text:
    ACTION FOR. MONEY LOST IN GAMBLING.
    Circuit Court of Cuyahoga County.
    George H. Burrows, Assignee, v. Lura Hussong.
    Decided, June 15, 1906.

      Gambling — Action for Recovery of Money Lost at — Must be Brought Within Six Months of the Loss — Statute not Arrested by Presentation of Claim to Assignee•.

    1. Section 4270, Revised Statutes, providing that a loser may within six months -thereof sue for the recovery of money lost at gaming, is a statute of limitations; and where an interval of more than six months occurs between the- loss of the money and the bringing of suit for recovery thereof, the plaintiff is barred Erom prosecuting the action, notwithstanding the defendant had made an assignment for the benefit of creditors and the plaintiff had presented a claim for the money so lost to the assignee within six months of the loss.
    2. Presentation of a claim to an assignee for allowance under Section 6352, Revised Statutes, does not prevent a statute of limitations I from running where the claim was not allowed.
    Error to Cuyahoga Common Pleas Court.

      Burrows & Mason cited for plaintiff in error:

      Estill v. Fox, 23 Ky. (18 Am. Dee., 213) ; Woodson v. Gordon, 7 Tenn., 196 (14 Am. Dec., 743) ; Ellmore v. Hoffman, 2 Ashm. (Pa.), 159; Commonwealth v. Bennett, 16 Serg. & R. (Pa.), 243; Cooper-v. Roicley, 29 Ohio -St., 547; Hoss v. Layton, 3 Ohio St.. 352.

      H. M. Bull and W. C. Rogers cited for defendant in error:
    14 Enc. Law (2 Ed.), 625; Mecch v. Bioner, 19 N. Y., 26; McDougall v. Walling, 48 Barb.. 364; Collins v. Ragrew, 15 Johns., 5; 8 Enc. Law (2 Ed.), 239, 247; Davis’ Appeal, 39 Conn., 395; Bump, Fraud. Convey. (3 Ed.), 508; Cannon v. Cheney, 8 C. C., 143 (affirming Cheney v. Camion, 35 Bull., 313); Rogers v. Edmund, 21 C. C., 655; 1 Bates’ Pleadings, 444; Rice v. Earnham, 7 N P., 189; Cooper v. Rowley, 29 Ohio St., 547; Perry, Trusts, Sec. 863, 864; Bettman v. Hunt, 12 Bull., 286.
    Winch, J.; Henry, J., and Marvin, J., concur.
   Lura A. Hussong brought her action in the common pleas court to compel George H. Burrows, as assignee for the benefit of the creditors of the firm of Johnson, Walther & Co., to allow her alleged claim against said estate.

In her petition she sets forth that -the partnership was indebted to her for money had and received to her use, won of her at gaming by said partnership and by her paid to them between October 25, 1904, and April 17, 1905, inclusive, whereby an action accrued to her under the statute against gaming.

She further shows that said partnership made an assignment to plaintiff in error on May 27, 1905; she presented her claim to the assignee on June —, 1905; he rejected said claim December 13, 1905, and thereupon she filed said petition on January 11, 1906.

To this petition the defendant filed a general demurrer, which was overruled, judgment entered against him, and the case is here on error.

The character of plaintiff’s claim is to be determined by an examination of the statutes against gaming, referred to in her petition. They are found in the Revised Statutes as Section 4269s to 4276, Revised Statutes, inclusive.

Section 4269 provides that all gaming contracts are void.

Section 4270 provides that if any person, by means of any bet or wager, loses to any other person any sum of money 'and pays the same to the winner, the person who so loses and pays may, at any time within six months next after such loss and payment, sue for and recover the money by civil action.

This is a statute of limitations and we hold that the loser, as such, can. not recover the money lost, -after six months.

The plaintiff below having allowed more -than six months to elapse after she lost the money before she began -her suit, was barred from prosecuting the remedy provided for her under Section 4270, and this is so, notwithstanding she presented her claim to the assignee within six months, as he never allowed said claim.

Section ‘6352, Revised Statutes, regulates the presentation^ of claims to an assignee and their allowance or rejection by him, but it does not specifically provide that any statute of limitations shall be arrested by the mere presentation of a claim to him. Of course, should he approve the claim, the statute would cease to run against it. In this case he never approved the claim, but having considered it for a time, he finally rejected it. The situation is the same as though the claim had been presented to the assignee, but suit not brought until after the six months mentioned in Section 4270. See Wood, Limitations, Section 6, and cases there cited. ■

But it is said that plaintiff is entitled to maintain her action under favor of Section 4273 of the gaming act, which provides that:

“If the person losing such money or thing of value as provided in Section 4270 does not, within the time therein specified, without collusion or deceit, sue, and with effect prosecute, for the money or thing of value so lost and paid or delivered, any person may sue for and recover the same, with costs of suit, against any winner, as aforesaid, for the use of the person prosecuting the same.”

In the case of Cooper v. Rowley, 29 Ohio St., 547, the Supreme Court held that the remedy provided by this seeffon is for a penalty or forfeiture, accrues at the expiration of the six months limited in Section 4270 and is barred in one year thereafter.

“Nor is its character affected by the circumstances that the loser of the money wagered, is the party suing. He is permitted to sue, not from having any legal claim to the fund in virtue of once owning it, but because he is included in the comprehensive class authorized to ma'ntain the action.”

If this right to sue for a penalty dhl not accrue until six months after the money was' lost, it did not come into existence until after the assignee qualified. When it did come into existence it belonged to each citizen and .the plaintiff’s rights were no better than those of every other citizen and the only way she conld segregate her right was to bring her suit, which she finally did. That suit she could maintain against the assignors, for the assignment did not preclude her from suing the firm, but she never had a claim against the assets in the hands of the assignee and we hold that he should not now be compelled to allow it.

The case of Estill v. Fox, 23 Ky., 552 (18 Am. Dec., 213), is interesting in this connection.

Counsel for defendant in error argues that her claim is in the nature of damages for a tort committed before the i assignment with action brought after the assignment, and that therefore it is a claim against the estate, but we view the action as one for the recovery of a fine.

Should a man be guilty of a misdemeanor before his assignment and be arrested, convicted and fined afterward, there would be no debt in favor of the state until the fine was assessed, and in such case no one would urge that the debt related back to the time when the crime was committed. Such is the case also where the fine is recoverable by an informer, as in this case, but is assessed as a penalty.-

This conclusion is not inconsistent with our ruling in Pentz v. Burrows, 8 C. C.—N. S., 349. That case was brought by the loser to recover the money lost within six months; this case was brought for a penalty after the six months.

The demurrer to the petition should have been sustained, and for error in overruling it the judgment is reversed.


source: Caselaw Access Project

license: Public Domain

text:
    ERROR. IN IMPANNELING AND DISCHARGING JURIES.
    Circuit Court of Pike County.
    Guy H. Deiter v. The State of Ohio.
    Decided, May 19, 1909.

      Jurors Grand and Petit — Should he Brawn from the Wheel as Distinct Panels — Plea in-. Abatement — Sections 5165, 5169, 5170, 5171, 5172 and 5176 — Discretion in the Discharge of Jurors.

    Assuming to act under Section 5165 of the Revised Statutes, the common pleas judge ordered thirty-five names to be drawn from the jury wheel to act as grand or petit jurors, without designation whether they should be grand or petit, or what number should constitute either, in his direction to the clerk. Thirty-four having appeared at the first day of the term the judge selected fifteen of said persons and directed the clerk .to call them as grand jurors. This left the remaining nineteen as the regular petit panel. Later at the term the judge discharged the entire regular petit panel because it or they were “so interested in causes coming on further to be heard in this court, so as to disqualify them from sitting thereon,” and ordered the new jury drawn to appear on the day the accused was tried. Held:

    •1. A court or judge, under Section 5165, Revised Statutes, has no authority to so exercise his personal selection of the entire grand jury panel in the manner stated. The order to the clerk should stipulate the number of each panel to be 'drawn; and the clerk should draw from the wheel the grand and petit juries as distinct panels.
    2. A court has no authority to discharge the entire panel of the petit jury for the cause above stated; and it is an abuse of discretion so to do.
    3. The irregularity in the selection of the grand jury, thus pursued, can not be attacked by plea in abatement.

      S. L. Patterson and C. H. Henkel, for plaintiff in error.

      James A. Douglass, Prosecuting Attorney, contra.
    Guy H. Deiter was indicted for grand larceny. He excepted to the indictment by filing a verified plea in abatement which, among .other facts, set forth that one of the judges of the Common Pleas Court of Pike County directed the clerk of said court to draw from the jury wheel in the presence of the sheriff, thirty-five names of persons to serve as grand and petit jurors for the November term, 1908, of the court in said county, and to appear at 9 o’clock a. m., on November 16th, 1908, that being the first day of the term. On November 5th, 1908, the deputy clerk drew thirty-five names from the wheel as directed and issued a venire facias to the sheriff commanding him to serve said persons to attend said court as jurors, either grand or petit, at the time named. On the 7th of November the sheriff served all of the persons personally, except one who was out of the county. On November 16th, 1908, the thirty-four persons so summoned as jurors appeared in court, “and the judge of said court directed the clerk of said court to call certain persons of said venire selected by said judge of said court as grand jurors for said term and court. Thereupon the fifteen persons so selected ivere impanneled and sworn.” The plea then alleges that the fifteen persons so selected after hearing a part of the evidence, considered the evidence and indicted the defendant, but before returning the indictment into court one of the members was excused for sickness .and another substituted to fill the panel; that the substituted member did not hear all of the evidence submitted to the others, and that a part of the evidence was not re-submitted before the return of the indictment.
    A demurrer was interposed to this plea by the state, on the ground that the plea did not state facts sufficient, etc. The demurrer was sustained and the plea overruled.
    The additional errors claimed are predicated upon the motion and challenge to the array of the petit jury, and upon oral motions, made in open court prior to its impanneling, which appear in the bill of exceptions. It appears from the record that .the regular petit jury impanneled for the term was discharged by the court for the reason as alleged in the entry, “that the present petit jury is so interested in causes coming on further to be heard in this court, so as to disqualify them from sitting thereon, it is ordered that said jury and the several jurors thereof, be, and they are hereby discharged from further service in this court.” It further appears that the court ordered that “the petit jury heretofore selected by the court” having been duly discharged, the clerk draw new names from the wheel to serve as a new petit jury for the term and cause them to be summoned to appear at court on December 30th, 1908, the time when defendant ’s case came on for trial.
    Other motions were made to the court; a demand for the regular jury originally selected was made and overruled. A motion to set aside and challenging the array was made, based upon the action of the court in discharging the regular jury for the cause stated, and in impanneling the new petit jury. These motions were also overruled. A trial followed resulting in conviction.
    Jones J.; Cherrington, J., and Walters, J., concur.
   The record might have stated the crucial facts in this case a little more succinctly. As admitted by counsel on both sides, the facts briefly stated are as follows:

