text:
    (Sixth Circuit—Huron Co. Ohio, Circuit Court
    Dec. Term, 1898.)
    Before King, Haynes and Parker, JJ.
    THE NEW YORK, CHICAGO & ST. LOUIS RAILWAY COMPANY v. FRANK SCHAFFER.

      Blacklisting Employe — Liability of R. R. Co. for damages.

    Where railroad companies mutually agree that they will not employ any workingmen who may have been discharged from or may have quit the service of any of the companies, parties to such agreement, unless the applicant shall present a consent from the parties for whom he last worked, or a “clearance”, showing that he did not engage in a certain strike, it becomes the duty of a company, party to such agreement, upon the discharge of an employe who did not engage in such striue. upon his application therefor, to furnish to him evidence of its consent to his employment by such other company, or a “clearance” card showing that he did not engage in such strike; and a failure to do so, whereby such person is prevented from obtaining employment with such other company, constitutes an actionable wrong, and compensatory damages may be recovered therefor ; and if such consent or letter shall be withheld maliciously, exemplary damages may be awarded.
    Error to the Court of Common Pleas of Huron county.
   PARKER, J.

This action was tried in the court below upon the second amended petition filed by the defendant in error, (plaintiff below), and the answer and the reply making up the issues.

There are two causes of action set forth in the second amended petition, but one of them was dropped out on the trial, and the case was tried on the second cause of action.

The petition is somewhat lengthy, and contains a number of averments which seem to us to be repetition, and others which-are immaterial. The substance of what we deem material.is as follows:

The petition sets forth that the defendant is a railroad railroad corporation organized under the laws of the state of Ohio, operating a railroad. That prior to the first day of January, 1895, plaintiff was in the employ of the defendant performing the work of a brakeman at the rate of $60 a month; that he had been a railroad employe for about twenty years; that he was, at the time of the grievance complained of,still a railroad man of good habits, well qualified by experience to engage in the business of a railroad brakeman; and he says that during the year 1894, there was, on a great many of the railroads in the United States, including the defendant, a strike known as the A. R._ U. strike. That during all the time of this strike, to-wit, the summer of 1894, he was working for the said defendant company ag a brakeman in its yards at Bellevue, Ohio.; that he took no part in said strike; that he worked for said defendant during the entire time up to about the latter part of December, 1894, as above set forth, when he was granted a leave of absence by said company. That prior to the expiration of said strike, defendant entered into a conspiracy, agreement andlunderstanding with certain other railroad companies having lines of railroads running into the city of Chicago, and also with other railroad companies in the United States, the names of which are unknown to the plaintiff, that they, the said railroad companies, would furnish each to the other information as to all their employes who had committed offenses, or who were charged with having committed offenses, and also as to all their employes who had quit work during said strike, which commenced on or about June 26th, 1894, and ended on or about August 6th, 1894, and as to all their employes who were members of the ■American Railway Union, and that such employes of any and all said companies would not be employed by any of said companies which formed the said conspiracy without a release and consent from the railroad company by . which any such employe was last employed, said release or consent being commonly called by railroad men a “clearance”. That such compact amounted to a conspiracy and agreement to blacklist and boycot said employes, the object and purpose thereby being to maliciously and willfully interfere with such employes as had previously terminated their employment with, or been discharged from the employment of either of the said companies.

Then follows averments as to the custom of the defendant company to grant such letters to its employes leaving its service, all of which we deem immaterial.

Then follows the averment that said defendant, although making said agreement and although well knowing that this .plaintiff was not engaged in said strike, refused to give its consent to his being employed by other companies to which he applied for employment, and refused to furnish him the “clearance” above mentioned, and then and thereby prevented him from obtaining employment.

“That since said conspiracy of said railroads as above set forth, it is impossible for any one to secure employment unless he first presents the consent of the company for whom he last worked, or a clearance card showing that the applicant was in no way connected with said strike. That he has repeatedly asked the proper officers of said company for such consent or clearance, and said company has failed and refused to furnish him therewith, although well knowing that it would be impossible for him to secure employment without the same.
“Plaintiff says that since his said discharge as above set forth, he has made application for employment to various railroad companies in the country, and he says that said railroad companies have refused to consider his application unless he would first bring the consent of the defendant or a clearance above described.
“That because of the failure and refusal of the defendant to grant its consent or to furnish to him such . clearance, and for no other cause, he has been denied the right to contract for and obtain employment with any of the railroad companies of the United States, and has been prevented from obtaining employment, and has been prevented from' supporting himself and those dependent upon him by his' said trade or occupation in which he has been engaged a great many years, and that he is therefore damaged and injured bj said willful, malicious and illegal acts of the defendant, and he prays for judgment in the sum of fifteen thousand dollars. ”

An answer was filed by the railroad company admitting its corporate capacity; that it was operating a railroad as alleged, and that the plaintiff had been in its employ for some period; but all the material averments of the petition upon which the right to recover is based are denied.

No demurrer was filed to this petition, but when the case came on for trial to a jury, objection was made to the introduction of any testimony under the petition, upon the ground that it did not state facts sufficient to constitute a cause of action, This objection was overruled, and the case went to trial, resulting in a verdict for the plaintiff below for five thousand dollars.

A motion for a new trial upon various grounds was overruled, and the case is brought here for our review.

The discussion before us bas taken quite a wide range, but we consider it sufficient to give our conclusions briefly; and they are that, where railroad companies mutually agree that they will not employ any workingmen who may have been discharged from or may have quit the service of any of the companies, parties to such agreement, unless the applicant shall present a consent from the parties for whom he last worked, or a “clearance”, showing that he did not engage in a certain strike, it becomes the duty of a yiom-pany, party to such agreement, upon the discharge of an employe who did not engage in such strike, upon his application therefor, to furnish to him evidence of its consent to his employment by such other company, or a “clearance” card showing that he did not engage in such strike; and a failure to do so, whereby such person is prevented from obtaining employment with such other company, constitutes an actionable wrong, and compensatory damages may be re-overed therefor; and if such consent or letter shall be withheld maliciously, exemplary damages may be awarded. Such agreement amounts to a proscription of all workingmen who do not hold such evidence of consent, or such clearance card, and the refusal of a company to give a consent or a card, amounts to a declaration to the other companies to which a man may.apply for employment, that he is one of the proscribed class.

We do not pass upon the.question which has been discussed by counsel, as to whether such companies may lawfully combine to prevent any class of working-men, for instance, such as are engaged in a certain strike — from obtaining employment with any company entering into such a compact; or whether they may agree not to employ a certain man or class of men for any cause, reasonable or unreasonable, or for no cause at all; but where the arrangement between the companies is such that failing to give evidence of consent or a clearance card, amounts to a representation that the person to whom it is refused belongs to a class not to be employed, whereas in fact, such person does not belong to that class, the representation is false, wrongful and actionable.

The wrong is similar in nature to slander of one respecting his vocation or calling. Such false representations need not, however, amount to slanderous utterances. It is sufficient if their effect is to prevent a person from obtaining employment.

