author: Burket, J.

text:
    The State of Ohio ex rel., the Attorney General, v. Morris et al.

      Boards of equalization — Act of April 16, 1900 — HendDey law not in conflict vyith Royer law — Act of April 16, 1900 — Conflict of laws.

    The statute entitled “Ail act to amend and supplement section 2814, and to supplement section 2813 of the Revised Statutes of Ohio,” known as the Hendley law, 94 O. L., 246, in so far as it relates to boards of revision, their powers and duties, is not in conflict with the statute entitled, “An act to amend sections 2813, 2815 and 2818 of the Revised Statutes of Ohio,” known as the Royer law, 94 O. L., 336, and the Hendley law is a valid act, except as to the dates of completing the work of equalization by the decennial county and city boards.
    (Decided December 18, 1900.)
    In Quo Warranto.
    The attorney general filed his petition in this court against John R. Morris, John B. Washburn, Charles E. Logan, Robert E. Koehler, John Dunholter, Herman Teepen and Eugene L. Lewis, auditor of Hamilton county, the persons composing the Decennial Board of Equalization of the city of Cincinnati for the year 1900, and which board performed its duties as such board of equalization, and closed its session on the third Monday of October in said year.
    1 The said board of equalization having so closed its session, now claims that it has the right to convene as a board of revision, and hold a session from the first Monday of June, 1901, to the fourth Monday of January, 1902, and for such board of revision books and stationery have been purchased and clerks employed at public expense, and the auditor of the county and a member of said board, on the 16th day of October, 1900, with the approval and sanction of the board, caused public notice by advertisement to be published that the equalization had then been completed, and that complaints against any valuation might be filed with the auditor of the county on or before the 15th day of May, 1901, as required by section 2813a, as passed April 16, 1900, 94 O. L., 247.
    The relator claims that said board has no lawful right to so meet and sit as a board of revision, and alleges in his petition that said board is usurping a right not conferred on it or the members thereof by law, and prays that they show by what warrant or authority they claim said offices, and that they and each of them be ousted from said offices, and from acting as a board of revision.
    The defendants answered that they claim the right to sit as such board of revision by virtue of section 2814a, passed April 16, 1900, 94 O. L., 247.
    To this answer the attorney general demurred, on the ground that the answer does not state facts sufficient to constitute a defense to the petition.
    The merits of the case were submitted and considered on this demurrer.

      J. M. Sheets, Attorney General; J. E. Todd, Assistant Attorney General; Smith W. Bennett, for relator.
    We consider it unnecessary to cite any propositions of law, in extenso, but we call the court’s attention to' the proposition that incongruities and absurdities are to be avoided in the construction to be given to any act or acts upon the same subject; and that where two sections are irreconcilable with each other, effect must be given to the later. That the later enacted act repeals the former to the extent that the two are repugnant or inconsistent. State ex rel. v. Commissioners, 36 Ohio St., 326; Henderson’s Tobacco, 78 U. S., 652; Wood v. United States, 41 U. S. (16 Pet.), 342; Fabbri v. Murphy, 95 U. S., 191.
    We therefore conclude from the above that the attempt to provide for boards of revision by house bill No. 777 is inconsistent and irreconcilable with senate bill No. 309, and the proceedings and times, as directed by said acts being repugnant and destructive of each other, that, thereby .no board of revision was created for any county or city in the state of Ohio, and the demurrer of the relator to the answer of the defendants should be sustained.

