract svith that bidder to furnish the engines. The bid of D. Connelly was then attached to certain specifications and writing, and signed as a contract. This contract appears, as defendant’s exhibit “D,” the first page of it being the bid of D. Connelly, the remainder being the rest of the contract. After being duly signed, the contract svas certified to by the city auditor, as is required by the Burns law, approved by the board of control and the corporation counsel, and subsequently by the committee on fire, and on August 20, 1900, received the final approval of the council and became a valid and binding contract.

The bidding pursuant to the advertisement, was required to be upon blanks furnished by the board of control and Connelly’s bid, partly printed and partly written, stipulated that the bidder proposed to furnish one or more second and third size -steam fire engines, in accordance with specifications and guarantee accompanying the proposal, at fire station No. 1, within 210 days after the execution of the contract for the same; that for each day that the contractor shall fail to deliver said engine or engines, within the time specified, it is agreed that the contractor shall pay to the order of the director of fire service of the city, $25 per day as liquidated damages for such failure; and, in the itemized specifications as to price for the several sizes of engines, that deliveries are proposed to be made, two engines in 120 days, two engines in 160 days, two engines in 200 days and one engine in 210 days.

The contract was made on August 6, 1900, and the engines were not delivered until May 21, 1901, fifty-one days over and ' above the 210 days within which the 'proposal accepted by the council agreed that they should be furnished. The city of Cleveland thereupon paid the agreed price for the engines, less the sum of $1,275 which it retained as liquidated damages for the delay. Subsequently, the council of the city o.f Cleveland passed a resolution directing the payment of this $1,275. It was not paid and suit was brought.

The questions raised on this state of facts ate as follows: 1. Is the proposition made by D. Connelly and physically attached to the contract a part of the contract? 2. If the proposal is a part of the contract, is the provision for $25 per day as liquidated damages a provision for stipulated damáges or a penalty? 3. Has the council of the city of Cleveland power by resolution to exonerate the plaintiff from the payment of stipulated damages after default in his contract? i'

It is evident that if any one of these questions is decided! adversely to the city, such decision disposes of the whole case. The court below held that the proposition made by D. Connelly and physically attached to the contract, was in law no part of the contract. Passing, however, to the question whether the provision for $25 per day as liquidated damages is to be construed as a provision for stipulated damages, or as in the nature of a mere penalty, as upon a bond given for faithful performance of the contract, the tests applied in such cases are usually these: 1. Is .the subject-matter of the contract of such a nature that the actual damages in case of breach will be entirely uncertain and indeterminate? 2. Were damages evidently the subject of calculation and adjustment between the parties at the time the contract was made? 3. Is the stipulation reasonable? 4. What was the intent of the parties? 5. What was the language employed?

Without attempting formally to discuss or apply these tests in their order, we may note some significant facts shown in the record. The circumstance that the formal contract, as distinguished from the proposition attached thereto, contains no reference to this subject nor any express reference to the paper which does mention it, is itself an indication that the parties did not have the subject of damages so prominently before their minds when they made their agreement as to make it a matter of deliberate calculation and adjustment. Moreover, if the attached paper is properly a part of the contract, the reference therein to the subject of damages is contained in the original form or blank furnished to bidders and not in the portion thereof afterwards filled in. It is a formal provision which does not apply with precision to the plan of installment deliveries which was written into the blank by Connelly when he presented his bid. It is on that account admittedly ambiguous and uncertain. Does it mean $25 per day forfeiture for each engine, the delivery of which is delayed? If so, it is manifestly exorbitant. The city insists that it has adopted the construction most favorable to Connelly. But, suppose he had been in default as to but one engine; or had made some ■ deliveries punctually and had delayed others only until the ■day for delivering the last engine. If provision is made for some delays and not for others, what reason is there for the «distinction? We cannot ascertain from the language employed that the parties had any definite intent on the subject. It is true that damages in a matter of this kind are not easily susceptible of ascertainment, but we cannot discover, from the ■contract or from any evidence in the record, that the parties, in order to meet this difficulty, deliberately set about in advance to estimate and adjust the damage to flow from a breach •of this contract, and to stipulate and agree formally upon the .rule or measure thereof. We think, therefore, that the court below was quite right in holding this action to be maintainable. As there was no attempt to prove actual damages, we do not find it necessary to pass upon any of the other grounds urged as productive of the same result that we have reached on this ground alone.

It is claimed by the city, however, that there was error in the rejection of certain evidence, which it tendered to show •.that Connelly, by exacting from his subcontractor a contract ¡similar in this respect to the one in question here, and by claiming thereunder the same rights that the city claims here, has evinced his construction of the contract here to be what the city claims. It is not contended that this evidence of res inter alios actae was admissible in order to prevent an unjust result here, but as tending to show how the parties themselves interpreted this contract. We think the evidence was properly excluded. This court has recently held that the procurement" of indemnity against loss from the threatened enforcement of a claim, cannot, of itself, be considered an admission, or in the nature of an admission of liability on such claim.' The cases are not precisely the same, but a kindred principle applies here. Mutual conduct of parties to a contract may serve to put a particular interpretation upon it'. Such, however, is not the case here. We find no error in the record, and the judgment is affirmed.

Marvin and Winch, JJ., concur. ’


author: WINCH, J.

text:
    EQUITY — INSURANCE—QUO WARRANTO.
    [Cuyahoga (8th) Circuit Court,
    November 20, 1911.]
    Marvin, Winch and Henry, JJ.

      James G. Bell v. Union Central Life Insurance Co.
    1. Participating Life Insurance Policy Holders May Compel Conservation of Surplus Fund Accumulated for Their Benefit.
    Participating policy holders of life insurance company may maintain an equitable proceeding to conserve for their benefit a surplus fund accumulated under the by-laws of the company for . their benefit from earnings of participating policies.
    2. Previous Action in Quo Warranto Brought by Attorney-General Testing Right to Declare a Dividend Out of Surplus Fund Not a Defense to Proceeding to Conserve Fund by Participating Policy Holder.
    In an action brought by and on behalf of all participating shareholders it is no defense that the Supreme Court in quo warranto proceedings, brought by the attorney-general against the corporation for the purpose of testing the right of the company to declare a'dividend to its stockholders out of said surplus fund, has refused the relief prayed for, the participating policy holders not being parties to said action.
    [Syllabus approved by the court.]
    Error to common pleas court.

      A. H. Martin, Wm. Howell and W. K. Stanley, for plaintiff in error,

      Jas. R. Garfield, Maxwell & Ramsey and George A. Welch, for defendant in error.

      Not reversed, Bell v. Insurance Co. 87 O. S. 000; 57 Bull. 458.

   WINCH, J.

Plaintiff filed his petition in behalf of himself and all the policy holders, of the defendant company, similarly situated with himself, setting up the fact that he became a participating policy holder in the company on March 15, 1904, and, as such, entitled under his policy and the by-laws of the company to the benefits of a surplus fund accumulated by it which, on December 31, 1907, amounted to $2,422,184.25.

Up to that date the company had a capital stock of $100,000, on which the stockholders were entitled to a semiannual dividend of 5 per cent, and additional dividends from profits derived from nonpartieipating policies.

The by-laws provide that from the residue of the profits arising from the mutual business, after paying necessary expenses and approved claims, setting aside a 4 per- cent reserve, establishing a surplus fund and paying said dividends to stockholders, the board shall annually declare a dividend to the mutual policy holders according to the kind and class of each policy, or place to the credit of the policy its equitable proportion of the undivided surplus which shall be payable according to the terms and conditions of the policy.

He alleges that up to the first day of January, 1908, the company made no separation of its receipts and expenditures, profits and losses, as they pertained to participating and to nonparticipating policies.

He alleges that the entire surplus fund-on said date had accumulated from the profits derived from participating policies, and that by 'reason of the manner in which said fund had been kept and dealt with by it during the company’s entire existence, the company had estopped itself from claiming, as against the participating policy holders, that any portion of said fund had been derived from profits on nonparticipating-policies.

He alleges that on December 31, 1907, the company undertook to apportion said surplus fund into two funds, such that .the amount credited to one fund should represent the surplus arising from its participating policies, and that the amount credited to the other fund should represent the surplus arising' from the nonparticipating policies, and without any basis therefor or right .so to do, on said last named date, -placed $779,788 of said surplus fund into a separate fund, claiming the right to use and treat said fund as a fund derived from nonparticipating policies, to be used for the sole benefit and advantage of its stockholders.

He sets up that out of this fund the company, on June 16, 1908, declared a stock dividend to its stockholders of $400,000, upon which it proposes to pay to them a semiannual dividend of 5 per cent, making an annual charge against the company therefor of $40,000.

