author: WINCH, J.

text:
    APPEAL — DIVORCE AND ALIMONY.
    [Cuyahoga (8th) Circuit Court,
    May 11, 1906.]
    Marvin, Winch and Henry, JJ.
    Mary Kerlik v. Thomas Kerlik.
    1. Insanity of Defendant not a Bar to Adjudication of Property Rights.
    Property rights of parties to a divorce proceeding may be adjudicated notwithstanding the defendant is insane; whether present insanity is a bar to divorce is not decided.
    2. Trustee for Insane Defendant Proper in Divorce.
    There being no special provision in the chapter of the Revised Statutes on divorce with regard to procedure as to an insane party, the general statutes apply. Hence, the appointment of a trustee for an insane defendant in divorce proceedings is proper.
    [Proof of this decision and syllabus has been submitted to Judge V/inch and corrected’.]

      Eeror to Cuyahoga common pleas court. ■
    Klein & Harris, for plaintiff in error:
    Cited and commented upon tbe following authorities: Clowry v. dowry, 8 Circ. Dec. 652 (16 E. 302) ; Rhude v. Rhude, 8 Dee. 684 (33 Bull. 273) ; Gasler v. Bowen, 1 O. S. C. D. 729 (39 Bull. 4); 14 Cyc. 628 and cases noted under 71; Earrigan v. Earrigan, 135 Cal. 397 [67 Pae. Eep. 506; 87 Am. St. Eep. 118]; Rathbtm v. Rathbun, 40 How. Pr. (N.. Y.) 328; Stratford v. Stratford, 92 N. C. 297; Mansfield v. Mansfield,, 13 Mass. 412; Douglass v. Douglass, 31 Iowa 421; Mordaunt v. Mor-daunt, 41 L. J. Eep. N. S. 42; 2 Nelson, Div. & Sep. 669; 2 Bishop, Div. & Sep. Sees. 518, 522.
    Mathews & Orgill, for defendant in error.
   WINCH, J.

Plaintiff brought her action against the defendant praying for divorce, custody of children, alimony, and that she be decreed to be the sole owner of certain real estate which she claims to have paid for-herself, although the record title thereto is in the plaintiff and defendant jointly. Extreme cruelty and gross neglect of duty are alleged as, the grounds for divorce.

The petition further alleges:

“Defendant is now an inmate, of the Cleveland hospital for the insane, duly committed by the probate court of Cuyahoga county, and is hopelessly insane beyond hope of recovery. All of the grounds of divorce above set forth arose prior to the insanity of the defendant and while he was in good health and of sound mind.”

Service was had by delivering copies of the summons and of the petition to the defendant, and like copies for him to Dr. A. B. Howard, superintendent of the state hospital, in which the defendant is detained.

Thereupon the court of common pleas appointed a trustee for the defendant in the suit, finding that his legal guardian had an interest in the controversy adverse to defendant; and the trustee so appointed, answered, admitting the marriage, birth of children and insanity of the defendant, as alleged in the petition, but denying all other allegations therein.

At a subsequent term, the trial court made the following order in the cause:

‘ ‘ This cause having been duly advanced, came on this day for hearing, whereupon the court without final hearing dismissed the petition of the plaintiff at her costs, for which judgment is rendered against her.”

Notice of appeal was given, bond fixed and given, and the ease brought into this court under favor of Rev. Stat. 5706'' (Lan. 9240), which reads as follows:

“No appeal shall be allowed from any judgment or order of the court of common pleas under this chapter, except from an order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony, or in eases under section 5705 [Lan. 9239] (injunction against intemperate husband from squandering property) ; when judgment is rendered for both divorce and alimony, the appeal shall apply only to so much of the judgment as relates to the alimony; and when an appeal is taken by the wife, she shall not be required to give bond.”

In this court a motion is made to dismiss the appeal, but said motion is overruled, as it is clear that the case is appealable as to the property rights of the parties, and we do not now decide whether or not, as to the divorce, an order was made dismissing the petition without final hearing, within the intendment of the statute, so as to require this court to hear and determine whether a divorce should be granted to the plaintiff.

Further objection is made to this court’s hearing the case, based upon the defendant’s insanity.

So,far as that objection amounts to a demurrer to the petition, it is overruled, for we know no good reason why the property rights of the parties should not be adjudicated, even though the defendant is insane. Whether the present insanity is a bar to divorce, we do not now decide.

But it is said that this case should not be tried, because there is no provision in the chapter on divorce, ’authorizing the appointment of a trustee who may make a defense for the defendant, which his insanity precludes him from making for himself.

In the case of Johnson v. Pomeroy, 31 Ohio St. 247, at page 248, it is said:

“An insane person may be sued and jurisdiction over his person acquired by the like process as if he were sane. But when it is made to appear to the court that a party to the suit is insane, it is made the duty of the court by statute (S. & C. 385, See. 7) to appoint a trustee to prosecute or defend the suit for and on behalf of such insane party. ’ ’

The statute referred to is now known as Rev. Stat. 5000 (Lan. 8515), and is found in the revision and consolidation of the laws relating to civil procedure, enacted May 14, 1878 (75 O. L. 597, 606), but was originally enacted March 14, 1853 (51 Q. L. 473, Sec. 7), and then read:

“Whenever, in any suit in court now pending, or which may hereafter be instituted, it shall manifestly appear to the court that any person who is party to such suit is an idiot, lunatic or insane person, ’ ’ the ■ court may appoint a trustee.

This act was passed three days after the legislature had adopted the original code of civil procedure (51 O. L. 57), and the act concerning divorce and alimony (51 O. L. 377), both of which were also carried into the revision and consolidation of the laws relating to civil procedure, above referred to. 1

The code provided for “one form of action which shall be called a civil action,” and the provisions regarding divorce constituted a “special proceeding,” so designated in the revision (75 O. L. 726), and so held by the Supreme Court. State v. Cook, 66 Ohio St. 566, 573 [64 N. E. Rep. 567; 58 L. R. A. 625].

Section 604 of the code of 1853 (51 O. L. 161) provided: ■

“Until the legislature shall otherwise provide, this code shall not affect * * * proceedings under statutes relating to dower, divorce, or alimony; * * * but such proceedings may be prosecuted under the code, whenever it is applicable.”

This section dropped out in the revision, and in its place appears Rev. Stat. 4956 (Lan. 8471)', which reads:

“Where in part three of this revision special provision is made as. to service, pleadings, competency of witnesses, or in any other respect, inconsistent with the general provisions in this title, the special provisions shall govern, unless it appear that the provisions are cumulative. ’ ’’ Considering this history of the statutes, we have concluded that as. there is no special provision in the chapter on divorce with regard to' the procedure as to an insane party the general statutes on the subject, apply, and that a trustee was properly appointed for the insane defendant.

The motion to dismiss the petition is, for the reasons stated, overruled, and the case is assigned for trial upon May 7, 1906, immediately' upon our return from the circuit.

Marvin and Henry, JJ., concur


source: Caselaw Access Project

license: Public Domain

text:
    «(AMINO AND GAMBLING — CHARGE TO JURY — CRIMINAL LAW. (
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Winch, Henry and Marvin, JJ.
    Robert E. Gill v. State.
    1. Failure to Aver Keeping of Place for Permitting the Making of Unlawful Contracts is not Insufficient.
    An indictment charging one with keeping a bucket shop, which follows the language of the statute, but does not aver that the place was kept for the purpose of permitting the entering into of unlawful contracts, and does not define the nature and character of the contracts alleged ■to have been permitted to be entered into, is not insufficient.
    '2. Duty- of Keeper to Show Contracts Admitted Were not Prohibited by . Statute.
    Tn such a case it is not error to charge that the keeper must show that the transactions admitted to have occurred were not prohibited by the statute.

