author: NORRIS, J.

text:
    ADMINISTRATORS AND EXECUTORS — DOWER— MORTGAGES. -
    [Allen (3rd) Circuit Court,
    April Term, 1904.]
    Day, Norris and Yollratk, JJ

      R. F. Hickey, Admr. v. Mary P. Conine et al.
    1. Computation of Dower Based on Entire Proceeds of Sale of Consort’s Lands.
    Where real estate is sold by the personal representative of a decedent, to pay the debts of decedent, which real estate is incumbered by a purchase-money mortgage given by the decedent in his lifetime, and by a purchase-money mortgage assumed by the decedent as a part of the purchase price of the land, and such land is sold for a sum more than the amount of both of said mortgages, the widow is entitled to have her dower interest in said land computed from and based on the entire proceeds of the sale, payable out of the residue of the proceeds, after satisfying said mortgages.
    2. Wife Furnishing Monet to Pat off Husband’s Mortgage cannot be Surrogated therefor out of Proceeds of Sale bt Administrator without Proof that it was Loaned with such Understanding.
    Where a widow furnished her husband money which was used by him in part, payment of a purchase-money note, executed by the husband, secured - by mortgage on real estate owned by him,_ which note and mortgage were not signed by the widow, in a proceeding brought by the personal representatives of the husband to sell said land, the widow cannot be subrogated to the lien and security of the mortgage indebtedness insofar as the money so advanced by her may have been used in paying said mortgage, in the absence of evidence that the widow gave or loaned the money to her husband intending' or expecting it to be paid on the mortgage debt.
    Error to Allen common pleas court.
    Handy & Unverferth, Watts & Moore and Bailey & Bailey, for plaintiff in error:
    As to the purchase-money mortgages. Culver v. Harper, 27 Ohio St. 464; Fox v. Pratt, 27 Ohio St. 512; Welch v. Buckins, 9 Ohio St. 331; Unger v. Leiter, 32 Ohio St. 210; Folsom v. Rhodes, 22 Ohio St. 435; Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627]; Kling v. Ballentine, 40 Ohio St. 391; Holbrook v. Finney, 4 Mass. 566 [3 Am. Dec. 243]; Carter y. Goodin, 3 Ohio St. 75; 2 Story, Eq. Jurisp. Sec. 1218; Washburn, Real Prop. 190.
    As to the mortgage assumed. Flliott v. Plattor, 43 Ohio St. Í98 [1 N. E. Rep. 222]; Ward v. Carey, 39 Ohio St. 361; King v. Stetson,
      93 Mass. 407; Clark v. Munroe, 14 Mass. 351; Haselton v. Lesure, 91 Mass. 24; Seibert v. Todd, 31 S. C. 206 [9 S. E. Rep. 822; 4 L. R. A. 606] ; Boynton v. Sawyer, 35 Ala. 497; Thomas v. Hanson, 44 Iowa 651; Moore v. Rollins, 45 Me. 493; Glenn v. Clark, 53 Md. 580; Mc-Cauley v. Grimes, 2 Gill. & J. (Md.) 318; McGowan v. Smith, 44 Barb. 232; Jones v. Parker, 51 Wis. 218 [8 N. W. Rep. 124].
    As to the question of subrogation. Joyce v. Haunts, 55 Ohio St. 538 [45 N. E. Rep. 900]; TJnger v. Letter, 32 Ohio St. 210.
    Cable & Parmenter, for defendant in error:
    As to the purchase-money mortgages. Carter v. Goodin, 3 Ohio St. 76; Kerr v. Lydecker, 51 Ohio St. 240 [37 N. E. Rep. 267; 23 L. R. A. 842]; Kling v. Ballentine, 40 Ohio St. 391; Black v. Kuhlman, 30 Ohio St. 196; Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627].
    Wife’s inchoate right of dower is not derived from her husband, but it vests at the moment of the grant to her husband and she takes it constructively as purchaser from the grantor. Kursheedt v. Savings Inst. 118 N. Y. 358 [23 N. E. Rep. 473; 7 L. R. A. 229]; McArthur v. Franklin, 15 Ohio St. 485; Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627] ; Folsom v. Rhodes, 22 Ohio St. 435; State Bank v. Hinton, 21 Ohio St. 509; Kling v. Ballentine, 40 Ohio St. 391; Society for Savings v. Drake, 6 Circ. Dee. 31 (10 R. 59).
    Subrogation. 3 Pomeroy, Eq. Jurisp. 1855; 3 Pomeroy, Eq. Jurisp. Secs. 1211, 1212; Joyce v. Daunts, 55 Ohio St. 538 [45 N. E. Rep. 900]; Amick v. Woodworth, 58 Ohio St. 86 [50 N. E. Rep. 437]; 24 Am. & Eng. Enc. Law (1 ed.) 228, 281; Jefferson v. Edrington, 53 Ark. 545 [14 S. W. Rep. 99] ; Smith v. Stephens, 164 Mo. 415 [64 S. W. Rep. 260].