The petition is voluminous and contains many other allegations tending to show the unlawfulness of the transactions mentioned, the interest therein of the participating policy holders, the prejudice to their rights arising therefrom, the impossibility of estimating the money damages to each of said policy holders, and ends with the following prayer: “Wherefore, plaintiff prays that pending this action said company be enjoined from appropriating any part of said surplus fund to a stock dividend, and from delivering said stoók certificates for said proposed dividend from said surplus fund; and from paying any dividends to stockholders other than said 5 per cent semiannual dividend on $100,000; and that on final hearing said injunction may be made perpetual. And plaintiff prays that said defendant may be required to account fully for said surplus fund, and that the amount and condition of said fund may be fixed and determined by the court; that the court find and determine and decree said surplus fund to be a trust fund for the sole use and benefit of participating policy holders who became such prior to Dec. 31, 1907, and that the court make such orderxand direction to said company with respect to the keeping and maintenance of said fund, and its future accumulation, and share of profits of said business, and as to its distribution and apportionment among said participating policy holders as shall be found to be just and equitable, and as will secure the full and complete enjoyment and distribution of the same by said participating policy holders during the lives of their respective policies, and of all future accumulations thereon as well. And plaintiff prays for all such other and further relief in the premises, as shall be found to be just and equitable.”

To this petition an answer 'was filed, setting up several defenses. The third defense, as a bar to the present proceedings, sets up the proceedings in the quo warranto case brought by the attorney-general of the state in the Supreme Court against the company, to test its right to apportion said surplus fund and declare said stock dividend of $400,000, and the judg-. • ment of said court in favor of the company, see State v. Insurance Co. 84 Ohio St. 459.

To this third defense of the answer, a demurrer was interposed and overruled, whereupon, the petition was dismissed and judgment rendered for the defendant. The case is here on error, and we are asked to review the sufficiency of the petition as well as the sufficiency of said third defense.

We deem the petition sufficient to authorize an accounting, and part, at least, of the relief prayed for. Were the plaintiff and his class,' stockholders in the company, objecting to the division of funds accumulated for their benefit, and diverted to the benefit of other stockholders, nobody would question their right, after refusal of the company, itself, to remedy the matter, to invoke equity jurisdiction to redress or prevent any wrong injuriously affecting the property rights of the corporation. The rule must be -the same here.

The participating policy holders, under the by-laws and their policies, have a very decided interest in keeping the surplus fund intact. This right may rest in contact, but is un-, enforceable by each policy holder by an action for damages. The benefits to each policy holder are contingent upon many circumstances, which may increase or diminish said fund before actual division of it by payment of aliquot shares therein to beneficiaries of said policy holders. Hence, there is no way of estimating the damages to them. However, they should not be left remediless, and equity, considering the mutuality of the relations of the policy holders to the company and the company to them, assimilates such relations to that of stockholders in a corporation to the corporate entity.

As stockholders in a corporation cannot sue for dividends until the directors have declared them, but can bring an action against the company, upon its refusal to act, requiring it to conserve the corporate assets, so here the policy holders cannot sue for dividends from the surplus until the directors have declared them, but should be entitled to require the company to protect said surplus and administer it for their benefit.

As to the third defense in the answer: The third paragraph of the journal entry of the Supreme Court reads as follows:

“That, as found by the circuit court, the defendant in error made no separation of its receipts and expenditures, profits and losses, as they pertained to participating and to nonparticipating policies, from the time it began the life insurance business up to the first day of January, 1908, and that, in such conduct of its business; it accumulated a surplus, which, on December 31, 1907, amounted to $2,422,184.25, of which a sum largely in excess of $400,000 was derived from nonparticipating policies: and that the surplus derived from the nonparticipating policies of the defendant for the years 1908 and 1909 was in excess of $400,000.”

The finding that the surplus derived from the nonpartieipating policies.of the defendant for the years 1908 and 1909 was in excess of $400,000, is not to be overlooked. It was December 31, 1907, that the company readjusted its books, and started to keep separately the profits from participating and nonpartieipating policies.

The plaintiff here makes no objection to the company’s separating said profits, from that time forward, and if the stock dividend is to be paid out of profits thereafter arising from nonpartieipating policies, he will make no complaint, but he does object to taking out of the surplus fund theretofore accumulated, the sum of $779,788 and appropriating it to the benefit of the stockholders. :

It was a matter of indifference to the' state when this sum .of $400,000 was accumulated; all it was interested in was whether the company had a right to declare the dividend and issue the additional stock. It would seem as if it purposely left to interested parties to, determine from which fund the $400,000 was taken.

This brings us to the question of the effect to be given to an adjudication in quo warranto, a proceeding between the state and the corporation. Does it necessarily and always determine the rights of individuals, creditors for instance, as between them and the corporation? Such is claimed to be its effect by counsel for the company, and so the court below found. |

In this, we think, it was in error. Some of the decisions in this state, throwing light on this question, are as follows:

In the case of State v. Gas Light & C. Co. 18 Ohio St. 262, it was held that a judgment in favor of the defendant in the district court of Hamilton county, upon an information in the nature of a quo warranto, filed by the prosecuting attorney of that county, upon an individual relation, is not a bar to a subsequent information of a similar character, filed by the attorney-general. '

Also that the state, in a quo warranto case, would not be bound by an injunction issued against the corporation by the circuit court of the United States in a case brought by an individual against the corporation, to which case the state was not a party.

In the ease of Rowland v. Furniture Co. 38 Ohio St. 269, it was held:

“Where a corporation de facto, in a proceeding in quo warranto, has been ousted from the franchise of being a corporation, such ouster is no defense to a suit by a creditor against stockholders, to enforce payment of their stock subscriptions. ’ ’'

In the case of Society Perun v. Cleveland, 43 Ohio St. 481 [3 N. E. Rep. 357], it was held that rights acquired or liabilities incurred by a de facto corporation and by parties dealing with it in good faith, wall not be divested or defeated by a subsequent judgment in quo warranto proceedings.

In State v. Railway, 50 Ohio St. 239 [33 N. E. Rep. 1051], the court refused to determine the private rights of the rela> tor as against the corporation with regard to the use of certain lands, said use not being a usurpation of the property rights of the state.

But it is said that the /ule to be deduced from these cases has been changed or modified, or explained by subsequent legislation, and our attention is called to that part of Gen. Code 12327, which reads as follows:

“The orders of the court in which such quo wairanto proceedings are instituted or of the court to which they are remanded shall be binding upon the trustee or trustees, stockholders, creditors and other persons interested in such corporation, unless reversed by appropriate proceedings therefor.”

This is taken from an amendment to R. S. 6781 and 6782 (Gen. Code 12325 et seq.), found in 100 O. L. 102, the title of the act being: “To amend sections 6781 and 6782 of the Revised Statutes of Ohio, relative to the authority of courts over trustees of defunct corporations.”

This title correctly describes the original sections, and the recent law, including what is now found in Gen. Code 12327’, has reference to orders made in the dissolution of corporations. “Such quo warranto proceedings” refers to quo warranto proceedings wherein the court renders a judgment dissolving the corporation and appoints trustees “for the benefit of the creditors and stockholders thereof” to wind it up.

Very properly such proceedings should bind the creditors; they are represented in the proceedings by the trustees appointed to represent them.

We do not think this statute applies to the case at bar, nor do we think the creditors of the defendant corporation were, as a class, or otherwise, represented in the quo warranto proceedings set up in the third defense of the answer, nor that their rights were in any manner adjudicated or affected by the judgment therein rendered.

• For error in overruling the demurrer to the third defense, and in not sustaining it, and for error in dismissing the petition, the judgment is reversed and the cause remanded, with instructions to sustain the demurrer to said third defense, and for further proceedings according to law.

Marvin and Henry, JJ., concur.


text:
    ALIMONY — HUSBAND AND WIFE.
    [Cuyahoga (8th) Circuit Court,
    March 28, 1905.]
    Marvin, Winch and Henry, JJ.

      Caroline Quallich v. John E. Quallich.
    Wife Voluntarily Living Separate and Apart from Her Husband not Ground for Alimony for Her Support.
    A refusal by a husband to support his wife while she is living elsewhere than ip the home which he provides or tenders, if such home be reasonable under the circumstances, is neither abandonment, gross neglect of duty nor other ground for alimony enumerated in R. S. 5702 (Gen. Code 11997).
    [Proof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Appeal from 'common pleas court.

      Myer <& Mooney, for plaintiff.

      Hart, Canfield & Croke, for defendant

      Affirmed, no op., Quallich v. Quallich, 72 O. S. 671.

   HENRY, J.

