author: By DOYLE, J:

text:
    STATE, Appellee, v. ROSS, Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22511.
    Decided July 7, 1952.

      Frank T. Cullitan, County Pros., John J. Mahon, Gertrude M. Bauer, Asst. Pros. Attys., Cleveland, for appellee.
    Wallace J, Baker, Lester J. Farber, Cleveland, for appellant.

      (DOYLE, J, of the 9th District, sitting by designation in place of THOMPSON, J.)
   OPINION

By DOYLE, J:

On December 8, 1951, in the early afternoon, George F. Ross, in Cuyahoga County, Ohio, shot Forney Haas, and killed him without justification or excuse.

The victim of the assassin’s bullets was a police officer of the City of Cleveland, Ohio, who, while patrolling on duty in a police car and in full uniform had his suspicions aroused by the defendant, who operated a large Lincoln automobile without a hood covering the motor, and which carried a California license plate. The suspect drove from Euclid Avenue on to Adelbert Road in the vicinity of Western Reserve University, and the officer there stopped him. In the course of the customary questioning, he was asked to produce his driver’s license and identification material. In response, he said that his billfold containing his license had been stolen from his room, but that he had other identification papers there which he could show. Thereupon the officer ordered him to drive to his rooming house, and the policeman followed in the police car. After parking their respective cars in the rear of the rooming house, the defendant proceeded into the house through the front door, and the policeman walked behind. The officer, observing the landlady in the hallway, asked her if his temporary companion had reported a billfold stolen from his room. She replied in the negative. They then proceeded up a stairway leading to the second floor. The policeman followed several steps behind the roomer. As the defendant reached the landing of the floor above, he turned, drew a concealed revolver,, and fired it into the body of the deceased. The landlady related in the trial that: she heard a shot and a body fall; she then saw a human form lying about two-thirds of the way up the stairs; she ran to the telephone to call for help; and in the meantime two more shots were fired.

The defendant, in relating the tragedy from the witness chair at the trial, spoke of his fear of arrest, and the consequential exposure of a series of violations of a parole awarded him from a California prison. He also feared the officer’s discovery of a quantity of stolen property in his room, which was the accumulation of burglaries committed by him. He likewise knew that he had no driver’s license, no license for the stolen Lincoln automobile, nor papers of identification which he had promised.

“Q. And when you reached the top step on the second floor you turned; the officer was right behind you; he was facing you then, wasn’t he?

“A. He was. * * *

“Q. * * * And you had in your mind, then, that you were going to escape, didn’t you?

“A. Yes.

“Q. When you turned you pulled out a gun and pointed it at the officer, didn’t you?

“A. I did.

“Q. And you fired a shot, didn’t you?

“A. I did.”

The witness continued with the statement that, before he fired the shot he told the officer to “raise his hands.” The officer responded with the statement, “I thought so,” and reached for his revolver.

“Q. What did you do then?

“A. I fired a shot — a warning shot to the side of him. * * *

“Q. And what happened after that?

“A. Then I told him again to raise his hands.

“Q. And what did he do or say?

“A. He continued to bring the gun to bear on me.

“Q. Yes, And then what happened?

“A. That, I don’t know.

“Q. What is the next thing that you do know?

“A. I know that I was running down the stairs and he was in a crouching position with the gun in his hand, and as I ran by him I grabbed the gun out of his hand.”

Continuing, the witness said that he saw his landlady at the telephone and he ordered her away. He then proceeded on his flight from the scene of his killing. He testified that, after he fled from the house, he examined his gun “to see actually how many shots had been fired” and “found that three bullets had been fired.”

The fact was established that at least two bullets entered the body of the deceased — one in the left parietal region of the head and another through the left forearm and the left side of the abdomen. It is possible that the latter two wounds were caused by the same bullet. Be that as it may, death shortly followed.

On January 5, 1952, the defendant was indicted on two counts for murder in the first degree. The first count charged that he “unlawfully, purposely and of deliberate and premeditated malice killed Forney Haas.” Sec. 12400 GC. The second count charged that he “unlawfully, purposely and wilfully killed Forney Haas, a duly appointed, qualified and acting policeman of the city of Cleveland, Cuyahoga County, Ohio, while said Forney Haas was in the discharge of his duties as a. policeman.” Sec. 12402-1 GC.

On January 7, 1952, the defendant was arraigned, and he pleaded not guilty. On January 14, 1952, at the request of the defense, psychiatrists were appointed to examine into the present sanity of the accused, and on January 24, 1952, upon hearing on the issue of sanity or insanity, he was found to be presently sane. A plea of not guilty by reason of insanity was then entered of record.

On February 4, 1952, upon the issues thus joined, trial was had to a jury, and, at the conclusion thereof, a verdict was rendered finding the defendant guilty on each of the counts in the indictment of murder in the first degree. A recommendation of mercy was not given. Following the overruling of a motion for a new trial, sentence was duly pronounced and recorded, to death in the electric chair.

It is asserted in the appeal to this court that many errors committed in the trial of the case deprived the accused of a fair trial. We are asked to reverse the judgment and remand the cause for a new trial. We will state some of the errors claimed and will examine and rule upon them all.

It is a substantial right of the defendant to a fair trial. This right is not the abstract question of guilt or innocence. A guilty man is entitled to a trial, free from prejudicial error. We must, therefore, give careful heed to the various claims, without regard to the convincing character of the State’s case.

It is claimed:

“1. The trial court failed and refused to charge properly in connection with the statutes describing the duties of a police officer, to-wit, O. G. C. (Ohio General Code) 12402-1 and O. G. C. 4378.”

The theory of the defense is that the police officer, when he received the mortal wounds, was not “in the discharge of his duties,” and therefore a conviction under the second count in the indictment cannot be supported. Sec. 12402-1 GC, so far as pertinent, is as follows:

“Whoever purposely and wilfully kills a * * * policeman * * * while such * * * policeman * * * is in discharge of his duties, is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused person recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.” (Emphasis ours.)

The argument is made that the officer, in not obeying the laws of the state or the rules of the police department, was not in the discharge of his duties when killed.

Sec. 4378 GC provides in part:

“The police force shall preserve the peace, protect persons and property and obey and enforce all ordinances of council and all criminal laws of the state and the United States.”

The disobedience of the officer is asserted to be that: 1. When he arrested the defendant without a warrant he failed, “without unnecessary delay,” to “take the person arrested before a court or magistrate having jurisdiction of the offense” and “make or cause to be made before such court or magistrate a complaint stating the offense for which the person was arrested,” contrary to §13432-3 GC; (2) he violated rule 183 of the police department which is “when persons are taken into custody, they shall be transported to the station by the most direct route”; (3) he failed to notify a detective, in violation of rule 225 of the department, which reads, “Á detective shall be immediately notified after the arrest of any person for felony or for investigation of a felony.”

Whether the officer arrested the accused as a suspicious person or for a traffic violation will never be definitely known, unless full credence be given to the statements of the defendant. The officer’s lips have been forever sealed, and he was the only other person to know. It may well be that no arrest was made, and each person voluntarily proceeded to the rooming house. At any rate, it was the duty of the police officer to “preserve the peace,” and, in doing so, his duties permitted and required him to arrest suspicious persons on a charge of suspicion with or without a warrant and to make such reasonable investigation as would be necessary to establish or refute the charge.

The statutes and rules relied upon by the defense are not mandatory in the sense that they must be literally obeyed to the exclusion of all ordinary routine work of a peace officer. The evidence establishes without contradiction that the officer went to the rooming house for no other purpose than to fulfill his duties as a peace officer in the act of preserving the peace by investigation. His duties required him to act promptly to preserve such evidence for or against the person suspected. Delay could have vitally affected the peace of the community through destruction or concealment of material evidence.

We are of the opinion that no reasonable mind could conclude otherwise than that, whether the officer technically violated the rules relied upon by the defendant or not, nevertheless, he was acting in line of duty as well as in the discharge of his duties when he was killed. It would seem that the statutes and rules are directory, or declaratory of a procedure, rather than mandatory, although a ruling on this question is unnecessary. In construing the legislative meaning of the words “in discharge of his duties,” as used in §12402-1 GC (murder statute), we are not at liberty to depart from the words employed; but- we are bound to ascertain the fair meaning of those words, in view of the sense in which they are used.

In respect to alleged error No. 1, we find the claim untenable. The trial court properly rejected the theory of the defense as reflected in the various requests to charge the jury, and did properly charge the jury on the subject matter in controversy.