       Affirmed by Supreme Court without report, Hickey v. Conine, 71 Ohio St. 548.

   NORRIS, J.

R. F. Hickey, as administrator of the estate of Taylor Conine, deceased, filed his petition in the probate court of Allen county, praying for an order to sell certain real estate of which his decedent died.seized for the payment of the debts of said estate. Mary F. Conine is the widow of Taylor Conine, and is made a defendant to this petition.

From the judgment of the probate court appeal was taken to the common pleas and the case submitted to the court on the petition, second amended answer and cross petition of the defendant, Mary F. Conine, and the reply of plaintiff, administrator, and the evidence.

The rea.1 estate sought to be sold had been the property of one Abraham Early and by him sold to Ellis Michael. To secure a part of the purchase price of the land Michael and wife executed back to Early their mortgage deed upon the premises. Subject to this mortgage Michael sold and conveyed the land to Taylor Conine. To discharge the indebtedness secured by this mortgage, proceedings were had by the plaintiff administrator in the probate court and the land is sold. Mary F. Conine claims, as the widow of Taylor Conine, dower in this real estate and in her answer consents to the sale of the real estate free of her dower interest, and demands to be endowed as of the whole value of the real estate, asking that the value of her dower interest be computed and measured by the whole proceeds of the sale, and that she be paid said sum out of the balance of the proceeds after payment of the mortgage debt.

As a second cause of action, she claims that she furnished to her husband $2,200 of her own money, which was by agreement between her said husband and herself to be and was paid and applied- on and took up $2,200 of said mortgage indebtedness, which arose by virtue of a mortgage which her husband executed to Ellis Michael to secure a part of the purchase price of the real estate described in the petition. She says it was agreed between Taylor Conine, her husband, and herself that she should hold the note upon which said $2,200 was applied, and should hold the security which said mortgage gave it until said $2,200 so advanced to her husband by her and the interest thereon was paid, and she claims that she is entitled to that extent to said mortgage lien and subrogated to it. She says she was not a party to any of said mortgages and in no wise obligated on said mortgage indebtedness, and she seeks to be subrogated to the lien of said mortgage executed by her husband to Michael to the extent of said $2,200 and interest.

The reply of plaintiff controverts the claims of the defendant, Mrs. Conine, and these issues were submitted to the common pleas court on the evidence.

The common pleas by its consideration adjudges that Mrs. Conine was endowed in all the whole value of the real estate described in the petition; that she was entitled to the value of her said dower, thus computed in money out of the balance of the proceeds of the sale after discharging the mortgage indebtedness.

On her second cause of action the court found that she was not entitled to be subrogated and refused the relief asked in said second cause of action.

The plaintiff administrator filed his motion for new trial as to the finding and judgment concerning the claim of the widow for dower.

The widow, Mary F. Conine, filed her motion for new trial concerning the finding and judgment against her on the second cause of action in her second amended answer and cross petition.

Bach of these motions for new trial the common pleas court overruled.

The plaintiff administrator prosecutes error to the finding and judgment of the common pleas concerning the dower of the widow defendant, Mary F. Conine, assigning in his petition:

1. That the common pleas erred in overruling his motion for a new trial.

2. That the finding, order, judgment and decree is against the law of the case.

3. That the court erred in ordering and decreeing that the said Mary F. Conine be paid money in lieu of her dower interest in said lands based on the entire proceeds of the sale of said real estate, notwithstanding the purchase-money mortgage given by said Taylor Conine for part of said real estate, and as a part of the consideration thereof was still subsisting.

4. That the common pleas erred in making the same order and judgment as against the mortgage assumed by said Taylor Conine in purchase of the real estate, and' as a part of the consideration for the purchase price of said land.