      W. M. Ampt, for defendants.
    The later act must be clearly repugnant to a former one, in order to repeal the former by implication. Seeming repugnancy is not sufficient, but the two acts will be construed together as in pari materia, and effect given to both, if possible. 23 Am. and Eng. Ency.,. 316.
    A later statute, not expressly repealing a former one, is not to be taken as a repeal by implication, unless it is plainly repugnant to the former, or unless it fully embraces the who!e subject matter.
    Unless the repugnancy is not only irreconcilable, but also clear and convincing and following necessarily from the language used, unless the later act fully embraces the subject matter of the earlier, or unless the reason for the earlier act is peradventure removed, every effort must be used to make all acts stand, and if, by any reasonable construction, they can be reconciled, the later act will not act as a repeal of the earlier. 23 Am. and Eng. Ency., 492; Ludlow v. Johnston, 3 Ohio, 553; Dodge v. Gridley, 10 Ohio, 173; State ex rel. v. Perrysburg (Vil.), 14 Ohio St., 472; Taylor v. Boyd, 3 Ohio 337; Cass v. Dillon, 2 Ohio St., 607; Skunk v. Bank, 22 Ohio St., 508.
    In the absence of a repealing clause, it is necessary to the implication of a repeal that the object of the statutes, as well as the subject matter, be the same; if they are not, both statutes will stand though they refer to the same subject. 23 Am. & Eng. Ency., 482, citing United States v. Claflin, 97 U. S., 546.
    Where there are subjects for both statutes to operate upon, there can be no repeal by implication. 2 Wash. (Va.), 282.
    There must be an unmistakable intent manifested on the part of the legislature to make the new act a substitute for the old,and to contain all the law on the subject. Mere similarity in the provision of two statutes is not enough to effect a repeal, even if the similarity be such as to cause confusion or inconvenience. 23 Am. & Eng. Ency., 486, 487.
    The question of implied repeal is one of intention. Where two acts are passed at the same session of the legislature, on the same subject, it shows an intent that one is not repealed by the other, but that they are to be construed together. 23 Am. & Eng. Ency., 491.
    Two statutes passed on same day relating to same thing, one more comprehensive than the other, effort will be made to give operation to both, so that each may, if possible, have some effect, that legislation may not appear to have been vain and useless. Nazareth L. Int. v. Com., 14 B. Mun., 214.
    A construction contrary to reason will not be presumed, unless the intention is indicated in express terms. Neenan v. Smith, 50 Mo., 525.

      In Hirn v. State, 1 Ohio St., 15, where a later act repealed authority to grant liquor licenses, but did not by express terms revoke or annul outstanding licenses which had been granted and paid for under the act repealed, the court held that, though the legislature had power to revoke outstanding licenses, the exercise of such power without refunding the money obtained for the license, would be an act of bad faith, and as repeals by implication are not favored and penal statutes are strictly construed, such an operation would not be given by mere implication, in the absence of words directly and clearly expressive of such intention.
    Section 2814a, Revised Statutes, is intended to give every owner of real property an. opportunity to complain and be heard before any value is finally fixed for the purpose of taxation. Now, would the legislature take away from them this important privilege intended for their protection, except by legislation expressly so providing or couched in language so clear that there can be no mistake as to such a legislative intent?
    If the fixing of a day for closing the work of the state board auterior to the day when the board of revision is to meet, be, in fact, a defect, it is a defect only as establishing a bad scheme of equalization, to be corrected by amendatory legislation hereafter, and not by applying the rule of implied repeal, which is barely permitted by our constitution in any case. Sedgwick O. & S. Law, p. 98, note.
    Where the provisions of a statute which related to a particular class of cases are repugnant to those of another statute approved the same day, which is of a mere general character, the former must prevail as to the particular class of cases therein referred to.
      Mead v. Bagnall, 15 Wis., 156; Brown v. Commonwealth, 21 Penn. St., 37.
   Burket, J.

The attorney general in his brief states the question thus: “Upon this record thus presented, the single question arises: Has the legislature of Ohio authorized the creation of boards of revision to revise the work of the decennial county and city boards of equalization, or either of such boards? On the part of the relator, wre contend no such authority is granted, while the defendants contend that the decennial board of equalization for county and city are by the statute constituted boards of revision.”

To determine this question it is necessary to consider and construe the statutes bearing on this subject.