“2. Wrongful admission of evidence as to unrelated crimes.”

The State proved in its case in chief that the defendant, between the time of his arrival in Cleveland on December 3, 1951, and December 8, 1951, the date of the homocide, had perpetrated two separate burglaries of inhabited dwelling houses in the County of Cuyahoga. In one of the burglaries he made his escape from the burglarized home after drawing a gun on the occupant. Property stolen while perpetrating these crimes was found in his room after the killing of the officer and was admitted in evidence.

Fundamental has been the rule that character is never an issue in a criminal prosecution, unless the defendant chooses to make it one. The law has set its face against the endeavor to fasten guilt upon an-accused person by proof of character or experience predisposing to an act of crime. The State may not prove generally against a defendant crimes not alleged in the indictment, committed on other occasions than the crime alleged in the indictment. See 12 O. Jur., Criminal Law, Sec. 321, p. 333 and cases therein cited. This rule of exclusion, however, is subject to several notable exceptions. Such proof is competent if it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial. These exceptions are stated generally, not with categorical precision, and may not be all-inclusive. This State has also enacted the following statute, which has adopted and extended somewhat the general rules of evidence:

“In any criminal case where the defendant’s motive, intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another or subsequent crime by the defendant.”

Sec. 13444-19 GC.

A different question might be here if the possession of the stolen property by the defendant through his burglaries, had no bearing upon the motive of the defendant in fleeing from the officer and in shooting him to make his flight effective. It is reasonable to conclude that the defendant was satisfied that, once they entered his room, his previous criminal conduct would be brought to light, and he would be held to answer to the law. It appears that the motive for escape is so definite that it needs no further statement. The fact that the evidence tends to prove other distinct crimes does not render it inadmissible. The defendant’s own conduct established this part of the history of the case, and he cannot be heard to complain. The competency of the evidence once established, the State was entitled to prove the elements constituting the several crimes. Shelton v. State, 106 Oh St 243.

“3. The court erred in admitting evidence in detail of the acts of the defendant-appellant in flight.”

The State proved that the flight of the defendant after the homocide, took him to Bedford, Ohio, where he stole an automobile. He drove this stolen ear to West Virginia, where he burglarized a home. He then abandoned the car stolen in Bedford and stole another one which he drove to a place in the vicinity of Fairmont, West Virginia. He attempted there to burglarize a store and gasoline station, but his activities sensitized a burglar alarm, which aroused the owners. A shooting affray followed between the owners and the defendant, after which the defendant escaped, and, in so doing, he dropped the revolver which he had taken from the body of his Cleveland victim. He also abandoned the car which he stole in West Virginia. The dropped revolver was later found and identified. The defendant then returned to Fairmont, West Virginia, where he repossessed the Bedford, Ohio, car which he had abandoned, and continued his flight to Ellicot City, Maryland. In the Maryland city he was found sleeping in the ear by police. Upon being aroused he again engaged in gun fire. His antagonist on this occasion was the Ellicot City Chief of Police. Following his escape from this point in his flight, after an intensive manhunt by officials of many kinds, he was eventually arrested and returned to Cleveland. At the time of the arrest he was armed with a loaded revolver.

This evidence was established by direct testimony, admissions and confessions. It was corroborated in practically its entirety by the testimony of the defendant when he testified on his own behalf in the trial.

The appellant states his claim of error as follows:

“It is axiomatic that evidence of acts committed subsequent to the crime charged is inadmissible unless such evidence aids the jury in determining the guilt of the defendant * * *. Cases cited in the text books indicate that evidence of flight is admissible where the defendant has denied the commission of the offense or has set up an alibi or made some other appropriate defense, but, in this case, neither defendant nor his counsel at any time in the trial denied that he was the party involved in the shooting of the officer. We submit, therefore, that the evidence of his conduct following December 8, 1951, when the shooting took place, was introduced only for one purpose — that of prejudicing the jury.”

From the foregoing statement, it would seem that the defendant believes that he was being tried only for the shooting of a policeman. Of course, this was not the offense charged by the State. The offense charged in the indictment was the first degree murder of a policeman, and at no time in the trial of the case was there an admission of a murder of this vicious type. The defendant throughout the trial stood firmly on his plea.

“Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. .* * * It is today universally conceded that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guiit * * II Wigmore on Evidence (Third Ed.) Sec. 276 and cases cited.

“* * * Flight does not raise a presumption of guilt. It is merely a circumstance which the jury may consider in connection with other facts in evidence. It tends to show a consciousness of guilt, or a guilty connection with the crime. * * *” 12 O. Jur., Criminal Law, Sec. 313, p. 320, and cases cited.

The fact that different crimes were committed by the defendant in his flight became an integral part of the history of the case, and became an inseparable part of the flight. It is fair to infer that the separate burglaries and larcenies were perpetrated to secure money or property to finance and accomplish further flight, and to avoid apprehension for the Cleveland killing. They, therefore, became an inseparable part of the whole.

In addition, as heretofore stated, the defendant himself voluntarily undertook to relate from the witness stand the circumstances, concerning the introduction of which, in the. State’s case in chief, complaint is now made. The proof offered by the State merely darkened and reddened that which was black enough and red enough when painted by the defendant’s own brush.

In the light of the court’s caution to the jury of the only purpose for which proof of other crimes may be considered, we find no error of a prejudicial nature under this claim.

“4. Wrongful admission of voluntary statement of defendant-appellant not relating to crime contained in the indictment.”

It appears that, after the apprehension of the defendant, he was interrogated by police officers of West Virginia relative to his activities in that State during his flight. He voluntarily made a detailed disclosure of his conduct there, which in general corroborated the testimony of other witnesses.

The competency of this evidence has been heretofore discussed in this opinion. Further statement on this question need not be here made except to say that the fact that it was cumulative did not render it inadmissible, nor was its admission prejudicial to the defendant’s rights.

“5. The court erred in his charge to the jury on the question of premeditation and deliberation.”

As heretofore stated, the first count in the indictment charged that the defendant “unlawfully, purposely and of deliberate and premeditated malice killed Forney Haas.” One of the necessary elements under this count, as distinguished from the second count, was proof beyond a reasonable doubt of deliberation and premeditation; and, of course, it was necessary to a fair trial, that the jury be properly instructed on this subject. (Under the second count, proof of deliberation and premeditation was unnecessary for conviction.)

The part of the court’s charge to which complaint is here made is as follows:

“It not only must be purposely or intentionally done, and I am referring to the killing now, it must be with deliberate and premeditated malice. That is really one sentence, but I will speak of deliberation and premeditation first, and then a word on malice. Deliberation and premeditation, in law, means to think before one acts, to consider, to ponder, to do some turning over in the mental process. The law fixes no' time within which premeditation and deliberation must be had. It can continue for months or weeks or days or hours, and, on the other hand, it can be the shortest possible period of time, and that time can be a matter of seconds, if the situation is such as to enable a person under the circumstances, whatever they were, in the particular case, to turn over and to plan and to execute in pursuance of the plan a realization of what one is about to do and the consequence of doing is sufficient.”

At the trial the vital question, on the first count in the indictment, was the defendant’s state of mind at the moment of the homocide. Did he shoot with deliberate and premeditated design to kill? When he was first accosted, did he lure the police officer to his rooming house by trick so that he could kill him with his concealed weapon, if it was necessary to accomplish an escape? Did he have this intent and purpose from the beginning, or, although knowing the nature of his act — the shooting — and the reasonable consequences thereof, was he the prey to sudden impulse — the frantic overmastering agitation of the fleeting moment?

These and like questions the jurors were to ask themselves and answer before measuring the defendant’s guilt under this count in the indictment, the count requiring proof of deliberation and premeditation.

In addition to the part of the court’s charge heretofore quoted, the court properly said, “So, on the first count of this indictment, if you find that George Ross purposely and of premeditated and deliberate malice killed Forney Haas in Cuyahoga County he is guilty of murder in the first degree. If any one of those elements is missing, he is not to be found guilty of murder in the first degree on that count.” (Emphasis ours.)

The argument is made by the defendant that “While it is correct to charge that deliberation and premeditation are not required to continue longer than a moment, it is error to say that they may occur in a moment.” We are cited to the case of Tolliver v. State, 9 Abs 488.