As to the serious consequences of such interference with the right of one to obtain employment, we quote and commend the language of Judge Pratt in the case of William Mattison v. The Lake Shore and Michigan Southern Ry. Co. on page 276, of volume 2, of Nisi Prius:

“It is said in Pollock on Torts, speaking of the right to employment by an employe, that it is the most serious right affecting the laboring man’s life. Now, it seems to me,— with all due deference, of course, to the opinions of the courts which are adverse — that the employe’s right to employment is equally sacred with the right of the employer to employ him; it is not only a serious right, affecting a man’s life, but you may say that it is his life. The laboring man’s employment is the only thing that stands between him and starvation, or what is very little less than starvation — pauperism, and it is for the public interest and for the public good that the right of a man to seek his own employment in any honest work which he may seek, should not be interfered with or violated.”

Vickery Bros., for Plaintiff.

S. S. Williamson, and G. P. Wickham, for Defendant,

Without entering upon a discussion of the evidence in this voluminous bill of exceptions, we simply state that from its examination we conclude that such a case as we say gives a right of recovery is stated in the plaintiff’s petition and is fairly established by the evidence.

We find no error in the record, and the judgment of the court of common pleas will be affirmed.


source: Caselaw Access Project

author: MaRVin, J.

license: Public Domain

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Nov. Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    EDWARD STEUER v. THE ROYAL CIGAR COMPANY, a Corporation.

      Gambling — Playing billiard.

    Playing billiard, the loser to pay for the use of the billiard, is not gambling under sec. 3946, R. S.
    Error to the Court of Common Pleas of Cuyahoga county.
   MaRVin, J.

The case of Edward Steuer v. Tne Royal Cigar Company is a proceeding in error to the court of common pleas.

Suit was brought first before a justice of the peace by the Royal Cigar Company, which is a partnership, against Edward Steuer, charging that he was indebted to the Cigar Company upon an account.

Steuer answered that the account wag for the use of a billiard and pool table, and that the account was incurred under such circumstances that the plaintiff was not entitled to recover.

The case was appealed to the court of common pleas and there tried, resulting in a verdict and judgment for the Cigar Company. ■

A petition in error is filed seeking to reverse that judgment.

The statute which is relied upon as a defense is, section $4269, Revised Statutes, and is as follows:

“All promises, agreements, notes, bills, bonds, or other contracts, mortgages or other securities, when the whole or any part of the consideration of such promise, agreement, conveyance, or other security is for money or other valuable thing whatsoever, won or lost, laid, staked, or betted, at or upon any game of any kind, or under any denomination or name whatsoever, or upon any horse race or cock fight, sport or pastime, or on any wager, or for the repayment of money lent or advanced at the time of any game, play, bet or wager, for the purpose of being laid, betted staked or wagered, shall be absolutely void, and of no effect.”

The bill of exceptions shows this state of facts: That Steuer visited a place of business carried on by the plaintiff below frequently; that in that place of business was a billiard and pool table; that games were played there under an arrangement well-known to the proprietor, that the loser of the game should pay ten cents for each game played; and this account upon which suit was brought accrued in that way.

He played games enough to come to somewhere between $150.00 and $200.00 where he had been the loser, at ten cents per game. Now he says that he can not be compelled to pay because of the section of the statute to which attention has just been called. The question, then, in the case is, does the plaintiff below, the defendant in error here, make his claim for money won or lost at any game?

Our statute, section 6934, making it an offense to keep a place for gambling, or to have gambling devises in one’s place of business, reads:

“Whoever keeps or exhibits for gain, or to win or gain money or other property, any gambling table (except billiard table,) or faro or keuo bank, or any gambling devise or machine of any kind or description, under any denomination or name whatsoever”, is guilty of an offense.

In the same section, it also says:

“Or keeps or exhibits any billiard table for the purpose of betting or gambling, or allows the same to be used for any such purpose,” is guilty of an offense.

Now.if the keeping of a billiard table to be used as this billiard table was used, constitutes the keeping of it “for the purpose of betting or gambling,” then the man who keeps it is guilty of an offense under this statute, section 6934.

I suppose it has never been claimed, however, that the keeping of a billiard table, where the loser is simply to pay for the game, is an offense under that statute; but, if it is kept and used for gambling, it is an offense under that statute.

The question of whether it is gaming and is an offense on the part of the owner of the building or of the keeper who knows that the game is played, not because of any arrangement with him, because everybody knows it, and the evidence in this case shows that the proprietor did know that the arrangement was that the loser should pay for the game — but it do3S not seem to us that this constitutes the claim for money won or lost at a game in such sense as that term is used in section 4269.

The courts of different states have discussed this matter of what constitutes gaming and|what constitutes the winning and losing of money at any game, and they have not agreed. In some states they have held that it is winning or losing money,to have an arrangement whereby one party shall pay, if losing; in others, it is held otherwise, and we are disposed to hold with the courts which say it is not gaming and not winning or losing money.

In Blewett v. The State, 34 Miss. 606, this language is used:

“To constitute gaming, one or the other of the parties must expect to profit by the game. Here neither could derive such profit, because neither was entitled to the fee paid to the owner of the table. Admitting that it is the rule of the game that the loser shall pay the fee, the owner has a perfect right to make his contract in this way, the law not prohibiting this mode of contract.”

In the State v. Hall, 32 N. J. Law Repts., 158, the court says:

“The third and last question propounded to this court, is whether a public ten-pin alley, kept for hire by the game, where the practice of the loser of the game paying for the use of the alley is habitually suffered, is a common gaming house.
“The solution of this question depends on the consideration, whether, under such circumstances the parties playing lay a wager on the game which they play. The transaction is this: the keeper of the alley lets it to players, on the condition that the loser shall pay him for its use. It would seem to be an unnecessary refinement to say, that when the players accept these terms, and play under them, that then one lays a wager with the other, dependent on the result of the play. It is obvious the parties do not play for gain — they play simply for amusement, and it seems like putting gloss on the affair to call this gaming.
“In the case of The People v. Sergeant, 18 Cow., 139, this precise subject came under the consideration of the supreme court of the state of New York, and the result was that it was declared that such a practice did not amount to gaming.

T. J. Boss, for Plaintiff in Error.

Chapman & Howland, for Defendant in Error.

“In Blewett v. The State, 34 Miss., 606, a similar view was expressed, and there are no opposing decisions. The place of amusement in question can not, on this ground, be declared illegal.’’

But if it is gambling, it would be illegal in Ohio.

It does not seem to us that the suit is brought for money lost at any game in such sense as that word is used in the statute, and the judgment is affirmed.


author: Caldwell, J. Marvin, J. Caldwell, J.

text:
    (Eighth Circuit—Cuyahoga Co. O. Circuit Court
    Dec.Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    THE STATE OF OHIO EX REL. E. P. WILMOT and GEORGE P. KURTZ v. HUGH BUCKLEY, CHARLES P. SALEN, EDWARD ETZENSPERGER and EDWARD C. KENSEY.

      General Laws — What are—

    (1.) A general law is one which relates to or binds all within the jurisdiction of the law-making power, limited as that power may be'^by its territorial operation or by constitutional restraint. A law is not general in any correct sense of the term, but is special, where it is suspended in one locality where exists a proper subject-matter on which to operate, put is in full forcepn another locality of exactly the same kind. This uniformityjTs in the sense, that the law shall operate the same in all parts of the state under the same circumstances and conditions, and must embrace all and exclude none whose condition and wants render such legislation equally necessary or appropriate to them as a class.