So much of sections 281.3a and 2814a, passed April 16, 1900, 94 O. L., 247, as apply to this question, are as follows:

“Sec. 2813a. The decennial county board of equalization shall complete its work of equalization, on or before the fourth Monday of February, and the decennial board for cities of the first and second class, on or before the second Monday of April, of the year next following the beginning of the equalization, respectively, and, on its completion, each of said boards shall adjourn as a board of equalization, and the auditor shall immediately thereafter, give ten days’ public notice by advertisement in one or more newspapers, that the equalization has been completed, and that complaints against any valuation may be filed with the auditor of the county on or before the fifteenth day of April next following and will be heard by the board of revision, stating in the notice the time and place of the meeting of said board, except that in cities of the'first and second class, snch complaints shall be filed on or before the fifteenth day of May next following.”
“Sec. 2814a. The decennial board of equalization shall sit as a board of revision, when notified by the auditor of the county to meet for that purpose, in which event it shall begin its session as a board of revision, on the first Monday of May following the completion of the decennial equalization, and shall close its session on or before the fourth Monday of September next following; except that the. decennial city board shall begin its session on the- first Monday of June, and shall close its session on or before the fourth Monday of January of the year next following. After the completion of the equalization by either board, complaints against any valuation may be filed with the auditor of the county, and, if any such complaint shall have been so filed on or before April 15th thereafter against any valuation of a decennial county board; or, or on or before May 15th thereafter against any valuation of a decennial city board, or, if the auditor of the county deem it advisable, he shall, in writing, notify the members of the proper' board of equalization to meet and sit as a board of revision on the day fixed by this act and at the place fixed for the meeting of the said boards respectively, and he shall give ten days’ public notice, by advertisement, in one or more newspapers, of the time and place of the meeting of the board of revision and the purpose thereof. The board of revision shall investigate all snch complaints and all complaints against any valuation filed with it as a board, or made by the county auditor, and may increase or decrease any valuation complained of and no others. Said board shall, in all respects, be governed by the laws in force governing the valuing of real property, and shall make no change in any valuation complained ■of except in accordance with such laws, and subject to the laws regulating and restricting the limit of equalization, but no valuation, as fixed by the board of equalization, shall be increased by the board of revision, in any case, except upon reasonable notice as prescribed by this chapter, to all persons directly interested and an opportunity for a full hearing. The auditor of the county shall correct the tax duplicate according to the deductions and additions ordered by the board of revision, in the manner provided by law for making corrections thereof.”

These two sections are known as the Hendley law.

Sections 2813, 2815 and 2818, passed April 16,1900, 91 O. L., 336, are as follows:

“Sec. 2813. The auditor, surveyor and commissioners of such county shall compose the county board of equalization of the real property within the county, except that within any city of the first or second class; and they shall convene at the office of the county auditor on the third Monday of July, one thousand nine hundred, and every tenth year thereafter; and shall close their session on or before the first Monday in October then next following; and each shall be sworn, faithfully and impartially, to equalize the value of real estate within the county that is within their jurisdiction, according to law; any three of them shall form a quorum, and the auditor shall keep a full and accurate record of the proceedings and orders of the board.”
“Sec. 2815. In each city of the first and second class there shall be a decennial board for the equalization of the value of the real property within such city, to be composed of the county auditor, and six citizens of such city, appointed by the council thereof, except that in cities of the first grade of the first class, said six members shall be appointed by the city comptroller of such city, and shall consist of three members of each of the two leading political parties. Said board shall convene at the office of the county auditor, on the first Monday of August, in the year one thousand nine hundred, and every tenth year thereafter, and shall close its session on or before the third Monday in October then next following; and they shall severally take the same oath as that prescribed for the decennial county board; and a record of the proceedings and orders of said decennial city board of' equalization shall 'be kept by the auditor.”
“Sec. 2818. The state board of equalization shall consist of as many members as compose the state senate, chosen at the last previous election of the members of the general assembly and representing the same districts, all of whom shall have the qualifications of electors, and the qualified electors of each senatorial district shall, a,t the November election in the year one thousand nine hundred, and each tenth year thereafter, elect persons to serve as members of such board of equalization in accordance with the provisions of this chapter, and the returns of the poll books and certificate of election shall be governed by the law regulating the election of senators; and in case of vacancy in such office, either by death or resignation, or otherwise, the governor of the state shall have the power to appoint a person who shall be a resident elector of the district so vacated, to fill such vacancy as soon as he shall be informed thereof; the auditor of state shall, by virtue of his office, be a member of this board. The said board shall meet at Columbus on the first Tuesday of December, one thousand nine hundred, and every tenth year thereafter, and shall close its session on or before the first Monday in May then next following; and the members thereof shall each take an oath that he will, to the best of his knowledge and ability, so far as the duty devolves on him, equalize the valuation of real property among the several counties and towns in the state, according to the rules prescribed by this table for valuing and equalizing the value of real property transmitted to him by the several county auditors. Said board shall proceed to equalize the same among the-several towns and counties in the state, in the manner hereinafter prescribed.”