      ■ Z. “Buy Slips,” etc., of Bucket Shop Keeper not Conclusive Evidence.
    , Where “buy slips” and “confirmation slips” which recite that it is the intention of the customers to receive and pay for stock pretended to be ■bought are introduced in /evidence, it is not error to charge that such slips are not conclusive as against testimony of the customers and the ■conduct of the keeper given in evidence; nor is it error to charge under such evidence, that the fact that the defendant inquired of his customers as to their intentions, would not shield him from responsibility.
    Gravamen of Offense.
    The gravamen of the offense of keeping a bucket shop, as defined in Lan. Rev. Stat. 10578 (B. 6934a-l), is in keeping a place wherein is conducted or permitted the pretended, buying and selling of stock, etc., on margin or otherwise, without intention on the part of the customers to receive or deliver the stocks.
    5. Defining Word “Margin” not Prejudicial.
    It is not prejudicial error in a bucket shop case to neglect to explain to the jury the meaning of the word “margin,” where there is no request that its meaning be defined.
    I Syllabus by the court.]
    ERROR to Cuyahoga common pleas court.
    T. J. Ross and W. H. Boyd, for plaintiff in error.
    S. Y. McMahon, Pros. Atty., P. L. A. Lieghley, and F. B. Gott, for ■ defendant in error:
    Cited and commented upon the following authorities: Central Stock & Grain Exch. v. Chicago (Bd. of Trade), 196 Ill. 396 [63 N. E. Rep. 740] ; Chicago (Bd. of Trade) v. Grain Exchange, 98 Ill. App. 212; Kahn v. Walton, 46 Ohio St. 195 [20 N. E. Rep. 203]; Lester v. Buel, 49 Ohio St. 240 [30 N. E. Rep. 821; 34 Am. St. Rep. 556]; Soby v. Peo-

      pie, 134 Ill. 66 [25 N. E. Rep. 109]; Weare Com. Co. v. People, 209 Ill. 528 [70 N. E. Rep. 1076]; Bryant v. Telegraph Co. 17 Fed. Rep. 825; Forteribury v. State, 47 Ark. 188 [1 S. W. Rep. 58]; State v. Logan, 84 Mo. App. 584; Fullerton v. State, 75 S. "W. Rep. 534 (Tes.)'; McQrew v. .Produce Exch. 85 Term. 572 [4 S. W. Rep. 38; 4 Am. St. Rep. 771] ; Kirkpatrick v. Bonsall, 72 Pa. St. 155; Bradley v. Telegraph Co. 8 Dec. Re. 707 (9 Bull. 223) ; Morris v. Norton, 75 Fed. Rep. 912 [21 C. C. A. .553; 43 U. S. App. 739]; Phelps v. Holderness, 56 Ark. 300 [19 S. W. Rep. 921]; Gregory v. Wendell, 39 Mich. 337 [33 Am. Rep. 390] ; Irwin v. Williar, 110 U. S. 499 [4 Sup. Ct. Rep. 160; 28 L. Ed. 225]; Higgins t. McCrea, 116 U. S. 671 [6 Sup. Ct. Rep. 557; 29 L. Ed. 764] ; 1 Bishop, ■Grim. Law Sec. 355; State v. Kentner, 77 S. W. Rep. 522 [178 Mo. 487] ; North v. Phillips, 89 Pa. St. 250; Beveridge v. Hewitt, 8 Ill. App. 467; Pearce v. Foot, 113 Ill. 228 [55 Am. Rep. 414]; Tenney v. Foote, 95 Ill. 99; Cobb v. Prell, 15 Fed. Rep. 774; Kent v. Miltenberger, 13 Mo. App. 503; Tenney v. Foote, 4 Ill. App. 594; Christie-Street Com. Co. v. Board .of Trade, 94 Ill. App. 229; Chicago (Bd. of Trade) v. Commission Co. 14 O. F. D. 162 [115 Fed. Rep. 574]; Christie Grain <& Stock Co. v. Chicago {Bd. of Trade), 125 Fed. Rep. 161 [61 C. C. A. 11]; Chicago !Bd. of Trade) v. Kinsey Co. 125 Fed.. Rep. 72.
   WINCH, J.

Plaintiff in error was convicted of keeping a bucket shop, under an indictment charging him with so doing, as follows:

“That Robert E. Gill, late of the county aforesaid, on the first ■day of January, in the year of our Lord one thousand nine hundred and four, at the county aforesaid, and on divers other days and times from said last named date to the day of the finding of this indictment, in the county aforesaid, did unlawfully beep a bucket shop and place wherein was conducted and permitted the pretended buying and selling of shares of stocks and bonds of corporations, petroleum, cotton, grain and produce, on margins, without any intention of receiving and paying for the property so pretended to be bought, or of delivering the same so pretended to be sold, as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”

The statute under which said indictment was drawn, in the particulars here involved, is worded as follows:

Laning Rev. Stat. 10578 (B. 6934a-l). “It shall be unlawful for any * * # person to keep or cause to be kept within this state any bucket shop, office or other place wherein is conducted or permitted the pretended buying or selling of the shares of stocks or bonds of any corporation, * * * (a) either on margins or otherwise, without any intention of receiving and paying for the property so bought, or of delivering the property so gold; or wherein is conducted or permitted the pretended buying or selling of such property (b) on margins, or (e) when the party buying any of such property, or offering to buy the same does not intend actually to receive the same if purchased, or to deliver the same if sold.”

The division of the statute into subheads under the letters (a), (b) and (c), is for convenience in discussing objections to the charge, hereafter mentioned.

Numerous reasons are assigned by counsel for plaintiff in error why the conviction in this case should not stand. We shall take them up in their order.

1. It is said that the indictment is insufficient because it does not aver that the place was kept for the purpose of permitting the entering into of unlawful contracts and does not define the nature and character of the contracts alleged to have been permitted to be entered into.

Having passed upon a similar indictment in the ease of Wirth v. State, unreported, at the fall term, 1906, in Lorain county, and having-held the same sufficient, we do not consider it necessary to enter into a discussion of this point and hold it not well taken.

2. It is said that the verdict is not supported by sufficient evidence.

We think the record clearly shows that Gill kept a place for the purpose of permitting, and in which he permitted, the pretended buying of stocks on margins without any intention on the part of his customers of receiving or paying for said stocks if the price of the same went up, and without any intention on his part in that event, of delivering stocks so pretended to be sold by him to said customers. An exhaustive resume of the evidence by the assistant prosecuting attorney, in his brief filed in this case makes it unnecessary for us to say more on this subject than that we find he has correctly stated the facts from the record and drawn the proper conclusions therefrom.

3. We find no error in giving the state’s three requests to charge.

The first, that “the keeper must know that the transaction is not prohibited by the statute,” is as applicable in a bucket shop case as in the unlawful selling of liquor to a minor.

The second request of the state will be. considered in connection with objections to the general charge as given by the trial judge.

The third request was properly given. The “buy slips” and “confirmation slips” in which the customers and the keeper undertook to> give an apparent legal aspect to the transactions were not conclusive, as the statements of said customers before the jury and the conduct of the keeper as shown in evidence, clearly showed. To have refused this .request and to leave any impression with the jury that they were conclusive would have been, in effect, to have legalized this scheme and subterfuge and to have directed a verdict for the accused.

4. Defendant’s eighteenth request to charge was properly refused, for reasons that will appear when we come to consider the charge as given.

5. There are four specific objections to the charge as given; the most important of these requires a careful analysis of the statute quoted.

First. It is said that distinct offenses are defined in this statute, the first, found in the paragraph marked (a) which requires, it is claimed, that the pretended sales or purchases must be upon margin or otherwise without intention, on the part of either keeper or customer to deliver or receive, and another under paragraph marked (c), where the pretended sales or» purchases need not be upon margin, but must be writh an intention on the part of the customer only, not to receive the stock, the intention of the keeper not being an element of the offense.

It will appear from an examination of the indictment that it was, drawn under the first paragraph (a), and it is claimed that the court erred in reading to the jury the balance of the statute, (b) and (e), thus intimating that they might convict though the sales were not “on margin, ’ ’ and regardless of the intention of the keeper.

To use the words of counsel for plaintiff in error, on this subject:

‘ ‘ This was particularly prejudicial because 'the portion above quoted (b and c) is that part of the statute which penalizes the act when the party buying does not intend to receive regardless of the intention of the keeper, and also includes that part of the statute which penalizes the buying and selling regardless of whether the purchases are made on margins or otherwise.”