It has been the law of this State for more than one hundred years, that if a person has actually formed the purpose to maliciously kill another, and deliberated and premeditated upon it before he performed the act of killing, he is guilty of murder in the first degree, however short the time may have been between the purpose and the execution. It is not the time of deliberation and premeditation that is requisite, but the actual existence of the purpose, malice, deliberation and premeditation, and it matters not how short the time, if the party has actually turned it over in his mind, weighed and deliberated upon it. “* * * it would seem to make no difference whether the deliberation was in forming the' design maliciously to kill, or, in the continuance of such design after being formed, until the same was executed.” Shoemaker v. State, 12 Ohio 43, at p. 53. Patterson’s Criminal Code (3rd Ed.) 588, et seq.

It is not the purpose of this Court to marshal support for the jury instructions condemned in Tollivar v. State, supra, and Burns v. State, 3 O. Dec. Rep. 122. In those cases the instructions advised the jury in what time deliberation and premeditation might take place. This was held to be error. It was not the province of the court to determine this question as a matter of law. On the other hand, if the jury should find as a fact that deliberation and premeditation was proved, then whether it existed for only a moment or longer would be of no particular importance. Early v. State, 16 O. C. C. 646.

In the light of the foregoing, did the Court meet its responsibility? The court said that “deliberation and premeditation * * * means to think over one’s acts, to consider, to ponder, to do some turning over in the mental process. The law fixes no time within which premeditation and deliberation must be had.” (Emphasis ours.) Thus far the instructions follow the law of this State. Perhaps the trial judge would have used different language had he been charging a jury composed of professors of psychology, but his use of common, every-day terms adequately conveyed the thought to the jury of laymen.

The Court then continued by saying that premeditation and deliberation, “can continue for months or weeks or days or hours, and, on the other hand, it can be the shortest possible period of time, and that time can be a matter of seconds.” This statement standing alone might be subject to question; however, it is qualified by and must be read as an integral part of “if the situation is such as 'to enable a person under the circumstances, whatever they were, in the particular case to turn over and to plan and to execute in pursuance of the plan a realization of what one is about to do * * *.” (Emphasis ours.) The court has not said to the jury that deliberation and premeditation may occur in any specified length of time. On the contrary, it has said in short that, if the deliberation and premeditation has occurred, “it matters not how short the time (or as a matter of fact how long) if the party has actually turned it over in his mind.” Shoemaker v. State, supra, at page 53.

We are of the opinion that the instructions are not tarred with the vice of the complaint and are not prejudicially erroneous.

“6. The trial court arbitrarily removed from the consideration of the jury all evidence as to sanity or insanity, of this defendant-appellant at the time of the commission of the offense.”

The defendant, as noted before, created the issue of not guilty by reason of insanity. The trial court in consideration of the evidence did not submit this pleaded defense, and stated to the jury: “And you are, therefore, to proceed in this case to your findings on the assumption that Ross was sane at the time of those incidents, at that place at 8120 Euclid Avenue.”

It is the contention of the defense that the mental and emotional qualities of the defendant were of such a level at the time of the crime that he was incapable of deliberation and premeditation — that he had an insane irresistible impluse to escape in any way possible from the police officer.

Prom the evidence of the psychiatrist for the defense, the jury was told that the defendant had a psychopathic personality, his moral activities were defective, he was emotionally unstable, although at the same time he was sane in the sense that he knew right from wrong. Other witnesses testified to the behavior of the defendant at various times and on various occasions.

By repeated adjudications in this State where the insanity of the accused is set up as a defense, the burden of establishing such defense by a preponderance of the evidence rests upon the defendant. The law presumes every person sane, and in a criminal case , this presumption of sanity serves the State as the full equivalent of express proof until such time as it is made to appear by a preponderance of the evidence that the defendant was insane at the time of committing the crime alleged against him.

Loeifner v. State, 10 Oh St 598; Bond v. State, 23 Oh St 349; Bergin v. State, 31 Oh St 111; Kelch v. State, 55 Oh St 146; State v. Austin,-71 Oh St 317; Long v. State, 109 Oh St 77.

The defense asserts that there was evidence in the record tending to sustain the defense of insanity. The trial court said there was not.

“There is a distinct and definite place in our Anglo-American scheme of trial procedure for the exercise of the jury’s function. The ‘common touch’ implicit in the laymen’s nontechnical approach to the decision of cases has been jealously guarded throughout our judicial history. But definite boundaries of the jury’s province have always been recognized. The judge is to see that they are not transgressed.” Hamden Lodge v. Ohio Fuel Gas Co., 127 Oh St 469 at p. 482.

In civil cases it is established that “5. Where from the evidence reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury,” but on the other hand, if, after giving the evidence the most favorable interpretation in favor of the party asserting the issue, an adverse conclusion must be reasonably reached, it is the court’s duty to rule on the issue as a matter of law and not permit a jury to speculate. Hamden Lodge v. Ohio Fuel Gas Co. supra; Belshaw v. Agricultural Ins. Co., 150 Oh St 49. We declare that this rule for civil cases is equally applicable to an issue of insanity created in a criminal case, where such affirmative defense has been pleaded.

We find no evidence in the record before us which required the submission of this issue to the jury. And in this connection, as well as on the question of “irresistible impulse” we again pronounce the law heretofore stated by this Court in State v. Cumberworth, 69 Oh Ap 239;

“To establish insanity as a defense in a criminal action, the defendant must show, by a preponderance of the evidence, that at the time of committing the act he was laboring under such defect of reason from disease of mind as not to know the nature or quality of the act he was doing, or if he did know it, he did not know it was wrong, and it is not sufficient that he knew what he was doing was wrong but that because of disease of mind he did not have the power to resist committing the act and therefore acted under ‘irresistible impulse.’ ”

Reference is also made to State v. Maish, 185 P. (2d) 486, 173 A. L. R. 382, and the annotation on “irresistible impulse as excuse for crimes” in 173 A. L. R. 391.

The evidence furnishes the factual basis for a jury’s conclusion as to guilt and its degree, guided by the instructions of the court as to the law. Premeditation and deliberation were adequately defined in the instructions, and although the court did deny the issue of insanity as a defense, nevertheless, the evidence given by the psychiatrist and others was all before. the jury and considered in connection with the elements of intent and purpose to kill and to deliberate and premeditate thereon. The jury found that all of the essential elements of the crime were established in spite of the evidence offered and received for the purpose of showing an irresistible impulse at the time of the killing.

We see no error under this claim.

7. There are several other claims of error which we do not believe require discussion. We have examined them carefully and find none of a prejudicial nature.

Prior to the preparation of this opinion, it was, of course, necessary for this Court to read the more than one thousand pages in the bill of exceptions. We have not deemed it necessary to brief the record in its entirety. The recitation of a few more facts given by the defendant when testifying as a witness in his trial may not, however, be amiss. He said that he had stolen automobiles and committed burglaries in California and was there sent to prison and later paroled; after his parole he traveled to the State of Washington, and there committed burglaries, assaulted a police officer and stole his gun and billfold; he then returned to California, where he stole the Lincoln automobile which later figured in the Cleveland tragedy. From California he drove to Phoenix, Arizona, where he committed another burglary. From Arizona he drove to Cleveland, arriving on December 3, 1951. His conduct from this point on has been substantially set out in former pages of this opinion.

The case before us depicts a shocking crime. Law triumphs over natural impulses aroused by such a crime, only if guilt be ascertained by due regard for those indispensible safeguards which our nation and state have evolved for the ascertainment of guilt. It is not enough that an accused be accorded the mere form of a trial. When life is at stake, it is a requisite that a trial judge should so guide the jury that they may be fully equipped to determine whether death should be the penalty for conduct.

In our study of this case, we are of the opinion that the many safeguards thrown about an accused person by the law have been observed. We believe that the power of the Court was not abused. We believe that the defendant has had a fair trial; and we believe that the evidence shows the defendant guilty of murder in the first degree on each count in the indictment beyond peradventure.

We specifically find no error in the record of a prejudicial character (See §13449-5 GC) and, with this finding, in the fulfillment of our duty, we must affirm the judgment. It will be so ordered. Judgment affirmed.