These three sections are known as the Royer law.

The Hendley law and the Royer law were both passed and signed by the presiding officers of the senate and house on the same day,but the Royer law was signed after the Hendley law had been signed, and this court held in the case of State ex rel. Guilbert, Auditor, v. Halliday, Auditor, 63 Ohio St., 165, that in so far as these two statutes are irreconcilable, the Royer law must prevail, and must to that extent be held as a repeal by implication of the Hendley law. With that holding we are fully content.

The relator claims and urges that the Royer law, in legal effect, irreconcilably conflicts with that part of the Hendley law which provides that the board of equalization, after having closed its session, shall again convene the following June as a board of revision.

As to the dates upon which the boards of equalization are required to meet, and finally close their sessions, the . two acts are in direct and irreconcilable conflict, and as to those dates the Royer law must prevail, as heretofore held by this court; but there is no other or further conflict apparent, and none has been shown by argument, or even by inference. Nothing is said or provided as to boards of revision in the Royer law. That subject is provided for only in the Hendley law. Section 2813 of the Royer law provides for the county boards of equalization, and that they shall close their sessions by the first Monday of October, and section 2815 of the same law provides for the decennial city boards of equalization, and that their sessions shall be closed by the third Monday of October. Then section 281-1, Revised Statutes, as amended April 10, 1900, 91 O. L., 246, provides that these boards shall equalize the valuations of real property “so that each tract or lot shall be entered oh the tax list at its true value.” By section 2817, Revised Statutes, the county auditor is required to make out and transmit to the auditor of state, by the first Monday of November, 1900, an abstract of the real property in his county. The abstract here referred to is an abstract of the real property on the tax list after the equalization has been completed by the county or city board. The auditor of state is also a member of the decennial state board of equalization, and through him the abstract of all the real property of the state, after equalization by the county and city boards, is placed before the decennial state board of equalization, and that board proceeds to “equalize the valuation of real property among the several counties and towns in the state.” The county and city boards equalize the valuations of separate and individual properties, by raising the values of some, and reducing the values of others, so as to do justice as provided by the rules laid down in said section 2814, but the aggregate value of the property must not be below the aggregate returned by the assessors,with the additions made by the auditor.

The state board of equalization does not revise or change the equalization so made of the separate and individual pieces of property by the county and city boards, but acts upon the totals or aggregates of the counties and towns as returned in the abstracts of the county auditors. In short, the aggregate valuations of the several counties and towns of the state are to be equalized as to each other by the state board, and not the several tracts of land or lots as to each other in such counties and towns. After the equalization is so made by the state board and its session closed on or before the first Monday of May, 1901, section 2819 requires the auditor of state to transmit to each county auditor a statement of the per centum to be added to or deducted from, the valuation of the real property of his county, and then the county auditor is required by the same section to add to, or deduct from, each lot or tract of real property, the required per centum on the valuation thereof as it stands after being equalized by the county and city boards of equalization.