5. Error in the admission of evidence and in the rejection of evidence.

6. The finding and judgment is against the weight of the evidence.

7. And that the judgment should have been for plaintiff and not for the defendant in error.

The defendant, Mary F. Conine, files her answer and cross petition in error and asks that the finding and judgment of the common pleas on her action because of error:

1. In overruling the defendant’s motion for a new trial.

2. Said finding and judgment is against the weight of the evidence.

3. That the finding and judgment is against defendant in error and in favor of plaintiff in error.

4. Error in rejecting evidence offered by defendant.

5. That said finding, judgment and decree is against the defendant on her second cause of action, and refuses the relief sought in the said second cause of action.

6. And that said finding and judgment is against the evidence in the case.

The question made by the plaintiff is as to whether the dower interest of the widow, when the lands of the deceased husband are covered by a purchase-money mortgage, is only in the residue of the value of the lands after deducting the amount of the purchase-money debt secured by the mortgage, or whether she is dowable, and her dower interest is to be computed in the entire value of the land, payable out of the residue of proceeds of the sale of the land, if sufficient remain after deducting from the whole proceeds the mortgage debt.

No more can be said or better said on this proposition than has been said by Judge Cunningham in the opinion óf the court of common pleas, but in supplement to it, however, we may say that the seller shall not lose the purchase price of his property. There results from the sale and purchase a trust in favor of the vendor in the subject of the transaction, not that the vendee reconveys the title or holds the title for the benefit of a vendor in a general sense, or that the vendor be reinvested with the title, but the vendee is deemed to hold the property sold in readiness to respond to the payment of the purchase price of it, that it may be converted into cash from which the purchase money due the: vendor shall be paid. In this sense and in no other, a-trust arises im favor of the vendor, but the vendor does not hold the title, nor a shadow of the title, nor a right to the title. The vendee holds both the legal and equitable title and this to a degree that by conveyance of the legal title by the vendee to a purchaser in good faith, and without notice of the lien of the vendor, the vendor’s lien for the purchase price must yield and may thus be defeated. Without this act of the vendee the vendor’s lien is paramount against the world. j

When the security is the same property concerning which the debt arises, the vendor’s lien is not displaced by a purchase-money mortgage, but is strengthened by it. Boos v. Ewing, 17 Ohio 500, 522, 523 [49 Am. Dec. 478]. The secret lien or trust as it may be termed, being thus made a matter of public record places defeat of it from a conveyance of the legal title by the vendee to a tona fide purchase without notice beyond possibility. So that the strength of such a lien evidenced by such a mortgage is fortified beyond successful attack, and none of the favored rights of the law such as exemptions and homestead and dower and the like can attach to the property and supplant the lien, but all are postponed to the claim of the vendor for the consideration which moved him to part with his property and the title to it. He has parted with his title and in lieu of it he holds an unassailable claim Tor the money which would result from a sale of the land on enforcement of his lien equal to the unpaid purchase price due him in consideration of his title. '

All this is for the vendor and for the benefit of the vendor, and for those who succeed to his rights as vendor, and purchase-money mortgagee. Until the vendee by his act and by his failure and forfeiture make it otherwise, the vendors interest either as vendor or mortgagee is termed in law and equity to be a lien and that only.

As to the vendor and the rights of the vendor, and the heirs of the vendee or the creditors of the vendee and their rights against the vendee, there is no privity and nothing is common. They are strangers to him and to his rights, and he is a stranger to them and to their rights. They cannot ride in his wake, nor take advantage, or turn to their profit or benefit the condition or any phase of it, in,which natural equity and intrinsic justice places the vendor fortified by his mortgage. The vendor stands apart and aloof, and alone and secure. The heirs and the creditors and the wife of the vendee can only look to the vendee and the rights of the vendee and the title of the vendee, as the source of their interest in the property purchased.

A mortgage in Ohio is regarded as a mere security for a debt, and an incident to it. An action for foreclosure of the mortgage and sale of the mortgaged property is held to be an action on a specialty as described in Lan. R. L. 8495 (R. S. 4980). Kerr v. Lydecker, 51 Ohio St. 240, 248, 249 [37 N. E. Rep. 267; 23 L. R. A. 842].

As against the mortgagee and all the world the legal title to the mortgaged premises until condition broken, remains in the mortgagor. It is only after the condition of the mortgage is broken that the legal title as between the mortgagor and mortgagee vests in the mortgagee. Nothing vests the legal title in the mortgagee but the breach of the condition of the mortgage. For this position we, find abundant authority in this state, notably Gilliland v. Sellers, 2 Ohio St. 223; Hibbs v. Insurance Co. 40 Ohio St. 543, 559; Martin v. Alter, 42 Ohio St. 94; Kerr v. Lydecker, 51 Ohio St. 240, 248 [37 N. E. Rep. 267; 23 L. R. A. 842], and other cases.