The judge ordered thirty-five names to be drawn from the jury wheel to act as grand or petit jurors, without designation whether they should be grand or petit, or what number should constitute either, in his direction to the clerk. Thirty-four having appeared at the first day of the term, he selected fifteen of the said persons, and directed the clerk to call them as grand jurors. This left the remaining nineteen as the regular petit panel. Later at the term he discharged the entire regular petit panel because it or they were “so interested in causes” to be heard, and ordered a new jury drawn to appear on the day the accused was tried.

Plaintiff in error claims a number of errors were committed, but, with the exception of two, we consider them irregularities merely, and not substantial errors. The vital questions in this ease, as we view them, relate to the method employed an the impanneling of the grand and petit juries. Broadly speaking, we recognize the well known legal principle that irregularities in the impanneling of juries, which do not affect the substantial rights of the .accused, will not be considered on review; that the anethod of their selection concerns the public rather than the parties. But it does not follow that the power of the court or judge transcends the law relating to their selection., The method employed in the ease at bar, if adopted in practice, would sap at the foundations of our jury system. It is autocratic in that it would invest the trial judge with almost unlimited power in the construction of petit and grand juries. It is not denied but that the state may confer such power .as it pleases in the method of selection, having regard only to the constitutional guarantee of .a trial by an impartial jury. The method employed affects not only the accused who was on trial, but the .entire body politic. And we can not more aptly state our views in that regard than by adopting the language of the learned judge, in State v. Barlow, 70 O. S., 379, wherein he says:

‘ ‘ The right of everyone accused of crime to a fair trial should be secured to him, and this court, as in the past, will insist upon this, but we do not incline to search for unsubstantial errors, or to give undue effect to them when discovered by others. ’ ’
1. In our judgment Section 5165 requires the court or judge, in his .order to the clerk, to cause any number of persons to be summoned as grand or petit jurors, to specify in his order the number of grand and petit jurors, respectively, that is to be drawn from the wheel. The requirement of the section, “to be summoned to serve as grand or petit jurors,” taken in connection with the cognate sections immediately following, must be construed to mean that the direction should be, to cause them to be summoned to serve as grand jurors, or to be summoned as petit jurors as the case may be. The section further provides that grand and petit juries shall be impanneled from persons “so selected and summoned as aforesaid.”

Sections 5169, 5170 and 5171 recognize the fact of separate bodies as drawn from the wheel. By the first the summons is issued for the person drawn as grand or petit juror “as the case may he”; the second by its provision that “if any person selected as grand or petit juror, as' aforesaid, be not summoned” equally recognizes the distinction between the two bodies. Section 5171 provides, if there be a deficiency in the grand jury, that the court may issue a venire for talesman to supply the deficiency. '

The statute does not even impliedly authorize the court .arbitrarily to select these two juries any more than it does the clerk. The care by which the Legislature has attempted to safeguard the wheel and its contents, and by providing the uniformity of pieces of paper upon which the names are written .and their thorough admixture before drawing, indicates that, to the wheel and not to the court or judge, is confined the impartiality of selection of the grand and petit juries. The order directed to the clerk should state the number of each desired to be selected, or a separate writ might issue for each panel; and the clerk should draw each panel as a distinct panel. So far as we know, this is the universal custom employed by the common pleas judges in this circuit. And while this fact does not determine its validity, it serves to show the construction these judges give the law.

2. Much of what has been said of the method employed in the selection of the grand jury would apply to the selection of the petit jury, if those facts were fully incorporated in the bill in support 'of the challenge to the array of the petit jury. The action, of the court in selecting certain persons from the whole list to serve as a grand jury, was tantamount to the selection of the regular petit jury. The remaining nineteen persons necessarily became the regular petit jury.

However, there is further reason why the challenge to the array should have been sustained. Section 7276, Revised Statutes, provides that the jury, summoned and impanneled according to the provisions of law relating to the summoning and impanneling of juries in other eases, shall try the accused. The court, two days before the trial of the accused, discharged the entire regular panel, for the ostensible reason as shown by its journal, that it was so interested in causes coming on further to be heard as to disqualify them from sitting thereon. The action of the court in this regard is sought to be upheld by Section 5172, which provides that if, “from any cause,” it becomes necessary to have a new petit jury or members to filll up the regular panel, the court may order the names of the number of jurors required for the new petit jury, etc. The cause mentioned in that section not only includes one of the causes of excuse granted by such Sections as 5179 and 5180, but would no doubt include any other personal cause .addressed to the wise discretion of the court. It does not include the interest of the juror or panel in pending criminal causes coming on to be heard, for the reason that such are especially provided for by other sections of the code, in the examinations of the juror on voir dire.

Section 7279 provides that challenges for cause shall be tried by the court, on the oath of the person challenged, or on other evidence. Challenge pertaining to interest or partiality of the juror is made and disposed of by Section 7278. We are not disposed to deny a wide discretion in the court in the discharge of jurors, but to discharge the entire regular jury, consisting presumably of nineteen persons, and prejudging their qualifications to sit as shown by the journal entry, appears to us as an abuse of discretion. If the first panel could be thus discharged, the succeeding one could also be, ,and thus ad libitum until a satisfactory jury could be obtained.

This would furnish opportunity for dictatorial conduct, if the practice were indulged in. It would be entirely feasible, following the methods employed, to construct a grand jury of the same political complexion, or committed wholly to a “wet” or “dry” sentiment; and if the culling of the original list of jurors left a petit jury unsatisfactory to the court because of political or other bias, the residuum could be discharged and a new jury obtained. The Legislature has wisely provided a non-partizan commission for the selection of “judicious and discreet persons having the qualifications of electors, ’ ’ whose names are placed in the wheel for jury duty, and we do not think it wise, in the construction of these jury statutes, to uphold a construction that would furnish opportunity to nullify, in a measure, the intendment of the Legislature and the action of the jury commissioners.

Had the journal entry merely recited that the jury was excused, without assigning'the cause for their general disqualifications, it would be presumed that there were proper reasons for their discharge and that discretion had not been abused. In the eases cited to us bearing upon this question, in none of them appears such drastic action in discharging the jury as disclosed here.

3. The other question presented is, whether the method employed in the selection of the grand jury can be presented by a plea in abatement. Section 5175 provides that when the grand or petit jury has not been drawn or summoned as prescribed by law, that the objection may be made by challenge to the array. Inasmuch as the plea in abatement did not question the legal qualifications of any of the individual members of the grand jury irregularly selected, we are constrained by judicial authority in this state to hold that the irregularities should have been attacked by challenge and not by plea in abatement. Huling v. State, 17 O. S., 583; Lindsay v. State, 24 C. C., 1; Blair v. State, 5 C. C., 496; State v. Easter, 30 O. S., 542 and 549.

The court below erred in its discharge of the regular petit jury for the cause stated, and should have sustained the challenge to .the array. The judgment of conviction will be reversed, with costs, and cause remanded to the court of common pleas for a new trial.


text:
    PROVISION FOR. THE'APPOINTMENT OF LEGAL COUNSEL UNCONSTITUTIONAL.
    Circuit Court of Cuyahoga County.
    The State of Ohio, ex rel John A. Cline, County Prosecutor, v. John L. Cannon et al.
    Decided, January Term, 1909.

      Constitutional Law — Legal Counsel — Duties of, are those of Public Officers — Provision for Appointment of, by County Commissioners, Void — Quo Warranto to Oust Counsel so Illegally Appointed — Sections 799, 845, 1277, 1278a, and 3977.
    In so far as Section 845 attempts to authorizé the appointment of legal counsel by county commissioners, it contravenes the provision of Section 2 of Article X of the Constitution of the state of Ohio, that all county officers shall be elected by the electors of their respective counties.

      Walter D. Meals, for relator.

      Frederick L. Taft, Homer H. McKeehan and G. M. Dahl, contra.
    Marvin, J.; Henry, J., and Winch, J., concur.
   The relator by his petition seeks to oust the defendant, John L. Cannon, from the position of legal counsel, and each oE the other two defendants from the position of assistant legal counsel for the county of Cuyahoga, state of Ohio.