This cause was begun by Caroline Quallich, who is here seeking alimony for her support while living apart from her husband. It is clear that a case must be made within the statute to permit the allowance of alimony without divorce. Nelson, Divorce and Separation, Sec. 1,000. None of the grounds for alimony without' divorce, enumerated in R. S. 5702 (Gen. Code 11997), has been proved. It is most certainly neither abandonment nor gross neglect of duty for a husband to refuse to support his wife while she is living elsewhere than in the home which he provides or tenders, if the home so offered her is a reasonable one under the circumstances.

In this case we find from the evidence that the husband has tendered to his wife a suitable home, and no reason appears why she should refuse this offer. The petition is dismissed.

Marvin and Winch, JJ., concur.


text:
    ERROR — JUDGMENTS.
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Marvin, Winch and Henry, JJ.

       Joseph Kesting v. East Side Bank Co.
    Defendant Unsuccessfully Prosecuting Error to Judgment on CognovitNote cannot Elect to Vacate Judgment at Subsequent Term upon! Another Ground.
    A petition by an accommodation maker on a cognovit note, filed under favor of R. S. 5354 (Gen. Code 11631), to vacate a judgment rendered at a previous term for more than was due, is debarred by his having unsuccessfully prosecuted error upon another ground under R. S. 5309 (Gen. Code 11580), when he might have applied for a new trial under R. S. 5305 (Gen. Code 11576) upon the ground of accident or irregularity. "
    [Proof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Error to common pleas court. '

      Blcmdin, Bice & Ginn, for plaintiff in error. «

      Shmurk cfe Thompson, Hills, McGraiu & Van Derveer, for defendants in error

      Affirmed, no op., Kesting v. Bank, 76 O. S. 591.

   HENRY, J.

The parties uo this proceeding in error stand in the same relation as in the court below. That court dismissed plaintiff’s petition, filed under favor of R. S. 5354 (Gen. Code 11631), to vacate a judgment rendered against him at a previous term on a cognovit 'note for more, as he now claims, than was due. The failure of the court to vacate that judgment is the error here assigned.

The parties live in Toledo, and plaintiff was an accommodation maker .of the cognovit note in controversy, to the Bast Side Bank as payee. He claims that at the time of the delivery of the note, the bank agreed with him that the same was to be amply secured by a chatted mortgage of the principal maker; that the plaintiff’s name was required upon the note merely to comply with the bank’s rules, and that he would never be required to pay the same. He further claims that such a chattel mortgage was in fact given soon afterwards; but that the bank, at the instance of the principal maker of the note, omitted to file it, whereby the lien was lost; that the principal maker having meanwhile departed from the state leaving no property here, the bank, without notice to the plaintiff, procured judgment to be rendered against him in Cuyahoga county. The plaintiff further. claims that he is ignorant of the residence of the principal maker of the note, and that on this state of facts he is entitled to have the judgment vacated.

On the trial below the defendant offered in evidence the record in the primary ease, from which it appears that a proceeding in error was then unsuccessfully prosecuted in this court for alleged error consisting ,of misnomer of the defendant therein. But the points made in the present action were not litigated in that proceeding. No reason appears why the plaintiff might not have done so; for, when he became aware ■of the judgment, he was entitled, under R. S. 5309 (Gen. Code 31580) and Chap. 5, commencing with R. S. 5305 (Gen. Code 31576), to apply for a new trial upon the ground of accident or irregularity. He chose not to take this course, preferring instead to rely wholly upon the alleged misnomer. No doubt R. S. 5354, which he now invokes, afforded a cumulative, or rather an alternative, remedy. That is to say, he was entitled to resort to it, in the first instance, rather than to R: ,'S. 5309, if he desired to do so. But having prosecuted error To the former judgment, without first applying for a new trial upon the grounds then known to him, we think he is now debarred, by his election, from seeking anew the relief which was then available. Becker v. Walworth, 45 Ohio St. 169, 173 [12 N. E. Rep. 1]; Buell v. Cross, 4 Ohio 327, 330.

In Pollock v. Cohen, 32 Ohio St. 514, it was held that a second petition in error, upon the same record, but upon new grounds, known but not asserted before, will not be entertained. In Kunneke v. Mapel, 60 Ohio St. 1 [53 N. E. Rep. 259], it was held that a party defending is bound to set up all matters which are strictly matters of defense, and if he fails to do so, he cannot afterwards reiitigate the controversy, upon the omitted issues. See also Mengert v. Brinkerhoff, 67 Ohio St. 472 [66 N. E. Rep. 530], and Jenkins v. Esterly, 24 Wis. 340, a case very like the one before us. It is true there is a contrary intimation in Parker v. Haight, 7 Circ. Dec. 609 (14 R. 548), but that was a mere dictum and not necessary or even pertinent to the decision.

Entertaining the view thus indicated, we find it unnecessary to discuss the sufficiency of the defense, to the primary action as now offered; though it may be doubted whether the prayer of the petition to vacate should have been granted on its merits, in view of the seeming authority of Shaul v. McCauley, 1 O. S. U. 380 (34 Bull. 278), affirmed without report, Shaul v. McCauley, 53 Ohio St. 676.

The judgment below is affirmed.

Marvin and Winch, JJ., concur.


author: GIFFEN, P. J.

text:
    INTOXICATING LIQUORS.
    [Hamilton (1st) Circuit Court,
    July 9, 1910.]
    Giffen, Smith and Swing, JJ.
    Anna M. Foley v. Chas. E. Roth, Treas., et al.
    Assistant Dairy and Food Inspectors not Required to Procure Violation of Liquor Laws for Purpose of Assessing Dow Tax.
    The provision of Gen. Code 6087 for the appointment by the dairy and food commission of assistant commissioners and inspectors for the purpose of determining names of persons liable to the Dow law assessment not now on the tax duplicate, contemplates an official inspection for the purpose of enforcing the law; but there is no authority for procuring a violation of the law in order that the tax may be levied, and the evidence of sales under such circumstances will be received with much caution, and the property of an innocent owner will.not be subject to a lien upon such testimony where contradicted.
    Appeal from common pleas.

      Gideon C. Wilson, for plaintiff.'

      Hunt, Bettman & M err ell, for defendant.
   GIFFEN, P. J.

The provision of Gen. Code 6087, that "the assistant commissioners and inspectors appointed by the dairy and food commissioners * # * shall determine from information furnished by the auditor of state, or by personal visitation or otherwise, the names of all persons liable to such assessments,” contemplates an official inspection and investigation for the purpose of enforcing the law, and does not authorize a procurement of a violation of the law in order that the assessment may be levied. The evidence thus obtained will, like the testimony of hired detectives, be received with caution and carefully scrutinized. They were unable at the trial to identify the two women as the occupants of the house at the time of the alleged sales, although they were in fact such occupants, and testified that no sales of beer were made on the premises. We are of the opinion that the property of an entirely innocent owner ought not to be subject to a lien upon such evidence contradicted as it is by the positive testimony offered by plaintiff.

An injunction, will be granted as prayed for.

Smith and Swing, JJ., concur.


author: SMITH, J.

text:
    ASSESSMENTS.
    [Hamilton (1st) Circuit Court,
    April 2, 1910.]
    Giffen, Smith, and Swing, JJ.
    George W. Harding v. Cincinnati (City).
    Assessment for Street Improved Under Unconstitutional Law not Invalid.
    A holding by the Supreme Court that the law under which a street improvement was begun and completed was unconstitui tional because not of uniform operation, does not invalidate the assessment levied for payment of the improvement, where the law was of such a character previously upheld by the court.
    [Syllabus by the court.]

      George W. Harding, for plaintiff.

      Fyffe Chambers, for defendant.
   SMITH, J.

Upon the agreed statement of facts in the above case the court is of the opinion that the petition of plaintiff seeking to enjoin the defendant from the collection of the assessment levied against his property for the improvement of Columbia avenue should be dismissed.

The adoption of the preliminary resolution by the council of the city declaring the necessity for the improvement of Columbia avenue on April 28, 1902, was the beginning of the proceedings in respect to said improvement. Toledo v. Marlow, 28 O. C. C. 298 (8 N. S. 121).

Notwithstanding the fact that the law under which said improvement was initiated and completed was-subsequently declared unconstitutional by the Supreme Court of Ohio, on the ground that all laws of a general nature must have uniform operation throughout the state, yet the improvement having been commenced with reference to the law in force at the time the resolution declaring the necessity for the same was adopted, and which had heretofore been upheld by the Supreme Court, such law should govern and control the subsequent proceedings in relation thereto.

Petition dismissed;

Giffen and Swing, JJ., concur.


author: FERNEDING, J.

text:
    AIDERS AND ABETTORS — BRIBERY—CRIMINAL LAW.
    [Franklin (2nd) Circuit Court,
    October 17, 1911.]
    Dustin, Allread and Ferneding, JJ.