In the case at bar the conditions of the mortgages were not broken, and as against the mortgagee and all else the légal title remained in the mortgagor, and this whether the debt secured by' it was for purchase money or otherwise. No action was pending or could be commenced to foreclose this mortgage or to recover possession in ejectment under it, and no proceeding could be taken or had to enforce the vendor’s lien for the purchase money, the debt to which the mortgage was incident.

If this be true then the legal title as well as the right to redeem the legal title from the pledge and peril of the mortgage had not passed from the mortgagor, and the mortgage had not assumed other conditions than that of a mere security for a debt, and had not been given the character of a conveyance which divested the mortgagor of his legal title and carried the legal title to the mortgagee. It was still a mere security — it was simply a lien, and the right of the vendor by reason of his vendor.’s lien and his mortgage was that of a lien holder, and not the holder of the legal title to the property.

If this be a fact the seizin of the mortgagor was not merely a fictitious and instantaneous and incidental seizin divested at once and permanently by the same act and transaction which conveyed the legal title to him, but he was seized of an estate of inheritance in the land, which was not yet divested, by broken condition, or at all at the time of his death.

The dower right of the wife is deemed to be a moral right as well as an equitable and legal right. The law is as jealous of the inchoate right of the wife ¿s it is of the vested dower right of the widow. The wife may, in the lifetime of the husband maintain an action to protect her inchoate right equally as well as she may after her husband’s death maintain an action to secure her vested right. This right of the wife and widow is superior to the rights of an heir. The heir takes by inheritance. The dower estate is an estate by purchase Kling v. Ballentine, 40 Ohio St. 391. It is paramount to the right of a mere creditor of the husband because her interest is held by her independent of the interest of the husband and are not obligated for her husband’s liabilities.

Under the laws of this state amongst other provisions in behalf of dower, it is declared that if dower be not barred or relinquished a widow shall be endowed of an estate for life in one-third of the real property of which the deceased consort was seized as an estate of ihheritanee at any time during marriage. Lan. R. L. 6887 (R. S. 4188).

This mortgagor held a descendable estate in the land in question. It was an estate that, notwithstanding the vendor’s lien and the vendor’s purchase-money mortgage, could not be terminated by the mere will of the vendor, nor terminated at all by the vendor, unless by due process of law, following the voluntary act of the vendee, which ended his inheritable interest in the land.

No condition of this character is present — nothing to make absolute the mortgage — no step taken to foreclose the equity of redemption, or to reduce the land to possession, and ho right arose in favor of the vendor which he might thus assert. It would seem that nothing could more completely define an interest of the husband which would bear the dower right of a wife or widow than these facts describe.

So therefore we find no error in the judgment of the common pleas: that the widow is dowable in the whole proceeds of the real estate subject to the rights of the vendor, but superior to the rights of the heirs and general creditors of the husband, and that the value of her dower is payable out of the residue of said proceeds after discharging the vendor’s claim. We deem this in trend with the holdings of our Supreme Court upon question of dower and right of dower. And I will still continue to believe until from the perfect wisdom and sinless calm of that august Tribunal, a voice speaks to the contrary.

We are of opinion that the facts appearing in this record do not warrant the remedy sought by the defendant in the second cause of action made in her amended answer and cross petition. There is no evidence that she gave or loaned the money to her husband intending or expecting it to be paid on the mortgage, or on any particular indebtedness of the husband and we see no room for subrogating her to the rights of the mortgagor.

Finding no error in the record as claimed by the petition in error or in the cross petition in error, the judgment is affirmed. The costs incident to the petition in .error are adjudged against the plaintiff in error. The costs incident to the cross petition in error are adjudged against the defendant in error. Execution is awarded and the ease is remanded to the court of common pleas for execution.

Day and Mooney, JJ., concur.


source: Caselaw Access Project

author: HURIN, J.

license: Public Domain

text:
    CONSTITUTIONAL LAW — COURTS—DETACHING LANDS.
    [Paulding (3rd) Circuit Court,
    March Term, 1905.]
    Norris, Yollrath and Hurin, JJ.