The facts briefly are, that the defendants, and each of them, claim to hold the positions named by virtue of a contract entered into between them severally and the board of commissioners of Cuyahoga county on the 15th day of August, 1908. On that day there was filed with said board of commissioners a writing signed by the then prosecuting attorney of the county, which reads:

“Cleveland, Ohio, August 15th, 1908.
“To the Board of County Commissioners:
“You are hereby requested, to employ legal counsel and the necessary assistants, upon such terms as you may deem for the best interests of the county, pursuant to the provisions of Section 845 of the Revised Statutes of Ohio.
“(Signed) S. V. McMahon,
" Prosecuting Attorney. "

After the filing of such writing the board adopted a resolution, which reads in part:

“Now, Therefore, Be it Resolved, That this board employ Jno. L. Cannon as such legal counsel, at an annual compensation of $3,000, and that it further employ Frank S. Day, as assistant legal counsel at an annual compensation of $2,000, and that it further employ G. L. Warson as assistant legal counsel, at and for the compensation hereinafter fixed.
‘ ‘ The terms of employment herein made shall be for the term of three (3) years, beginning on the 15th day of August, 1908, and fully to be completed and ended on the 14th day of August, 1911.
" Said legal counsel, Jno. L. Cannon, or assistant legal counsel, Frank S. Day, shall be required to be present at all meetings of this board.
“This board shall provide offices for such legal counsel and his assistants, together with stenographer, telephone service and all necessary law books and stationery and supplies for the proper management and conduct of said office. • .
“Except-as to the compensation of assistant legal counsel, G. L. Warson, the compensation of said legal counsel, his assistants and stenographer, together with office rent and the necessary expenses of said legal counsel^ Jno. L. Cannon, and assistant legal counsel, Frank S. Day, incurred in performing the duties of said employment, shall be paid semi-monthly out of the county treasury upon the allowance of the board.”

It is further provided in said resolution,, as follows:

“In consideration of the compensation and other considerations herein expressed, such legal counsel and his assistants shall render the services now required by Section 845 of the Revised Statutes of Ohio, as amended at the second regular session of the 77th General Assembly of the state of Ohio (98 O. L., page 338), with the exception that the services required by Sections 799, 1277, 1278a and 3977 of the Revised Statutes of Ohio,, shall be rendered by said legal counsel and his assistants without reference to, and exclusive of such compensation and other considerations herein provided, and should said legal counsel and his assistants for any reason not be required or bound to perform the duties and services performed by the prosecuting attorneys under Sections 799, 1277, 1278a and 3977 of the Revised Statutes of Ohio, such condition shall be held not to affect the terms of this employment.”

It will be noticed that the action of the commissioners is based upon Section 845 of the Revised Statutes of Ohio, and on the part of the relator it is contended that in so far as said statute undertakes to authorize the appointment by the commissioners of legal counsel, it is in contravention of Section 2, Article X of the Constitution of Ohio, which provides that all county officers shall be elected by the electors of each county.

If the positions which the several defendants occupy and the duties required of them are such as to constitute them officers, it is clear that the statute authorizing their appointment by the board of county commissioners is in contravention of this constitutional provision. The language of so much of the section as is applicable to the present case, reads as follows:

“Whenever, upon the written request of the prosecuting attorney, the board of county commissioners of any county deem it advisable, it may employ legal counsel and the necessary assistants upon such terms as it may deem for the best interests of the county, for the performance of the duties herein enumerated. Such counsel shall be the legal adviser of the board of county commissioners, and of all other county officers,. of the annual county board of equalization, the decennial county board of revision, and the board of review; and any of said boards and officers may require of him written opinions, or instructions in any matters connected with their official duties. He shall prose-cute and defend all suits and actions, which any of the boards above named may direct, or to which it or any of said officers may be a party, and shall also perform such duties and services as are now required to be performed by prosecuting attorneys under Sections 799, 1274, 1277, 1278a and 3977 of the Revised Statutes, and as may at any time be required by said board of county commissioners.
“Said board of county commissioners shall fix the compensation of all the persons appointed or employed under the provisions of this act, which compensation together with their reasonable expenses shall be paid out of the county treasury upon the allowance of said board.
“None of the provisions of Section 28346 of the Revised Statutes shall apply to the appointment or employment herein authorized to-be made.”

It will be seen by the provisions of the above statute that the legal counsel named shall “prosecute and defend all suits and actions, which any of the boards above named may direct” (that is, board of county commissioners, board of equalization, decennial county board of revision and the board of review), or “to which it or any of said officers may be a party, and shall also perform such duties and services as are now required to be performed by prosecuting attorneys under Sections 799, 1274, 1277, 1278a, and 3977 of the Revised Statutes.”

By Section 799, .it is provided that the prosecuting attorney shall, upon examination, determine and certify that contracts therein named are in accordance with the law.

By Section 1274, it is provided that the prosecuting attorney shall be the legal .adviser of the county commissioners and all other county officers.

By Section 1277, it is provided that the prosecuting attorney may, under circumstances named in the section, apply by civil' action, in the name of the state, to a court of competent jurisdiction to restrain the misapplication of funds, the completion of illegal contracts, and to recover back for the county money illegally paid out, etc.

By Section 3977, it is provided that the prosecuting attorney shall prosecute all actions which may be brought, under title 3 of the statutes, against any member or officer of school boards and shall act in his official capacity as the legal counsel of such boards in all civil actions brought by or.against them in their corporate or official capacity.

That most of these duties, -if not all of them, are official duties, duties which can only be performed by a public officer, would seem to be beyond question, under any definition of what constitutes an officer with which we are acquainted.

The first section of Mecham’s Public Offices and Officers defines a public office and a public officer in these words:

“A public office is the right, authority and duty, created, and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.”

The second section is- headed, ‘ ‘ How Office Differs From Employment,” and quotes the following 'from the Supreme Court of Maine:

' “We apprehend that the term ‘office,’ implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office; and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office. The power thus delegated and possessed may be a portion belonging sometimes to one of the three great departments and sometimes, to another; still it is a legal power which may be rightfully exercised, and in its effects it will bind the rights of others, and be subject to revision and correction only according to the standing laws of the state. An employment merely has none of these distinguished features. A public agent acts only on behalf of his principal, the' public, whose sanction is generally considered as necessary to give the acts performed the authority and power of a public act or law. And if the act be such as not to require such subsequent sanction, still it is only a species of service performed under the public authority and for the public good, but not in the exercise of any standing laws which are considered as rules of action and guardians of rights. ’ ’

Without stopping to quote further definitions we believe that none can be found that would not bring many of the duties to be performed by the legal counsel, as expressed in this statute, within the definition of an office, and therefore the party performing these duties within the definition of an officer. If this be correct, it follows, since quo ivarranto is the proper proceeding for removing one from office, that the judgment of ouster should be entered against these defendants.

It is urged on behalf of the defendant; Warson, that even though judgment should be entered-against Ca/mon and Day, still that it ought not to be entered against him, and this because of the provisions in the resolution of the commissioners that Warson is to perform other duties than those' provided for Cannon and Day, and because his compensation is to be fixed upon a certain percentage basis of taxes which may be collected by him, or through his efforts. But a complete answer to this is that by the resolution itself he is employed under the same statute, and is to perform all of the duties that each of the others is to perform, and in addition thereto is to perform certain duties in reference to the collection of delinquent taxes. He then having the same title as the others have and being required to perform the same duties, as well as certain other duties, if the appointment of Cannon and Day was not warranted because of the unconstitutionality of the statute under which they were appointed, the appointment of Warson is equally unwarranted, and we reach the conclusion, therefore, that each of the three defendants should be and is ousted — Cannon from the position of legal counsel, and Day and Warson from the position of assistant legal counsel.


text:
    REGULATION OF PLACES WHERE SOFT DRINKS ARE SOLD.
    Circuit Court of Jackson County.
    Charles H. Sullivan v. The City of Wellston.
    Decided, May 26, 1909.

      Municipal Corporations — Can not Regulate the Sale of Soft Drinks by Ordinance — Police Power — Inviolability of Private Property —Illumination of Drinking Places — Screens and Blinds — ■Sections 1586-100 and J,86JrZ0.

    Municipal corporations have no power to impose restrictions upon or to regulate places where soft or non-intoxicating drinks only are sold. The state has not delegated such power.. Whether the state can do so, Quaere.

      T. S. Hogan, for plaintiff in error.

      C. C. McCormick, City Solicitor, contra.
    This cause originated in the mayor’s court of the city of Wellston. Sullivan was charged with the violation of a penal ordinance. He first filed a motion to dismiss the prosecution. This motion was, in 'effect, a demurrer to the affidavit. The motion having been overruled, he interposed a demurrer challenging the sufficiency of the affidavit. The demurrer being also overruled, upon a hearing consisting of an agreed statement of facts, the defendant was found guilty. The common pleas, court affirmed this judgment, and a reversal is asked in this court.
    Prom the bill of exceptions taken before the mayor, it appears that the city had passed an ordinance making it “unlawful for any person or persons keeping a place where malt liquors or other soft drinks are sold, to permit or allow any screen, blind, shutter, stained glass or other substance or .device in the front of said room or place which prevents a full view of the interior of such room or place where such malt liquors or soft drinks are sold or furnished.” The ordinance further provided that such rooms or places should be illuminated at night time and provided a penalty for its violation.
    The affidavit charged the defendant with “being the keeper of a place where malt liquors and other soft drinks, to-wit, ginger ale, cider, pop and a beverage commonly known as temperance beer were sold,” and with unlawfully permitting cloth blinds to remain on the front windows and allowing a screen to remain, which blinds and screen prevented a full view of the 'interior.
    By the agreed statement it appears that defendant was the “keeper of a place where soft drinks were sold; that such drinks were ginger ale, sweet cider, pop and the beverage commonly known as temperance beer;” and that he permitted cloth blinds to remain .on the front windows and a screen in front, which blinds and screen prevented a full view of -the interior, and that these blinds and screen were in the.same situation and condition as they had been for two or three years past.
    Jones, J.; Cherrington, J., and Walters, J., coneur.
   The sufficiency of the affidavit and validity o.f -the ordinance are both challenged by the record. Plaintiff in error claims that the state has no power to regulate or restrict the use of property where purely soft drinks are sold, and if the state has such power, it has not delegated it to municipalities.