      Election Laws for city and rural districts — Distinction between cities not admissible—
    (2). The subject ofáfair'eiections is one in which the people of the entire state|are"interrsted, and laws regulating it must be general in their nature. There are sufficient reasons to make it proper and^constitutional to have election laws that apply to cities as a class, that do not apply to country districts. So far as this classification is made in the laws of Ohio, they are constitutional. But this distinctive feature existing between cities and rural districts does not exist in cities as between themselves in any such marked degree as would make ■ it a foundation for different’ legislation upon this subject as to them, and if these laws are laws of a general nature, any distinction made in them between cities is unconstitutional.

      Same — See. 2926b as amended in 1896 unconstitutional—

    (3). See. 2926b, as amended in 1896, 92 Ohio Laws, 166, which provides for a board of elections in all cities of the first and second class, “except Mansfield and cities of the fourth grade of the first class (Canton)” to be appointed by the mayor, is not a general law, as it makes a distinction between cities, by excepting from its provisions the city of Mansfield by name and the city of Canton by another way equally offensive to the, nature of the subject, and is therefore unconstitutional under sec. 26, art. 2, of the constitution.

      Repealing clause in unconstitutional law — When invalid also—

    (4). The repealing clause in the act of 1896, amending sec. 2926b, repeals the election laws theretofore existing. As sec. 2926b, as amended, is unconstitutional and void, if the repealing clause therein, would remain in force, there would be no laws to secure fair elections in Ohio. It is not reasonable to assume that such was the intention of the legislature, and the repealing clause of the act is therefore void as well as the rest of the act, and sec. 2926b as it stood before the passage of the amendatory act of 1896, remains therefore in force.

      Control of city election boards outside of city limits unconstitutional —Act of 1898 ( 93 O. L. 361) unconstitutional—
    (5). The acts of 1889 (86 O. L., 258,) of 1891, (88 O. L., 468) of 1892, (89 O.L.,429),and that of 1898 (93 O. L., 361) now in force, which provides that in any county having within its territory, a city of the first class and first grade of the second class, except counties containing cities of the first class and' fourth grade, the election precincts of the county, not included within the city, shall be held and deemed to be election precincts of the city for the purpose of conducting and supervising elections therein, and the board of elections heretofore established in such cities have direction of elections, is unconstitutional. The classification of cities, allowed by the constitution, can not be extended to counties, and boards of elections in such , cities can not exercise any authority over the elections in the counties outside of the city limits.

      Action against members of board distinct from action against board itself.

    (6). An action against the individual members of a public board is a distinct action from one against the board as such, and can not by answer be changed to an action against the board itself.
    Error to the Court of Common Pleas of Cuyahoga county.
   Caldwell, J.

^Theodore L. Strimple, Prosecuting Attorney of Cuyahoga county, Ohio, files the petition in this action' on the relation of E. P. Wilmot and George P. Kurtz against the four defendants named, in which he avers that the relators reside in Cuyahoga county, and are electors in said county. That the defendants, under the claim that they constitute the board of elections of the city of Cleveland, are usurping and intruding into the office of appointing registrars of elections, and points out specifically by items that they are undertaking to do and perform all the duties of the law pointed out therein for a board of elections to do and perform, under this said claim that they constitute the said board of elections of the city of Cleveland of performing and exercising throughout the county of Cuyahoga, the duties and powers vested by law in the deputy state supervisors in and for said county. This they are assuming to do without legal right, in this, that there is no authority in law for said do ings and assumptions, and prays that they be ousted and altogether excluded from said office.

To this petition the defendants file a joint answer in which they show to the court by what warrant they claim that they lawfully constitute the board of elections of the city of Cleveland, and by what authority they exercise and ■do the things complained of in the petition.

The answer by way of first defense sets'out who composed the board of elections on the 81st day of March, 1891, and then names all the persons who have since held positions' on that board, giving the time when each one was appointed ■and by what officer appointed,and it appears that the defendants and all persons appointed since March 31st, 1891, were appointed by the mayor of said city, pursuant to and by virtue of an act of the general assembly of the state of Ohio, entitled:

“An act to amend section 2926b, of the Revised Statutes, as amended April 13, 1889, passed April 28, 1890,. and found in 87 Ohio Laws, 359, and subsequent amendments thereof.’’

The defense shows to the court all the amendments and supplementary sections of the law down to the time of the appointment of the defendants, and avers the qualifications of each of them for the place as prescribed by law, and the necessary facts to show that the mode and manner of appointment complied with the law. That no member of the board since his appointment has done anything to disqualify him to hold his place as pointed out in the law, and that the board is legally organized This defense avers that since the creation of such a board the state has repeatedly recognized the legality of said board by passing laws pertaining to the same and prescribing the duties of the same.

Wherefore it is claimed that said board of elections is a valid and constitutional board,and that at the time of the commencement of this action these defendants were, and now are, rightfully and lawfully members of and together constitute, the said board, with the right to hold and enjoy their said offices, and with full authority to exercise all the powers and perform all the duties, thereunto belonging.

The second defense of the answer re-affirms the facts of the first defense,and then avers that the defendants and their predecessors in office have at all times since April, 1891, constituted the said board of elections, and have at all times performed all the duties of the law, and that the right of action set up in the petition did not accrue within three years next before the commencement of this action, and then pleads the three years statute of limitations.

The third defense in the answer sets forth the existence of certain factions in the republican party: the choice of two committees, one by each faction; and that this action is commenced and prosecuted in the interest of one faction, and hence the court is asked to refuse any affirmative relief to the plaintiffs against the defendants.

To each and all of these defenses a demurrer is filed by the plaintiff. The ground of the demurrer to the first cause of action is, that the statute, under which the defendants were appointed on the board, in unconstitutional.

The second defense is demurred to, because it is claimed this defense shows that this action was commenced within three years from the time that each and all of the defendants were appointed on the board.

There is a demurrer to the third defense, but it is admitted that this is not a good defense as to the demurrer, but may, in connection with the other defenses, serve the purpose of the pleader upon trial, or in case the plaintiff should ask to amend the petition.

Is the law under which the defendants were appointed, unconsitutional ?

Section 2926b, as amended in 1896, 92 Ohio Laws, 166, is the one under which the appointment was made. That law provides that “In all such cities’’ — that means all cities of the first and second class, except Mansfield, and cities of the fourth grade in the first class, a “board of election, to consist of four electors of such city;” shall be appointed by the mayor, and then the law goes on and provides for their appointment and their duties, as amended in 1896, 92 Ohio Laws, under which an appointment was made.

It is claimed that all laws pertaining to elections must be general laws, and that this is not a general law in that it excepts from the provisions of the law Mansfield by name, and Oanton in another way equally offensive to the nature of the subject. Article 2, section 26, of the constitution of Ohio, provides that:

“All laws of a general nature shall have uniform operation throughout the state.”