      Rodney J. Diegel v. State of Ohio.
    1. Averment that Accused Knew Official Character of the Person with Whom He is Charged as Aiding and Abetting Bribery Held not Necessary Since Indictment Charges Accused with Knowingly Committing the Crime.
    An indictment for bribery of a member of the legislature under Gen. Code 12823 in form adopted and accepted by the courts of the state, averring that accused “knowingly, aided and abetted” another to commit the offense charged is sufficient under Gen. Code 12380 without averring that accused “knew” the official character of the other.
    2.- Nature and Character of Acts of Aider and Abettor to Induce Another to Commit Offense not Necessary in Prosecution of Former.
    A general averment that accused knowingly aided and abetted in the commission of bribing a member of the general assembly contrary to Gen. Code 12823 is a proper compliance with Gen. Code 12380 without specifically stating how the offense was committed; stating the manner of aiding and abetting, or the nature and character of the acts done might be surplusage.
    3. Averring Bribery of Legislator with Intent that He “Might be * *' * Influenced” Instead of “To Influence” is not Substantial Departure.
    An indictment charging accused with aiding and abetting bribery of a state legislator “with the intent and purpose” that such person “might be * * * influenced” with respect to his official duty, instead of “to influence” as prescribed by Gen. Code 12823 does not amount to a substantial departure.
    4. Refusal to Permit Details of Offense for which Witness was Indicted not Limiting Cross-Examination.
    A witness for the state having testified on cross-examination' .or to a plea of guilty to an indictment made by him in another st^,te, may properly explain why the plea was made and its subsequent withdrawal. Refusal to go beyond this into details of the offense charged and into specific history of witness’ past life is not limiting cross-examination to the prejudice of accused.
    5. Excluding Imperfect Transcript of Criminal Proceedings Against Witness does not Limit Cross-Examination.
    Refusal to admit transcript of criminal proceedings against witness in another state is not limiting cross-examination since such transcript did not purport to be and was not a complete record thereof.

      6. Conversation in which Legislator Declared His Attitude.as to Bill .Excluded in Prosecution of Aider and Abettor as not Part of Res Gestae.
    In a prosecution for aiding and abetting in influencing a member as to a certain measure before the legislature, a conversation between such member and a witness for the state in which the former declared his attitude to the bill in question is not part of the res gestae and is properly excluded.
    7. Conversations of Conspirators Admissible in Prosecution of an Aider and Abettor in the Offense Charged.
    A prima facie case of conspiracy to influence legislation having been established by the state in a prosecution for aiding and abetting in bribery a member of the legislature, conversations between a detective and other members of the legislature in furtherance of such conspiracy are admissible.
    8. Whether Aider were Agent of Detective or Legislator in Bribery Charge is Fact for Jury.
    Whether accused, charged .with aiding and abetting in influencing' members of the state legislature, was the agent of a detective or the legislator is for the Jury to determine.
    9. Mere Designation of Stenographer to Take Conversations of Detectives not Employed by State or Officials not Entrapment.
    Connection of detectives with the origin, detection and exposure of legislative bribery does constitute a defense of entrapment, where the detectives were neither employed by the state, nor their expenses paid or promised to be paid by the state or officer thereof; the fact that the prosecuting attorney upon learning of their employment, designated an official court stenographer to take conversations transmitted from a dicta-graph installed by the detectives upon which indictments were based, is not sufficient.
    10. Counsel’s Saying that Accused Made a Statement and Defense Failed to Deny It not Comment on Defendant’s Failure to Testify.
    Counsel for the state in a criminal prosecution- in argument to the jury, speaking of a dictagraph conversation and saying that defendant “made that statement and the defense, had the opportunity to deny it, and it stands uncontradicted,” is not a comment on defendant’s failure to testify within the meaning of Gen. Code 13661, but refers to the defense; the court having promptly instructed the jury to disregard the remark and immediate and complete withdrawal thereof by counsel removes any error therein.
    [Syllabus approved by the court.]
    Error to common pleas court.

      C. J. Mat tern and Belcher & Connor, for plaintiff.

      E. C. Turner, Pros. Atty., T. 8. Hogan, Atty. Gen., for defendant .

      Affirmed, no op., Diegel v. State, 86 O. S. 310.

   FERNEDING, J.

The plaintiff in error was indicted and convicted of aiding and abetting Senator Andrews in soliciting a bribe as a'member of the general asseihbly. A motion for a new trial was overruled and the case brought to this court upon a petition in error to review the regularity of the conviction.

I. Defects in Indictment.

The first contention made by counsel for plaintiff in error to set aside said verdict is that the indictment is defective in the following particulars, to wit:

(a) That it does not expressly aver that Diegel, sergeant-at-arms of the senate, knew- that Andrews was a member of the state senate;

(b) That the indictment is defective in not stating the nature and character of the messages Diegel is alleged to have carried to Andrews;

(c) That the indictment in charging a corrupt purpose states that said Andrews “might be” then and there influenced, whereas the statute prescribing such offense provides that the corrupt purpose was “to influence.”

(a) Relative to the first objection to the indictment, it is sufficient to say the form adopted is in harmony with that generally accepted by the courts of this state. The general averment that Diegel knowingly aided and abetted Andrews in the commission of the crime taken in connection with all the other averments of the indictment is in our judgment sufficient.

Gen. Code 12380 provides:

“Whoever aids, abets, or procures another to commit an offense may be prosecuted and punished as if he were the principal offender. ’ ’

(b) In respect to the second objection, an examination of the indictment in connection with the foregoing statute, Gen. Code 12380, quoted, convinces us that the general averment that Diegel knowingly aided and abetted Andrews in the commission of the offense charged, without stating specifically as to how he did so, is a proper compliance.

The manner employed in the aiding and abetting, sneh as the carrying of messages and arranging of meetings, might well be considered surplusage in the indictment and is unnecessary.

(c) For the third objection raised, there is here a slight departure from the statute. Gen. Code 12823 provides:

“Whoever corruptly gives, promises or offers to a member or officer of the general assembly, * * * any valuable thing, or corruptly offers or promises to do any act beneficial to such person * * * to influence his action, vote, opinion or judgment, in a matter pending, * * * and whoever, being a member of the, general assembly, * * * or agent or employe of the state * * * solicits or accepts any valuable or beneficial thing to influence his action, vote, opinion or judgment, in a matter pending, * * * shall be fined * * * or imprisoned * * - * or both. ” ' .

The indictment charges Andrews as a member of the senate with having solicited and accepted a bribe “with the intent and purpose that he, the said L. R. Andrews, might be then and there influenced with respect to his official duty, ’ ’ etc. The distinction is in the use of the words “might be then and there influenced” instead of “to influence,” the language of the statute. Upon a careful reading and examination of the indictment, however, we are of the opinion that such departure is not substantial.

“ It is requisite that every indictment should contain a substantial description of all the circumstances descriptive of the offense as defined in the statute, so as to bring the defendant precisely within it. ’ ’ Hirn v. State, 1 Ohio St. 15, 24.

II. Rulings on Evidence.

Numerous exceptions have been taken by counsel to the rulings of the court on the admission and rejection of evidence. It is impracticable to review all these in detail. We have, however, considered all the exceptions taken as we came to them in reading the record and have also examined carefully the briefs submitted in relation thereto.

Chief among the pbjections raised by counsel for plaintiff in error is, that the trial court erred:

(a) In limiting the cross-examination of detective Smiley;

(b) In refusing to permit Senator Andrews to give the conversation he had with Senator Cetone before leaving for the Chittenden Hotel and his (Andrews’) position on the Insurance bill which became the subject of the bribery;

(c) In admitting certain conversations had between Smiley, the detective, and Huffman and Cetone on the theory o£ conspiracy.

(a) The trial court permitted counsel for Diegel to cross-examine Smiley as to his plea of guilty to an indictment to defraud as returned by the grand jury of Cook county, Illinois, and also permitted Smiley to explain why said plea was made, the witness stating the plea was subsequently withdrawn with the permission of the court and the case nollied (Record p. 199). We think this was not error. . The trial court was not required under the rules of evidence to permit counsel to go beyond this and into the details of the crime charged nor into specific history affecting the witness’ past life.

As to the alleged transcript of said criminal proceedings in Cook county, Illinois, offered by the defense to challenge the credibility of the witness Smiley, and excluded by the trial court, we do not think the court erred in this respect for the obvious reason that said transcript as offered did not purport to be nor was in fact a complete record.

(b) As to the conversation Senator Andrews had with , Senator Cetone before leaving for the .Chittenden Hotel to interview Smiley, the detective, and the declared attitude of Senator Andrews on the bill in question, is not, we think, a part of the res gestae of the case and was properly excluded.

(c) The testimony offered by the state to make out a prima facie case of conspiracy was in our opinion of sufficient weight as to justify the trial court in admitting the conversations had between Smiley, Diegel, Huffman and Cetone in furtherance of said conspiracy and that said court did not err in respect thereto.