The inviolability of private property and its use has been guaranteed the private individual by the organic law of state and nation. This guarantee, however, is subject to the limitation that the state has the right to impose certain burdens upon the property and such restrictions upon its use as may be necessary to conserve the public health, morals, safety or public welfare. In the reasonable exercise of this police power, the individual right must give way to the common weal.

Passing for the moment the contention that the state'has no right, in the exercise of its police power, to regulate or restrict the use of • establishments where soft drinks are sold, we are confronted with the second claim that if it has, it has never delegated this power to municipal corporations; and that therefore any penal ordinance attempting to exercise this power of regulation is null and void.

The scope of power of municipal councils, in this respect, has been definitely and clearly fixed in this state by judicial authority. -They are held to possess such powers only as are expressly granted by statute and such as may be implied as essential to carry into effect those which are expressly granted. Doubtful claims to power are resolved against corporations. Ravenna v. Penn. Co., 45 O. S., 118.

The case at bar is not one where implied authority, under the rule, can apply; for it does not present a case where implied' authority is invoked to carry into effect some other power which has been expressly granted. To sustain the ordinance we must seek an express grant by the state, empowering the municipality to enact it. We have been unable to find where the state has expressly, or even impliedly delegated this power.

Some claim was made by the solicitor, but not very insistently, that Subdivision 5 of Section 1536-100, Revised Statutes, or Section 4364-20, Revised Statutes, might furnish the grant in question. But those sections, in clear terms, affect only the sale of intoxicating liquors and places where such are kept and sold. The statute was passed when such sale was not unlawful, as now in this and other counties of this state, and was designed for the regulation of the liquor traffic. They were not designed, when enacted, nor can they now be construed as a grant to regulate places where soft drinks or non-intoxicants are sold. Neither does the city ordinance in question seek to regulate places where such intoxicating liquors are kept or sold within the purview of those sections; nor does the affidavit charge the defendant with keeping a place where intoxicants are kept or sold.

The most insistent contention of the city solicitor, however, is that such delegation of express power may be found in Subdivisions 1 and 6 of Section 1536-100. Subdivision 1 provides that council may pass an ordinance “to preserve the peace and good order.” It is difficult to conceive how the requirements of the ordinance would conserve the peace and good order of the city. This provision of the statute means simply what is says, and falls within the same general character of powers otherwise defined in that subdivision. There is even less force in this contention, than in the case of Whitcomb v. City of Springfield, 3 C. C., 244, where it was attempted -to prevent the sounding of an Octave whistle under the express powers granted to the city, “to prevent noise,” or to “preserve the peace and good order,” or to abate a nuisance. What the learned judge says in that case as to statutory construction can well apply here. Furthermore the language of Judge Spear, in the case of Ravenna v. Penn. Co., supra, as to the indirect method in the enforcement of the alleged power granted will also apply.

Neither does the power of regulation given by Subdivision 6 of the section (1536-100) authorize the enactment.of the ordinance. That authorizes councils “to regulate taverns and other houses of public entertainment.” The use of these two terms in the same connection and in the same subdivision indicates that they are both of the same generic character. A tavern has been judicially defined to be a house licensed to sell liquors in small quantities. In re Schneider, 11 Oregon, 288.

A tavern is a “house licensed to sell liquors to be drunk on the spot. In some of the United States, tavern is synonomous with inn or hotel and denotes a house for the entertainment of travelers, as well as for the sale of liquors licensed for that purpose.” Rafferty v. Ins. Co., 18 N. J. L., 484.

The city ordinance applies to any “place” where soft drinks are sold, and does not attempt the regulation of either “house” or tavern.

The state has no inherent power to impose restrictions upon a business innocent in itself and lawful per se. If the private business, however, is affected with a public interest and' if its use were conducted harmfully or would likely threaten harm to public morals, the police power of the state may then be in-yoked for the public good. The discretion of the state in its proper exercise will not be disturbed by the courts, unless the limitations imposed on the occupation are clearly 'unreasonable, arbitrary, evasive, or imposed under the guise of regulating a lawful occupation. It then remains for the state, in the imposition of burdens upon an occupation lawful and innocent per se, to frame a law sufficiently explicit to advise the individual of the nature of the restriction imposed on his calling, and so the courts may judge of its reasonableness.

Whether the state can require blinds and screens to be placed upon any place selling soft drinks as required by the ordinance in question, we are not called upon and we do not decide. It is enough that no such delegation of power has been granted to the city.

The claim for the validity of the ordinance rests upon the assumption that intoxicants may be sold in connection with soft drinks. Thus fastening a suspicion of future conduct upon the places in question, the ordinance proceeds to regulate the business by requiring blinds and screens to be removed and the place to be illuminated at night. As I have said, if this power is lodged anywhere, it is in the state. Under'the broad terms of the ordinance, eating houses, lunch rooms, drug stores or any place where soft drinks are sold would .all come under the ban of the ordinance.

A technical question .arises on the record, whether the ordinance has been properly incorporated in the bill. Inasmuch as the city solicitor makes no complaint of that feature but waives it, and desires an adjudication on the merits, we do not consider it.

The judgments of the common pleas and mayor’s courts are reversed with costs, and the cause is remanded to the mayor’s court with instructions to dismiss the prosecution at the costs of the defendant in error.


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    TRAFFIC IN NON-INTOXICANTS NOT SUBJECT TO DOW LAW TAX.
    Circuit Court of Guernsey County.
    John Murray v. J. A. Lafollette, Treasurer.
    Decided, April Term, 1909.

      Taxation — Sale of Non-Intoxicating Liquor — Not Subject to the $1,000 Doxo Law Tax — Meaning of the Word “Other” — Section 1/864-9.

    1. There are two definitions of the word "other.” One applies to and includes articles which are specifically named; the other has application to articles of the same kind as those generally described.
    2. Traffic in non-intoxicating liquor is not subject to the Dow tax.
    Laubie, J.; Cook, J., and Metcalfe, J., concur.
   The action below was brought by the county treasurer to recover the tax imposed upon parties engaged in the business of trafficking in intoxicating liquors, claiming that Murray, defendant below and plaintiff here, was engaged in such business and therefore liable for this tax, and the court below so held.

There is an agreed statement of facts which, with the pleadings, constitute the record; and in the agreed statement of facts it is declared that the traffic iu which this man was engaged was not in intoxicating liquors. He was selling Friedon malt beer, which it is agreed by the parties was not intoxicating. The claim of the defendant below, plaintiff in error, is that no tax under the statute could be levied upon the traffic in non-intoxicating liquor, and that is the question presented to us; and its settlement depends upon the construction to be given to the statute.

That statute is in the 98th volume of annual laws of the state, commencing upon page 99. It is an amendment of Section 1 of the Dow act “providing against the evils-resulting from the traffic in intoxicating liquors,” as amended February 20, 1898, which it changed in two respects in reference to the matter in question and reads as follows:

“Upon the business of trafficking in spirituous, vinous, malt or other intoxicating liquors, there shall be assessed yearly and shall be paid into the county treasury, as hereinafter provided, by every -personj corporation or co-partnership engaged therein, and for each place where such business is carried on by or for such persons, corporations, or co-partnership, the sum of one thousand dollars. ”

One amendment is in regard to the amount of the tax, which is increased, and the other is in reference to the liquors trafficked in. Both of the former sections described them as “spirituous, vinous, malt, or any intoxicating liquors,” with a comma after the words “spiritous, vinous, malt,” while in the present act they are described as “spirituous, vinous, malt or other intoxicating liquors,” with no comma after the word “malt,” so that the Legislature, in thus altering the statute, must have intended to limit the tax to the traffic in intoxicating liquors only.

The Supreme Court (68 O. S., 635, 644) in construing Section 1, as amended February 20, 1896, did hold that malt liquor was of two kinds, intoxicating and non-intoxicating, and that the words in such section, to-wit, ‘ ‘ malt, or any intoxicating liquors, ’ ’ were so broad as to include both- — -that the generic term “malt liquors” included both. Since that decision was made and published this amendment was made changing the wording and punctuation of the statute, and it is fair to assume that the Legislature thereby intended to change and limit the kind of liquor trafficked in, when it increased the tax so heavily in an effort to abolish the evils resulting from the traffic in intoxicating liquors. Undoubtedly-it did mean a change so far as the amount of the tax is concerned, because it increased it, and the question now is whether or not the Legislature intended to change the law in the other respect, in view of the ruling of the Supreme Court upon the original act, by changing the words “malt, or any intoxicating liquors” to “malt or oilier intoxicating liquors.”

The wordv ‘ other ’ ’ has, and is entitled--to and receives a double meaning in phrases of this character. It will, .for example, include all other articles of the kind named, not theretofore specified, as where a number of intoxicating liquors are specifically named followed by the words “or other intoxicating liquors.” Again, the 'use of the word in the phrase “spirituous, vinous, malt or other intoxicating liquors” illustrates the other use of the word ‘ ‘ other. ’7 Where it is thus connected and coupled with mere adjectives, then it means that all the articles thus previously referred to, but not specifically named,'are of the character generally described, to-wit, intoxicating liquors.

Section 16 of Article II of the Constitution provides that all acts of a general nature shall have but one subject, and that such subject shall be expressed in the title of the act. “The titles are parts of the statutes, and are to be considered in arriving at the intent of the Legislature" (57 O.. S., 94). If therefore, there were any doubt upon -the question here, whether or not the word “malt" as here used means both characters of liquors, intoxicating and non-intoxicating, then the court would look to the title itself in order to enable it to find and ascertain wha.t meaning the Legislature intended by such word; and here, if there be any doubt about it, the title of this act removes all such doubt.

It is entitled “An act providing against the evils resulting from the traffic in intoxicating liquors,” and the act itself refers solely to intoxicating liquors, which would seem to indicate pretty clearly that the Legislature intended to impose the tax solely upon traffic in intoxicating liquors. The'subject-matter of this, the Dow act, as expressed in the body of the act as well as in the title, is intoxicating liquors, with the expressed purpose and design of abolishing “the evils resulting from the traffic in intoxicating liquors;” and how can any one conceive, from the use of such language, defining expressly the subject and purpose of the act, that the Legislature intended to, or did, impose the « tax upon the traffic in «o «-intoxicating liquors, as well as intoxicating liquors.