SKEEL, PJ, HURD, J, concur.


source: Caselaw Access Project

license: Public Domain

text:
    WIMMER, Plaintiff-Appellant, v. DeWEESE, Admr., et, Defendants-Appellee.
    Ohio Appeals, Second District, Miami County.
    No. 456.
    Decided April 26, 1951.
    Michael E. Norris and Marie C. Schumucker, Troy, for plaintiff-appellant.
    A. H. DeWeese and J. W. DeWeese, Troy, for defendantsappellee.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment of the Probate Court of Miami County, Ohio, confirming the appointments of Gus Schnippel, as Administrator of the Estate of Anna A. Grier, deceased, and of J. H. DeWeese, as Administrator de bonis non of said estate, holding that the proceedings to sell the real estate of decedent upon the petition of the administrator, and subsequent action taken thereon by the administrator d. b. n. were regular and valid and that there was no fraud in connection with the sale of said real estate or in connection with the appointment of the fiduciaries and dismissing the petition of plaintiff.

To this order of the Probate Court six errors are assigned:

1 — The refusal of the court to render judgment on the pleadings in favor of the plaintiff.

2— The refusal to admit evidence offered by the plaintiff.

3— In limiting evidence of plaintiff to specific points in the amended petition.

4— In the admission of evidence on behalf of the defendant.

5— In overruling plaintiff’s motion for new trial.

6— The judgment is against the weight of the evidence, not supported by sufficient evidence, and contrary to law.

The issues were drawn on an amended petition filed after term, answer and reply. After the filing of the answer, plaintiff moved for judgment on the pleadings but, before the court had ruled on the motion, plaintiff filed a reply. Although the motion was not refilled after the filing of the reply, it could have been and probably was considered by the court as applying to the issues as then made up. This motion was overruled.

The amended petition describes the real estate involved; recites the relation of plaintiff to Anna Grier; her decease intestate leaving Charles J. Grier, her spouse; his death testate, naming plaintiff his sole devisee and legatee; the application of Gus Schnippel, a stranger to the estate of Anna Grier; his appointment as her administrator; his filing of a petition to sell real estate to pay debts; the order of sale; the death of administrator; the application of James H. DeWeese for appointment of administrator d. b. n.; his appointment and sale of the real estate; its confirmation and distribution of the proceeds.

It is particularly averred that Schnippel, in his application for appointment, set out under oath that there were no next of kin of Anna A. Grier, when in truth and in fact this plaintiff was her only next of kin; that said fact was well known to the applicant, and that this action was a fraud upon the court and the plaintiff, who is advanced in years, in that she was not informed of the proceedings and was not given an opportunity either to elect to administer the estate of her sister, Anna A. Grier, or to waive such administration.

It is further alleged that the real estate was appraised at $3,000, an order of private sale taken, and the property sold for $4,000, whereas its reasonable market value was at least $10,000; that prior to the filing of the application of the administrator plaintiff had been negotiating with one S. C Philbrook for a sale of a portion of the premises described in the petition and that the administrator d. b. n., under the order of sale, sold the entire premises to Philbrook without plaintiff’s knowledge or consent; that no other interested parties were given an opportunity by the fiduciary or his counsel to bid upon the premises, nor were any other persons contacted by counsel or Alma M. Schmell, who had been employed as a real estate agent, for the purpose of obtaining a higher and more reasonable price for the real estate.

It is further alleged that under Schedule F of the appraisement returned by the administrator the sum of $500 was set off to the surviving spouse, Charles J. Grier, as his statutory exemption, but that said sum was never paid to Charles J. Grier nor to Bernard S. Keyt, Executor of the Estate of Charles J. Grier, deceased. Then follows this important paragraph:

“Plaintiff further says that the purported appointment of Gus Schnippel as Administrator of the estate of Anna A. Grier deceased, and the purported appointment of James H. DeWeese as Administrator d. b. n. of the estate of Anna A. Grier deceased, and all other proceedings made and done by both of these fiduciaries were irregular and of no effect and should be set aside, and that the purported sale should be held for naught.”

The prayer of the petition is in accord with the last quoted paragraph.

The answer of the administrator d. b. n., after a general denial, asserts that plaintiff had full knowledge of the appointments to which she objects and of all the proceedings in the administration of the estate by reason of which she is estopped to deny the validity of the appointments; that plaintiff was a party defendant in the action to sell the real estate. Although it is not specifically averred, it is established that she was served with summons in this action; it is further alleged that the real estate was sold for the best price available, and that all proceedings were in accordance with law.

The reply is a denial of all new matter alleged in the answer. The prayer of the answer was that the petition be dismissed and that the court confirm the appointments of the administrator and the administrator d. b. n. (Emphasis ours.)

The first error assigned is that the court erred in refusing to render judgment on the pleadings in favor of the plaintiff. The only basis for this contention would be that, as a matter of law, Mary Wimmer was next of kin of Anna Grier and by reason of this fact the appointment of the administrator originally and the subsequent proceedings were void.

“Next of kin” is used to signify the relations of a party who has died intestate; those relatives who would inherit in case of intestacy. Re Estate of Fields, 44 Abs 287. At the time of the death of Anna Grier her surviving spouse was her sole heir at law. Mary Wimmer was then neither next of kin nor heir at law under the applicable statutes relating to intestate succession. The applicable section, §10509-3 GC, must be read in its entirety: ,

“Administration of the estate of an intestate shall be granted to persons hereinafter mentioned, in the following order:

1. To the surviving spouse of the deceased if resident of the state.

2. To one of the next of kin of the deceased, resident of the county.”

This section relates only to the estate of an intestate which is to be administered. Thus, the question at all times is whether or not those to be comprehended by the second paragraph of the statute would be next of kin of the deceased with respect to the estate of the deceased. Mary Wimmer did not, at any time, answer the description of one of the next of kin of' the deceased within the meaning of the statute, and was not entitled to notice. The court did not err in refusing to enter judgment for the plaintiff upon the pleadings.

The second assignment is that the Court erred in refusing to admit evidence offered by the plaintiff. This assignment is directed to the refusal of the court to admit the records of that court in the estate of Charles J. Grier. The proffer of the evidence was not necessary.. The defendant, administrator d. b. n., in his answer “admits the truth of all allegations contained in said petition which are matters of record.” The evidence proffered was a matter of record and it was alleged in the petition. As the court would not admit the evidence manifestly he did not consider it. But we are of opinion that there was nothing in the record material to the issues which was not made known to the court before judgment. No prejudice appears in the ruling of the court.

The third assignment is that the court erred in limiting the evidence to spe.cific points in the amended petition. We hold against this claim and will discuss this- matter later.

We also hold against the appellant on the fourth and fifth assignments and on the sixth, except as to so much of it as claims that the judgment is contrary to law, which we also hereafter discuss.

We have attempted to reconcile the questions presented and argued in the briefs with the issues presented by the pleadings and adjudged in the final entry of the court and have found it a difficult undertaking.

Quite early it was held, in the case of Reynolds v. Morris, 7 Oh St 310, that proof without allegation is as ineffective as an allegation, without proof. It might be added that a judgment- is ineffective, with certain exceptions which are not found here, if it adjudicates issues not made by the pleadings.

The principal issue as drawn between the plaintiff and defendant d. b. n. by the pleadings is that the statements of Schnippel in his application for appointment as administrator to the effect that Anna Grier had no next of kin constituted fraud upon the court. There is no proof that even though this statement was untrue, it was fraudulently made. But as we have said, it was not untrue. If it had been, even though not fraudulently made, it would, in probability, support the prayer of the petition. There is no other fraud averred, although it is claimed that the sale of the real estate to the purchaser was irregular in that the purchase price was far below its market value. The court had full right to resolve this question against the contention of the plaintiff.

The vital questions going to the irregularity of the proceedings incident to the appointments of the fiduciaries, and particularly to the sale of the real estate, are not projected by the pleadings although the judgment entry disposes of all them. There is no issue drawn whether there were any debts of the estate of Anna Grier. The petition to sell the real estate avers that there were no debts of the estate. This proceeding was a separate action.

Obviously the .claim of Division of Aid for the Aged was not a debt of the estate of Anna Grier. The Division did not so claim. This debt was not contracted until after Anna Grier’s death, and she at no time was a party to any contract assuring a payment of the claim of the Division. Of course, it was , a claim against the estate of Charles Grier and had preference over any other claim of his creditors.-

The status of the so-called exemption set-off to Charles J. Grier is interesting. There is no doubt that a set-off to a widower under §10509-4 GC, if properly made, may be classified as a debt and a preferred claim against an estate. Davidson v. The Miners and Mechanics Savings and Trust Co., Exr., et al., 129 Oh St 418. The principle is sound as applied to the facts in the cited case, but what application does it have to the facts developed in the instant cause? A debt is something owing from one to another. If it has been liquidated it ceases to exist. When Anna Grier died she was seized of but one possession, viz; the remainder in fee of the real estate here under consideration. Upon her' death it passed immediately to her spouse, Charles Grier. No sale of the real estate should be made except where it is necessary to pay decedent’s debts — not debts of her spouse or costs of administration. Nolan, Exrx., v. Kroll, 37 Oh Ap 350.