III. As to Proof.

It is urged by counsel for plaintiff in error that there was an entire failure of proof to connect Diegel and Andrews with the crime charged; that Diegel was the agent of detective Smiley and not Senator Andrews; that no proof was made of the carrying of messages between Smiley and Andrews.

We are of the opinion that the proof offered by the state is capable of the construction contended for by the state and that, under all the evidence submitted, the question was for the jury to determine whether or not Diegel aided and abetted Andrews in the solicitation and procurement of the bribe.

IY. Entrapment.

It is strenuously urged that the record shows a case of entrapment and that such entrapment bars the state from prosecuting for the offense so originated by entrapment. This proposition is founded upon alleged connection of the detective, Smiley, with the origin, detection and exposure of the case at bar.

Briefly stated, the record discloses that two detectives, Arthur Charles Bailey and David H. Barry, of the Burns’ Detective Agency were detailed early in April, 1911, to cortíe to Columbus and investigate alleged bribery in the legislature. This appears to have been done at the instance of the secretary of the Ohio Manufacturers’ Association. There is no evidence that the detectives were employed or brought to Columbus by any other authority, nor their expenses paid, or promised to be paid, by the state or county, or an officer of either.

Arriving in Columbus they were engaged for about two weeks in an investigation of this subject, and then departed. On or about April 24, they returned, about which time a third detective, F. H. Smiley, known as Harrison, arrived. On Tuesday, April 25, a dictagraph was installed by the detectives in room 317 of the Chittenden Hotel. A wire was attached to this dictagraph to transmit conversations and extended to the receiver in room 316 adjoining.

The prosecuting attorney learned of the presence of these detectives, and on Tuesday, April 25, Roscoe R. Walcutt, an official court stenographer, was at the request of the prosecuting attorney installed in room 316 to report said conversations.

On Thursday, April 27, Rodney J. Diegel, now plaintiff in error, at the instance of detectives Bailey and Barry, called upon detective Smiley at room 317, Chittenden Hotel, at which time it was arranged that Diegel should aid in securing a sufficient number of senators to report out of the committee on insurance, the Cetone-Whittemore Insurance bill then pending in the senate. At this meeting were present Diegel, Harrison and Bailey. Diegel at this meeting promised to secure the necessary number of votes for this purpose at a certain stipulated price. He himself was to receive for his services $200, of which $50 was paid him at the time in cash, in marked bills. The names of the membérs of the state senate to be involved were not given at this meeting. Shortly after 2 o’clock of the same day, Diegel again called at said room 317 and reported to Smiley the names. About 5 :30 of the same day, two of the senators whose names had been furnished by Diegel reported at said room 317. According to the testimony of detective Smiley and the conversation as reported by the official stenographer, taken over the dictagraph, the two senators present accepted the promised money, $200 each, for their support in getting the bill out of committee, the money also being paid in marked bills.

After some difficulty in having Senator Andrews report at room 317, Smiley, about 3 o’clock, P. M., the next day, April 28, and at the suggestion of Diegel, called at the senate chamber to see Andrews. Failing to find the senator, Smiley, who was known as Harrison, returned to the Chittenden Hotel and on his arrival was handed a note by the hotel clerk from Senator Andrews saying:

‘1 Mr. Harrison, owing to a mistake I went to the Neil House and missed you. Am going to make a 4 o’clock train for Iron-ton, O., but will be back Monday, 11 A. M., when you can see me.”

Senator Andrews in his testimony (Record, p. 502), admitted writing the note. Shortly after the receipt of the note, Andrews, who had remained in the Chittenden Hotel lobby, was pointed ont to Smiley. The latter introduced himself to the senator and the two then went to room 317, where, according to the testimony of Smiley and as reported over the dictagraph, the arrangements previously made by Diegel were’ confirmed; and $200, according to the testimony, was then paid Andrews by Smiley, also in marked bills.

It also appears in the record that Smiley at the instance of Diegel had a telephone conversation with Andrews (Record, pp. 133, 134), in relation to the arrangements Diegel had made, and which was previous to Andrews coming to the Chittenden Hotel.

Detective Bailey testified he said to Diegel on the way to the Chittenden Hotel, immediately prior to the first meeting between Diegel and Smiley:

‘ ‘ This man Harrison evidently had some money and I would look to Col. Diegel to see that I was taken care of.” (Record, p. 52.)

Bailey also testified that previous to any steps taken by Smiley toward interesting Diegel, the latter had a conversation with Barry and Bailey in the barroom of the Neil House when a telephone merger bill was the topic of conversation and made the remark that some people are trying to put through a two million dollar proposition on a bottle of pop. (Record, pp. 42, 90.) While this conversation had no direct reference to the case át bar, it is significant as tending to show a corrupt motive on the part of Diegel and in that respect has a bearing on the question of entrapment.

There are many other details, but the foregoing in substance is the case of the state, so far as it concerns the question of entrapment.

The. testimony given by the official stenographer in reporting the aforesaid conversations taken over the dictagraph was by agreement of counsel on both sides permitted to go to- the jury with the reservation that no names were to be mentioned in referring to Diegel and associates, but they were to be designated a*> “a voice,” “second voice,” “third voice,” “fourth voice” and “fifth voice.” 1

Counsel have argued at length upon the proposition of entrapment and submitted many authorities in support of their propositions, respectively. Notable among the line of cases cited by the attorney-general and the prosecuting attorney on behalf of the state are the so-called decoy letter eases instituted and prosecuted by the United States government. Grim v. United States; 156 U. S, 604 [15 Sup. Ct. Rep. 470; 39 L. Ed. 550]; Price v. United States, 165 U. S. 311 [17 Sup. Ct. Rep. 366; 41 L. Ed. 727],

We think the case most clearly in point is the case of State v. Fox (not reported), from Meigs county. This resulted in a conviction in the trial court, July 31, 1907, was affirmed in the circuit court, without opinion, Qetober 27, 1907, and after-wards presented to the Supreme Court, which, January 21,1908, refused leave to file- a petition in error. Fox v. State, 53 Bull. 28. This ease may, therefore, be considered as an expression of the Supreme Court on the law of entrapment in this state. It originated at the instance of the prosecuting attorney who invited Fox to his home where the alleged entrapment took place, two witnesses being secreted in an adjoining room with a door partly opened between. Fox was interested in having certain criminal cases then pending against him continued and testified that his object in seeing the prosecutor was for the purpose of inducing the latter to consent to a postponement of the trial on the indictment. At this meeting and after said request had been made, the prosecuting attorney asked Fox, “What is there in it for me, ’ ’ to which Fox at said interview later replies, “I have laid away a thousand dollars”; the past tense indicating that this amount had been set aside for this purpose prior to his going to the prosecutor’s house.

In this case the question of entrapment was properly made in the trial court, and in the circuit court, and the conviction in effect affirmed by the Supreme Court. Following the authority so laid down, we are bound to hold in the case at bar that all the testimony offered does not amount to such an entrapment as would bar prosecution. The facts adduced in the Fox case in our judgment are much stronger in favor of the contention of entrapment than the Diegel case under consideration, for in the case here it does not appear that the prosecuting attorney had anything to do with the bringing of the detectives to Columbus and that his connection arose merely by the designation of an official stenographer to report the dictagraph conversations.

We have carefully examined the charge of the court on the subject of entrapment-and are of the opinion the law was correctly given.

■ Y. Charge of the Court.

From what has been said as to the scope of the indictment, it would follow that the court properly refused special requests 3 and 4, which assumed to limit the charge to the mere delivery of messages and arranging of meetings.

Special requests 5, 6, 7, 8 and 9 were on the subject of entrapment and were properly refused.

Special request 12 was not appropriate to the facts of the case and was therefore properly refused. There are quite a number of objections to separate and disconnected paragraphs of the general charge, but when the charge is considered as an entirety, we are of the opinion there is no prejudicial error.

YI. Comments by Counsel on Defendant’s Failure to Testify.

We have examined carefully the record as to' the comments made by Mr. McGhee, assistant attorney-general, in his argument to the jury in speaking of the dictagraph conversation in which he reported to the court as having stated,

“That Rodney Diegel made that statement and the defense had the opportunity to deny it, and it stands uncontradicted.” (Record, p. 570).

While Gen. Code 13661 provides that the neglect or refusal of a defendant to testify shall not create a presumption against him, nor shall reference be made to nor comment made upon such neglect or refusal, yet we think what was said by counsel under the circumstances in referring to the defense and not the defendant, and the prompt instruction of the court to the jury to disregard the remark so made by counsel of what was said, and the immediate and complete withdrawal thereof by counsel, does not constitute prejudicial error and furnishes sufficient ground for reversal,

VII.Alleged Coercion 'op the Jury.