But the words of the section in question, “upon the business of trafficking in spirituous, vinous, malt or other intoxicating liquors,” need no such help in their construction. There is a comma after “spirituous” and after “vinous” but none after “malt.” It is connected directly and coupled with the words “or other intoxicating liquors.”

Where in a statute of this character an article is particularly specified and named, to which is attached a well understood meaning, there might be a different .construction put upon it, and there has been in such a case by the Supreme Court of this state. But here “spirituous, vinous, malt,” what are they? Spirituous what? Yinous what? Malt what? We know not until we reach that which they define, the subject-matter of the act, “intoxicating liquors,” the traffic in which is 'to be taxed. Then we know that the articles are spirituous intoxicating liquor, vinous intoxicating liquor, malt intoxicating liquor! “Spirituous,” “vinous,” “malt” are adjectives as thus used, and do .not define any article standing alone. Malt is a grain, commonly known as barley. Would any one contend the Legislature intended to tax trafficking in barley? As here used it is a mere adjective, and it was not intended to name a certain article, trafficking in which was to be taxed.

In the 9th Ohio, page 11, Cincinnati, Lebanon & Springfield Turnpike Co. v. Neil et al, where the question was as to toll, this part of the provision was before the court for construction: “for every coach, chariot or other four-wheeled pleasure carriage”; and it was claimed that a stage coach was not a “pleasure carriage” and that the act included only pleasure carriages. Now the word “coach” is a noun'and was thus used as such, and specified a definite article. The court says in this connection:

“It is contended the word ‘other’ in the clause of the act describing these vehicles, refers to coach as well as chariot, and the substantive ‘chariot’ used in the'sentence adjectively, qualifies ‘coach,’ and carries with it the signification of ‘pleasure coach.’ We do not so understand it. ‘Coach’ forms a distinct member of the sentence; ‘chariot’ then intervenes; and this, Johnson defines a ‘half coach with four wheels, used for convenience and pleasure.’ Then follow the words other four wheeled pleasure carriage and ‘chariot’ and ‘carriage’ are coupled directly by the disjunctive or, intended to comprehend all pleasure carriages, other than chariots, but having no relation to coaches. We would not oppose the mere grammatical construction of a sentence, to the obvious meaning of the Legislature; but both concur here. A mail coach and a stage coach, are nevertheless coaches. A coach is the description in the act. The defendants’ coaches are run on the road with the mail and with passengers and must pay the toll assessed upon coaches.”

So that the term “coach” was held to be a distiet member of the sentence, and not used adjeetively, and of itself defined a certain hind of vehicle. Do the words spirituous, vinous, or malt, as here used, define a specific article ? And here malt and the words “other intoxicating liquors” are coupled directly together by the disjunctive word “or,” intending to comprehend all intoxicating liquors other than those made from malí, and thus includes only such liquors made from malt as are intoxicating.

Neither spirituous, vinous nor malt, standing alone defines any special article, and it can not be told what article is meant by the Legislature until the words “intoxicating liquors” are reached.

In Myers v. Seaberger, 45 O. S., in the opinion, commencing upon page 235, the court says:

“The rule as above stated is qualified as to ‘money' by Section 2734, Rev. Stats. By this section- every person of full age and sound mind is required to list for taxation ‘ all moneys, invested, loaned or otherwise controlled by him, as agent or attorney, or on account of any other person or persons. ’ The agent of the defendant had no power to loan or invest money for her in this state. His duties were confined to the collection of that which had been loaned and transmitting it to his principal as fast as it was collected. The phrase ‘or otherwise controlled my him’ must be construed to mean, in a manner similar to the loaning and investing of money; for it is a settled rule of construction that, in accordance with the maxim noscitur a sociis, the meaning of a word may be aseertaind by reference to the meaning of words associated with it; and again, according to a similar rule, the coupling of words together shows that they -are to be understood in the same sense.”

Both of these maxims — noscitur a sociis, and ejusdem generis— apply to the ease here.

Here “malt or other intoxicating liquors” are coupled together. Neither “spirituous,” “vinous” nor “malt” is a distinct part of the sentence, but are coupled with, and their meaning can be ascertained only by reference to, the words ‘ ‘ or other intoxicating liquors,” so that, under these rules, where all are associated together, are combined together, they frame but one intent, purpose and meaning, and that is to levy a tax upbn trafficking in ‘intoxicating liquors, as specified in the title.

We can see no good reason why this case should not be reversed, there being no dispute, but it being agreed, as to the facts, that the trafficking in malt by defendant below was not in intoxicating malt, hut in non-intoxicating, and the petition of the plaintiff below will be dismissed at his costs.


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    SALES OF INTOXICANTS IN ROSE LAW TERRITORY IN QUANTITIES OF MORE THAN A GALLON.
    Circuit Court of Tuscarawas County.
    Walter Scheu v. The State of Ohio.
    Decided, May 21, 1909.

      Criminal'Law — Bales of Intoxicating Liquors in Quantities of more than a Gallon — From Manufactories Located in Dry Territory — Exceptions Under the Dow Law and the Rose Law — Manager Liable for Sales by a Clerk Made in His Absence but Under His General Directions.

    1. Inasmuch as the Rose local option law provides its own exceptions, it is not permissible to read into it the exceptions found in the Dow-law as to sales of intoxicating liquor at the manufactory and by the manufacturer in quantities of one gallon or more at any one time; but such sales are prohibited within a county where the N Rose law lias become operative.
    2. Where, in a county which has been' voted “dry” under the Rose law, beer is sold from a brewery in quantities of one gallon or more in conformity with general instructions by the manager, he is liable to prosecution therefor notwithstanding he was absent from the brewery at the time the sale was made.

      A. D. Metz, J. F. Greene and J. D. Bold, for plaintiff in error.

      J. F. Wilkin and D. R. Wilkin, contra.
    Donahue, J. (orally); Taggart, J., and Voori-iees, J., concur.
    The. plaintiff in error brings this proceeding in this court to reverse the judgment -of the common pleas conirt rendered in an action wherein the State of Ohio prosecuted Walter Scheu for the illegal sale of intoxicating liquors. .
   There are two questions made in this record, and the one we shall notice first is the contention that Walter Scheu is not responsible for the .sale of liquor made by Mr. Murphy, one of the clerks. The last question asked Walter Scheu on cross-examination is as follows:

“I want to ask you Mr. Scheu, whether or not this beer sold to George Kuemerly, although made in your .absence, was made in conformity to general instructions given, by you to Mr. Murphy?” Ans. “Yes, sir.”

But-for the last question and answer, there is nothing in the record that would show Mr. Scheu is responsible for this sale. True, the record shows he was -the manager of this brewery, but the policy of the brewery company was determined by' its directors, and up to this time Mr. Scheu had not been connected by the evidence with the sale, but this answer shows that, if this sale is illegal, Mr. Scheu is equally responsible with Mr. Murphy.

The important question, however, and the one in which counsel on both sides are particularly interested, is whether or not this brewing company may sell at its brewefy beer manufactured there, in quantities of a gallon or more, notwithstanding the local option election in this county resulted in a majority against the sale.

This is an important question and one of considerable importance throughout the state.

Looking to the law itself we find no exceptions made in favor of manufacturers or brewing companies any more than any other individual. Yet it is insisted that Section 8 of the Dow law applies, and I take it that counsel’s idea of “quantities of a gallon or more” is suggested by the language of Section 8 of the Dow law, which is as follows:

‘ ‘ Trafficking in intoxicating liquors, as used in this act, means the buying or procuring and selling of intoxicating liquors otherwise than upon prescription issued in good faith by reputable physicians in active practice, or for exclusively known mechanical, pharmaceutical or sacramental purposes, but such phrase does not include the manufacture of intoxicating liquors from the raw material, and the sale thereof at the manufactory, by the manufacturer of the same in quantities of one gallon or more at any one time.”

Now if that obtains in this case, of course this sale was not illegal. And if nothing appeared to the contiary in the Rose local option law itself, we would be disposed to construe all of these sections together giving effect to every act and parts of acts related to the common subject, but the Rose local option law leaves nothing to construe in this respect, but in plain and unequivocal language provides its own exceptions. Section 3 of that act is as follows:

.“The phrase ‘intoxicating liquors’ as used in this act shall be construed to mean any distilled, malt, vinous or any intoxicating liquor whatever. But nothing in this act shall be construed to prevent the selling of intoxicating liquors at retail by a regular druggist for exclusively known medicinal, pharmaceutical, scientific, mechanical or sacramental purposes; and when sold for medicinal purposes it shall be sold ouly in good faith upon a written prescription,'signed and dated in good faith by a reputable physician in active practice, and the prescription used but once. ’ ’

This is a re-enactment of the greater part of Section 8 of the Dow law. If there, could have been any implication whatever that Section 8 of the Dow law was to obtain, then it would be useless to reiterate this language in Section 3. It is clearly the intention of the Legislature to limit the exceptions to those found in Section 3 in the Rose act, and not that the exceptions in the Dow law should apply. That is the language of the law, and it is the duty of the court to interpret the law as it is written without adding to or taking from and without attempting to decide upon the practicability or advisability of it.

In the case of Slingluff v. Weaver, 66 Ohio St., page 621, the Supreme Court say:

“But the intent of the law-makers is to be sought first of all in the language employed, and. if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort .to other means of.interpretation.”

We think this language is as plain and clear as it is possible to write the English language; there is" no possibility of being mistaken about it. The law, as it is written, prevents the sale under any and all other circumstances, except the circumstances named in Section 3 of the act, and any attempt to enlarge these exceptions would be nothing short of judicial legislation.