In line with this objection is the criticism that the court neglected throughout the charge to state that .the sales must be “on margin.’’

In the view we take of this statute, as a whole, these points are not well taken.

We do not think there are different offenses defined in this statute, but adopting counsel’s theory that there are two distinct offenses specified and paraphrasing the statute to test that theory, we read it as follows:

(a) It is unlawful for any person to keep a bucket shop, office or other place wherein is conducted or permitted the pretended buying. or selling of stocks, that is to say, the buying or selling of stocks either on margin or otherwise, without any intention on the part of the person buying of receiving and paying for the property so bought, or without any intention on the part of the person selling, of delivering the property so sold. \

(b) It is .unlawful for any person to keep a bucket shop, office or other place, wherein is conducted or permitted the pretended buying or selling of stocks, that is to say, when the party buying any of such property, or offering to buy the same, does not intend actually to receive the same if purchased, or when the party selling any of such property, or offering to sell the same, does not intend actually to deliver the same, if sold.

Confessedly, to so read the statute would be to make it tautologi- • cal, were there no distinction to be made between the phrase in the first paragraph, “without any intention” and the corresponding phrase in the second paragraph “when the party does not intend.” One allows proof of a negative and the other of an affirmative; one requires proof that there was no intention to deliver or receive, the other requires proof that there was an intention not to receive.

The distinction is too refined and strained, it is true, to have much merit, but the argument leads to the conclusion that the statute itself is tautological' and is another of those clumsily worded laws which so frequently afford opportunity for the lawyer’s best efforts, and vex .and confuse the courts, requiring construction, but in themselves offering little light to those whose duty it is to construe them, when called upon to do so. As to the proposition that either clause requires that proof must be made that the sales were “on margins,” we find no difficulty. The first paragraph speaks of the buying or selling of stocks on margin or otherwise. The last paragraph says nothing about margins. The indictment alleges that the buying and selling was “on margin” and the proof was to that effect. The failure of the trial ■ court to dwell upon the margin feature was not prejudicial to the accused. The gravamen of the charge was the 'pretended buying and selling, without intention to receive or deliver.

It is as though one were accused of unlawfully selling intoxicatir.j liquor, to wit, whiskey, under a statute making it unlawful to sell intoxicating liquor; proof that he sold whiskey and a charge as to intoxicating liquor, with no reference in it to the kind specified, to wit, whiskey.

No prejudice would result from such a .charge.

So, too, as to the intention of the keeper. If he kept a place wherein 'he conducted or permitted the pretended buying or selling of stocks, whether he or his customers did not intend to deliver or receive the ¡stocks so pretended to be bought or sold, the keeper would be guilty.

Second. We think that the charge that “the fact that the defendant did or did not inquire of his customers, if such you find the fact to be, as to their intention, does not shield him from responsibility” was neither erroneous nor misleading. Taken in connection with the balance of the charge, and in the light of the evidence adduced, it was proper. His inquiries, if he made any, were admissible, as tending to show good faith on his part, and if he made none, as tending to show disregard of the law, but the mere fact that he made such inquiries would not shield him from prosecution, if other evidence in the case showed him guilty, and if he made no inquiries, that fact would be no shield.

Third. What the court said in the general charge as to the inconclusiveness of the written contracts we have already ruled upon in our consideration of the state’s third request to charge.

Fourth. It is claimed that the word “margins” is nowhere in the charge defined, and that inasmuch as it is a technical one and essential, and included in the indictment, it should have been defined.

Three reasons occur why no prejudice resulted from this omission, if it may be called such, on the part of the trial judge.

As already shown, the word “margin” was not essential to the indictment; its meaning is defined in the dictionaries and it is of common use and well understood, and finally there was no request by the accused that its meaning should be defined by the trial judge.

We find no error in this record and the judgment is affirmed.

Henry and Marvin, JJ., concur.


author: HAYNES, J.

text:
    LANDLORD AND TENANT — JUDGMENTS AND DECREES— VENDOR AND PURCHASER.
    [Lucas (6th) Circuit Court,
    June 22, 1907.]
    Haynes, Parker and Wildman, JJ.
    Robert Raitz & Co. v. Eliza J. Dow.
    1. Superior Rights op Lessee in Possession under an Imperfectly Executed Lease as against Purchaser with Notice thereof.
    Where a tenant has been in possession for a considerable period under an imperfectly executed lease, the writing will he treated as a contract for a lease, and as against a purchaser of the property having knowledge of the fact, who is seeking to oust the tenant, a decree will he granted directing that a valid lease he executed.
    [For other cases in point, see 5 Cyc. Dig., “Landlord and Tenant,” §§ 65-68. —Ed.]
    2. Magistrate’s Judgment in Forcible Entry and Detainer not a Bar to Injunction Proceedings.
    An action in forcible entry and detainer in such a case, in which a judgment of ouster has been taken by the purchaser, is not a bar to injunction proceedings brought by the tenant to prevent interference with his possession.
    [For other cases in 'point, see 4 Cyc. Dig., “Forcible Entry and Detainer,” § 82. — Ed.]
    3. Tenant Taking Partner does not Effect Lease.
    The fact that the lease in its imperfect form was made to a tenant, who subsequently with the knowledge of the lessor brought in another as a partner with him in the business, would not operate under the statute to invalidate the agreement for occupancy.
    4. Where Rent to be Paid.
    In the absence of any stipulation to the contrary me leased premises is the place for the payment of rent, and' the lessor is not required to demand the rent to put himself in a position to claim a forfeiture but he should go to the premises in due time and give the tenant an opportunity to pay the rent there, unless there is a stipulation for the payment of the rent elsewhere.
    [For other cases in point, see 5 Cyc. Dig., “Landlord and Tenant,” §§ 533-536. — Ed.]
    [Syllabus approved by the court.]
    Appeal from Lucas common pleas court.
    J. H. Boyd and C. A. Seiders, for plaintiff:
    Cited and commented upon the following authorities: 23 Am. & Eng. Ene. Law (2 ed.) 498; House v. Beatty, 7 Ohio (pt. 2) 84; Kelley v. Stanbery, 13 Ohio 408; Williams v. Sprigg, 6 Ohio St. 585; McKinzie v. Perrill, 15 Ohio St. 162; Harvey v. J ones, 12 Dec. Re. 490 (1 Disn. 65) ; Bay v.-Railway, 41 Ohio St. 392; Eanney v. Hardy, 43 Ohio St. 157 [1 N. E. Rep. 523]; Simmons v. Supply Co. 11 Circ. Dee. ■690 (21 R. 455).
    E. E. Davis, for defendaj
   HAYNES, J.

This ease comes into this court upon a petition filed for the purpose of reforming a certain contract and for the purpose of enjoining the defendant from taking certain actions in the ease.

It appears from the pleadings and the evidence in the case that about this state of facts existed here: George Ketcham had been the owner of certain land in lower town, fronting on St. Clair street and near Cherry. He rented it for a period of five years to Robert Raitz, and Robert Raitz went into possession — Robert Raitz & Company, the company consisting of his son-in-law and another partner. They occupied the premises, or a certain portion of them at least, for several years, and when the first lease was supposed to expire or about to expire a new lease was taken, and it was made out in the names of Ketcham and Robert Raitz. It was from October 12, 1904, to October 12, 1909, and in its execution it was simply signed by Raitz and Ketcham, with the name of one witness attached to the lease. Raitz & Company continued in possession, doing business there and-paying rent to Ketcham until about September 20, 1906, when a warranty deed of the whole premises, of which this, as I understand, is a part, was made by Ketcham to a man by the name of Close — a deed to the whole property in fee simple, being a warranty deed. Two days after that, Close made a deed to Eliza J. Dow, who is the party who now owns the title and the defendant in this controversy. That also is a warranty 'deed of the whole premises, including this lot, which is lot No. 359, Vistula Division.