In respect to the alleged coercion of the jury in agreeing to a verdict, we hold to the view that nothing was said- by the court that might not properly be said in urging the jury to agree, nor was the length of time such as to indicate coercion. The law encourages the agreement of juries rather than disagreement and proper cautionary instructions to that effect may be given. '

VIII.Alleged Misconpuct op the Jury.

We have, examined the affidavits of the jurors and of others as to misconduct of the jurys and as to matters affecting their deliberations. We are of the opinion that much of the matter testified to is incompetent to be shown by the affidavit of a juror in opposition to his own verdict. But taking all that is properly shown, we think it is not sufficient to call for a new trial.

IX.Conclusions.

Considering the whole record, we are of the opinion that ' the evidence offered sustains the verdict, and we find no prejudicial error. ,

The judgment is, therefore, affirmed.

Dustin and Allread, JJ., concur.


author: KINKADE, J. (Orally.) Parker, J.,

text:
    INJUNCTION — PUBLICATION.
    [Wood (6th) Circuit Court,
    October 28, 1910.]
    Parker, Wildman and Kinkade, JJ.
    State ex rel. Sentinel Co. v. Wood Co. (Comrs.)
    1. Competency of Newspaper for Publication of County Commissioners’ Report Tested by Injunction, not Alone by Mandamus.
    Injunction lies to determine the competency of a newspaper in which to publish the financial report of county commissioners required by Gen. Code 2508; mandamus is not the only remedy to test the right to publish such reports.
    2. Amount of Financial Report of Commissioners does not Affect the Necessity of Publication in a Newspapér.
    The necessity of publication of a county commissioner’s financial report in a newspaper pursuant to Gen. Code 2508, is not affected by the comparative amount of money involved in the report and the cost of publication thereof.
    3. Newspaper of 800 Circulation in County of 50,000, with but Sixteen in Part of County Containing 35,000 Inhabitants Is of General Circulation.
    A newspaper having a circulation of about 800 subscribers in a county of about 50,000 inhabitants, in fifteen of the twenty townships of which it had a circulation of thirty-six subscribers out of a population of 35,000 or more, and the remainder of its circulation being in a part of the county containing the other five townships, is a paper of general circulation within the meaning of Gen. Code 2508. Parker, J., dissents.
    Appeal from common pleas court.

      N. B. Harrington, McClelland & Bowman, for plaintiffs.

      B. F. James and William Dunipace, for defendant.
   KINKADE, J. (Orally.)

In the court below this was an action brought by the Sentinel Company as a taxpayer of Wood county after the statutory requirement (Gen. Code 2922) for requesting the prosecuting attorney of the county to bring the action, had been complied with, to restrain the county commissioners and the county auditor from entering into a contract under Gen. Code 2508 to print the county commissioner’s report in a paper known as'“The Weekly Beacon,” published at North Baltimore.

The • ground for the injunction set up in the petition is that the Weekly Beacon is not a paper of general circulation in Wood county. That is the only ground set up in the petition for this injunction, and it is said that because it is not a paper of general circulation in Wood county, that, therefore, the county commissioners and county auditor are unauthorized (as of course they would be if that is so) in making a contract with Mr. Wilkinson, the proprietor of-the Weekly Beacon, to publish this report in that paper.

\ The position taken by the Sentinel Company is denied by Mr. Wilkinson. In the court of common pleas a temporary injunction was graided restraining the completion of the contract. A motion was made to dissolve that injunction, the motion overruled and the injunction continued in force until the final hearing in the court of' common pleas, and it is stated by counsel, but not shown in the papers here though undoubtedly a fact, that the case passed on, to final hearing in the court of common pleas and the injunction was made perpetual.

An appeal was taken to this court from the order of the court of common pleas refusing to dissolve the temporary injunction, and the question presented here is on a motion to dissolve this injunction, and the case is also on its merits here.

Several grounds are presented by the defendants raising questions of procedure in this case. It is said that the only, proceeding that could be brought would be one in mandamus.

It is not admitted that such action may have been brought and maintained, neither is it contended by defendant that it could have been maintained at all, but it is said that if the matter could have been interfered with in any way, it must have been by mandamus, not by injunction. We think that is not the case. We are unanimously of the opinion that the proceedings were correct in form. We call attention to the case of Schloenbach v. State, 53 Ohio St. 345 [41 N. E. Rep. 441]. The opinion of the court found on page 346 recognizes the correctness of the practice pursued in this case and if any authority was necessary to show the correctness of the procedure here we think this particular decision of the Supreme Court covers that question.

We see no question in this case -we have in controversy at all except the question as to whether the evidence in this case shows that the Weekly Beacon published at North Baltimore at the time this contract was attempted to be entered into, was a paper of general circulation in Wood county as provided by statute — a question of fact, which the court of common pleas held that it was not, the paper having, as shown by the evidence some eight or nine hundred of circulation, going to many of the townships in Wood county in small numbers, it is true, and no affirmative showing that it went to five of these townships of the county — that papers went to these townships and may have been delivered in the townships we think the record fairly shows, but it is not shown affirmatively in the record that it had a circulation in every township in the county. It is shown that it had a circulation in fifteen of the twenty townships, of a limited circulation.

It is set up in the petition that the county commissioners advertised for bids for this work, but states that there was no requirement that they should advertise for bids. It is stated in the petition that the contract about to be let will involve an expenditure of about $50, and it is stated in argument that if the printing were allowed under the legal rates to the Sentinel it. would amount to something like $350. 'It does not occur to us that the amount involved cuts any figure in the case either with reference to the Sentinel or Weekly Beacon — the sole question in issue in the case being, is this a paper of general circulation in Wood county with which the county commissioners may make this contract and comply -v^ith the' statute. After examining the case fully it is the judgment of a majority of the eourf that it was a paper of general circulation in Wood county, and that being true, the motion to dissolve the injunction will be granted, and the petition ’of the Sentinel Company will be dismissed.

Wildman, J., concurs:

Parker, J.,

dissenting:

I find myself unable to concur in the conclusion of my associates. We have been furnished with a transcript of the. able opinion of the judge of the common pleas court who decided this ease, and it seems to me that his findings, reasonings and conclusions are sound and just, and conclusive against the defendant. I shall not attempt to add much to it. "With respect to the circulation, as pointed out in that opinion and as shown by the testimony of Mr. "Wilkinson of the Weekly Beacon, the bona fide circulation of the Beacon in Wood county as nearly as he himself can state it, at the time this suit was instituted, was 636 copies. In addition to that he states there were somewhere in the neighborhood of 90 or 100 sold from week to week at news stands, and there were other copies that went to Toledo and elsewhere outside of the county; but he gives in his testimony in detail the number going to actual subscribers in this county. For the townships of Milton, Liberty, Henry, Jackson and Bloom lying at the south side of the county, he says the circulation was 600. Those, are five of the twenty townships of the county and they lie contiguous to one another. In the other fifteen townships of the county there were sent thirty-six copies according to the testimony of Mr. Wilkinson; that is, that many copies were sent to the post offices of those townships. Perrysburg township received at the post office three; Middleton, two; Washington, two; Grand Rapids, two; Weston, three; Plain, nine; Center, eight; Free-don, three; Portage, two; Montgomery, two. No papers were sent to the post offices in Ross, Lake, Troy, Webster or Perry townships, though, as has been stated in argument, it is quite probable’ that some of these papers sent to adjoining townships may have gone into those townships where there appears to have been an entire dearth of circulation. But assuming that that happened, it still remains true that in those townships having a population of 35,457 according to the census of 19.00 (probably 10 per cent greater now) the thirty-six papers sent would amount to a paper to over 1,000 residents, or to a paper to about one-tenth of one per cent of the population of those fifteen townships.

The population of the whole county in 1900 was 51,733 and this' was (and the present population is) distributed over the -whole county with substantial evenness. In the other five townships, 600 papers were sent which was a little more than one paper for each 100, or for 1 per cent of the population. Conceding that there is enough circulation in the five townships to amount to a general circulation, I am of the opinion that there is not enough circulation in the other fifteen townships to amount to a general circulation therein. My construction of this statute as to general circulation in a county is that it means a general circulation throughout the county. By that I do not mean that the paper must go into every township in the county, but that it ought to be a substantiaNcirculation throughout the county.

Where the population is distributed evenly, as in Wood county, the circulation in numbers sufficient to make it general, should be distributed over more than one-fourth of the territory of the county.

The report'to be published and to be paid for out of the public funds is a report of expenditures made by the county commissioners during the year for all the various things for which they may have expended public funds throughout the county, and the citizenship of the county at large is interested in reading this report.