We are not unmindful of the argument of counsel that such a construction jeopardizes or perhaps even makes worthless, property of enormous value used in the manufacture of this product, but that argument can not affect the correct interpretation of the law, and is proper only for the purpose of calling our attention to the seriousness of the question presented, and that a conclusion that would work such result ought not lightly to be arrived at, but this question is hardly an open one in Ohio. Construing similar legislation, the Supreme Court in the 61st Ohio St., at page 597, say:

“The sale of beer as a beverage, any quantity, whether by the manufacturer or not, is prohibited in a township where the people have availed themselves of the provisions of the local option law.”

Let us change that language by substituting the word “county” for “township.” “The sale of beer as a beverage, in any quantity, whether by the manufacturer or not, is prohibited in a county where the people have availed themselves of the provisions of the local option law. ” It is clear to us that the Supreme Court has passed upon substantially the same statute as the one in question and has held against the contention of the plaintiff in error.

This court is of the opinion that the judgment of the common pleas court must be affirmed. Exceptions will be noted.


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    ACTI6N FOR. THE LOSS OF A TRAVELING BAG.
    Circuit Court of Hamilton County.
    John Ziegler v. Horace M. Freeman.
    Decided, March 23, 1908.

      Gamers — Liability of a Parcel Carrier — For Failure to Deliver Traveling Bay at Baggage Room — Burden of Proof — Charge of Court.

    Tn an action to recover for the loss of a traveling bag from a carrier of parcels for hire, to whom it was entrusted to be delivered at a designated depot in time for a particular train, a prima facie case is made out by the testimony of the plaintiff that he inquired at the baggage room at the proper time and was unable to find his baggage.

      Ben B. Nelson, for plaintiff in error.

      Renner & Renner, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   A carrier of parcels for hire who agrees to deliver a telescope bag at a railroad passenger station in time for the owner to take a particular train and gives a claim cheek therefor is required to affix a duplicate check to the baggage and to deliver the same at the baggage-room or other usual place of deposit of baggage at the depot; and in an action to recover for non-delivery, proof by plaintiff that he inquired at the baggage-room of the persons in charge thereof, and at a proper time for his baggage, and was unable to get it, makes a prima facie case which entitles him to recover, unless met with evidence of equal weight; but the burden of proof does not shift from the plaintiff to the defendant.

The court therefore erred in charging the jury that the burden of proving delivery rested upon defendant. Klunk v. Ry., 74 O. S., 135.

Judgment reversed and cause remanded for a new trial.


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    OWNERS OF THE FEE ONLY HAVE A VOICE AS TO THE CHARACTER. OF STREET IMPROVEMENTS.
    Circuit Court of Cuyahoga County.
    The Forrester Plaster Co. v. The City of Cleveland et al.
    Decided, May 24, 1909.

      Streets — Injunction Against the Improvement of — Will not Lie on the Petition of a Lessee for Years or a Mortgagee — Assessments—Notice — Irregularities—Benefits—Meaning of the Word “Owner."

    A lessee of land ^butting on a proposed street improvement is not entitled to notice of the resolution declaring the necessity of said improvement; nor is he entitled to an injunction to restrain the making of said improvement, or the levying of assessments on the demised lands to pay for the same, because of irregularities in the proceedings, or because his estate will be damaged by the improvement.

      Weed, Miller & Nason, for plaintiff in error.

      W. D. Wilkin, Assistant City Solicitor, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
    Error to the Court of Common Pleas.
   The plaintiff is the lessee for a term of years, expiring in ] 922, of certain premises on the westerly side of Kirtland street in the city of Cleveland, and brought its action in the common pleas court to enjoin the grading and improvement of said street in front of said premises and the levying of assessments thereon to pay for the same. The petition alleges that the improvement and assessment are illegal, because:

1. No notice of the resolution of the council declaring its intention to make -the improvement was ever served upon the plaintiff, though it is a resident of the county and in possession of the premises under a recorded lease.

2. The proposed improvement would be of little benefit to the land and the assessment is excessive.

3. Irregularity in the proceedings in that the council without authority of law referred the apportionment and assessment of the cost of the improvement to the board of public service, to be determined by it.

4. Unfair assessment of the cost as between the abutting owners.

5. , Unlawful method of making the assessment.

A demurrer to this petition was sustained and, judgment being entered for 'the defendant, the case is here on error.

The only question raised by the demurrer is whether a tenant for years of premises abutting upon a proposed improvement within a municipal corporation is an “owner,” within the intendment of the statutes regulating such matters. The rights of an owner are two-fold: To resist an excessive or illegal assessment upon his property and to recover damages, if he suffer any by reason of the improvement. The claims in the petition fall into these two classes.' The first claim, lack of notice, covers both classes, and is jurisdictional. The second claim has regard to the. question of damages or the taking of property without due compensation, and the third, fourth and.fifth claims are respecting illegality in the assessment.

These latter claims may be dismissed with a word; the assessment is not made against the lessee, but against the landlord. There is no claim in the petition that plaintiff has in any way obligated itself to. pay special assessments upon the demised premises. The argument that the landlord might fail to pay the assessment and so the land be sold to satisfy the lien upon it finds no support in the petition. There is no allegation that the landlord is irresponsible, and indeed, it would seem that the rent coming to him under the lease might furnish sufficient funds to pay the assessment, if he has no other funds.

The petition, therefore, shows no irreparable damage likely to result to plaintiff by reason of the assessment.

Little need be said with regard to the claim for damages. Plaintiff is not without adequate remedy at law to recover any damages it may suffer by reason of this improvement. This proposition is conceded by defendant’s counsel and sustained by the authorities.

It remains'to consider whether plaintiff was entitled to notice of the declaratory resolution, for it is well settled that without such notice to a resident ‘ ‘ owner, ’ ’ the entire proceedings are void as concerns him and an "owner” is entitled to an injunction under such circumstances, for the reasons stated in the case of Joyce v. Barron, 67 O. S., 264.

A¥e see no reason in favor of extending the meaning commonly given to the word "owner” as being the one having the title in fee of land so as to include the owner of lesser interests therein by lease or mortgage. No good purpose? would be subserved, for we have already seen that the rights of others in the land are. fully -protected by the law without the service of notice upon them. On the other hand delay and expense in the making of public improvements would be occasioned if the municipality had to procure abstracts of title for all abutting lands and serve notice upon every person claiming an interest therein before it could proceed with its improvements.

It has been held, it is true, that a mortgagee of land damaged by a street improvement may -maintain an action to recover therefor, notwithstanding the owner has been served with notice and recovered damages on his own account (Building & Savings Co. v. Cincinnati, 12 Dec., 218). Also that the interest of a mortgagee in land appropriated by a municipality can not be taken from him without due process of law. Harrison v. Sabina, 1 C. C., 49.

But these decisions are based upon the constitutional provision that no man’s property shall be taken from him without compensation therefor, and upon the general proposition that he is entitled to notice of any proceedings which may be instituted For the purpose of divesting him of his rights.

Judge Spear points out in the Joyce ease that the Legislature has provided for notice of the pendency of street improvement proceedings to the owner of land for two reasons-, first, to give the abutter a yoice in the determination -of the kind of improvement to be made, and second, to give him a speedy determination of any claims for damages which he may make, so that he may use his damages to pay his assessment.

In our opinion the Legislature has not seen fit to extend to others than owners in fee any voice as to the character of the improvement and has not given them the benefit of the speedy determination of damages which the owner enjoys. A sound discretion in this respect has not resulted in depriving mortgagees or lessees of any rights which, as before stated, they are not entitled to maintain at law.

Judgment affirmed.


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    AVOIDANCE OF RELEAES UNDER. CLAIM FOR. PERSONAL INJURIES.
    Circuit Court of Summit County.
    Harvey Conrad v. The Keller Brick Company.

    Decided, October 12, 1907.

      Release. — Charge of Fraud in Obtaining — Tender Back a Prerequisite to Suit — Where One Suffering from Personal Injuries has Received Some Compensation — Contracts Voidable for Fraud Distinguished from, those Absolutely Void — Pleading in Avoidance — Accord and Satisfaction.

    Under' a claim for personal injuries, where a contract of release has been entered into which is not void, but merely voidable for fraud, it is incumbent upon the plaintiff, before asserting the cause of action to which the contract or release is a bar so long as it remains in force, to rid himself of that obstacle by appropriate measures of avoidance, and a tender back of the consideration received is a prerequisite to such avoidance.

      R. M. Smith and J. A. H. Myers, for plaintiff.

      Musser, Kimber & Hoffman and Leon B. Bacon, for defendant.
    Henry, J.; Marvin, J., and Winch, J., concur.

        Affirming Conrad v. Keller Brick Co., 8 N. P.—N. S.,; —; Circuit Court affirmed by the Supreme Court without report, Conrad v. Keller Brick Co., 80 Ohio State.

   This is a personal injury damage case wherein judgment on the pleadings was entered for defendant. The answer pleads a written release, by plaintiff, of his alleged cause of action, for a money consideration paid to him. The reply admits that plaintiff signed said release and received said money; but avers that the money was paid to him not by defendant but by an insurance company and not for a release of the cause of action asserted in his petition, but by way of insurance benefits to which he was then informed his injury entitled him. He further alleges that he was unable to read said release, but does not allege that he made any effort to have it read to him. Neither docs he tender back the money paid him. On this state- of the pleadings the court below applied the rule of Manhattan Life Insurance Co. v. Burke, 69 Ohio St., 294, that a reply alleging á repayment or tender of the amount received is not responsive to the answer and is insufficient in law. True, that case was founded on contract whereas this sounds in tort. But we can not see that this distinction is material. There are undoubtedly eases where the plaintiff is permitted to ignore in his petition the fact of a pretended release of the liability on which he counts, and to withhold repayment of the consideration received therefor. But in Ohio, at least, and with but few exceptions elsewhere, such cases upon analysis are seen to involve contracts that are not merely voidable for fraud, but contracts which are absolutely void, for total failure of consideration, as in Dayton Insurance Co. v. Kelly, 24 Ohio St., 345; illegality of consideration, as in Insurance Co. v. Hull, 51 Ohio St., 270; or other like infirmity rendering such agreement invalid, ab initio.