Upon Anna Grier’s death Charles Grier succeeded to, and, for almost four years prior to the application for the appointment of the administrator, held full and complete title to the land to which he inherited. He could have sold it or mortgaged it. He made no application for an appointment of an administrator of his deceased wife. Why should he? He possessed all that she had left upon her death, and 'it was worth much more than $500. If he had brought about the administration of his dead wife’s estate, what advantage would there have been to him by having $500 set off, and as there was no money or personal property in the estate from which to pay him, have that sold which he owned wholly so that he could be paid a part of its value? If Grier had creditors they did not have to take the cumbersome and unnecessary procedure of having a set-off to him so that they might be paid.

The cases with which we are familiar wherein the exemption has been set off to the surviving spouse under §10510-54: GC, involved estates wherein the surviving spouse did not take all of the property of the decedent.

There is another aspect of this case which is unusual. In the answer of Keyt, Executor, he set up the incompetency of plaintiff and directed the attention of the court to the fact that she was not qualified to appreciate her rights and that they should be explained to her. When this was suggested the court then should have satisfied himself of its truth or otherwise. Had it been determined that Mary Wimmer was incompetent, the court should have named a guardian ad litem for her. Had plaintiff been advised of her rights she could have given a bond to the administrator conditioned to pay all debts due from the estate and the charges of administration. Had she done this she could have avoided the sale of the real estate and the considerable costs incident thereto. Strangely enough, the incompetency of the plaintiff is not set up in the amended petition and, of course, to do so would have disqualified her to be appointed as administratrix. On the other hand, the trial judge found that plaintiff was incompetent to act as administratrix, but failed to pursue the inquiry as to the extent of her incompetency in the action to sell the real estate.

The record is permeated with inconsistent and unusual developments. It cannot be read without the conviction that timely action, either by plaintiff or by someone acting for her, would have protected her interests and terminated the administration before the sale of the real estate. However, plaintiff had notice of the action to sell the real estate and failed to act when such action was required. This failure did not estop her to question the jurisdiction of the court either as to the appointment of the administrator or the action to sell the real estate. The former she challenged; the latter she did not.

During the proceedings in the trial court the court’s attention was directed by motion to the claim of the administrator d. b. n. that the action was controlled by §11631 GC to set aside a judgment after term. The court held against this claim and decided the motion upon the theory that there were two questions raised; one, fraud in the appointments of the fiduciaries, and the other, the jurisdiction of the court to make said appointments.

We have discussed several of the questions briefed. They cannot be properly invoked to accord the plaintiff the relief prayed, and are insufficient to support a reversal of the judgment. They are, however, germane to the judgment entry which goes beyond the scope of the issues presented in the pleadings.

It may be noted that the decision of the trial judge does not attempt to determine all the propositions of law carried into the judgment entry. The last paragraph of the decision is:

“The petition of the plaintiff will therefore be dismissed * * * the appointments of the administrator, Gus Schnippel, and James DeWeese, as administrator de bonis non, approved and confirmed.”

That part of the entry should be stricken which recites that:

“And all proceedings in connection therewith were made in conformity with the provisions of law relating thereto, and the court does further find that the proceedings to sell real estate belonging to the within decedent were made by said fiduciary in accordance with the provisions of law relating thereto.”

and a part of the last four lines of the entry reading:

“And it is further ordered that the proceedings for the sale of real estate belonging to Anna A. Grier, deceased, be and the same are hereby approved and confirmed.”

As modified the judgment will be affirmed.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.


author: MR. JUSTICE FRANKFURTER MR. JUSTICE REED MR. JUSTICE JACKSON

text:
    STATE, ex rel. DYER et al., v. SIMS.
    Supreme Court of the United States.
    No. 147.
    Decided April 9, 1951.

      John B. Hollister, Cincinnati, for petitioners.
    Charles C. Wise, Charleston, W. Va., for respondent.
   MR. JUSTICE FRANKFURTER

delivered the opinion of the court.

After extended negotiations eight states entered into a compact to control pollution in the Ohio River system. See Ohio River Valley Water Sanitation Compact, 54 Stat. 752, 33 U. S. C. A. Section 567a note. Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia and West Virginia recognized that they were faced with one of the problems of government that are defined by natural rather than political boundaries. Accordingly, they pledged themselves to cooperate in maintaining waters in the Ohio River basin in a santiary condition through the administrative mechanism of the Ohio River Valley Water Sanitation Commission, consisting of three members from each state and three representing the United States.

The heart of the Compact is Article VI. This provides that sewage discharged into boundary streams or streams flowing from one state into another “shall be so treated, within a time reasonable for the construction of the necessary works, as to provide for substantially complete removal of settleable solids, and the removal of not less than forty-five per cent (45%) of the total suspended solids; provided that, in order to protect the public health or to preserve the waters for other legitimate purposes, * * * in specific instances such higher degree of treatment shall be used as may be determined to be necessary by the Commission after investigation, due notice and hearing.” Industrial wastes are to be treated “to such degree as may be determined to be necessary by the Commission after investigation, due notice and hearing.” Sewage and industrial wastes discharged into streams located wholly within one state are to be treated “to that extent, if any, which may be necessary to maintain such waters in a sanitary and satisfactory condition at least equal to the condition of the waters of the interstate stream immediately above the confluence.”

Article IX provides that the Commission may, after notice and hearing, issue orders for compliance enforceable in the state and federal courts. It further provides: “No such order shall go into effect unless and until it receives the assent of at least a majority of the commissioners from each of not less than a majority of the signatory states; and no such order upon a municipality, corporation, person or entity in any state shall go into effect unless and until it receives the assent of not less than a majority of the commissioners from such state.”

By Article X the states also agree “to appropriate for the salaries, office and other administrative expenses, their proper proportion of the annual budget as determined by the Commission and approved by the Governors of the signatory states

The present controversy arose because of conflicting views between officials of West Virginia regarding the responsibility of West Virginia under the compact.

The legislature of that state ratified and approved the compact on March 11, 1939. W. Va. Acts 1939, c. 38. Congress gave its consent on July 11, 1940, 54 Stat. 752, and upon adoption by all the signatory states the compact was formally executed by the Governor of West Virginia on June 30, 1948. At its 1949 session the West Virginia legislature appropriated $12,250 as the state’s contribution to the expenses of the Commission for the fiscal year beginning July 1, 1949. W. Va. Acts 1949, c. 9, Item 93. Respondent Sims, the auditor of the state, refused to issue a warrant upon its treasury for payment of this appropriation. To compel him to issue it', the West Virginia Commissioners to the Compact Commission and the members of the West Virginia State Water Commission instituted this original mandamus proceeding in the Supreme Court of Appeals of West Virginia. The court denied relief on the merits and we brought the case here, 340 U. S. 807, 71 S. Ct. 51, because questions of obviously important public interest are raised.

The West Virginia court found that the “sole question” before it was the validity of the Act of 1939 approving West Virginia’s adherence to the compact. It found that Act invalid in that (1) the Compact was deemed to delegate West Virginia’s police power to other states and to the federal government, and (2) it was deemed to bind future legislatures to make appropriations for the continued activities of the Sanitation Commission and thus to violate Art. X, Section 4 of the West Virginia Constitution.

Briefs filed on behalf of the United States and other states, as amici, invite the court to consider far-reaching issues relating to the Compact Clause of the United States Constitution. Art I, Section 10, cl. 3. The United States urges that the Compact be so read as to allow any signatory state to withdraw from its obligations at any time. 'Pennsylvania, Ohio, Indiana, Illinois, Kentucky and New York contend that the Compact Clause precludes any state from limiting its power to. enter into a compact to which congress has consented. We must not be tempted by these inviting vistas. We need not go beyond the issues on which tthe West Virginia court found the Compact not binding on that state. That these are issues which give this court jurisdiction to review the state court proceeding, 28 U. S. C. Section 1257, needs no discussion after Delaware River Joint Toll Bridge Comm. v. Colburn, 310 U. S. 419, 427, 60 S. Ct. 1039, 1040, 84 L. Ed. 1287.