      Grover Hill (Vil.) v. George A. McClure.
    Act or Apbil 23, 1902 is not Unconstitutional.
    The act of April 23, 1902 (95 O. L. 259; Lan. R. L. 3082; B. 1536-60), providing for detaching unplatted farm lands from cities and incorporated villages, and for attaching the same to adjacent townships, is not in conflict with any provisions of the constitution of the state of Ohio. Said act does not confer legislative powers upon the judiciary, nor does it impair the system of local self-government guaranteed by the constitution. The phrase, “in his discretion,” contained in said act, refers to the judicial discretion of the court and not to the legislative discretion.
    Error to Paulding common pleas court
    Shook & Wilcox, for plaintiff in error.
    Snook & Savage, for defendant in error.

      Affirmed, Grover Hill (Vil.) v. McClure, 50 Bull. 203.

   HURIN, J.

The petition in each of these cases, Grover Hill '(Vil.) v. George A. McClure and Grover Hill (Vil.) v. William H. Eaton,' alleges that the plaintiff is the owner and in actual possession of certain lands in Paulding county, Ohio, which are unplatted farm lands, wholly within the limits of the incorporated village of Grover Hill, and that they may be detached therefrom without materially affecting the good government of the adjacent territory'within the limits of said village of Grover Hill.

Both petitions pray that said lands be detached and annexed to, and become a part of, the adjacent township, to wit, Latty township, and for all proper relief.

The amended answers allege that this action is brought under, and by virtue of, an act of the general assembly passed on April 23, 1902, entitled, “An act to provide for detaching unplatted farm lands, from cities and incorporated villages, and for attaching the same to adjacent townships,” which said act is in conflict with the provisions of the constitution of the state of Ohio, and especially with Sec. 1, Art. 2, Secs. 1 and 4, Art. 4 and Sec. 20, Art. 1 of said constitution; that said act is not a valid exercise of legislative authority for the reason that it impairs the system of local self-government existing under the general laws of the state of Ohio, at the adoption of the constitution; that said act is contrary to public policy, and is void.

These answers were demur-red to on the ground that they did not state facts sufficient to constitute a defense. The court sustained the demurrer and found from the evidence that the lands described in the petition are farm lands and may be detached without materially affecting the good government of any territory in the village, adjacent to said land. It is therefore ordered and decreed by the court that said lands be detached from Grover Hill and attached to Latty township.

The sole question raised in each of these eases, is that of the validity and constitutionality of the act of April 23, 1902 (95 O. L. 259), now designated as Lan. R. L. 3082 (B. 1536-60).

It is claimed by plaintiff in error that this law is unconstitutional as conferring legislative power upon the judiciary, as contrary to public policy and as impairing the system of local self-government existing prior and subsequent to the adoption of the constitution. Section 1 of that act provides that:

“The owner or owners of unplatted farm lands lying within the corporate limits of any city or village may file a petition in the court of common pleas of the county in which such lands are situate, in which such owner or owners shall be named as plaintiffs, and such city or village shall be the defendant, setting forth the reasons why such lands should be detached, and the relief prayed for. On such petition a summons shall issue as in other actions, and such cause proceed as in other causes. ’ ’

Section 2 provides that:

“On the hearing of such cause if the court shall find that said lands are farm lands and that the same may be detached without materially affecting the good government of adjacent territory within such city or village limits, an order and decree may be made by the court in his discretion and entered on the record, that such lands be detached from such city or village and may be attached to the most convenient adjacent township in the same county, and thereafter such land shall not be a part of said city or village, and shall be a part of the township to which the same has been so attached, and the costs taxed as to the court may seem right.”

It will be observed that this act provides for the filing of the petition in the court of common pleas, naming the defendant, and the issuing of a summons thereon, and that the cause shall proceed as in other causes. It further provides for a hearing by the court, a finding by the court on the facts presented and that if the court shall find, first, that said lands are farm lands, and second, that the same may be detached without materially affecting the good government of adjacent territory within such city or village limits, then the court may make an order and decree, etc. So far all the procedure is in judicial form, and apparently within judicial powers, but it is claimed that the phrase, “in its discretion,” which is applied to the decree of the court by the statute, discloses an intention to confer legislative powers on the court; that the discretion is a legislative discretion and not a judicial discretion, for the reason that the whole subject of the creation of municipal corporations and their increase or decrease by attaching or detaching territory, is strictly within legislative powers, and not within the judicial powers conferred by the constitution.