Has the section in question uniform operation throughout the state V

Under this constitutional provision, a law which applies only to an individual, or to a number of individuals selected out of a class to which they belong, is a special or local law. A general law is one which relates to or binds all within the jurisdiction of the law-making power, limited as that power may be by its territorial operation or by constitutional restraint.

A law is not general in any correct sense of tins lerm, but is special, where it is suspended in one locality where exists a proper subject-matter on which to operate, but is in full force in another locality of exactly the same kind. This uniformity is in the sense, that the law shall operate the same in all parts of the state under the same circumstances and conditions; such law must embrace all and exclude none whose condition and wants render such legislation equally necessary or appropriate to them as' a class. There are reasons why a city needs election regulations that would be useless in country districts. The population in a city is not so stable, the people are more frequently moving. There are men who are without any home or abiding place for any length of time. There are more who are ready at any time to do acts on slight provocation to subvert fair elections. These are reasons sufficient to make it proper and constitutional to have election laws that apply to cities as a class, that do not apply to country districts. So far as this classification is made in the laws of Ohio, they are constitutional. But this'distinctive feature existing between cities and rural districts does not exist in cities as between themselves in any such' marked degree as would make it a foundation for different legislation upon this subject as to them, and if these laws are laws of a general nature, any distinction made in them between cities is unconstitutional. Section 2926b clearly makes this distinction in that it excludes two cities from the general class of all cities, and is, therefore, unconstitutional. Kelly v. State of Ohio, 6 Ohio St., 270; Haskell v. Burlington, 30 Iowa, 232; State v. Wilcox, 45 Mo., 458.

Nor is it possible to exclude from the law the objectionable feature above referred to, for, in whatever form it may stand after such exclusion, it is still a law applying to only a part of the cities of the state It is, therefore, impossible to drop from the section before referred to, any portion of it and still retain any part that is constitutional,

Is section 2926b special, and are all laws in the state, relating to elections, special laws? This section, among others, provides for the orderly exercise of the constitutional right to vote. While the right to vote, it is claimed, is of a general nature and must have a uniform operation throughout the state, yet the laws merely regulating the exercise of the right, it is contended, are not of a general nature and hence may be adapted to the varying needs of different localities.

The subject of a fair election is one that interests all the people of the state. The people of one county are no more interested in the proper conduct of elections in their county than are the people of an adjoining county, and any unfairness in the election affects every county in the state and every locality in the state. I refer in this, to the election of state officers. The constitutional right of suffrage is common to all who come within the constitutional class, and the opportunity to exercise this right must be, by statutory law, brought reasonably within the reach of all who have the right; and every citizen in the state is interested in who shall be permitted to exercise this right.

It has been held in this state, that a law fixing the salary of county officers in any one county is not a subject of a general nature; it is not a law concerning any one except the persons residing in the county; the officers are elected purely within the county, and the salaries are paid entirely by taxation confined to the county, and, hence, how much they shall receive is a matter that is not of interest to any other part of the state.

It has been held that a law, requiring fire escapes to be placed on buildings of a certain height, is a law of a general nature, because there is no sufficient ground on which to distinguish the necessity of such fire escapes in large cities from the necessity existing in smaller places. The same danger substantially that exists in one locality exists in another. There being no ground upon which any proper distinction can be made, and the subject being one of general interest throughout the state, no local law can be constitutional that provides for fire escapes in one locality of the state to the exclusion of others.

Aside from the distinction existing as shown before between cities and rural districts, there is no sufficient ground as to locality nAvhich the law shall operate to make any classification of the laws of elections. As to the interest that all persons have in such laws, it is the same in every part of the state. These facts existing, determine the question as to whether these laws are of a general nature or are local, and that they are of a general nature we think is clear.

This question has been twice noticed by the supreme court of this state. In Munroe et al. v. Collins, 17 Ohio St., 665, in the second paragraph of the syllabus, is this language:

“Laws passed professedly to regulate its exercise or prevent its abuse, must be reasonable, uniform and impartial, ’ ’

By examining the briefs of counsel in the case, it is seen that the very question before us, was presented to the court-in that case; and while there has been some doubt as to-•whether the court did or did not in the opinion determine that by the word “uniform” used in the syllabus, it had reference to the question now under consideration, and meant to determine that all laws pertaining to elections .should have a uniform operation and should be general laws, yet there is much in what is said in the opinion, to lead to the conclusion that the court meant to so say; and it is difficult to read the opinion of the court in that case •without believing that the court meant to show that all laws pertaining to elections, must be general laws and have a ¡uniform operation. This case is commented upon by Judge Shauck, in State ex rel. Plimmer v. Posten, reported in Weekly Law Bulletin, page 386, of December 19, 1898. Judge Shauck uses this language:

“It does not seem to be doubted that the provision in ■question operates uniformly and impartially onfall political parties and sections of voters. Whatever discrimination it ■makes is on account of the numbers solely.”

From these two opinions, it is probably doing no injustice to the supreme court to say that that court has held that the subject of elections is one of general interest throughout the state, and that all laws pertaining to the same must be of a general nature having uniform operation ‘throughout the state. State v. Butts, 31 Kas, 537-550; the opinion commencing on page 550. The opinion is by ■Judge Brewer, who at that time was on the supreme bench in the state of Kansas, and is now one of the justices of the United States supreme court. The question for determination before him was, whether a law that pertained to certain cities of the state was a constitutional law and as having a uniform operation throughout the state; and that was the question that he determined, and he determined that .cities might be classified under the constitution, and that ■any law that pertained to all the members of a class, made where a proper distinction exists for making classes, is a ^general law and of uniform operation, and that the law under consideration was of that nature. Had Judge Brewer ■believed that it made no difference whether the law was a .general law or local law, or that a local law was proper, he «could- have much more easily pronounced his opinion by ^saying that “under the constitution, considering the subject of elections, it makes no difference whether the law is ¿general or local.”

' We, therefore, hold that the section in question is local in its operation and its application, not having a uniform ■operation, but does by its terms exclude two cities of the state from its operation and, therefore, it is unconstitutional and affords the defendants no warrant of law for usurping the office they hold.

It is contended, however, that, if this law is unconstitutional and void, it can have no effect whatever, and that ■the clause attached to it, by which the same section in the .law of 1890 was repealed, can have’no effect, and that the section in the law of 1890 is in full force and effect, and affords sufficient warrant of law, for the holding of the office.

The question presented by this claim of counsel is, as to whether, when a law is declared unconstitutional, the clause therein repealing a former law falls with the unconstitutional part of the law or remains good, leaving all acts and things done under the unconstitutional law without any support from the law that was repealed.

There is no doubt that an act may be constitutional in part, and in part void. If the unconstitutional parts are essential to the constitutional, all must fail, and if the parts •are so mutually related as to make it evident that the legislature intended them to cónstitute one, so that if all could not be carried into effect, none would have received the legislative sanction, the case is within the same rule; but this rule must be taken with the limitation that the parts so held respectively constitutional and unconstitutional must be wholly independent of each other so that the one intent may exist as to one, and a separate intent as to the other.