Control of pollution in interstate streams might, on occasion, be an appropriate subject for national legislation. Compare State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508, 61 S. Ct. 1050, 85 L. Ed. 1487. But, with prescience, the framers left the states free to settle regional controversies in diverse ways. Solution of the problem underlying this case may' be attempted directly by the affected states through contentious litigation before this court. State of Missouri v. State of Illinois, 180 U. S. 208, 21 S. Ct. 331, 45 L. Ed. 497, Id., 200 U. S. 496, 26 S. Ct. 268, 50 L. Ed. 572; People of State of New York v. State of New Jersey, 256 U. S. 296, 41 S. Ct. 492, 65 L. Ed. 937. Adjudication here of conflicting state interests affecting stream pollution does not rest upon the law of a particular state. This court decides such controversies according to “principles it must have power to declare.” State of Missouri v. State of Illinois, supra, 200 U. S. at page 519, 26 S. Ct. at page 269. But the delicacy of interstate relationships and the inherent limitations upon this court’s ability to. deal with multifarious local problems have naturally led to exacting standards of judicial intervention and have inhibited the formulation of a code for dealing with such controversies. As Mr. Justice Holmes put it: “Before this court ought to intervene, the case should be of serious magnitude, clearly and fully proved, and the principle to be applied should be one which the court is prepared deliberately to maintain against all considerations on the other side.” State of Missouri v. State of Illinois, supra, 200 U. S. at page 521, 26 S. Ct. at page 270.

Indeed, so awkward and unsatisfactory is the available litigious solution for these problems that this court deemed it appropriate to emphasize the practical constitutional alternative provided by the Compact Clause. Experience led us to suggest that a problem such as that involved here is “more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of representatives of the states so vitally interested in it than by proceedings in any court however constituted.” People of State of New York v. State of New Jersey, supra, 256 U. S. at page 313, 41 S. Ct. at page 498. The suggestion has had fruitful response.

The growing interdependence of regional interests, calling for regional adjustments, has brought extensive use of compacts. A compact is more than a supple device for dealing with interests confined within a region. That it is also a means of safeguarding, the national interest is well illustrated in the Compact now under review. Not only was congressional consent required, as for all compacts; direct participation by the federal government was provided in the president’s appointment of three members of the Compact Commission. Art. IV, Art. XI, Section 3.

But a compact is after all a legal document. Though the circumstances of its drafting are likely to assure great care and deliberation, all avoidance of disputes as to scope and meaning is not within human gift. Just as this court has power to settle disputes between states where there is no compact, it must have final power to pass upon the meaning and validity of compacts. It requires no elaborate argument to reject the suggestion that an agreement solemnly entered into between states by those who alone have political authority to speak for a state can be unilaterally nullified, or given final meaning by an organ of one of the contracting states. A state cannot be its own ultimate judge in a controversy with a sister state. To determine the nature and scope of obligations as between states, whether they arise through the legislative means of compact or the “federal common law” governing interstate controversies. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 110, 58 S. Ct. 803, 811, 82 L. Ed. 1202, is the function and $uty of the Supreme Court of the Nation. Of course every deference will be shown to what the highest court of a state deems to be the law and policy of its state, particularly when recondite or unique features of local law are urged. Deference is one thing; submission to a state’s own determination of whether it has undertaken an obligation, what that obligation is, and whether it conflicts with a disability of the state to undertake it is quite another.

The Supreme Court of Appeals of the State of West Virginia is, for exclusively state purposes, the utimate tribunal in constrúing the meaning of her Constitution. But two prior decisions of this court make clear that we are free to examine determinations of law by state courts in the limited field where a compact brings in issue the rights of other states and the United States.

Commonwealth of Kentucky v. State of Indiana, 281 U. S. 163, 50 S. Ct. 275, 74 L. Ed. 784, dealt with a compact to build a bridge across the Ohio River. In an original action brought before this court, Indiana defended on the ground that she should not be compelled to perform until the Indiana courts decided, in a pending case, whether her officials had been authorized to enter into the compact. Mr. Chief Justice Hughes, speaking for a unanimous court, dismissed the argument: “Where the states themselves are before this court for the determination of a controversy between them, neither can determine their rights inter sese, and this court must pass upon every question essential to süch a determination, although local legislation and questions of state authorization may be involved. [Commonwealth of] Virginia v. [State of] West Virginia, 11 Wall. 39, 56, 20 L. Ed. 67; Id., 220 U. S. 1, 28, 31 S. Ct. 330, 55 L. Ed. 353. A decision in the present instance by the state court would not determine the controversy here.” 281 U. S. at pages 176-177, 50 S. Ct. at page 278.

In reaching this conclusion the Chief Justice could hardly avoid analogizing the situation to that where a question is raised whether a state has impaired the obligation of a contract. “It has frequently been held that, when a question is suitably raised whether the law of a state has impaired the obligation of a contract, in violation of the constitutional provision, this court must determine for itself whether a contract exists, what are its obligations, and whether they have been impaired by the legislation of the state. While this court always examines with appropriate respect the decisions of state courts bearing upon such questions, such decisions do not detract from the responsibility of this court in reaching its own conclusions as to the contract, its obligations and impairment, for otherwise the constitutional guaranty could not properly be enforced. Larson v. [State of] South Dakota, 278 U. S. 429, 433, 49 S. Ct. 196, 73 L. Ed. 441, and cases there cited.” 281 U. S, at page 176, 50 S. Ct. at page 278.

Hinderlider v. La Plata River & Cherry Creek Ditch Co., supra, is the second of these cases. It also makes clear, if authority be needed, that the fact the compact questions reach us on a writ of certiorari rather than by way of an original action brought by a state does not affect the power of this court. In the Hinderlider case, an action was brought in the Colorado courts to enjoin performance of a compact between Colorado and New Mexico concerning water rights in the La Plata River. The state court held that the compact was invalid because it affected appropriation rights guaranteed by the Colorado State Constitution. 101 Colo. 73, 70 P. 2d 849; see also 93 Colo. 128, 25 P. 2d 187. Mr. Justice Brandéis, likewise speaking for a unanimous court, held that the relative claims of New Mexico and Colorado citizens could be determined by compact and reversed the decision of the state court.

The issue in the Hinderlider case was whether the Colorado legislature had authority, under the State constitution, to enter into a compact which affected the water rights of her citizens. The issue before us is whether the West Virginia legislature had authority, under her constitution, to enter into a compact which involves delegation of power to an interstate agency and an agreement to appropriate funds for the administrative expenses of the agency.

That a legislature may delegate to an administrative body the power to make rules and decide particular cases is one of the axioms of modern government. The West Virginia court does not challenge the general proposition but objects to the delegation here involved because it is to a body outside the state and because its legislature may not be free, at any time, to withdraw the power delegated. We are not here concerned, and so need not deal, with specific language in a state constitution requiring that the state settle its problems with other states without delegating power to an interstate agency. What is involved is the conventional grant of legislative power. We find nothing in that to indicate that West Virginia may not solve a problem such as the control of river pollution by compact and by the delegation, if such it be, necessary to effectuate such solution by compact. If this court, in the exercise of its original jurisdiction, were to enter a decree requiring West Virginia to abate pollution of inter-state streams, that decree would bind the state. The West Virginia Legislature would have no part in determining the state’s obligation? The state legislature could not alter it; it could not disregard it, as West Virginia on another occasion so creditably recognized. The obligation would be fixed by this court on the basis of a master’s report. Here, the state has bound itself to control pollution by the more effective means of an agreement with other states. The Compact involves a reasonably and carefully limited delegation of power to an interstate agency. Nothing in its constitution suggests that, in dealing. with the problem dealt with by the Compact, West Virginia must wait for the answer to be dictated by this court after harassing and unsatisfactory litigation.

What Mr. Justice Brandéis said of the Colorado court decision in Hinderlider v. La Plata River & Cherry Creek Ditch Co., supra, applies to the decision of the West Virginia court: “It ignores the history and order of development of the two means provided by the constitution for adjusting interstate controversies. The compact — the legislative means — adapts to our union of sovereign states the age-old treaty making power of independent sovereign nations. Adjustment by compact without a judicial or quasi-judicial determination of existing rights had been practiced in the Colonies, was practiced by the states before the adoption of the Constitution, and had been extensively practiced in the United States for nearly half a century before this court first applied the judicial means in settling the boundary dispute in State of Rhode Island v. [Commonwealth of] Massachusetts, 12 Pet. 657, 723-725, 9 L. Ed. 1233.” 304 U. S. at page 104, 58 S. Ct. at page 808.