We think the evidence taken in the case — all the facts in the case —clearly show that at the time this deed was made from Ketcham to Close and from Close over to Dow, because the title was taken through ■Close simply as a matter of form, the real party in interest was Dow, who took the deed in the name of his wife. I think the testimony clearly shows that at the time that deed was made or taken it was understood and known by all of the parties that Raitz was in possession of the property, Raitz & Company occupying it under this lease which had not been acknowledged, and that they had knowledge of the lease and of all the rights of the plaintiffs under it, and were chargeable with all the rights that they might claim under it. And it appears to us from the testimony that at the time it was taken the lease mentioned was passed over, and there was really an understanding between the parties that, so far as the lease was concerned, Dow took it with chances of breaking it, setting it aside, treating it as a nullity; and very soon after that Mr. Raitz was approached with a claim that he should make an advance in rent, it being claimed that his lease was void. He declined to do that, and a suit was commenced soon afterwards before one of the justice’s courts in this city in forcible detainer for the purpose of ousting Mr. Raitz, or Raitz & Company, and such proceedings were had there that a judgment on that account was rendered. About the same time this suit was commenced for the purpose of enjoining these parties from proceeding under that judgment in forcible detainer and seeking to enforce the perfection of the lease so that it should continue for the term which was originally agreed upon between Ketcham and Raitz. The case was tried in the court of common pleas and is brought into this court by appeal, and the case has been very earnestly argued, and some testimony has been taken.

We start with these leading facts: That Ketcham owned the property ; that he had made a lease to Raitz, and had renewed that lease at the expiration of the first term, at least Raitz continued in possession and continued to pay rent down until this time, to the making of these deeds; and that these parties who received these deeds had full knowledge of all the facts of the case, the imperfection of the lease, the possession of Raitz and of his rights under the possession.

The case has been argued to us,by counsel for the defendant, Mrs. Dow, their contention being that this lease, being imperfect, conveyed no right and no title, and that the deed to Close cut off any rights that the party had under the lease. They have cited the ease of Langmede v. Weaver, 65 Ohio St. 17 [60 N. E. Rep. 992], that arose out of a controversy over a conveyance made in regard to an oil lease. In that case the oil lease had been made and was imperfectly executed; but no one had ever taken possession under it. The lease had simply been made and recorded. Subsequently another party purchased the property, and the court held in that case that, under the circumstances of that case, the plaintiff could not obtain any rights as against the purchaser. The court enters into quite a long discussion of the various questions that arose, the opinion having been delivered by Judge Williams for the court, who cites the case of White v. Denman, 16 Ohio 59, in relation to an imperfectly executed mortgage. The court says page 60:

“As between the original parties to it, there is no difficulty in making the instrument effect the intended object; for. equity would regard as done that which the parties agreed to do. They intended it should operate as a valid incumbrance, and, so far as they are concerned, it must be treated as a sufficient mortgage. ’ ’

It has been claimed here that this imperfect lease might be treated as an agreement to make a lease. This has been denied by counsel for defendant, and in this case that he cites himself, the validity of this instrument as a contract is recognized as a contract for a lease. In other words, as the court say, treat the paper as carrying out the purpose that the parties had at the time they made the instrument.

We think there can be no question — we have always so considered and so consider in this suit — that an agreement of this nature is a contract for a lease and may be treated as such. We think it very clear here that these parties have a right to come in and file this petition and ask that this lease be declared to be a valid lease; or, in other words, that the court direct that it be executed as a valid lease so as to conform with the statute. It must be remembered that these parties were in possession and had been for years; that their rights in regard to the matter were known to the defendant. Certainly they could not, as against that knowledge, do anything as against these parties who were thus in possession and who had the rights of parties under a lease, imperfectly executed, it is true, but who had possession under it.

It is said that they never took possession under this particular lease, and that they have no beneficial rights under it. Counsel for defendant refer to the case of Balt. & O. Ry. v. West, 57 Ohio St. 161 [49 N. E. Rep. 344], and it is suggested that as against the ease of Langmede v. Weaver, supra, the court perhaps changed its opinion, or that the two eases could not be reconciled. The case of Balt. & O. Ry. v. West, supra, was a case that went up from this court to the Supreme Court, being in regard to some property in the city of Sandusky. There was a lease made there and the railway company went into possession of the premises under-the lease. It purported to be a five-year lease, and was made for a five-year lease, but the parties failed to have it acknowledged and recorded. They continued in possession during the five years and then held over. Subsequently and during the middle of the year they vacated the premises, and Mr. West brought suit for the whole of the lease, the rent of that year. Counsel have, as I have said, suggested a doubt about the contention of the court in this regard, or in regard to the fact that they have departed from a decision in another case. But we see no departure; we see no change in the views of the court in any manner or form. The court says, page 165:

‘ ‘ The, well-settled rule appears to be, however, that where the lessee enters into possession of the demised premises under a lease for a term of years at an annual rent, if the lease for any cause be void he becomes a tenant for a year at the rent reserved in the lease, and subject to all of its provisions, except its duration; and when his possession is continued into the next year, a tenancy from year to year is •created, and continues so long as he enters upon a new year, until the end of the term; and this is so, though the rent be payable quarterly, or monthly, or at shorter periods. And when, after the expiration of the term, he holds over into another year without any new agreement •or arrangement with the landlord, the latter may treat him as a tenant for that year at the same rent and upon the same terms and conditions of his prior occupancy, or, as a trespasser, at his election; but if the landlord accepts the rent, or acquiesces in such holding over for a considerable time, his election will be regarded as made in favor of the tenancy, and then it cannot be terminated before the end of the year by •either party without the consent of the other.”

Now, at the time these deeds were made, as I have stated, these parties were in possession of these premises, the lessor receiving the rent right along and treating them as tenants under the lease. Nearly two -pages here of authorities on this subject are cited, and I don’t ■care to read them, because it establishes the doctrine that is claimed by the plaintiff here, and it was claimed by the plaintiff in the case there.

Now, in regard to holding over, and the point stated that there was no new possession, I will read what the court says in this connection in Balt. & O. Ry. v. West, supra, page 168.

“The tenant, by holding over, is regarded as consenting or proposing to enter upon a new term for another year at the same rent and upon the conditions of the prior occupancy, and the landlord’s accept.ance of the proposed tenancy is presumed from his receiving the rent, •or other acquiescence. The agreement arises by implication of law from the conduct of the parties after the expiration of the former ten.ancy; and, in this respect, is essentially different from those agreements made by parties while in possession under an existing lease, for. a new lease to commence in the future; as was the case of Armstrong v. Kattenhorn, 11 Ohio 265, and Crawford v. Wick, 18 Ohio St. 190.

“Here the new agreement grows out of, and is founded upon, the possession evidenced by the holding over, and is therefore referable to it, rather than to the possession under the prior agreement which had expired. - The holding over is equivalent to a new entry; ,or, as said in Need, Stat. of Frauds, Sec. 806, concerning the application of the statute in sueb cases, the ‘ effect of entry under a void lease, and of holding. •over after the expiration of a valid one, is identical.’ And it is the settled law of this state, that a parol lease for a year, accompanied by .possession, is not within the statute of frauds.”

If I understand that decision correctly and the points that are being made by the court there, this continuing possession, holding over, ' is equivalent practically to a new entry.

It is claimed here that this decision of the justice court was a bar; that is to say, the judgment in the forcible detainer action, and any future action was a bar to this action. We are unable to see how it ■can be a bar to this action in any manner or form. In a case that •arose in Fulton county within the last year we had occasion to discuss this matter, and we adhered to the language of the statute, overruling the court of common pleas, this court holding that the first suit was not ■a bar to a new suit.

A point was made here by counsel for the defendant that the lease was taken in the name of Raitz. Raitz was the particular party in the •firm, the particular man carrying on the business. He took the original lease in his own name and afterwards took in a .partner, which was ‘ continued without any objection by Keteham. When this lease was made it was made by Raitz. He signed it, and Raitz and his firm were in possession, and without objection on the part of Keteham they continued in possession and continued to pay rent. We think there is no trouble about that. We think that as a matter of fact Raitz was in possession, and taking these persons in partnership with him would not operate under any clause of the lease to defeat the object and purpose of the lease, and while there are not many authorities to be found on that point, still under “landlord and tenant” there are some authorities.