In the case of Forsyth v. Hammond (City), 71 Fed. Rep. 443, 446 [18 C. C. A. 175; 34 U. S. App. 552], it is said that, “The power to' establish municipal corporations, and to enlarge or contract their boundaries, is legislative;” and being a legislative power, it cannot be conferred on, or exercised by, a court whose functions are judicial. See also Dillon, Munic. Corp. Secs. 9 and 54; Cooley, Const. Lim. (7 ed.) Sec. 266; Laramie Co. (Comrs.) v. Albany Co. (Comrs.), 92 U. S. 307 [23 L. Ed. 552].

In the case of Forsyth v. Hammond (City), supra, the court, after discussing the difference between legislative and judicial powers, say, on page 449:

“But insofar as the board, in any such case, determines questions of fact which are essential either to the jurisdiction of the board in the proceeding or to the right of annexation, as, for instance, the fact and sufficiency of notice, contiguity and ownership of lands, or whether the lands had been platted, its action is of a judicial character, and may properly be made subject to review on appeal.”

In State v. Simons, 21 N. W. Rep. 750, 751 [32 Minn. 540], a statute of Minnesota is declared unconstitutional because it delegated legislative powers to the district court. In that case the court say:

‘£ It will also be observed that the duty of the court is not simply to inquire and ascertain whether certain specified facts exist, or whether certain specified conditions have been complied with, but to proceed and determine whether the interests of the inhabitants will be promoted by the incorporation of the village, and, if so,' what land ought in justice to be included within its limits. In short, it is left to the court to decide whether public interests will be subserved by creating a municipal corporation, and the determination of this question is left wholly to his views of expediency and public policy. That the determination of such question involves the exercise of purely and exclusively legislative power seems to us too clear to admit of argument.”

In the statute involved in the case at bar, no question of expediency or public policy is submitted to the court. Its conclusions as in any other judicial proceedings are based on its findings as to the facts, on evidence submitted. Why, then, should the “discretion” of the court be construed to mean other than the judicial discretion upon which all courts are compelled to rely after hearing evidence and arguments. Every order made by any court is an exercise of discretion, but it is a judicial discretion, and without such discretion, any court would be useless. •

The same distinction appears to have been made in the case of Hutchinson v. Leimbach, 63 L. R. A. 630 (Kan.), and Wahoo (City) v. Dickinson, 23 Neb. 426 [36 N. W. Rep. 813].

In all of these cases, there is a clear distinction drawn between decrees of courts based on facts found, and those decrees, when based on expediency, public policy and considerations of abstract justice; in other words, a purely judicial discretion is incidental to all courts,’and does not include or imply a legislative discretion.

But even if the use of the word “discretion” were not susceptible of the interpretation we have given it, i. e., judicial discretion, and if the use of that term would, by itself, necessarily imply the granting of an unconstitutional power, yet if the remainder of the statute, taken by its.elf, would be constitutional, and that word “discretion” is not essential to the sense of the statute, that word may be eliminated and the remainder of the statute upheld.

This principle is thoroughly established in this state. See State v. Dombaugh, 20 Ohio St. 167 and Gager v. Prout, 48 Ohio St. 89 and 109 [26 N. E. Rep. 1013],

In this latter case the court say, on page 108:

“By this rule a statute may be invalid in part, by reason of some provision being repugnant to the constitution, and valid as to the residue, where it appears that the invalid part is an independent provision, not in its nature and connection essential to the other parts of the statute, nor so related to the general purpose of the statute as to warrant the conclusion that the legislature would have refused to adopt it with the invalid part stricken out. ’ ’

In the case at bar, the statute, eliminating the phrase “in his discretion,” is complete in itself,, and (Jails for a judicial order or decree. The phrase “in his discretion” is unnecessary to a completed meaning, and may, under the above decision, be eliminated.

In State v. Sinks, 42 Ohio St. 345, 346, it is said by the court, that where it appears improbable and unreasonable that the legislature would have passed a law without a certain provision which was included in it, and where that provision is unconstitutional, the whole act must be declared unconstitutional.

But this presumption does not arise in this case, for the statute is, as we have seen, complete without the phrase “in his discretion,” and the word itself is fully capable of the meaning, “judicial discretion,” which is in harmony with the constitutional powers of courts, so that on either supposition, .the objection fails.

But it is claimed that, aside from this, this act involves a delegation of legislative powers to the court, because the power to establish municipal corporations and to enlarge or contract their boundaries is a legislative power.

“The legislature cannot delegate its power to make a law; but it can make a law to delegate power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.” Locke’s Appeal, 72 Pa. St. 491 [13 Am. Rep. 716], cited by Minshall, J., in State v. Messenger, 63 Ohio St. 398, 402 [59 N. E. Rep. 105].