The election laws, as found upon our statute books, have been passed by reason of the necessity that existed in our state. That necessity was to secure fair elections. The same necessity has been found to exist in nearly every state-of the union. It is, therefore, not reasonable to conclude' that the state legislature meant to repeal all laws upon this subject and leave the state entirely without law regulating-elections in the state. This being true there was no intent to repeal the law of 1890 by the law of 1896, for any other purpose than to give effect and operation to the latter law. This being true, and the law of 1896 being unconstitutional, the legislature must have intended that if that act should prove to be unconstitutional, then the law of 1890 should remain in full force and effet. This intent existed, and the purpose of putting in the repealing clause being as above stated, it follows that the repealing clause falls within the law itself, and the act of 1890 remains and has remained up-to this time as the law governing elections. This is not without authority.

Bishop on Written Law, sec. 34; Sutherland on Statutory Construction, sec. 175; State v. Keyser, 14 Nevada, 202; Sullivan v. Adams, 3rd Gray, 476; State v. Bland, 121 Indiana, 514; In re Rafferty, 1 Wash., (State of Washington) 389; Tims v. State, 26 Ala., 165; Childs v. Shower, 18 Iowa, 261; In re Petty, 22 Kansas, 489; People v. Flemming, 7 Col., 230; Randolph v. Builders & Painters Supply Co., 106 Ala., 501.

This latter case is authority to (be point that where acts are done under and with special Reference to the unconstitutional law, these acts may be justified and enforced under the previous law repealed by the unconstitutional law.

The defendants cannot, therefore, be ousted from their offiee notwithstanding the law of 1896 is unconstitutional,. 'unless the law of 1890 is also unconstitutional. We have 'examined this law carefully and the authorities bearing upon the different phases of the law. And we hold that that law is constitutional, and, so far as the board of elections are performing the duties of the board pertaining to the • city of Cleveland, constitutes warrant of law for such acts.

In 1889, (86 O. L,, 258, sec. 2926 and supplementary ^sections,) the authority of the board of elections in a county having within its territory a city of the first grade and first • class, was extended to and over all elections held in the county, and providing that the secretary and clerk should ■be electors of the county and not of the city merely. This act applied to Hamilton county alone, it being the only • county that had a city of the first grade and first class.

In 1891, 88 O. L., 468, a law was enacted on April 30, 1891, providing that in any county having within its territory a city of the first class, the board of elections heretofore established in such city shall be the county board of elections, and all the privileges, duties and penalties of sec. 2926b and the supplementary sections shall apply to all ■elections in such counties. And in 1892, 89 O. L., 429, the act was again amended; and section 1 provides that in any county having within its territory a city of the first class, the election precincts of the county, not included within the city, should be held and deemed to be election precincts of the city for the purpose of conducting elections therein, and the board of elections heretofore established in such city, shall have direction of elections in such precincts and throughout such county, and that all the provisions of sections 2926b and supplementary sections shall apply. This section is marked 2926 w-1, of the Revised Statutes.

In 1898, 93 O. L., 361, sec. 1, provides that in any county having within its territory, a city?of the^first class and first grade of the second class, except ^counties containing cities of the first class and fourth grade, the election precincts,of the county, not included within the city,, shall be held and deemed to be election precincts of the city.for the purpose of conducting and supervising elections, therein, and the board of elections heretofore established in. such cities have direction of elections.

There are features of this last statute that fall clear'ly,-within what I have already said in regard to 2926b, and I. will not repeat them.

These laws constitute the authority of the board of elections of the city of Cleveland for extending its authority over the elections of the county outside of the city. These laws are called in question as to their constitutionality, and. they may be considered together, or if one of them is unconstitutional they are all unconstitutional; and if there is no-authority in one, there can be no authority in any of them. These laws undertake to make and do make a distinction, between the rural parts of a county containing a city of the» class named in the law, and the rural parts of a county not containing such a city. Any reason for this distinction in the law is not easily comprehended. We know none, nor can we think of any reason why one county should be or can be distinguished from another, under the election laws.

It is clear from the decisions *of the supreme court of the. state that the classification allowed by the laws of the state as to municipalities, can not be extended to counties; and, upon a law of a general nature, whatever distinction may exist as to counties,the court Will not sanction any classification of them in such a law making the parts of such, counties outside of the cities named — or, to be more specific,, making that part of Cuyahoga county lying outside of the. city of Cleveland a part of the city so' far as elections are-concerned. This is making a classification of such part of Cuyahoga county different from the law applied to other counties in the state, and this is done without any grounds^ for such distinction, and without any authority of law of distinguishing counties under a general law or excepting any county from the operation of a general law. This being-true, it follows that the board of elections in this county has no warrant of law for usurping any authority over the-election precincts of the county lying and being outside of the city. If a final judgment is entered on this hearing, a decree may be taken in this case ousting the board of elections from such office so far as the precincts outside of the-city are concerned.

The second defense is the three-years’ statute of limitations. It is not important in the view we have taken of the law, that we should say anything upon this subject. I will' merely say this: That it is clear no cause of action arose until the passage of the law of 1896. There was until that time no unlawful usurpation of the office; and that unlawful usurpation arose from the passage of the law of 1896 and the laws extending the authority of the law over the entire county.

These laws were passed at such a time that the cause of' action set up in the petition in this case, arose within the-three years preceding the filing of the petition. This being true, the statute of limitations has no'place in this case.

An effort is made in pleading this defense in the answer to show that this statute of limitations must be held to apply to the board as such, and not to the individuals thereof. The action is brought against the individuals alone, and not the board, and properly so. The defendants as individuals-file a joint answer, and not as a board. This being true, the statute of limitations, so far as it can apply to this action at all, can apply only to the times of appointment of the-individual members of the board. State ex rel. v. Robinson, 7 C. C., 152.

In that case the Cincinnati circuit court held that where-the purchase makes a cause of action against a board of education and likewise against the directors composing that board, and the judgment is asked against each, that .it is a misjoinder, there being two causes of action distinct and separate, and they must be so stated and so dealt’ with.

O. E. Pennewell, E. J. Wing, for Plaintiff.

M. G. Norton, Geo, Phillips, for Defendant.

If that is true, and this is a cause of action against these members of the board of elections, it can not by the answer bb changed into a cause of action against the board itself.

The demurrer to the second cause of action is sustained.

What I have said as to the judgment to be entered herein, has been said upon the supposition that the defendants will not desire to answer over, Judgment will be made accordingly.

The demurrer as to the second defense, the statute of limitations, will be sustained.

Marvin, J.

I have not felt so persuaded that the statute, section 2926b, as amended m 1896, is a law of a general nature which must have a uniform operation throughout the state, such as to fully justify myself in saying that it is unconstitutional. I do not care to take up time. It is quite likely by brethren may be right.

Caldwell, J.

I have made the following entry in the case of the State ex rel. Wilmot and Kurtz:

“December 28, 1898, demurrers to the second and third defenses in the answer sustained, and the demurrer to the first defense in the answer is overruled; and the plaintiff •excepts to the overruling of the demurrer to the first defense; and the defendant excepts to the sustaining of the demurrers to the second and third defenses in the answer.”


author: Day, J.

text:
    (Third Circuit—Hancock Co., O., Circuit Court
    May Term, 1898.)
    Before Day, Price and. Norris, JJ.
    THE KENTON GAS AND ELECTRIC COMPANY v. GEORGE S. DORNEY et al.