The state court also held that the Compact is in conflict with Art. X. Section 4, of the state constitution and for that reason is not binding on .West Virginia. This section provides: “No debt shall be contracted by this state, except to meet casual deficits in the revenue, to redeem a previous liability of the state, to suppress insurrection, repel invasion or defend the state in time of war; but the payment of any liability other than that for the ordinary expenses of the state, shall be equally distributed over a period of at least twenty years.”

The Compact was evidently drawn with great care to meet the problem of debt limitation in light of this section an,d similar restrictive provisions in the constitutions of other states. Although, under Art. X of the Compact, the states agree to appropriate funds for administrative expenses the annual budget must be approved by the governors of the signatory states. In addition, Article V provides: “The commission shall not incur any obligations of any kind prior to the making of appropriations adequate to meet the same; nor shall the commission pledge the credit of any of the signatory states, except by and with the authority of the legislature thereof.” In view of these provisions, we conclude that the obligation of the state under the Compact is not in conflict with Art. X, Section 4 of the state constitution.

Reversed and remanded.

MR. JUSTICE BLACK concurs in the result.

MR. JUSTICE REED (concurring),

MR. JUSTICE REED

concurs in the judgment of the court but disagrees with the assertion of power by this court to interpret the meaning of the West Virginia Constitution. This court must accept the state court’s interpretation of its own constitution unless it is prepared to say that the interpretation is a palpable evasion to avoid a federal rule.

There is no problem concerning the binding effect upon this court of state court interpretation of state law, under the Compact Clause such as there is under the clause against impairing the Obligation of Contracts. Under the latter clause, this court, in order to determine whether the subsequent state law, constitutional or statutory, impairs the federal- prohibition against impairment of contracts, has asserted power to construe for itself the disputed agreement, to decide whether it is a contract, and to interpret the subsequent state statute to decide whether it impairs that contract. Even then we accept state court conclusions unless “manifestly wrong.” 5Examination here, under the Contract Clause, is to enforce the federal provision against impairment and is made only to decide whether under the Contract Clause there is a contract and whether it is impaired. This court thus adjudges whether state action has violated the Federal Contract Clause. It does not decide the meaning of a state statute as applied to a state appropriation.

Under the Compact Clause, however, the federal questions are the execution, validity and meaning of federally approved state compacts. The interpretation of the meaning of the compact controls over a state’s application of its own law through the Supremacy Clause and not by any implied federal power to construe state law.

West Virginia adjudges her execution of the compact is invalid as a delegation of state police power and as a creation of debt beyond her constitutional powers. Since the constitution provided the compact for adjusting interstate relations, compacts may be enforced despite otherwise valid state restrictions on state action.

This, I think, was the basis of our holding in Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 58 S. Ct. 803, 82 L. Ed. 1202. The Supreme Court of Colorado held that compact invalid because it was an executive abandonment by Colorado of a citizen’s previously acquired water rights, 304 U. S. at pages 104 and 108, 58 S. Ct. at pages 808 and 810. But we concluded: “Whether the apportionment of

the water of an interstate stream be made by compact between the upper and lower states with the consent of Congress or by a decree of this court, the apportionment is binding upon the citizens of each state and all water claimants, even where the state had granted the water rights before it entered into the compact.” 304 U. S. at page 106, 58 S. Ct. at page 809.

For that conclusion reliance was placed upon State of Rhode Island v. Commonwealth of Massachusetts, 12 Pet. 657, 725, 9 L. Ed. 1233, where this court, speaking of compacts, said: “By this surrender of the power, which before the adoption of the constitution was vested in every state, of settling these contested boundaries, as in the plenitude of their sovereignty 'they might; they could settle them neither by war, or in peace, by treaty, compact or agreement, without the permission of the new legislative power which the states brought into existence by their respective and several grants in conventions of the people. If congress consented, then the states were in this respect restored to their original inherent sovereignty; such consent being the sole limitation imposed by the constitution, when given, left the states as they were before * * * whereby their compacts became of binding force, and finally settled the boundary between them; operating with the same effect as a treaty between sovereign powers.”

I would uphold the validity of the compact and reverse the judgment of West Virginia refusing mandamus, with direction to that court to enter a judgment not inconsistent with an opinion based upon the Supremacy Clause.

MR. JUSTICE JACKSON

(concurring).

West Virginia officials induced sister states to contract with her and Congress to consent to the Compact. She now attempts to read herself out of this interstate Compact by reading into her Constitution a limitation upon the powers of her Governor and Legislature to contract.

West Virginia, for internal affairs, is free to interpret her own Constitution as she will. But if the compact system is to have vitality and integrity, she may not raise an issue of ultra vires, decide it, and release herself from an interstate obligation. The legal consequences which flow from the formal participation in a compact consented to by Congress is a federal question for this court.

West Virginia points to no provision of her Constitution which we can say was clear notice or fair warning to Congress or other states of any defect in her authority to enter into this Compact. It is a power inherent in sovereignty limited only to the extent that congressional consent is required. State of Rhode Island v. Commonwealth of Massachusetts, 12 Pet. 657, 725, 9 L. Ed. 1233; Poole v. Fleeger’s Lessee, 11 Pet. 185, 209, 9 L. Ed. 680. Whatever she now says her Constitution means, she may not apply retroactively that interpretation to place an unforeseeable construction upon what the other states to this Compact were entitled to believe was a fully authorized act.

Estoppel is not often to be invoked against a government. But West Virginia assumed a contractual obligation with equals by permission of another government that is sovereign in the field. After Congress, and sister states had been induced to alter their positions and bind themselves to terms of a covenant, West Virginia should be estopped from repudiating her act. For this reason, I consider that whatever interpretation she may put on the generalities of her Constitution, she is bound by the Compact, and on that basis I concur in the judgment.

      . Union Pac. R. Co. v. Public Service Comm’n.

      . Constitution, Art. I, Section 10, of Missouri, 248 U. S. 67, 39 S. Ct. 24, 63 L. Ed. 131.

      . Appleby v. City of New York, 271 U. S. 364, 380, 46 S. Ct. 569, 573, 70 L. Ed. 992; John P. King Mfg. Co. v. City Council of Augusta, 277 U. S. 100, 114, 48 S. Ct. 489, 494, 72 L. Ed. 801; Coombes v. Getz, 285 U. S. 434, 441, 52 S. Ct. 435, 436, 76 L. Ed. 866.

      . Hale v. Iowa State Board of Assessment and Review, 302 U. S. 95, 101, 58 S. Ct. 102, 103, 82 L. Ed. 72.

      . Coolidge v. Long, 282 U. S. 582, 597, 51 S. Ct. 306, 309, 75 L. Ed. 562.

      . Delaware River Joint Toll Bridge Comm. v. Colburn, 310 U. S. 419, 428, 60 S. Ct. 1039, 1041, 84 L. Ed. 1287, where it is said, “Hence we address ourselves to the language of the Compact.” And see the last paragraph of the opinion.


author: By McClelland, pj.

text:
    STOFFT, Plaintiff, v. O’SHAUGHNESSY, Admr., et, Defendants.
    Probate Court, Franklin County.
    No. 147014.
    Decided June 11, 1952.

      Guy V. Fridley, Columbus, for plaintiff.
    Jack M. Parrish, for administrator.
   OPINION

By McClelland, pj.

This matter came on to be heard upon the Demurrer filed by the administrator of the estate of Thomas C. Walsh, deceased, to the, .Petition to Determine Heirship filed by Mazie Walsh Stofft, an alleged sister of said decedent, against said administrator and others. The ground for the Demurrer is “that said petition does not state facts sufficient to constitute a cause of action.”

The pertinent allegations of the petition are that the plaintiff was a sister of the decedent, that the decedent died intestate October 8, 1951, seized of an interest in a certain parcel of real estate. The prayer of the petition is “that the Court determine the persons who are entitled to said real estate.”

It is to be noted that for the right to bring this action counsel for the plaintiff relies on §10509-100 GC. In support of the demurrer counsel for the Administrator claims that the petition does not allege any facts showing -that it was necessary for the plaintiff to determine who are the heirs-at-law of the decedent.

Sec. 10509-100 GC, upon which the plaintiff relies, reads as follows:

“Sec. 10509-100 GC. Whenever it shall be necessary for any other person to determine who are or were the heirs-at-law of a deceased person, on the petition of any interested party, on like proceedings, the court may make a determination thereof.”