In the case of Zanesville v. Telegraph & Tel. Co. 64 Ohio St. 67 [59 N. E. Rep. 781; 52 L. R. A. 150; 83 Am. St. Rep. 725], reversing the decision, in the same case, Zanesville v. Telephone & Tel. Co. 63 Ohio St. 442 [59 N. E. Rep. 109], our Supreme Court went to greater lengths, than the courts of most states, for it there held that Lan. R. L. 5587 (R. S. 3461), whereby a probate court is authorized to direct in what manner the telephone company’s lines shall be constructed when the municipal authorities and the company failed to agree, is constitutional and does not confer on the probate court legislative authority. The court say, page 84, “And this fact, alone, of conferring on á judicial tribunal in the first instance the power to act in a given matter, is of controlling importance in giving judicial character to the nature of the power; though that is not necessarily a conclusive test, for if it were, the existence of a statute would establish its validity; but it is decisive, in that respect, unless it is reasonably certain that the power belongs exclusively to the legislative or executive department;” and the court, on page 84 of the opinion quotes with apparent approval, a statement of Selden, J., in Cooper, In matter of, 22 N. Y. 67, 84, as follows:

“The principle * * * obviously is, that where any power is conferred upon a court of justice, to be exercised by it as a court, in the manner and with the formalities used in its ordinary proceedings, the action of such court is to be regarded as judicial, irrespective of the original nature of the power. The legislature, by conferring any particular power upon a court, virtually declares that it considérs it a power which may be most appropriately exercised under the modes and forms of judicial proceeding. ’ ’

'Were it not for the deference due to the Supreme Court I, speaking only for myself, would not be willing to go to this extreme. The legislature is by no means infallible on questions of law, and its conclusions as to constitutionality are not usually considered final by courts. And I can see no reason for holding that because the power conferred by the legislature is conferred upon, a court, it is thereby ipso facto made a judicial power. Yet such seems to be the rule as laid down by the Supreme Court of this state, with but a hint at a possible exception. We may safely, however, base our judgment on other grounds — those previously suggested.

Metcalf v. State, 49 Ohio St. 586, 588 [31 N. E. Rep. 1076], is not in point, for it' declares the general principle merely that, ‘ ‘ The power to detach territory from a municipal corporation is in its nature legislative, rather than executive or judicial.” But while this is true as a general proposition, it does not preclude the possibility of a question of fact arising as to whether territory should be detached, or whether private rights are involved. It does not preclude the legislature from providing legally and constitutionally for the submission of such questions to the court, nor preclude a legal trial by the court, of such question of fact, or a decree on the facts as found. And even where the rule that the legislature may not delegate its powers is most strongly held, it is subject to numerous exceptions. In Sutherland, Stat. Constr. (2 ed.) Sec. 88, “The true distinction,” says this author, “is between the delegation of power to make the law which- involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. ’ ’

But objection is also made to the statute on the ground that it violates public policy. This objection is not well taken. “Statutes cannot be declared invalid on the ground that they are unwise, unjust, unreasonable or immoral, or because opposed to public policy, or the spirit of the constitution; unless the statute violates some expressed provision of the constitution, it must be held to be valid.” Sutherland, Stat. Constr. Sec. 85; Probasco v. Raine, 50 Ohio St. 378-390 [34 N. E. Rep. 536].

But it is further claimed that this statute under discussion takes away the power of local self-government, existing prior to the adoption of the constitution, and preserved by that constitution, and that for this reason the statute is unconstitutional.

It is difficult to see in what respect the power of local self-government is interfered with by this statute. True, the question as to whether specific territory shall or shall not remain within the corporate limits of the village, is not left to the determination of the inhabitants thereof, but that is not essential to our system of local self-government. Repeatedly in our state and in other states have small villages been absorbed by large cities, without their consent — even against their violent protest. But such acts, when taken in accordance with the forms prescribed by law, have been upheld by the courts. I need only cite the case of State v. Cincinnati, 52 Ohio St. 419 [40 N. E. Rep. 508; 27 L. R. A. 737]. This was apparently a most flagrant violation of local self-government, yet our courts upheld it.

It is now universally held that the people have transferred to the legislature the right to provide the method by which such questions shall be determined, and having so transferred their power, they cannot retain it in themselves.

But it is said that because that power has been entrusted to the legislature, it cannot be delegated by the legislature to the court.