Another point that was made was that after the property was purchased by Mrs. Dow there was an attempted tender of the rent. The rent had been paid, was payable so much a year and payable in advance, whether it was quarterly or any other way, $1,400 a year. As a matter of fact during the five years Mr. Raitz was in possession he was continually doing work for Mr. Keteham, and from time to time they had settlements; sometimes there would be a balance due from Mr. Raitz to Keteham on the rent and he would pay it, and it would go on to another period. But when the new party came in, they wanted to make payments from month to month in the way it had been computed between Keteham and Raitz theretofore. Well, we don’t place much reli-anee upon that matter. The lease is a modern lease and provides that, the party need not demand his rent from the premises. The common law, of course, required that the lessor should demand his rent on the day when it falls due, at a certain place upon the premises and at a convenient time before sunset. It seems the only change that was made by these provisions is that he is released from the obligation to appear on the premises and demand his rent; but there is nothing to show that the tenant is bound tó hunt up the landlord and follow him around and tender his rent. It seems to me that a fair construction of these contracts would be that the landlord should present himself at the placo for receiving the rent and that the tenant should be ready to pay at that time, unless there is a stipulation to pay somewhere else. We see nothing in the facts here that should authorize a forfeiture of the premises under that arrangement.

Judge Parker suggests that the parties have never placed themselves in any position to ask for any forfeiture. The ground upon which they have proceeded is that the lease was void; that there was no lease at all. They were there demanding that there should- be a payment of $2,000 in rent. There is no demand for forfeiture by reason of failure to pay the $1,400, and as I have stated already we see no ground upon which there should be a defeat of this action, by the allegation that has been made in that regard..

Mr. Davis: Doesn’t the lease itself provide that the demand of rent is waived?

Judge PARKER: Yes; but the rent is to be paid somewhere. Now where? The lease does not stipulate that the lessee shall leave the premises to hunt up the lessor to pay the rent. The general rule, in the absence of stipulation to the contrary, makes the leased premises the place for the payment of rent. We think- a fair interpretation of this lease in that regard is that the rent is payable at the premises. The lessor is not required to demand the rent to put himself in a position to claim forfeiture, but he should go to the premises in due time and give the tenant an opportunity to pay the rent there unless there is a stipulation for the payment of the rent elsewhere.

Judge Haynes : The authorities referred to in regard to the partnership are found id Jones, Landl. & Ten. Secs. 468, 469. Now the authorities seem to be very few in regard to transfer, assignment or un-derletting. They hold here in a case where a lease was made of a house to a single woman which contained a provision that it was let only for herself to occupy as a residence, with covenants against disposition of the whole or any part, that—

* * * “Her marriage to a widower with four’children and the' continued residence of all in the house was not a breach of the proviso- or covenants. The whole instrument taken together clearly contemplated that the lessee should occupy the premises in person, but it did' not follow that the narrow construction contended for was the true one. That construction would exclude every one, relative, companion and friend, as well as husband. If the lessor intended that, he should? have used language expressing such intent, and should not have left it to be inferred from language of doubtful meaning. The lease ass-drawn could fairly and reasonably be so interpreted as to allow tie-lessee to receive a relative, friend or husband as a companion. Where' a lease is joint to two and by an arrangement between them each occupies a several portion of the premises, such several uses cannot justly be regarded as breaches of a covenant not to underlet.”

In Sec. 469 they say:

“Where a tenant without license from his lessor tabes a third party into partnership with him and lets such party enjoy joint post-session with him, it is not a breach of a covenant not to sublet, even though the partnership is formed for the express purpose of not breaking the covenant against subletting. If one of the new partners, takes.' into the firm by the lessee is put in exclusive possession of a portion of-the leased premises, that would be a breach of the covenant not to assign or underlet.”

I think that where a lease is taken as in this case — of course Raitz;'. was the principal party in interest, who had some subordinates wh®>-became partners with him — it is not proper to hold that it was a for-1" feiture of the lease by simply taking them in as partners. Now, he* made the lease and the parties went on and continued in possession, .andu the lessor recognized it by receiving the rents and treating them as $ew- ■ ants, as lessees under the lease, and really we see no ground whatever" for forfeiture under that clause of the lease. We are clearly of the opin--ion from all the evidence in the case that the prayer of the petition;! should be carried out and enforced. We think the equities of the ease" are with Robert Raitz and the firm who rented the premises. He, was im possession; he was doing a straightforward business, paying his rent: and going on, and these parties purchased with full knowledge of thai-We think by every principle of equity and justice between the parties^, between these parties who had knowledge of it, that the prayer for' tla@J enforcement of the lease should be granted and it should be held to b@‘ a lease of the premises up to the period of time stated in the lease,-October, 1909.

Judge Parker : The lease as reformed will stand as it is written. The only reformation will be in the matter of the execution, and if a new lease is not executed, or this lease is not acknowledged,' of course ■the decree of the court will supply it. It will devolve upon thq parties to solve this question, as to whether that rental is payable at the rate of $1,400 a year, yearly in advance. We do not pass upon that question. It is not involved in this case at all.

Mr. Boyd: If Your Honors please, counsel for plaintiff has requested to state the time within which the defendants are allowed to .execute,a lease, whether it is five days or ten days.

Judge Parker : Oh, well, it is not a matter of much importance.

Mr. Boyd : The order in the court of common pleas was five days.

Judge Parker: Well, they can take their time to it; give them ■ten days.

Judge Haytstes: If they don’t, the decree of the court will stand exactly as the same. It is not very important whether they execute it .or not.

Parker and Wildman, JJ., concur.


author: TAGGART, J. DONAHUE, J.,

text:
    COUNTIES — INFIRMARY SUPERINTENDENT — INJUNCTION.
    [Richland (5th) Circuit Court,
    September Term, 1905.]
    Donahue, McCarty and Taggart, JJ.
    O. J. Zeigler v. B. Frank Palmer.
    Infirmart Superintendent not an Officer.
    A superintendent of a county infirmary is an agent of the infirmary directors, and not an officer against whom proceeding must he brought to remove, as, under Rev. Stat. 962 (Lan. 2303), the appointment of such superintendent is a mere contract of employment for a fixed period, at the expiration of which a new appointment may be made, and the former occupant will be restrained by injunction from interfering in the enjoyment and duties of his office.
    [For other cases in point, see 3 Cyc. Dig.. “Counties,” §§ 71-78. — Ed.]
    Kerr & La Dow, for defendant:
    Where a public officer is in place and the discharge of his duties are interrupted or interfered with by one claiming title to the office, or by a mere meddler, injunction is the proper remedy. Reemelin v. Mosby, 47 Ohio St. 570 [26 N. B. Rep. 717]; State v. Craig, 69 Ohio St. 236 [69 N. B. Rep. 228]

      Rules of distinction between a public office and a public employment. State v. Wilson, 29 Ohio St. 347; State v. Brennan, 49 Ohio St,
    . 33 [29 N. E. Rep. 593]; 19 Am. & Eng. Ene. Law (1 ed.) 382, 668 et seq.; United States v. Hartwell, 73 U. S. (6 Wall.) 385 [18 L. Ed, 830]; State v. Jennings, 57 Ohio St. 415 [49 N. E. Rep. 404; 63 Am, St. Rep. 723]; State v. Holliday, 61 Ohio St. 171 [55 N. E. Rep. 175]; Walker v. Dunham, 17 Ind. 483; Dean v. .Heady, 6.6 Ga. 503; Opinion of the Justices, 3 Me. 481; State v. Putnam, 35 Iowa 561; State v. Board of Pub. Works, 51 N. J. Law 240 [17 Atl. Rep. 112]; State v, Gardner, 43 Ala. 234; State v. McGonagle, 26 O. C. O. 685; Bender V, Gushing, 14 Dec. 65.
    A board cannot hire or appoint for a term reaching beyond the life of the board. Franklin Co. (Comrs.) v. Ranch, 6 Circ. Dec. 133: (9 R. 301) ; State v. Craig, 69 Ohio St. 236 [69 N. -E. Rep. 228]; Harding v. Eichinger, 57 Ohio St. 371 [49 N. E. Rep. 306]; State v. Taylor,-12 Ohio St. 130.
   TAGGART, J.