The evident purpose (if thére is any legitimate purpose at all) of the publication, is to give ■ information throughout the county as to the proceedings of the county commissioners in this regard — what they are doing and what they are spending the public money for.

It seems to me that it cannot be said .that a paper has a general circulation throughout the county, if this circulation is substantially limited to a certain block of townships at one end of the county comprising one-fourth in terri-1 torial extent of the county, and where the population ■ amounts to substantially one-fourth of the , population of the county; that to make it a general circulation, at least the greater part in territorial extent of the county should be .supplied with the paper in some substantial numbers. But here we have a solid unbroken territory comprising three-fourths of the townships and containing three-fourths of the population of the county with a supply of papers so meager as to amount to no circulation amongst such population and throughout such territory.

It is, of course, impossible to lay down any hard and fast rule as to the number of papers that shall go out to constitute a general circulation; it must depend upon the population and upon the distribution of the population. There may be townships containing comparatively few inhabitants where it would be right and proper to say there would be a general circulation in such townships if ’but few papers were there, whereas there may be townships where it would seem to be proper that there should be a greater number of papers circulated to make the circulation .general. I say it is impossible to lay down any hard and fast rule upon the subject, and yet if the circulation is confined substantially to one-fourth of the population and one-fourth of the territorial extent of the county, it is my opinion that that is such a preponderance of territorial extent and population unaffected by the circulation of the paper as to make it not a paper of general circulation in the county.

If the circulation might be confined to one-fourth of the county and still be a general circulation in the county, I cannot see why it might not be confined to a smaller extent of territory and a smaller population. If you circumscribe the limits to five townships, why not four townships, or three townships, or two, or even one. Why not say of some obscure paper published in sorbe little village or cross roads in some township that has a general circulation in that township, that it is a paper of general circulation in the county?

As has been said, this is really the only question that is presented in this case. The question of the price to be paid for printing this report is not involved in this case. The question of the wisdom or unwisdom of the policy pursued by the county commissioners with respect to this matter, is not involved in this case. The question of whether or not the county commissioners may by competitive proceedings requiring bidding, or by other proceedings, obtain or require the publication of the report at a less figure than a dollar and a half per square, is not involved in this case. The question as to whether there may or may not be some other newspaper published in the county and of general circulation therein, is not involved in this case. For aught we .know there may not be a newspaper published in the county of general - circulation in the county. There may not be one entitled to make this publication and receive pay for it from the public fund. We have simply this one question as to whether the Weekly Be&e®n! comes within the purview of the statute as to circulation* This is a mixed question of law and fact. In all other respects it is conceded that the Beacon meets the requirements of the statute. That it is a newspaper of general character, and that it is a political paper and printed in the county is conceded.

We find very little authority bearing directly upon this’ question. We were cited to one criminal ease in the reports of the supreme court of Nebraska in which a question somewhat like this was decided, and it was there said in a footnote by the reporter that that was the first ease in which any of the higher courts had ever attempted to define “general circulation.” This appears to be a mistake, for.I think the precise question has been settled by the Supreme Court of Ohio in the case to -which we were cited and which we have examined, viz.: Craig v. Fox, 16 Ohio 564. This case I regard as being directly in point and conclusive, and if so it is an authority not only entitled to our respect, but it is an authority absolutely binding upon this and all inferior courts.

This was a case of a publication of a legal notice in a newspaper — the Sunday Enquirer — made under a statute which required that the notice be published in a newspaper of general circulation in the county. The requirements, so far as this question is concerned, are precisely the same. The notice was published in the Daily Enquirer and also in the Weekly and Tri-Weekly Enquirer. The court found the fact to be that the Daily Enquirer did not circulate outside of the city of Cincinnati. None of these daily papers went out into the county beyond the limits of the city. The court also found that the notice had not been published a sufficient length of time in the Tri-Weekly or Weekly Enquirer, so that the publication therein could be considered to supplement or assist the publication in the Daily, and the publication in the Tri-Weekly and Weekly had to be disregarded. Coming to consider the publication of the Daily, which seems to have had a sufficient ■ circulation within the city' of Cincinnati to entitle it to be regarded as of general circulation there, the court held ■ it was not a general circulation in the county, and therefore the publication was held to be invalid.

We know as a matter of general information — a thing that courts may take judicial notice of — that the population of the city of Cincinnati, even in that early day (1847) ■comprised a large part or a large majority of the population of the county; yet the circulation among that population was held to be insufficient. I cannot see that that case fails to meet this one. It appears to me to meet the situation exactly; and if a publication of a legal notice required to be published in ■the county, is not sufficient where it is published in a city like 'Cincinnati, having a majority of the population of the county, that it ought not to be held sufficient where the publication is substantially limited to five townships -in one corner of a county containing but one-fourth of the territory and one-fourth of the population of the county. That decision has stood as the law of the state since 1847. We cannot find by searching authorities or digests that it has ever been qualified ■or criticized. The court there regarded the requirement that .the publication should be a general circulation in the county ’as having some reference to the territorial conditions and held that the territorial .idea was involved; that the circulation should be substantial throughout the county. Now, it seems to me that this statute is even clearer in support of the contention that the territorial idea as well as the population idea is involved. It is held in a number of cases where the question was raised, that general circulation was used as contradistinguished from special circulation; that a-circulation among those of a certain profession or among certain tradesmen, or members of a certain religious body, would be special, and that general means it must not be of that character,. but it must be a publication *that contains general news and that goes out generally to the people.

Here the requirement is that it must be a newspaper, and a political newspaper, and in addition to that, it shall have a general circulation in the county. Now, in the same section of the statute (and I read from the old statutes — R. S. 917) upon the subject of publishing in a German newspaper, that idea appears to be emphasized — i. e., the idea that the population of a territory ought to be considered in • determining whether or not the paper has a general circulation: (Reads) ■--1-> — ¡“and in addition to the publication therein required, be published in one newspaper printed in the German language and having a tona fide circulation of not less than 600, if there be such paper printed and in general circulation among the inhabitants speaking that language in the county,” etc. There the terms “general circulation” are used in the same section of the statute and used as it seems to me, with this idea in mind. It is not necessarily sufficient if it is a circulation of 600, it must have a circulation of not less than 600 (it does not imply that such circulation in a population of 100,000 for instance, would be sufficient) and in addition to that number, it must have a general circulation. And this 600, or whatever number the court may find, would' be sufficient in point of numbers, must be a general circulation in the county. The general code changes the phraseology somewhat, but it seems to contain and enforce the same idea.

These reasons, I am of the opinion that the injunction ought to be made perpetual; that the Beacon is not a paper-of general circulation within the purview of the statute.

       Affirmed, no op., State v. Sochman, 84 O. S. 447.


author: PER CURIAM.

text:
    ERROR — JUDICIAL SALES — PARTIES.
    [Richland (5th) Circuit Court, —,
    1912.]
    Powell, Voorhees and Shields, JJ.
    C. F. Ackerman v. L. T. Cornell et al.
    1. Purchaser at Foreclosure Sale Held Proper Party to Prosecute Error Upon Motion Sustained to Set Sale Aside.
    A purchaser at a sheriff’s sale, under a decree in foreclosure, is sufficiently a party to the action in which the sale1 is made to prosecute error to the circuit court to reverse the judgment of the court of common pleas upon a motion sustained by said court in setting aside the sale of the real estate made by the sheriff.
    2. Judicial Sale not Set Aside to Allow Bid of Purchaser to be Advanced by Another Purchaser.
    In the absence of fraud, irregularity or misconduct affecting the validity of a judicial sale, such sale will not be set aside and' confirmation refused in order to allow the bid of the purchaser to he advanced by another purchaser.
    3. Appraiser not Preventing Bidding, Obtaining on Day of Sale Option from Purchaser, does not Affect Validity of Sale.
    The fact that one of the appraisers of the real estate did on the day of the sale obtain an option from the purchaser for a one-half interest in the premises does not affect the regularity and validity of the sale, in the absence of any showing that • said appraiser did in any wise prevent any one from being present or bidding at said sale.
    [Syllabus approved by the- court.]
    Error to common pleas eonrt.

      C. H. Workman and W. 8. Kerr, for purchaser.

      B. M. Greer, B. V. Otven, Cummings, McBride & Wolfe, for defendants in error
   PER CURIAM.

This proceeding in error is prosecuted to reverse the judgment of the court of common pleas of this county, arising upon a motion sustained by said court in setting aside the sale of certain real estate made by the sheriff of said county.