It is admitted in argument that the legislature may delegate to municipal councils, to boards of county commissioners, to township trustees, these powers of local self-government, and in fact, our system of government admittedly requires such delegation. But it is claimed that legislative power cannot .be delegated to courts without violating the principle of local self-government. This is begging the question for, as we have seen, the powers conferred on the courts by this act, if it does confer any power, are not legislative powers but merely judicial. Hence there can be no violation of the principle of local self-government.

As we have seen, the law provides for the commencement of a suit in court,, the filing of the petition, issuing of summons, further proceedings as in other causes, including impliedly the filing of answers, cross petitions and other necessary pleadings, the hearing of testimony by the court; it also provides for a finding of fact by the court, an order or decree by the court in its discretion, which we have found to be a judicial discretion, all of which is in strict accordance with the constitutional powers of the court of common pleas, in which this statute provides that these proceedings shall be prosecuted.

There is no surrender of any power of local self-government to be found in any of these proceedings, and no surrender of any constitutional right. On the contrary, full opportunity is given for a contest and the right to be heard in opposition, is carefully safeguarded.

Hence we find that the law is constitutional, does not confer legislative powers upon the judiciary, and is not an infringement of any power retained by the people.

Holding these views we find no error in the judgment of the common pleas court, in sustaining the demurrer to the answer of the defendant, and the judgment of that court is affirmed.

Norris and Vollrath, JJ., concur.


author: GIFFEN, J.

text:
    ASSESSMENTS — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    February 11, 1905.]
    Jelke, Swing and Giffen, JJ.
    Eliza R. Nulsen et al. v. Cincinnati (City).
    1. Assessment According to Benefits, Dependent upon Depth of Lots anp Relative Value after Improvement Made.
    An assessment for improvements levied on lots on a basis of frontage, without reference to the depth thereof or the relative value of each after the improvement was made, is not an assessment in proportion to the benefits, within the statutory meaning.
    2. Circuit Court will Enjoin Assessment Fraudulently Purporting to be According to Benefits but Actually on Basis of Frontage.
    The collection of an assessment actually made upon a basis of frontage, although the journal of the board of public service contains recitals that such assessment was levied according to benefits, will be enjoined.
    ’ Injunction.
    W. H. Whittaker and C. M. Leslie, for plaintiffs.
    C. J. Hunt, city solicitor, for defendant.
   GIFFEN, J.

The plaintiffs in this action seek to enjoin the collection of certain assessments levied upon the lots bounding and abutting Imperial street, this city. The resolution of the board of public service provided that said assessment is in proportion with the benefits which result to such lots and lands from said improvement and is limited to the special benefit conferred thereby on each lot or parcel of land assessed.

The petition contained the following averment:

“That in making said assessment said board of public service did not regard or attempt to regard the benefits thereof to the respective lots, but solely to apportion the costs and expense of the improvement upon the lots abutting thereon in proportion to their respective frontages upon said improvements. That said assessment while purporting to be according to benefits, is actually an assessment by the front foot, each front foot being assessed at the same rate although not similarly benefited. ’ ’

These allegations are fully sustained by the evidence. It appears upon the face of the proceedings that each foot of ground abutting on the improvement is assessed for the same amount regardless of the depth of the lot, and the evidence considered in connection-with a view of the premises shows that the benefits, if any, conferred were by no means uniform, and that in one case, at least, to wit, lot No. 44, no benefit whatever was conferred.

It is claimed, however that this court cannot inquire into the proceedings of the board for the reason that it kept a journal record of its proceedings which imports absolute verity. But if the board under a pretense of levying an assessment in proportion to the benefits conferred upon the several lots abutting upon the improved street did in fact make no such apportionment, but merely divided the cost of improvement by the number of feet abutting thereon, regardless of the depth of the lots and regardless of the relative value of each after the improvement was made, it would be and was a plain fraud, which could not be protected by any entry which the board may have made in its journal to the contrary. Chamberlain v. Cleveland, 34 Ohio St. 551.

The testimony shows that lot No. 43 was of the value of $300 after the improvement, and lot No. 218 was of the value of $625. The limit of the assessment being 25 per cent of such value, the collection of all over $75 upon lot No. 43, and all over $156.25 on lot No. 218 will be enjoined, as well as the entire assessment on lot No. 44.

The other alleged objections against the assessment are not well taken, and a decree may be entered in accordance with the above finding,

• Jelke and Swing, JJ., concur.