This case originated in the court of common pleas of Richland county by the plaintiff, Zeigler, filing his petition and seeking an injunction, against B. Frank Palmer, restraining him from interfering with his duties- and labors as superintendent of the county infirmary, alleging that said B. Frank Palmer was in possession of, and remaining in, said infirmary building, and that he obstructed the plaintiff in his work and duty and still threatens to obstruct him in the discharge of his duties in the future. A- temporary injunction was granted and the ease was heard, and on May 8, a perpetual injunction was granted.in the case. The defendant, B. Frank Palmer, appeared and by consent of parties the case was heard in this court on the records in the contempt proceedings.

It is urged upon our attention that the defendant is and was the incumbent of the superintendency of the infirmary building of the infirmary of Richland county, Ohio, and under Rev. Stat. 962 (Lan, 2303), no proceeding having been commenced against him, that he was entitled to remain and be in possession of the buildings and exercise the duties and enjoy the emoluments of the office of superintendent of the county infirmary; that notwithstanding the infirpiary directors some time prior to April 1, had duly elected the plaintiff, O. J. Zeigler, to that position, and had notified the defendant that his term would expire on April 1, he pretended to remain in said building and exercise said dn- ‘ ties.

It is now urged in behalf of the defendant that he was an officer, .and the action should have been one of quo warranto. It is further urged in his favor that as he was an officer he could not be removed as ..smell superintendent under the statutes unless charges were preferred .and cause shown for such removal.

An examination of the statutes of Ohio and the history of the legislation in respect to superintendeney of infirmaries leads a majority , of this court to the conclusion that he was not an officer, but that he was .simply an agent of the infirmary directors, who are a body corporate to contract and be contracted with; that an appointment or designation •of a superintendent is not efficacious to accomplish anything either as creating an employment or designating an office, but under the statutes •the infirmary directors must agree with a proposed incumbent as to the •terms of his employment, and he must accept the proposal so made. Before the amendment to the statutes as suggested by counsel he was removable at pleasure, so that any contract that the infirmary directors in their corporate capacity might make with any proposed superintendent would have written in before this amendment that he was removable at the pleasure of the infirmary directors. In the opinion of ■the majority of the court, the amendment simply changed the statute so that any contract of employment that might hereafter be made for any definite term there would be written into said contract as one of its terms the law of the state that he should not be removed during said term of employment without cause, and the majority of the court are «of the opinion that he having accepted employment, and by the terms ■of his employment the contract ceased and determined on April 1, and he had no longer any right to be and remain on said premises, or in any wise to interfere or obstruct the plaintiff who was then the incumbent and superintendent of the Richland county infirmary.

That judgment of the court will be, that the defendant be perpetually enjoined fropi interfering with the plaintiff in the enjoyment and duties of his office as superintendent, as prayed for.

Exceptions will be noted in favor of the defendant, twenty days •for finding of facts. Motion for new trial will be overruled. Statutory lime for bill of exceptions.

The ease of B. Frank Palmer v. O. J. Zeigler, No. 866, presents the «ame questions and by consent of counsel was heard on the records as above stated. A majority of the court find against the contention ®£ the plaintiff for the reasons above stated. His petition is dismissed .at Ms costs. Motion for new trial overruled and exceptions. Twenty days for findings of fact, and statutory time for bill of exceptions.

McCarty, J„, concurs.

DONAHUE, J.,

dissenting.

By act of tbe legislature passed April 12, 1876 (73 O. L. 235), it is provided that the board of directors (infirmary) shall appoint a •superintendent who shall reside in some apartment of the infirmary or other building contiguous thereto, and shall receive such compensation for his services as the board shall fix; he shall perform such duties as the board shall impose upon him and be governed in all respects by the rules and regulations of the board, and may be removed by them at pleasure. This legislation to my mind does not look to the entering into of a contract by the infirmary directors and superintendent but -simply provides that they shall have the power to appoint him and remove him at pleasure.

In April 26, 1898 (93 O. L. 262; Eev. Stat. 962; Lan. 2303), this ■section was amended by the general assembly of Ohio, and it now reads •as follows:

• “The directors shall appoint a superintendent, who shall reside in some apartment of the infirmary or other building contiguous thereto, and shall receive such comp,ensation for his service as they determine. He shall perform such duties as they may impose upon him, and may be governed in all respects by their rules and regulations, and he shall not be removed by them except for good and sufficient cause. ’ ’

The language of this statute precludes the idea of any fixed term. “The board has the absolute power to fix compensation, rules and regulations. It has no power to remove except for good and sufficient cause. If it be permitted infirmary directors to enter into a contract with the superintendent for a term, the provisions of this section may be absolutely and entirely avoided, and the change in legislation might as well not have been enacted.

The reasons moving the legislature to amend this section are not important. It is clearly intended to serve some purpose, and that purpose undoubtedly is in the line of better service for all public eleemosynary institutions, and if a superintendent is to be constantly menaced by the power of the board of infirmary directors to remove him, he is not the free agent that he ought to be in the management of that important public charity. • But I have no desire to go into speculations as to the reasons for the change; the change was made and it now reads that the superintendent shall not be removed except for good and sufficient cause.

This is not the oniy legislation of this character in Ohio; there has been a great deal of a similar character. The new municipal code, 96 O. L. 75, Sec. 167 (Lan. 3156; B. 1536-703), provides that no officer or employe in the department of public safety shall be removed or discharged except for cause, and this does not apply merely' to the officers thereafter appointed, but the last paragraph of the same-section provides that no officer, secretary, sergeant, patrolman, fireman or other employe serving in the police or fire departments of any city in the state at the time this act goes into effect, shall be removed or reduced in rank or pay except in accordance with the provisions of this, act.

In the ease of State v. Sullivan, 58 Ohio St. 504 [51 N. E. Rep. 48; 65 Am. St. Rep. 781], the court in dealing with a statute of this, character, says:

“The power of removal from office, conferred upon a mayor, in-these words: ‘For neglect of duty or misconduct in office, the mayor of such city may remove any member of said board,’ is a special authority, and must be strictly construed. Such power cannot be exercised arbitrarily, but only upon complaint, and after hearing had in which the officer is afforded opportunity to refute the case made-against him.”

The evidence in these cases shows that no attempt was ever made to remove this superintendent for cause. The appointment was made upon the theory that his term of office had expired.

After the amendment of this Rev. Stat. 962 (Lan. 2303) in 1898 and some time in 1899, the board of directors of this county did appoint B. Frank Palmer superintendent of the county infirmary. It is presumed that such appointment was made under favor and by authority of this section. It is true that there is an attempt to limit this appointment to a term of one year. Under the appointment he-qualified, gave bond and took the oath of office. From time to time thereafter the evidence discloses that there was an attempt to make a further appointment of the same individual as superintendent of the-county infirmary, and such a resolution was entered upon the record but the evidence is uncontradicted that he paid no attention whatever’ to these appointments, and never qualified thereunder or furnished any new bond, and in no manner or form acquiesced therein. I am of the opinion that when he was appointed after the amendment of this. section, he was appointed until he should be removed by said board of’ directors for good and sufficient cause.

For these reasons I dissent from the opinion of the majority of the-Court in these two cases.


author: PARKER, J.

text:
    ASSESSMENTS.
    [Lucas (6th) Circuit Court,
    February 16, 1907.]
    Haynes, Parker and Wildman, JJ.
    Marie Burr et al. v. Peter Parker, Treas., et al.
    1. Bueden of Showing Benefit to Lots Omitted from Improvement Assessment.
    One seeking to enjoin a street assessment, on the ground that lots or lands that should have been assessed have been omitted, should make it appear that the omitted lots or lands derived some benefit from the improvement and therefore should bear a share of the burden of the cost thereof, and that a proper assessment, including the omitted lots or lands, would probably reduce the assessment on his property of which be complains.
    2. Benefits Derived from Improvement of Street, Basis of Assessment.
    To bring a case within the purview of Sec. 2275 Rev. Stat. (repealed 96 0. L. 96) requiring the payment of a part of the cost of a street improvement by the city because of the treatment of street intersections on abutting property, it should be made to appear that such intersections on abutting property are benefited by the improvement, and it is not sufficient to show that the intersecting streets are benefited by the improvement.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 309-383. — Ed.]
    [Syllabus by the court.]
    Injunction.
    F. J. Flagg and B. A. Hayes, for plaintiffs.
    C. S. Northup and O. W. Nelson, for defendants.
   PARKER, J.