      Gas and Oil Lease construed — Forfeiture—
    Where the owner of real estate made a lease, granting' the underlying gas and oil, with the right to drill wells in order .to procure-said products, which, if obtained, were to be divided between the lessor and-lessee in certain stipulated ratios,and where the lease contained the provision that if no well-, is completed within one year from thé date of the lease, then ■the grant shall-be null and void, unless the lessee1 .shall pay to the lessor, a certain amount of money- -agreed upon, -for each year thereafter that such completion is delayed, find where the lessee did not complete a well within the year from the date of-the lease and did not pay or -tender-the amount'of ■ money agreed upon mntil -after the . expiration- of the year next after the.dale-of the lease, which was -then refused ,-by the- lessor, held:
    1st, That the -lease became forfeited by virtue'of its own- provisions and is void, and an election on the-part of the lessor to terminate.it, is-not-required.
    . Lessor’s ovtion of forfeiture — What will ■amount to exercise—
    2nd. That in such case, the making of another or second lease of the same real estate;.for the same purposes, after the expiration of the year stated in the above provision, to a third party, would be evidence of an exercise of an, option to forfeit the first lease and of an election- to terminate it.
    - Life tenant can not-grant oil and- gas lease—
    3d. That a tenant for life has no right to operaté for oil or gas, on the premises- in which such estate is hhld, or to make an oil or gas lease thereon, when .operations for oil or gas were not commenced before the life estate accrued.
    Appeal'from the' Common' Pleas Court'of Hancock county.
   Day, J.

The plaintiff,, a • duly organized corporation, claims a leasehold -estate with the right to drill for and produce oil and gas .-on the 70 acre farm of- W. .LI.' Decker, in Jackson township, Hancock county. Plaintiff’s lease was executed on August 17, 1896. The action is brought against Dorney & Harris to enjoin them from entering upon the said 70 acres and drilling for, or producing oil or gas thereon, which it is averred they are threatening to and will do unless restrained; and the prayer of the petition is for a perpetual injunction and the cancellation of two leases, for the same premises, given, one in 1893, by W. L. Decker, and one in 1897, by Mrs. Anna Altman, to the defendants. Defendants Dorney & Harris assert the validty of their two leases and the invalidity of the plaintiff’s lease,and ask to have their title quieted as against plaintiff, and for costs.

There is no dispute as to the material and controlling facts. The facts are: Anna Altman has an estate for life in the 70 acres, which she has not formally conveyed away. She, however, put her son W. L. Decker, who owns ' the fee subject to said life estate, in possession of the 70 acres to occupy and use as his home, and he has so used and occupied the same for more than ten years, and his mother has lived in his family and has been supported by him. The son has paid the taxes for ten or more years. On January 28, 1893, the son made a lease to Dorney & Harris. This lease contains the following provision: “If no well is completed within one year from this date — January 28, 1893 — 'then this grant shall become null and void, unless second party shall pay to the first party seventy dollars for each year thereafter such completion is delayed.’’ No well was completed within one year, or, at all, and no rental was paid at the expiration of one year, or at all; but in May, 1897, Dorney & Harris tendered $210 in payment of rent, which was refused by Decker. On August 17, 1896, Decker made and delivered a lease to the Kenton Gas and Electric Company, which company has paid rental, as per contract of lease, up to November, 1898. Both of .these leases were valid at their execution, were sufficient in form, and were properly acknowledged and recorded. Mrs. Altman made a lease of the same 70 acres for oil and gas purposes on May 27, 1897, and received $90.00 of the $100.00 rental agreed to be paid her; but the next$ day paid the $90.00 back to Mr, Harris,and demanded her deed of lease from him, which demand Harris declined to accede to. This last lease was also sufficient in form, and was properly acknowledged and recorded. Each of the leases were for a term of five years and so long as oil or gas was found in paying quantities Dorney & Harris hauled some material for a derrick on to the premises in May, 1897, and were intending to enter and drill a well, when they were prevented by the temporary injunction allowed at the commencement of this case.

Both parties claim the right to possess and operate the 70 acres; plaintiff, by virtue of the lease of 1896, and defendants, in virtue of the prior lease of 1893, and the lease from the life tenant, made in 1897; and the question pressing for answer is, which claimant is entitled — which lease is valid! and subsisting, if either of them is. If the lease of 1893 is-still subsisting and valid,it is manifest that that of 1896 is-invalid and ineffectual. If, however, the lease of 1893 has, become forfeit and void from any cause, the lease of 1896, so far as the interest of the remainderman or reversioner is-concerned, is valid and effectual, and gives the plaintiff' company full right, as against all the world save and except; the life-tenant, Mrs. Altman; aud it is believed that the’ most she could do in ths premises, would be to prevent any development under the lease without her consent. So the important question first pressing for solution is: Is the lease of 1893 still in force, or has it for any cause become forfeit by its own terms?

The provision for forfeiture, in case of non-completion of a well, and non-payment of rent, is plain and unambiguous, and cannot well be misunderstood.

“If no well is completed within one year, then this grant shall become null and void, unless second party shall pay first party $70.00 for each year thereafter, such completion is delayed.’’

It is certain no well was ever drilled; nor was any rental paid for delay. One or the other of these conditions must have been performed to save the grant from becoming null and void. Either the completion of a well, or the payment of rent is essential to save the grant; and neither has occurred. Defendants seem to believe, that in some mysterious way the tender and offer to pay rent, in 1897, in May, more than three years after the lease became void for non-completion of a well by its own terms, bad the effect to open up the defaulted payment, and restore defendants to their rights under the lease, precisely as they were at the expiration of the year allowed for the completion of a well, when they had the right to prolong the life of the lease by the payment of rent, We think this view cannot be entertained or considered as in any way justified by the wording of the lease. The provision is, that the term of the lease can be contiued, or rather, the grant saved from becoming void, by the payment of money. Something active must be done to save a forfeiture. Payment must be made to have a saving effect. The provision is not a negative one, but is distinctly affirmative, and no construction, even the most strained, will allow the defendants to save their rights under the lease, on credit. Money down — Cash in advance and “no credit here” seems to be the rule established by the contract under consideration. The affirmative, active things required by the stipulations of the lease, to save it from becoming null and void, were not done or attempted; and the conclusion seems imperative, that the lease became void by the force of its own provisions. The provision for forfeiture, in this case, is mandatory, and does not merely confer on the leasor an option to declare a forfeiture for his own protection, but provides for forfeiture absolutely, unless the leasee does something to prevent it. But if that were not so, and, as has been held by the supreme court in one case, the provision of forfeiture is for the benefit of the. lessor and gave him an option or" election to declare a forfeiture, or not, as he might deem best; and requiring an election, on his part, to terminate the grant; still we are of opinion the term provided by the lease is ended. The making of the lease to plaintiff in 1896, must be regarded as the exercise of the option and an election, by Decker, to terminate the lease of 1893. On either ground, or upon both, we hold the lease to Dorney & Harris, made in 1893, has become void and of no effect.