The above section is one of several sections (§10509-95 to §10509-101 GC) which prescribe the procedure to be followed for a determination of heirship and which were newly enacted as part of the 1932 Probate Code. Being comparatively new sections in our probate law, very little case law interpreting their meaning may be found. We know of no case in which the question raised by this Demurrer has been decided.

Secs. 10509-95 and 10509-96 GC read together provide that whenever property passes by the laws of intestate succession, the administrator may file in the Probate Court of the county where the estate of the decedent is being administered, a petition for the determination of the heirs of such decedent. This contemplates that an administrator has been appointed for the decedent’s estate and that he is in the process of administering the estate.

Sec. 10509-100 GC provides that whenever it shall be necessary for any other person to determine who are the heirs-at-law of a deceased person, on the petition of any interested party, the court may make a determination. The Petition alleges no facts showing that it is. necessary for the plaintiff to determine who are the heirs-at-law of the decedent. Necessity cannot be inferred from the allegation that the plaintiff is a sister of the decedent.

When an administrator is appointed he assumes the duty under the law not only to properly administer the estate but also the duty to distribute the property of the decedent to the persons entitled thereto according to law. (Sec. 10506-4 GC.) Being burdened with this duty, the necessity to distribute the property to the persons entitled thereto falls upon the administrator. The law and the Court hold the administrator responsible and not the heirs.

Since this responsibility rests solely with the administrator he should be permitted to assume the responsibility. In most cases the administrator knows who the heirs of his decedent are and distributes the estate accordingly; he does not deem it necessary for his own protection to bring a suit to determine heirs. In fact, if there is no question in his mind as to who the heirs are, he would fail in his duty to the heirs if he brought such a suit and burdened them with the additional expense of such a suit. When the Probate Code Committee of The Ohio State Bar Association introduced in the 1931 Legislature the bill for the enactment of the new probate code, the provision in the bill for proceedings to determine heirs was made mandatory. However, at the instance of the Probate Code Committee, before the bill was enacted, the words “proceedings shall be had” were changed to “proceedings may be had,” with the intention of making the statute merely permissive. Time has proved that this was a prudent move on the part of the committee.

On the other hand, there are other cases where the administrator, at the time of his appointment, is not sure who are the heirs of the decedent. However, after research on his part and after considering the proof submitted to him, he may become entirely satisfied, before the time for distribution arrives, that his list of heirs is complete and does not deem it necessary to file a suit to determine heirs.

This brings us to the question of whether, under these sections, an heir may force the hand of an administrator and compel him to submit to a suit to determine the heirs of the estate he is administering. It may be, before the estate is ready for distribution, that the administrator is satisfied that the heir bringing the suit is actually the heir he claims to be. But the administrator owes a duty, not only to an heir who might sue him to establish his relationship, but he also owes a duty to the Court and to all the other heirs to ascertain who they are. If any heir is omitted from the distribution the responsibility does not fall upon an over anxious heir who brings suit against the administrator but it rests upon the shoulders of the administrator.

Of course, if an administrator is not sure who the heirs of the estate are or that he has a complete list of them, for his own protection, he will file a suit to determine heirs (§Í0509-101 GC). But an administrator, if he does what is expected of him by virtue of his appointment, will prepare his list of heirs as meticulously as he knows how and will procure the necessary proof of relationship before he submits the matter to the Probate Court for a final determination of heirship. This of course takes time and he will be deprived of this necessary time if an heir is permitted to force him into a suit to determine heirs before the period arrives when he may be forced to make a distribution. (Sec. 10509-182 GC.)

What then is the meaning of §10509-100 GC upon which plaintiff relies?

It simply means that whenever it shall be necessary for any other person (one other than an administrator) to determine who are or were the heirs-at-law of a deceased person, any interested party may ask the Court for a determination of the heirs-at-law of such deceased person. It must be necessary for such interested person to have such a determination made. There may be several instances where this necessity arises.. For example, take a case where a will leaves property to “John Doe” for life and upon his death to the heirs of “John Doe.” An uncertainty might arise upon the death of “John Doe” as to who are his heirs. Such uncertainty could give rise to the necessity of one of the heirs bringing a suit, under §10509-100 GC to have the Probate Court determine who are the heirs of “John Doe.” Again, suppose the will provided that the remainder was to go to the heirs of the testator living at the time of the testator’s death. In that case it may be necessary for one of the heirs of the testator to bring a suit under said section to have the Probate Court determine who were the heirs of the testator. Again, suppose under the terms of a testamentary trust the corpus of the trust, upon its termination, was to be distributed to the heirs of the testator living at the time of the termination of the trust. In such a case it might be necessary for the trustee, in order to protect himself from liability, to bring a suit under said section to have the Probate Court determine who are the heirs to whom he should distribute the trust corpus.

In the case of Kane v. Kane, 146 Oh St 686, we find a significant paragraph in the opinion of the Supreme Court, which reads as follows:

“This statute gives permissive, not mandatory, authority to institute such a proceeding, and §10509-96 GC, limits the right to invoke such proceeding to an executor or administrator. If an executor or administrator acts, then the surviving spouse, the legatees and devisees, or the heirs and distributees of a decedent, including those whose names are unknown, must be made parties defendant with the right and opportunity to establish their claims. But no provision is made by these statutes whereby a legatee or distributee, claiming an interest or share in a decedent’s estate, may institute and prosecute such a proceeding.”

We are not sure whether the above paragraph was intended as a statement of the court’s opinion or whether it was merely a recitation of one of the claims of the appellees. From the context it would appear that it is part of the court’s opinion. If it is part of the court’s opinion it sustains us in our opinion in the instant case. In the above cited case an heir had filed a petition in the Common Pleas Court for a declaratory judgment under §12102 et seq GC, to determine the identity of the heirs-at-law of the decedent while the estate was in the process of administration in the Probate Court. The Court of Appeals had held that the Common Pleas Court was without jurisdiction of the subject of the action, reversed the judgment and dismissed the petition. The Supreme Court held that by virtue of §§12102-1 and 12102-4 GC, the Common Pleas Court and the Probate Court have concurrent jurisdiction to determine heirship. The appellees had contended that because the administration of the estate was, at the time of the filing of the petition, proceeding in the Probate Court, that Court had original and exclusive jurisdiction, and that the action for a declaratory judgment would not lie in the Common Pleas Court.

If this plaintiff is not permitted to bring this suit, it may then be asked: “What else can she do to project her interest in the estate?” She has already protected herself by notifying the administrator that she claims to be a sister of the decedent. The administrator, being responsible under the law for a proper distribution of the estate, if he has any doubt about the authenticity of the claim of the plaintiff, he is neither going to ignore or recognize her claim without submitting the matter to the Probate Court. If he ignores the plaintiff as an heir and distributes the estate to the other heirs, the plaintiff could attack the account of the' administrator and procure a judgment against him and his bondsman (§10506-40 GC). It may be that after the administrator has been able to investigate the claim of the plaintiff and has procured proof of relationship that to him appears to be authentic, he may not deem it necessary for his protection to file a suit to determine heirs.

Again a suit to determine heirs is not the only procedure to which the administrator may resort for his own protection. He may, instead, choose to file an application for an order of distribution under §10506-40a GC. Under this section he may serve notice of the hearing on the application upon the plaintiff and upon all persons who may be affected by such order of distribution. At the hearing on this application the court determines the persons entitled to distribution and makes an order of distribution accordingly. Such order of distribution protects the administrator the same as he is protected upon the settlement of his account after he has given notice of the hearing thereon in accordance with §10506-37 GC.

If nine months have expired after the appointment of the administrator and distribution has not been made, and if no proceeding has been brought by the administrator for a determination of the persons entitled to the estate, thé plaintiff then may apply to the Probate Court for an order requiring the administrator to distribute the assets of the estate, in which proceeding she is afforded an opportunity to set up her claim. (Sec. 10509-182.)

Since the petition does not allege facts showing that it is necessary for the plaintiff to determine who are the heirs-at-law of the decedent, it is our conclusion that the petition does not state facts sufficient to constitute a cause of action, and the demurrer will therefore be sustained.

Having ruled on the right of the plaintiff to bring this action, it is not necessary for us to pass upon the question raised at the hearing as to whether or not the suit was prosecuted by the real party in interest, the petition having been signed and filed by an attorney in fact under a power of attorney.