This [Marie Burr and Webb C. Hayes v. Peter Parker, Treas. of Lucas Co., Ohio, et al.] is an action brought to enjoin the collection of assessments levied upon lots and lands lying along Front street in Bast Toledo, for the costs of paving the street. ' The plaintiffs own certain of the lots so assessed, and the question that is presented for our consideration is, whether the assessment is invalid and should be enjoined because the city failed to include in the lots and lands to he assessed the intersections of the streets made by the crossing of other-■streets over Front street. It is conceded that these lands were not included and that no share of the cost or expense of improving Front street was assessed against the city because of these intersections. The whole costs of paving the intersections, however, were paid by the city. But it is contended by the plaintiffs that the statutes as they read at the time this improvement went forward, to wit, Secs. 2274 and 2275 Rev. Stat. (repealed, 96 O. L. 96), required not only that the city of Toledo should pay for the cost of improving and paving the intersections, but that, in addition thereto, the intersections should be regarded as property abutting upon the improvement and the city should be further assessed for the benefits thereto from the improvements.

In looking into the statutes we find that in the year when this improvement'was inaugurated, 1900, and when it was going forward, in 1902, and from that time forward until the adoption of what we are in the habit of calling the new municipal code, See. 2274 (repealed, 96 0. L. 96), required that in the city of Toledo the costs of intersections ■should be paid for by a general tax on all the property in the city, and Sec. 2275 (repealed, 96 O. L. 96) contained this provision with re■spect to the intersections:

"For the purposes of assessment, a city of the first grade and a •city of the third grade of the first class shall in all cases be considered as a property owner as to intersections, and any other property belonging to the corporation abutting on the street or highway so improved; and the assessment chargeable to the corporation, together with at least one-fiftieth part of all costs and expenses, as provided for in See. 2273 [repealed, 96 0. L. 96], may be included in any bonds issued for the improvement, and be paid for by it in like manner as by other property ■owners; * *

Considering the history of legislation upon the subject of intersections, we find that formerly the cities of Cincinnati and Toledo were excepted from the operation of Sec. 2274, so that in those cities the cost of intersections was not to be paid for out of the general levy, and Sec. 2275 providing a different method for laying a share of the burden of the costs of street intersections upon the city by assessing the city on account of intersections according to benefits thereto applied to Cincinnati alone; that Toledo, in 1889 (86 0. L. 119), was brought within the provisions of See. 2274, so that thereafter it paid the cost of improving intersections; and then on March 10, 1892, by a statute appearing in 79 0. L. 31, Sec. 2275 was made applicable to 'Toledo, and then and thereafter Toledo stood in a class by itself (if the construction is to be given to these statutes contended for by the plaintiffs here) ; that is to say, it was required to bear the burden of the cost of the intersections, and in addition thereto was to pay out of the general funds the amount of the benefits resulting to the intersections by the paving thereof. This was the rule applicable to Toledo- — -a system of double assessment, apparently, for practically the same thing or benefit.

We'have undertaken to arrive at some solution of this question— some construction of these statutes — which would enable us to avoid this result of double assessments. We have not been able to do' it by ■any course of reasoning that was entirely satisfactory to us, though we think it ought to be done if possible. In other words, we think that this legislation whereby See. 2275 was made applicable to Toledo, if not an absolute blunder, was at least ill-advised and inconsistent with the .general policy of the state upon the subject. But we find by looking into this record that we are not called upon in this case to solve this problem.

Counsel for plaintiffs have proceeded upon the theory that -the statute, Sec. 2275, requires that the benefits to the intersecting streets shall be taken into consideration and shall be assessed against the city; but the statute does not so provide; it does not say that the intersecting streets shall be considered as property owned by the city so that the benefits thereto shall be paid by the city, but it says that the city shall be considered as a property owner as-to the intersections, and we know that the intersections consist of the territory bounded by the street lines as they cross. Now it may be, that, if it should be made to appear that some lots or lands that should have been assessed were omitted, such omission would render the assessment of the other lots and lands invalid so that the court would be required to enjoin the assessment and a new assessment would have to be made including those lots and lands; but certainly, where one goes into a court of equity with a claim of that character, he should make it appear affirmatively that the lots and lands which he says should have been assessed derived some benefit from the improvement, so that they should have been assessed and so it should .appear at least probable that upon a reassessment some assessment would be laid upon such lots and lands and probably thereby the assessment upon his lots and lands would be lessened. But that does not appear in this case with respect to these intersections; there is no statement in the petition and nothing in the agreed statement of facts to the effect that these intersections derived any benefit from the improvement - — certainly not any benefit over and above the amount which was paid in paying for the costs of the paving of the intersections. But there is no allegation and no agreed statement of fact that they received any benefit whatever from the improvement. The averment is:

‘ ‘ That for some time prior to the first day of January, 1902, and on and ever since said day, the said city of Toledo has been a property owner of the intersection of the- following named streets” — naming the-streets which cross Front street — “that said committee in the assessment made and reported by it to the council and by the council approved and confirmed, failed and omitted to assess any sum whatever upon the said intersections, or any of them, nor did the common council of said city by said ordinance passed on the third day of March, 1902, require the said city to pay any part of the cost of improving said Front street; that said Front street is the only thoroughfare leading from Millard avenue to the Cherry street bridge; that it is the only public way whereby teams and pedestrians traveling on any of said intersecting streets can reach the bridge over the Maumee river at Cherry street in said city; that the said improvement of Front street has been made and-is of great benefit to all said intersecting streets, and to the said city of' Toledo, the owner of said streets.”

It may have been of great benefit to those streets, but the city cannot be required to pay anything on that account. Upon any construction of-this statute the city can only be required to pay in the event of a benefit to the intersections, and there is no averment that the intersections were benefited.

We hold, therefore, upon the case as presented, that no equity is shown, and the finding will be for the city. The petition will be dismissed.

Haynes and Wildman, JJ., concur.


text:
    ATTACHMENT — CONSTITUTIONAL LAW — JUSTICES OF THE PEACE.
    [Cuyahoga (8th) Circuit Court,
    October 21, 1907.]
    Marvin and Winch, JJ.
    (Henry, J., not sitting.)
    Charles Oakman v. Ross Furniture Co.
    1. Justices of the Peace in Cuyahoga County to Issue Attachment Coextensive with County.
    Act 93 O. L. 146, amending Rev. Stat. 583, 584 (Lan. 915, 916), exempting Cuyahoga and Franklin counties from the operation of the general law on the jurisdiction of justices of the peace in attachment cases, is unconstitutional.
    [For other cases in point, see 5 Cyc. Dig., “Justices of the Peace,” §§ 75-77, 133-141. — Ed.]

      2. Rules oe Construction of Statute Part Valid and Part Invalid Applied.
    Following familiar principles of construction of legislative enactments, such amendment, the sole purpose of which is illegal and containing unconstitutional parts, may render the entire amending act,' including the repealing clause, unconstitutional, or the unconstitutional exceptions may be stricken out, thereby leaving the former law standing unrepealed or as it was before the amendment.
    [For other cases in point, see 1 Cyc. Dig., “Attachment and Garnishment,” ■§§ 230-233. — Ed.]
    [Proof of this decision and syllabus .was submitted to Judge Winch and ■corrected. — Ed.]
    Error to Cuyahoga common pleas court.
    Carpenter, Young & Stocker and J. A. Fenner, for plaintiff in error:
    Cited and commented upon by the following authorities: Collins v. Bingham Bros. 12 Circ. Dec. 825 (22 R. 533); Rogers v. Prushanshy, 13-23 O. C. C. 271; Cincinnati, W. & Z. By. v. Clinton Co. (Comrs.) 1 Ohio St. 77; State v. Eendle, 52 Ohio St. 346 [39 N. E. Rep. 947].
    M. P. Goodman, for defendant in error:
    Cited and commented upon by the following authorities: Whitney V. Cill, 8 Circ. Dec. 450 (15 R. 648) ; Palmer v. Tingle, 55 Ohio St. 423 [45 N. E. Rep. 313]; State v. Smith, 48 Ohio St. 211 [26 N. E. Rep. 1069]; Gorman V. Bepler, 7 Dec. 15 (4 N. P. 241); State v. Voris, 10 Dec. 451 (8 N. P. 16).
   WINCH, J.