We are also of opinion that the lease executed by the life tenant, in 1897, was ineffectual to vest in defendants any interest in the 70 acres, by reason of want of power in the life tenant to convey such interest. It is well settled that a tenant for life, in possession of real estate, has no right or power to defeat the title or injuriously affect the interest of the remainderman, by alienating or disposing of some portion of the real estate; or even by using it in such way as to injure the reversionary interest and depreciate its value. The commission of waste' forfeits the life estate to the remainderman. The supreme court holds, that petroleum, oil and gas in their place in land, is part of the realty, and so remains until it is produced, when its character changes and it becomes chattle property. In this respect, petroleum is similar to standing and growing timber. While standing and growing, it is real estate, but when severed, it becomes personal property. A life tenant would have no more right to contract away the mineral part of the land, than to dispose of the standing and growing timber. The doing of either would amount to waste, and would have the effect to forfeit the life estate to the reversioner. The old lady took cne step toward the commission of waste, but retraced and withdrew before consummating it, To enforce her contract would be to enforce a wrong, and would have the effect to deprive her of her only means of support in the •sunset of her life; and this the court declines to do, The defendants Dorney & Harris acquired no rights — no legal rights — under the lease from the old lady; and it seems to us certain the lease of 1893 became null and void, by its own terms, in 1894, and certainly so in 1896; and from any view we are able to take, Dorney & Harris have nothing of interest in the 70 acres in controversy. Plaintiff has some interest — -has a valid and subsisting contract of lease from the remainderman, that entitles it to maintain this action, and, with the consent of the life tenant, may entitle it to operate the land for oil and gas.

Frank 0. Daugherty and Jno. F. Betts, for Plaintiff.

Blackford and Blackford, for Defendants.

There will be a finding for plaintiff, and the injunction .will be made perpetual, with costs to the defendants.


author: Caldwell, J.

text:
    (Eighth Circuit—Cuyahoga Co., O. Circuit Court
    Jan. Term 1899.)
    Before Caldwell and Marvin, JJ. (Hale, J. absent.)
    In the Matter of the Proceedings against FRANK E. DELLENBAUGH and VERNON H. BURKE.

      Admission to bar is for life — Attorney cannot withdraw from bar by entering other business—
    (1.) An admission to the practice of the law is fbr life unless the attorney is sooner removed, and when he leaves the practice and goes into another business he may at any time return to the practice again, and therefore, although he may have attempted to withdraw himself entirely from the profession, yet the courts have a right to deal with him as a member of the bar, and to disbar him.

      Member of Bar, although at the time a judge of the Common Pleas may be disbarred—
    (2). The court has jurisdiction to try an attorney at law although at the time of such trial and of such proceedings hó may hold the office of common pleas judge, and may not be authorized at that time to practice his profession.

      Jurisdiction of courts in disbarment cases—
    (3). Although the present statute places the authority to admit persons to the [.bar exclusively in the supreme court, it does not deprive the circuit and common pleas courts of the jurisdiction in disbarment proceedings conferred by sec. 563 R.S.
    PROCEEDINGS TO DISBAR, ETO.
   Caldwell, J.

We reached a conclusion in the case ofjrthe disbarment proceedings against Judge Dellenbaugh, last Friday, and expected to announce it Saturday morning, butjjJudge Hale went home unwell Friday. We expected him'tojjannounce the opinion; he has requested me to announce" simply our conclusions in the matter this morning.

Charges in this matter have been filed against Judge Dellenbaugh and against Vernon H. Burke,| and^£both attorneys have filed demurrers to the charges.

The demurrer has two branches to it, and we have heard the demurrer so far as Judge Dellenbaugh’s case is concerned, and the other demurrer is not heard'by reason of the sickness of Mr. Foran, who is unable to appear in’court.

In the Judge Dellenbaugh case the demurrer, first, aims at the jurisdiction of'the court to hear and try the""matters presented in the complaint filed by the attorneys appointed by this court; and,'in the second place, against the complaint as it does not set up facts sufficient to constitute an offense under the statute.

In the first place,it is contended that this court has no jurisdiction to hear and determine this case. One ground of argument on which this point is sought to be'’reached, is that the supreme court now alone has jurisdiction to admit to the bar and, that being true, no court but the supreme court has power to remove an attorney from the bar. That is hinted at, though not urged to any very great extent, in the last argument that was made in behalf of the respondent.

The statute places the jurisdiction in such proceedings within either the supreme court,or the circuit court, or the court of common pleas, and, although the statute now confines the admission of attorneys to the supreme court and places the matter entirely within the jurisdiction of the supreme court, yet we do not think it takes away the jurisdiction in disbarment cases given by section 563 of the Revised Statutes.

The second point is that as to whether Judge Dellen-baugh is, within the meaning of this statute, an attorney practicing before this court, as contemplated in the statute. That leads to an examination of the statute (sec. 563):

‘‘The Supreme Court, or the Circuit Court, or the Common Pleas Court may suspend or-remove any attorney at law from office, for either of the following causes: * * ”

That part of this statute confers the jurisdiction, and the causes are named; and then the statute proceeds, after bestowing the jurisdiction, to determine in what manner the proceedings shall take place and the mode of procedure prescribed, and this is it:

“The judges of such courts are required to cause proceedings to be instituted against any attorney at law when it in any manner comes to the knowledge of any judge in whose court such attorney practices, that such attorney is probably guilty of any of the causes of suspension or removal. ”

That prescribes the manner and the part of the state in whose court such attorney practices; and, we are inclined to think and so announce, prescribes the venue in which the proceedings should take place,and had no other purpose than that in the statute. .

It is said, in the next place, that the meaning of the second and third causes for proceedings as stated in this statute, are of such a nature that the information filed in this case brings it under the second and not under the third subdivision or ground stated in the statute, for removing an attorney, and, as the complaint does not pretend to place anything under the second, that, therefore, the complaint is not good.

The causes for which a removal may be made, are: misconduct in office, conviction of crime involving moral turpitude, or unprofessional conduct involving moral turpitude.

It is claimed that the intention of the statute is that these three causes are to be considered as separate and distinct causes, and that no case can fall under both or two or more causes at the same time; that if it is misconduct in office, it can be neither of the others; that if it is conviction of crime involving moral turpitude, it can be neither of the others; or if it is unprofessional conduct involving moral turpitude, then it can be 'neither of the others; and that this complaint' makes complaint only under the first and third causes, and not under the second, and at the same time the specifications set up a crime committed in the on-duct of the ittorney and, that being true, that it cannot tall under the second, and does not fall under the first, or third.

We cannot agree, in our conclusion, and we do not agree, with the attorney holding the ground that I have stated, that a conviction of crime involving moral turpitude, or unprofessional conduct involving moral turpitude, are two distinct grounds. In one, there has been a conviction; in the other, unprofessional conduct may be conduct that involves a crime although the party has not been convicted of that crime.