Where, however, as in this case the contract of release is not void, but merely "voidable for fraud, it is incumbent upon the plaintiff, before asserting his cause of action, to which the contract of release so long as it remains in force is a bar, to rid himself of that obstacle by appropriate measures for its avoidance. Tender back of the consideration received is in this ease a prerequisite to such avoidance. Until’ such tender is made, the contraed of settlement, being voidable merely, can not be treated as a nullity, nor can its terms be contradicted by parol. Cassilly v. Cassilly, 51 Ohio St., 582.

Judgment affirmed.


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    ATTACHMENT — ERROR TO JUDGMENT ON APPEAL.
    Circuit Court of Hamilton County.
    Greenhow v. Harrison.
    Decided, December 19, 1908.
    Error can not be prosecuted to a judgment rendered on appeal from the determination by a justice of the peace on a motion to discharge an attachment.

      Harry R. Weber, for plaintiff in error.

      Guido Gores, contra.
    Swing, P. J.; Giffen, J., and Smith, J., concur.
   This cause should be stricken from the files. There is no right given in the statute to prosecute error to the judgment of the court if in session, or the judgment of a judge in vacation, on an appeal from the determination by a justice of the peace on a motion to discharge an attachment. Section 6494, Revised Statutes, provides that the judgment rendered on the appeal is to be transmitted to the justice of the peace to be by him entered as his final judgment on the motion, and if error is to be prosecuted, it is to the judgment of the justice of the peace, and not to the judgment of the court or judge rendering the judgment on the appeal. See Williams v. McCartney, 10 C. C.—N. S., 161.

This proceeding is to reverse the judgment of the court .of common pleas on appeal from the determination of the justice ol the peace of the motion to discharge an attachment.


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    PRESUMPTION AS TO ELECTION BY WIDOW.
    Circuit Court of Licking County.
    Frank Weaver v. O. G. King et al.

    Decided, March Term, 1907.

      Widow — Presumption that She Elected to Take the More Valuable Estate Arises, When — Executory Devise — Title—Competency of Evidence — Attaching Charge of Court to Bill of Exceptions as an Exhibit — Error in Submitting to Jury Question as to Widow’s Bights — Errors in Admission of Evidence and Charge of Court which are not Prejudicial.

    1. Where all the records of the probate court were destroyed by fire subsequent to the probate of a will and the settlement of an estate, there being no direct evidence that the widow was cited to elect or made any election to take under the will^ a court will presume that the required citation was issued' and that the widow elected to take the more.valuable estate.
    2. A will provided that the testator’s real estate should pass to his wife and child in the same manner ’as provided by statute, and then provided: “in the event of the death of my said son without lawful issue, leaving my said wife' surviving him, then in that case, all my property, real and personal, remaining shall pass and go to my said wife as her sole and separate property.” The son having died in infancy subsequent to the death of testator,, the widow under the above quoted clause of the will took the estate in fee simple by way of executory devise.
    3. In case the widow had elected not to take under the will, and thereafter the son had died without lawful issue, whether or not the widow, notwithstanding-such election, would have taken the estate in fee simple by way of executory devise — Quaere.

      Jones & Jones, for plaintiff.

      Kibler & Montgomery and Robbins Hunter, contra.
    Donahue, J.; Taggart, J., and Craine, J., concur.

       Affirmed by the Supreme Court without report, Weaver v. King, 80 Ohio State, -.

   This canse comes into this court upon a petition in error, seeking to reverse the judgment of the common pleas court in an action in ejectment brought by Frank Weaver against Oren G. King et al, in said court. The errors complained of are: As to the admission of evidence, and errors in the charge of the court.

It is insisted that the errors in the charge of the court do not fully appear from the bill of exceptions, because the charge is attached to the bill of exceptions as an exhibit thereto; and it is insisted that under the authority of the case of Dunn v. State, 23 Ohio State, 167 and 168, such exhibit can not be looked to to determine the charge of the court, or to determine whether or not any prejudicial error occurred therein.

With this contention we do not agree. The exhibit attached to the bill of exceptions in that case was referred to in the bill of exceptions as containing the testimony admitted at the trial, and the court held that it could be looked to for no other purpose; but the inference is that it could be looked to for that purpose. This bill of exceptions refers to this exhibit as the charge of the court, and we think the reviewing court has the right to look to the same to determine whether the law was properly given or not.

1st. As to the admission of evidence.

It is contended that the will of Nathan King was improperly admitted in evidence. With this contention we agree. There was nothing in that will, nor the acceptance under that will by the widow of Christopher Weaver, that would indicate an election on her part to take under the will.

The objection to the testimony of William Prout we think was not well taken. It showed the conduct of the widow in relation to this property, and the effect of it was for the jury. If, under the circumstances claimed by counsel for plaintiff in error, she might, with equal propriety, speak of the property as her property, whether she had taken under the will or not, then it would have little or no probative force; but its introduction can not be, and is not, prejudicial error.

The testimony of Herbert Atherton, land appraiser, as to the delivery to her of a copy of his appraisement of this real estate, was improperly admitted. It is the same as the will of Nathan King, and could not serve the purposes of Mrs. Weaver or operate against her.

The introduction of the deed from Catherine Weaver to George Wallace was also objected to. We think this was properly admitted, and, under the circumstances of this case, was the best evidence obtainable to establish an election in pais, or an actual election under the statute.

We think the charge of the court, submitting to the jury the right to determine whether or not, under this will, Catherine Weaver ivas entitled to the provisions of the will and her statutory rights as widow in said property, was clearly erroneous. The court should have determined that matter. It is a question of law and involves .the construction of the will itself, and ought not to be left to a jury .to determine.

The question now arises whether these errors that we find apparent upon the record in this ease are prejudicial errors. This case is peculiar in the fact that the entire records of Licking county, covering this period of time in which administration was had of Christopher A. Weaver’s estate, were destroyed. That is- to say, if the widow had elected under the statute, the record evidence of that election is gone. The widow was dead. Many years had elapsed, and it was impossible to call any one who had actual knowledge of the fact as to whether she had or had not elected under the statute. The defendant was not driven to the defense of proving an election in pais, but could rely not only upon such an election, but could also rely upon an election under the statute, and prove that election by the best evidence now obtainable. True, it would be the same character of evidence necessary to establish an election in pais, but we hardly think it would require so much proof, especially if the terms of the will showed that it was to her interest to have made such an election. The terms of this will do not show conclusively upon its face .that such an election would have been to her interest. Otherwise, in view of her conduct touching this property, we would presume such an election to have been made in this particular case. It is different from a case where the records of the administration of an estate are intact. But it not clearly appearing that it would be for her best interests to elect to- take under the will, we must next look to the evidence as to her conduct touching this property, not for a week, a month or a year, but, as stated in the case of Milliken v. Welliver, 37 Ohio State, 460, at 467:

“In an implied election that bars dower, the acts 'relied upon are long continued, unequivocal, and inconsistent with the claim for dower.”

We also think that it may become necessary not only to look to her conduct, but to .the conduct of those who held the next estate in remainder, in ease she did not elect to take under the will. All of the widow’s conduct in relation to this property is perfectly consistent with an election to take under the will. It does not appear that she ever made any application to have her dower assigned therein, and she treated the property, at all times, as her property.

True, it is insisted by counsel for plaintiff in error that the acts aside from the failure to have dower assigned are just as consistent with her life estate interest therein as if she were the owner in fee. That may be true, but the fact that she did not cause her dower to be assigned therein is not consistent with the theory that she did not elect to take under the will.

But her deed to George Wallace, made in 1869, containing covenants of seizin and warranty, is the most substantial evidence offered in this case, and is practically conclusive that she had elected to take under this will. It was an act on her part that would have barred her claim of dower in said premises 'as effectually as an election to take under the will. It was a solemn declaration on her part of absolute ownership of the property. It was notice to these heirs now claiming the remainder in fee in this property that she claimed a larger estate therein than a life estate, and that she -was holding this property under such claim and adversely to any interest that they might have; and the attempt to make such conveyance by one having a life estate only, would have given to the remainderman a right of action at least in reference to the lands conveyed, if not to all the lands so held by her.

This being true, we think that the evidence properly admitted, in the absence of proof to the contrary, in view of the fact that the records have been destroyed, is practically conclusively not only of an election in pais, but an actual election under the statute.

Therefore notwithstanding the errors in the admission of evidence and in .the charge of the court, the verdict of the jury in this case was right, and no other judgment could be sustained under the record in this case. . .

In the case of Way & Co. v. Langley, 15 O. S., page 393, it is held:

“Where, in error, it is apparent from the record that the judgment of the court below was right, technical errors intervening on the trial will not avail to disturb the judgment. ’ ’

These errors are merely technical errors and ought not to cause a reversal of -this judgment that is manifestly the correct judgment in the case.

Aside from these considerations, it is by no means certain that this widow would not have taken the remainder in fee in this land upon the death of- her son, even though she had not taken under the will. This is an executory devise. It has no relati.on to an estate of immediate enjoyment. If no provision whatever had been made for the wife in this will other than this one, and she had been given her dower and distributive share under the statute, we think that, upon the death of the son, this executory devise would operate in her behalf, and that she would receive the fee in the remainder therein. True, the language of the statute in this behalf is plain and explicit, that the widow must elect to take under- the will; otherwise, she will be remitted to her statutory interest in her deceased husband’s estate. But, the purpose of this election is for the sole and only purpose of barring her from dower and a distributive share in his property.