It appears that after the sale of certain real estate as advertised by the sheriff, to be sold at public sale, that said real estate was so offered by said sheriff when one, Rollin IT. Cockl'ey, bid to pay for the same sum of $4,000, which said sum was two-thirds of the appraised value of the same. That said Coekley thereupon paid to the said sheriff the sum of $100, to apply on said purchase price for said real estate, and by arrangement with said sheriff, and to his approval, he was to pay the balance of said purchase price two days later, to wit, Monday, December 11, 1911, said sale being on Saturday. That on said December 11, 1911, the said Coekley tendered said balance of said purchase money to said sheriff when he refused to accept the same because óf a motion filed in said court by the receiver of the Farmers & Merchants National Bank of Mt. Vernon, Ohio, to set aside said sale for reasons stated therein. That upon a hearing of said motion by said court, supported by affidavits and .oral testimony, said court set aside said sale, from which finding and judgment of said court the said Rollin H. Coekley, the purchaser of said real estate at said sheriff’s sale, prosecutes error to this court.

The first question presented is, whether said Coekley can prosecute this proceeding in error? Does he sustain such a relation to this proceeding as' that he is a proper party thereto ? We answer the question in the affirmative, for the courts hold:

“That a purchaser at a sheriff’s sale, under a decree in chancery, is sufficiently a party to the action in which the sale is made, to move for a confirmation thereof or to take any necessary steps therein to protect his rights in the premises.” Barnes v. Stoughton, 6 Hun. (N. Y.) 138; Requa v. Rea, 2 Paige (N. Y.) 339; 1 Sugden, Vendors p. 83.

But it is contended that one, James Geiselman, one of the appraisers of said real estate, and the purchaser, Rollin IT. Coekley, acted eollusively if not fraudulently in the sale of sa'id real estate; that said Coekley on the day of said sale, but after said sale, gave said Geiselman a written option to purchase a half interest in said real estate for $2,002; that said real estate, if properly advertised could and would have been sold for a much larger sum for which the same was bid off, and that a deposit of $1,000 was made in said court by one, Milton Wise, as guarantee that said real etate if re-advertised and put up to sale again would be sold for at least $5000. An examination of this record shows that said property was regularly and legally appraised and advertised for sale on December 9, 1911, by the sheriff of said county. That on said day said property was duly offered for sale by the sheriff of said county, at public auction, that there was only one bidder for the property, that said bidder was the said Rollin H. Cockley, to whom said property was sold by said sheriff for the sum of $4,000, said sum being two-thirds of the appraised value of said property.

Said record further shows that while said Geiselman, one of the appraisers of said real estate, took a written option from said Cockley, after said sale, to purchase a one-half interest therein, it does not appear that said Geiselman in any wise prevented any one from being present or bidding at said sale, or that said sale was in any respect whatever irregular, and it further appears that said sale was regularly advertised and said Milton Wise had knowledge 'of the time of said sale as evidenced by the testimony of witnesses introduced upon ■the hearing of said motion to set .aside said sale. ■

Upon the facts found as hereinbefore stated, we are of the opinion that said court of common pleas erred in setting aside said sale, and for such error the judgment of said court is reversed.

And it appearing to the court from the return of the sheriff of the writ of execution issued herein with his report of his proceedings and sale of the land under said writ, that said proceedings and sale have been duly and legally made and being satisfied that said sale has in all respects been made in conformity to the provisions of the statutes in such cases made and provided, and in all respects legal, the sale to R. H. Cockley is hereby approved and confirmed, and the sheriff of Rich-land county is ordered to make to the purchaser, R. H. Cockley, a deed, according to law, for the property so sold to him, upon the full payment of the purchase price of said premises, to wit, the sum of $4,000, and the said, cause is remanded to the said court of common pleas for further proceedings according to law, -

And it is ordered by the court that the deposit of $1,000 made with the sheriff by said Milton Wise be returned to him.

Judgment reversed.


author: PARKER, J.

text:
    COUNTIES — OFFICE AND OFFICERS.
    [Sandusky (6th) Circuit Court,
    October 9, 1909.]
    Parker, Wildman and Kinkade, JJ.

      State ex rel. Sayles, Pros. Atty. v. E. H. Ganz.
    Commissioners are not Entitled to Additional Fees for Service on the Board of Equalization.
    ■ County commissioners have their compensation fixed by R. S. 897 (Gen. Code 3001) and are not entitled to additional compensation for services as members of the board of equalization under either R. S. 2813 or 2813a (Gen. Code 5594 or 5597).

      Affirmed, no op., Ganz v. State, 83 O. S. 468.

   PARKER, J.

This suit was brought in the court of common pleas on relation of the prosecuting attorney to recover from the defendant, Ganz, monies which it is averred he drew while commissioner of the county as compensation for his services upon the board of equalization -r whether upon the annual county board or the decennial county board is not stated. It is said that these monies, amounting in all to $402, were drawn between March 24, 1904, and November 10,1906. What time the services were performed, on account of which these monies were drawn, is not stated in the petition. Between March 24, 1904, and November 10, 1906, some change was made in the láw with respect to this matter. The view we take of the whole matter, however, renders that unimportant.

The statute in force between both these dates named in the petition, R. S. 2804 (Gen. Code 5580), and for several years before, provided for an annual county board of equalization of real and personal property, monies and credits in each county, to be composed of the county commissioners and the county auditor. A decennial board of equalization to be composed of the county commissioners, the auditor and the surveyor was provided for by R. S. 2813 (Gen. Code 5594). It was also provided by R. S. 2813a (Gen. Code 5597):

“Each member of the decennial county board, including the coilnty auditor and the county surveyor, and each member of the annual county board of equalization shall be entitled to receive for each day necessarily employed in the performance of his duties, including his duties as a member of the board of revision, the sum of three dollars. ’ ’

From April 24, 1893, until April 23, 1904, R. S. 897 (Gen. Code 3001), provided for the salaries for county commissioners, though I think there were some exceptions in some counties covered by special acts. At all events, the law provided for the salaries of the county commissioners in Erie county; and before the amendment of this section on April 23, 1904, and the passage of Sec. 2 of the amendatory act of that date, the law providing for these salaries contains this provision:

“Each county commissioner shall devote his entire time to the (duties of his office, and shall receive nothing in addition to the salary so provided either directly or indirectly, by way of mileage, per diem, expenses paid out or otherwise, except when necessary to go out of their respective counties on official business, each commissioner may in addition to such salary receive his actual traveling expenses, and no more.” And it provides how this shall be itemized and allowed.

Now while the law was in that form, a case was presented to ns in Erie county, case against commissioner Halliday.' The court of common pleas had held that he was not entitled to extra compensation as a member of the board of equalization. We affirmed that decision, and the decision of this court was affirmed by the Supreme Court, and will be found under the title of Halliday v. State, 70 Ohio St. 460. So that if any part of the services performed by commissioner Ganz were performed before the amendatory act of April 23,-1904, that question would be clearly determined by this decision by the Supreme Court t;o the effect that commissioners were not entitled to such compensation.

The question remains as to how a member would stand as to services performed after the amendment of April 23, 1904. It will be observed that this act of April 23, 1893, does not attempt to, nor does it purport to repeal- any other law excepting Sec. 897 which it amended; so that we held and the Supreme Court held that, without any attempt to repeal R. S. 2813 and 2813a, the provisions of these last mentioned sections as to thé compensation of county commissioners were superseded by the provision of R. S. 897, above quoted, and that they were not entitled to the compensation. Now comes the amendatory act of April 23,1904, providing for salaries to’the county commissioners varying somewhat from the provisions of the former statute upon that subject, and adding another section, which is put in the revision of 1908 of Bates Annotated Statutes as 897-2 (Gen. Code 3001).

“The compensation provided in the preceding section shall be in full payment of all services rendered as such commissioner. But such total compensation shall not exceed the sum of $3,500 per annum. ’ ’

And by Sec. 3 of that act (which is not carried into the revision) it is provided that:

“And all other acts or sections of the Revised Statutes, so far as they may be inconsistent with the provisions of this act, be and the same are hereby repealed.”

Now can it be that the attempt to repeal all inconsistent acts, and the adding of the provision that the payment of the salary shall be in full payment of all services rendered as such commissioners would have the effect of giving the commissioners the benefit of the provision as to fees in R. S. 2813a, which it had been held by the Supreme Court they were not entitled to, before the passage of the act of April 23, 1904? We do not see how such a contention can be sustained. Of course, the question has not been presented to us in that form, because counsel do not seem to have been advised of our holding in Erie county, and of the affirmation thereof by the Supreme Court; but it comes to that, and that is the way it is presented, in view of that holding; and we think it is -entirely clear that there is nothing in this amendatory act of 1904 that could give to the commissioners fees as members of the board of equalization which they were not theretofore entitled to receive.

The common pleas court sustained a demurrer to this petition. We hold that was error, and we hold that the demurrer should be overruled; and therefore the decision will be reversed and the case remanded, with an order that the demurrer shall be overruled.

Wildman and Kinkade, JJ., concur.