The authorities are greatly at variance as to whether the party can be convicted or can be removed for unprofessional conduct involving moral turpitude where that moral turpitude is a crime, without being first convicted of that crime. The authorities are somewhat at variance. The prevailing authorities seem to be that if that moral turpitude pertains to some act done while acting as attorney, the attorney may be proceeded against without being first convicted before a jury; but, if it is something- lying outside of the attorney’s profession or duties as attorney, there is much more authority going to show that he ought first to be convicted.

But we think that the proceedings may be had, although that it might be, and may be possibly, that there is a crime charged in these specifications; yet it can be sustained under the third.

But the main proposition in the case, which has been argued to a very great extent by the attorneys on both sides, is that Judge Dellenbaugh is acting now as a judge on the common pleas bench, and that the statute forbids him to practice at his profession while he is thus acting on the common pleas bench. There is an exception to his being forbidden to practice, in that he can finish any work that he may have commenced in the federal courts; but that he cannot practice in the state courts- — -the statute prohibits that entirely, And it is claimed that he, not being a practicing attorney, being removed by force of that statute from being a practicing attorney while he is a judge, is not filling the office of an attorney during that time, and that being so, he cannot be proceeded against. And then it is urged also, that the constitution of the state provides a punishment, a sufficient punishment against one who is acting as judge, who, in any way, fails to perform the duties of that office faithfully or honestly, that he may be removed by impeachment; and that the court cannot proceed in these proceedings without infringing on the duties and rights of that body; that is, to try him by way of impeachment.

Now we have examined a great deal of authority upon these two questions, and there is not much that is fairly in point.

We have examined a case in 6th Dowling Practice Oases, page 310. In that case, an attorney undertook to entirely desert the profession of law and go into other business; and, when proceedings were commenced against him, he pleaded as a defense that he was no longer a lawyer; that he was no longer practicing the law, and that the court, therefore, had no jurisdiction to try him. But the court ruled in that case, that an admission to the practice of the law is one for life unless the attorney is sooner removed, and that while he leaves the practice and goes into other business, he may at any time return to that business again; that is, to the practice of the law, and that his name and his right remains in the practice of the law, and that although he has attempted to withdraw himself entirely from the profession and from the practice, yet the court has a right to deal with him as a member of the bar and to disbar him.

There is a case in the 39 Atlantic, page 1087; page 1090 is the place where the question is discussed. That was a case decided just about one year ago by the supreme court of Connecticut. Proceedings were commenced to disbar a prosecuting attorney, for certain acts and certain conduct while acting as prosecuting attorney; and the defense was made, in that case, that it was not within the power of the court to remove him from his office as prosecuting attorney, —that that belonged to the legislature or to another authority entirely; that he could not be impeached by the court, and that taking proceedings against him as an attorney, in his office as prosecuting attorney, if that remo'ved him from that office of an attorney, it removed him from office as prosecuting attorney, for if he was not an attorney at law, he could not practice before any court,and hence he' could not exercise the duties of his office as prosecuting attorney. But the supreme court of Connecticut, in that case, held that that was no bar and no reason why he should not be proceeded against as an attorney of the bar, and removed, although the effect of such removal would be to remove him from office as effectually as though he had been impeached for misconduct in office.

Then, the cases are numerous and we have examined many of them, where an attorney has no exemption — no difference what office he may hold, whether that of Judge or any other office — from all the liabilities of any other individual of the community to any civil action or any criminal action; that he has no exemption whatever, by reason of any other office he may hold, why he should not be dealt with in bis office as attorney at the bar; and we find this, that in every field of life, as to business matters, as to all actions against such person, any court, whether of a civil or criminal nature, that the fact that he holds the office of judge is no reason why he may no be dealt with the same as any other individual of the community. The fact of proceedings to disbar one who holds another office or the office of a judge’at the same time of the disbarment proceedings, has no effect upon his other office whatever; it is not necessary that the party should be an attorney in order to hold the office of judge in this state. So that the case here is-not as strong a case against proceedings, as the case I refer to in Connecticut where the proceedings to disbar would be proceedings to remove the attorney from his office as prosecuting attorney.

After examining this matter with a great deal of care we come to the conclusion that'the court has jurisdiction in this' matter, to try an attorny at law although, at the time of such trial and the time of such proceedings, that attorney may be holding the office of common pleas judge, and may not be authorized at that time to practice his profession.

It is claimed, in the next place, that the charges, the specifications 1 and 2, set up misconduct on the part of Judge Dellenbaugh that- amounts to misconduct in his office as judge and not to misconduct as to his office of attorney. We have read those specifications very carefully, as they were read many times during the trial, and the specifications evidently aim to charge that in all that he did in those specicfiations that I have mentioned, it was done while he was prosecuting his office as attorney,and not that of judge. Of course, when we reach a further point in this case, it may be necessary to determine very accurately just how far one who acts as judge- — -how far his acts amount to a performance of duties in that particular office; but we have examined a great many authorities already upon this subject, and nearly all of them hold this: That where a judge undertakes to exercise the duties of a judge clearly against a provision of the statute of the state that he shall not exercise, where by the statute of the state he has no right to exercise such duties, that his acts are entirely void. I believe the rule of common law was that those acts were not void, but voidable; but where the acts are prohibited by statute, the authorities are quite numerous that those acts are entirely void, and that a judge who thus acts is not exempt from civil action, nor even from criminal action by reason of those acts — he has acted without authority; hence he has acted simply as an individual, and any damage that he has done anyone by reason of such acts is no shield to him whatever when sued to recover damages from him on account of such action. There is a class of cases, so far as the law stands, before us now; it is simply this: That he undertook to do certain acts in a matter wherein he himself was an attorney at that time, and it charges that he did that purely and simply to further his desires and wishes and purposes as an attorney,and not as a judge, and he did those acts, so far as it appears now, directly in the face of the statute or the common law doctrine that has prevailed in the state and is sanctioned by statute in nearly all the states. That being true,so far as the matter now stands, it would be bringing these acts plainly within the rule of a clear violation of a plain duty, and be without jurisdiction. There is a line of cases that we have examined, that go upon this theory, that if the question is a close one, and if the judge has exercised an honest judgment upon the matter, and has apparently been fair, but determined that he could sit in the matter, and has exercised his authority in his judicial office in that particular matter, then he will be exempt; some courts going so far as to hold that his action will be only voidable, and'not void. But how far this matter may appear upon the evidence, or must appear from the answer and the evidence as it now stands, we think that objection is not well taken. So that we think that the specifications named are good as against this demurrer.

Messrs. White, Sanders, Blandin, HiVs and Hadden, for Prosecution.

Messrs. Ingersoll, Boynton and Hogsett, for Respondent.

The last point that I shall notice, is this: That the specifications, if true as alleged, do not constitute such an offense under section 56b, of the Revised Statutes,as would warrant a court in removing an attorney from his office as attorney. .1 will not discuss that at all, but will say that if these specifications.are made good by proof, we can see no reason why it does not constitute an offense that should remove an attorney from his office, or suspend him, — one or the other.

And we overrule this demurrer in the Dellenbaugh case, and will note an exception.

Judge Ingeesoll: Your Honor, I ask the court to separately docket each case — to have the docket show each case separately if the other side has no objection.

The Couet: I suppose it ought to be done.

Me. HaddeN: We concur,I think. We see no objection, to it.