When it clearly appears by the terms of a will that any devise therein is not in lieu of dower and distributive share, but in addition thereto, then no election is necessary, for it is only an election between rights that she is called upon to make. When there is no conflict of rights, there is no necessity for an election.'

We think the manifest intent and purpose of this item of-the will was to give her this estate by way of executory devise, in addition to her statutory rights in said estate, and without reference whatever thereto. If this construction of the will be the true one, then the evidence offered in the trial of this case is not important; no matter how erroneous the admission of evidence or the charge of the court may be, it could not be prejudicial, if the judgment was in accord with this construction. But whether or not this construction should obtain, the only competent evidence in the case shows that there was an election, either under the statute or in pais, and it is a matter of indifference which. The verdict and judgment is right, and ought not to be set aside for technical errors.

The judgment of the common pleas court is affirmed, with costs. Exceptions of plaintiff in error are noted, and cause remanded for execution.


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    IMITATION OF AN ESTABLISHED COMMERCIAL NAME.
    Circuit Court of Hamilton County.
    French Brothers Dairy Company v. John Giacin.

    Decided, June 19, 1909.

      Unfair Competition■ — -In the Use■ of the Word “French" as Applied to Ice Cream — Circumstances Suggesting a Purpose to Deceive — Trade Names.

      Where a family named French has carried on a dairy and milk business for a great number of years under their own name, and more recently have built up in connection therewith an extensive business in ice cream, injunction will lie against the use of the word “French” in connection with an ice cream business carried on by a competitor who is not a Frenchman and whose manifest purpose is to attract trade by creating a false impression as to his own identity.

      Albert Bettinger and Jacob Shroder, for plaintiff.

      Scott Bonham, for defendant.

      Swing, J.; Smith, J., concurs; Giffjsn, P. J., dissents.

       Affirming French Bros. Dairy Co. v. Giacin, 8 N. P.—N. S., -, which see for a fuller statement of the facts.

   Plaintiff has been in the dairy business in this city for a great number of years. For more than ten years it has manufactured and sold ice cream in this city very extensively, having a main store in the heart of the city, with numerous branch stores located throughout the city. It has maintained wagons on the streets of the city delivering ice' cream, on which are painted ‘ ‘ French Bros. Ice Cream. ’ ’ This ice cream has been extensively known and has enjoyed and still enjoys a high reputation.

Recently the defendant commenced the manufacture and sale of ice cream in this city under the name and style of “French' Ice Cream Co.” This sign is in the windows of his main office on Vine street, and at his store on Walnut Hills he has the same sign, with the addition “Branch Store.” The form in which the words are placed is as follows: French Ice Cream Co. Branch Store.

Plaintiff claims this a fraud upon it and its customers.

The defendant says that he uses the name for the purpose of' distinguishing it from the Vienna Ice Cream Co., with which company he formally worked, and from other firms engaged in manufacturing ice cream in the city, and for the further Reason that the word “French” is a geographical name and much employed in the businesses which produce things to eat, drink or wear, and further in manufacturing his ice cream he is using the French pot process. He further offered evidence to show there was known to ice cream makers and that numerous cook books ■ contain recipes for making an ice cream called “French” ice cream, which ice cream contains from twenty to twenty-four eggs to each gallon of cream.

Defendant’s evidence fully sustains his claim that he made his ice cream by the French ice cream pot process, which process differs from other processes in that it is made in an open vessel instead of a closed vessel. But the evidence does not sustain tiim to the effect that he made his ice cream after the formulas contained in the cook books, the difference being that instead of using twenty to twenty-four eggs to a gallon he used from six to ten.

But the evidence clearly shows that while to some ice cream makers there is an ice cream known as “French” ice cream, it is not known -to the general consuming public, and no evidence was offered which tended to show that in a single instance any one had inquired for French ice cream, meaning thereby ice cream made after the formula called French ice cream.

The evidence clearly shows that the name assumed by the defendant was calculated to, and did, deceive the public in believing that the ice cream sold and offered for sale by him was the ice cream of the plaintiffs.

It seems equally plain that in using the name French, it was the purpose of the defendant to deceive the public. “French’s” ice cream was favorably and universally known in this city, and defendant knew this. He was doing business under the name of the “French Ice Cream Co.” It was not a company, and his name was not French, and his sign did not convey to the public information that he was making ice cream under a formula designated in the cook books French ice cream, nor was such ice cream known to the public. Nor did his sign inform the public that the ice cream made by him was made by the French or open pot process. Nor can it be assumed under all the circumstances that the defendant was using the name as a name indicating in itself a superior article of ice cream. The main idea in the minds of the public in this city, with the use of the word French in reference to ice cream, is the ice cream made by the plaintiff, and it would not be reasonable to think that when used as defendant has done, that to the public it meant a geographical name, or its quality or the manner in which it was made.

If defendant for good reasons does not want to use his own name under which to sell his ice cream, he should choose some name other than that used by some one else who has been long established in the business, and which name is well and favorably known to the public. This can work no hardship on the defendant, but to hold othérwise may work a great injury to the plaintiffs. A decree will be entered restraining the defendant from using the word “French” in the manner used by him.


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    REGULATION OF AFFAIRS OF FRATERNAL BENEFICIARY ASSOCIATIONS.
    Circuit Court of Cuyahoga County.
    Margaret McGovern v. The Brotherhood of Locomotive Firemen and Engineers.
    Decided, June 18, 1909.

      Fraternal Insurance and Mutual Benefit Societies — Limitation of Liability of — Based on Disappearance of Member for Seven Years or More.

    Where a fraternal beneficiary association reserves the right to amend its by-laws, a by-law providing that no death losses shall be paid where the only evidence of death is the presumption arising from disappearance for seven years, is for the mutual benefit of the members, not against public policy, and is binding upon the beneficary of a member, notwithstanding its adoption but fifteen days before the legal presumption of the member’s death would be established and notwithstanding the receipt of dues and assessments from the beneficiary up to date of the amendment. ,

      Mathews & Orgill, for plaintiff in error.

      Carr, Stearns, Chamberlain & Royan, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
    Error to the Court of Common Pleas.
   In 1891 P. W. McGovern became a member of the defendant organization. On January 13th, 1900, he disappeared and has never since been seen or heard of by any of his friends, family or relatives. For seven years subsequent to his disappearance his wife, Margaret McGovern, plaintiff in error, paid the premiums and assessments to the defendant as required by the policy, the defendant having notice of the fact that McGovern had disappeared.

In September, 1906, the defendant adopted a by-law declaring that no liabilities should be incurred because of the disappearance of a member, or because of the presumption arising therefrom.

This by-law went into effect January 1st, 1907, or fifteen days before the expiration of the seven year period relied upon by plaintiff in error to establish the legal presumption of death.

In the court of common pleas the petition averred the issuance of the policy, the payment of premiums and assessments, the performance of conditions precedent, and the facts as to McGovern’s absence for seven years. The defendant’s answer conceded the issuance of the policy and the payment of dues as alleged therein, and asserted as a defense to the action the enactment of the by-law in question.

The reply admitted the adoption of the by-law and alleged that it was adopted by the organization with knowledge of McGovern’s disappearance, and notwithstanding the acceptance of dues from plaintiff.

It is also conceded in the pleadings that McGovern at the time he became a member agreed to conform to all laws, rules and regulations of the society then existing or that might thereafter be enacted.

Upon this state of the pleadings the court sustained a motion by defendant to exclude evidence under the pleadings, and for judgment in its favor.

A review of this judgment requires an investigation of two questions: first, had the organization a right to pass any by-law on January 1st, 1907, which could be binding upon McGovern’s beneficiary; second, is the by-law which was passed, a valid one?

First, if McGovern was dead on January 1, 1907, the rights of his beneficiary were then vested and could not be divested by any action of the association. But was he then dead, or was there any presumption at that time that he was dead?

There is no allegation in the pleadings that he was dead; the plaintiff relies solely upon the presumption of law, which arises after a man has been absent and unheard of for seven years. There is no presumption either of life or death at any particular time during the seven years. Whitely v. Equitable Life Assurance Society, 72 Wis., 170; Supreme Commandery, etc., v. Everding, 20 C. C., 689.

It would seem then that under the power reserved by the organization it had a right on January 1, 1907, to enact a by-law which would be binding upon McGovern and his beneficiary. Tisch v. The Protected Home Circle, 72 Ohio St., 233.

The payment of dues by the beneficiary has no bearing on the ease; .it is a concession on her part that the member is still alive.

Second, the reasonableness of such by-laws as the one pleaded in this case is recognized in the Tiseh case, and cases there cited, but it is urged that this by-law not only limits the right to recover under the certificate, but seeks to control the rules of evidence which shall' be applied by the courts; that it attempts to abrogate che rule of the courts that proof of seven years absence unheard of, shall be received as proof of death.

The point would be well taken were the defendant an insurance company where the relation of company and'policyholder is antagonistic, but it has been repeatedly held that the mutual interests of the members of a fraternal beneficiary association warrant their regulating their own affairs to the entire exclusion of the courts.

An agreement, such as we have here, that no death losses shall be paid when the only evidence of death is that the member has disappeared, is for the mutual benefit of all the members, and it is not contrary to public policy for parties to agree among themselves for their mutual benefit. McGovern had the benefit of this agreement, as well as all other members, and his beneficiary must share its burdens. Rood v. Railway P. & F. C. M. B. A., 31 Fed. Rep., 62; Sanderson v. B. of R. R. Trainmen, 204 Pa. St., 182; Osceola Tribe No. 11, I. O. R. M. v. Schmidt, 57 Md., 98; Kelley v. Supreme Council, etc., 46 App. Div. (N. Y.), 79.

It appears, then, that the organization had a right to pass the by-law in question, and that it is binding upon McGovern and his beneficiary.

Judgment affirmed.