The only question involved in this case is whether justices of the peace in Cuyahoga county have jurisdiction coextensive with said county to issue attachments.

Previous to April 19, 1898, such jurisdiction was undoubted, for Rev. Stat. 583 (Lan. 915), then read: *

“Justices of the peace within and coextensive with their respective-counties shall have jurisdiction and authority: * * *
“7. To issue attachments and proceed against the goods and effects-of debtors in certain cases.”

On the date mentioned, however, the legislature amended said section by adding the following language to said paragraph seven:

“Except in counties containing a city of the second grade of the-first class, or of the first grade, second class, the jurisdiction and authority in such cases is coextensive only with the township for which the-justice was elected, but when said justice has jurisdiction of the defendant becáuse he resides in the township for which said justice was; elected or otherwise as provided in Sec. 584 [Lan. 916] of the Revised Statutes, the jurisdiction of the justice in attachment shall be coextensive-with the county.” 93 O. L. 146.

It needs no citation of authorities to show that it was beyond the-powers of the legislature to exempt Cuyahoga and Franklin counties from the operation of the general law on the jurisdiction of justices of the peace in attachment cases.

This amendment was unconstitutional.

But counsel for plaintiff in error contends that if the amendment, of 1898 is unconstitutional, it is the whole of paragraph seven of Rev. Stat. 583 (Lan. 915), and that only, which is unconstitutional.

With this view we do not agree. Our examination of the law of 1898 shows that the only purpose in amending paragraphs five and seven of Rev. Stat. 583 (Lan. 915), and paragraph four of Rev. Stat. 584, (Lan. 916), was to exempt Cuyahoga and Franklin counties from the operation of said laws.

That purpose was unlawful, and upon familiar principles of construction of legislative enactments, the whole law, including the repealing clause, may be held unconstitutional, the former law then standing unrepealed.

.But we are not remitted to this rule of construction alone. As the only unconstitutional parts of Rev. Stat. 583 and 584 (Lan. 915, 916) are the exceptions added by the amendment, we may strike out said unconstitutional exceptions, leaving the law as it was before amendment.

Our conclusions are consistent with the holdings of the Lucas county circuit court in the case of Collins v. Bingham, Bros. 12 Circ. Dec. 825 (22 R. 533), and of the Hamilton county circuit court in the case of Rogers v. Prushansky, 13-23 O. C. C. 271, though neither of said courts found it necessary to pass upon the constitutionality of said amendment of 1898, while it is necessary, for a determination of this ease, that we do so.

The common pleas court having come to the conclusion here indicated, its judgment is affirmed.

Marvin, J., concurs.


text:
    BANKRUPTCY.
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Winch, Henry and Marvin, JJ.
    Marcus Friedman et al. v. Walter F. Myers (Tr.).
    TRUSTEE IN BANKRUPTCY CANNOT MAINTAIN AN ACTION EX DELICTO.
    A trustee in bankruptcy cannot maintain an action in tort for conspiracy-in assisting a bankrupt to place his property beyond the reach of his. creditors against persons who are alleged to have performed their acts, of conspiracy during the pendency of the bankruptcy proceedings, but before the adjudication therein, where no allegation is made that any of the defendants received any portion of the bankrupt’s estate, and the-sole result of the conspiracy is to turn the bankrupt’s property into-money in his hands which he himself failed to account for to his trustee..
    [Syllabus by the court.]
    Error to Cuyahoga common pleas court.
    Herman Preusser, F. J. Wing and A. Hahn, for plaintiffs in-error .
    White, Johnson, McCaslin & Cannon, and A. B. Thompson, for defendant in error.
   WINCH, J.

This was an action in tort, the defendant in error being plaintiff' below. His petition sets forth the fact that he was the duly appointed trustee in bankruptcy of one Jacob Protter, against whom proceedings in involuntary bankruptcy were begun by the filing of a petition on the part of three of his creditors on October 24, 1902, the said Protter-being adjudicated a bankrupt on May 27, 1904, 'over a year and a half later. The petition sets forth at length a' series of acts committed by the five defendants, S. S. Samuels, Adolph Eisenberg, Marcus Friedman, Louis Goodman and Simon A. Grossner in conspiracy with said Protter, during the pendency of said bankruptcy proceedings, but all' consummated before the adjudication, which are alleged to have been.mere shams and devices to cover up goods of the value of $8,000, belonging to said Protter, and to place the same beyond the reach of his creditors, and to cheat and defraud said creditors of their just dues and damages. There is no allegation in the petition that said fiVe named ■defendants received any part of said property nor that they have pos- . session of any of it, though a suggestion is made that they were paid for their services 'in assisting in the scheme of concealing said prop- • erty from the creditors of said Protter. The only inference to be drawn from the petition as to what became of the property, though that is not clearly stated, is that it was converted into money which Protter himself received.

A judgment is asked against the five conspirators in the sum of $8,000, the alleged value of the goods, which it is alleged, “by said wrongful acts of said defendants, in pursuance of said unlawful, wrongful and fraudulent purpose and conspiracy aforesaid, were diverted from the creditors of said Jacob Protter and from this plaintiff. ’ ’

To this petition a general demurrer was interposed, which, we think, . should have been sustained, for the following reasons:

No right of action against the defendants and in favor of the bankrupt, which would pass to his trustee in bankruptcy, ever existed. The ■so-called conspirators could not have been sued by Protter, for the re- ■ sult of the conspiracy was to benefit him by getting all his property into money in his hands. If this is not clear, still the right of action, if any, sounds in tort, and such rights do not pass to the trustee. Under Sec. 70, Par. 6 of the bankruptcy act (30 U. S. Stat. at L. 565), the trustee is vested with the bankrupt’s “rights of action arising upon ■contract or from the unlawful taking or detention of, or injury to, his property.” An action, ex delicto, for conspiracy, such as we have here, does not pass under the bankruptcy act to the trustee in bankruptcy. Citation of authorities on this point, and there are many of them, is not necessary, for the language of the act is clear.

Nor can it be said that the acts complained of were committed .against the trustee or his property, though they are alleged to have been committed during the progress of the proceedings in bankruptcy, for they were all consummated before the adjudication.

Under Sec. 70 of the act, the trustee is vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt.” Such being the case, the acts complained of were committed before the trustee had any interest in the estate. Nor had he any lien upon the bankrupt’s property or special interest therein antedating ■.the adjudication upon which he might base this action. The caveat, •arising upon tbe filing of the petition in bankruptcy, as suggested in the case of Mueller v. Nugent, 184 U. S. 1 [22 Sup. Ct. Rep. 269; 46 L. Ed. 405], has regard only to those causes of action which the 'act itself provides for, in Secs. 67e, 70a (4) and 70e for the recovery of property of the debtor conveyed, transferred, assigned or encumbered in fraud of his creditors, or 'for the recovery of its value, from the person to whom it may have been transferred, or whoever may have received it.

• By the sections referred to the trustee is vested with the title to the property so transferred, as of the date of the adjudication, and ■entitled to bring the actions mentioned, which are those of replevin and conversion, under which each fraudulent transferee would be liable for the value of the property to him transferred or by him received. The petition is not framed to bring it within the act, for there is no ■allegation that the defendants received any part of the property, and it seeks to hold them all jointly for the full value of the property of the bankrupt which it is alleged that they, conspired to put beyond the reach of the creditors. As before stated, this action is strictly ex ■delicto, and we find no warrant in the bankruptcy act for its maintenance in any court by a trustee in bankruptcy, and without such warrant the action must fail, for no wrong was done the trustee, as such, nor his property.

This conclusion makes it unnecessary to examine the other errors complained of.

For error in overruling the demurrer to the petition the judgment is reversed and vacated, and the cause remanded to the court of com-anon pleas with directions to sustain said demurrer.

Henry and Marvin, JJ., concur.