In these several steps of valuation and equalization, the Royer law is given full force and control, and the Hendley law has no part and does not come in conflict with the Royer law, except as to dates of closing sessions, and as to such dates the Royer law prevails. This work of valuation and equalization must all be done and completed by the first Monday in May, 1901, and before the work of the board of revision can begin, as the sessions of that board begin as to county boards of revision on the first Monday in May, 1901, and as to city boards on the first Monday of June of the same year. While the dates of closing the sessions of the boards of equalization under the two laws conflict, there is no conflict between them as to dates of convening or closing the sessions of the boards of revision, because the boards of revision under the Hendley law do not convene until all the boards under the Royer law have adjourned, except that the county board of revision convenes on the same day that the last board under the Royer law adjourns, that is, the first Monday in May, 1901. Neither does the work of the board of revision conflict with the work or duties of any board under the Royer law, because the board of revision takes the valuations and equalizations as made under the boards of the Royer law after they are completed, and proceeds to act upon complaints against the valuations, as equalized by the county and city boards of equalization. The board of revision cannot disturb the per centum of increase or decrease as to counties and towns made-by the state board.

The valuations made by the district assessors, and the equalization made by the county and city boards, of equalization, are made without notice to the owners of real estate, because the fourth subdivision of section 2814, which required such notice before raising the valuation of any lot or tract of land, was repealed by the amendment of that section, April 16,. 1900. *

Conceding for the purposes of this case, that the-general assembly has power to pass a law authorizing; an increase of the valuation of real estate as returned, by the district assessors, for the purposes of taxation,, without any notice to the owner, yet good government-would seem to require that the owner should have-notice, either statutory or otherwise, and an opportunity to be heard at some stage of the proceedings, before such increase of valuation should be finally fixed, and such has heretofore been the latv and practice in this state; and as neither the Royer law7 nor the Hendley law7 makes any provision for such notice w7hile the matter is pending before the board of equalization, it follow's that there can be no such notice or opportunity to be heard, unless had while the matter is pending before the board of revision, because that board alone is authorized to give such notice and grant such hearing, and if that board should be ousted, then the values as fixed by the boards of equalization, w'ithout notice to the owners, before said boards adjourned in October last, have become unalterable, no matter w7hat the inequality in valuation, or the just cause of complaint.

The Royer law7 is silent as to notice to owners of an intention on the part of the board of equalization, to raise the valuation of any particular lot or tract of land, and therefore it cannot be in conflict on the subject of notice, with the Hendley law7, which fully and carefully provides for such notice by the board of revision. The Hendley law7 provides that after the boards of equalization have adjourned, as such boards, the auditors shall immediately thereafter give ten days’ public notice by advertisement in one or more newspapers that the equalization has been completed, and that complaints against any valuation may be filed w7ith the auditor of the county, on or before the 15th day of April next following, and will be heard by the board of revision, stating in the notice the time and place of the meeting of said board, except that in cities of the first and second class such complaints shall be filed on or before the 15th day of May next following.

The work of the board of equalization being thus completed, and public notice thereof having been given, each owner of real property has opportunity to examine the valuations and equalization thus made, not only of his own property, but also the property of others in his township or city, and compare the valuations as finally fixed by the board of equalization, and if not content therewith he may file a complaint with the county auditor by the 15th day of April or May, as the case may be, and have that complaint heard and passed upon by the board of revision, if a county board between the dates of the first Monday of May and the fourth Monday of September,. 1901, and if a city board, between the first Monday of June, 1901, and the fourth Monday of January, 1902, unless the boards should sooner adjourn. When the board of revision has heard and passed upon all complaints, either by individuals or .the county auditor, and closed its session, it is made the duty of the county auditor to correct the tax duplicate according-to the deductions and additions ordered by the board of revision, in the manner provided by law for making-corrections thereof. The tax duplicate here referred to, is the duplicate as made up after the completion, of the work of the state board of equalization.

Section 2814a makes it the duty of the board of revision, to investigate all complaints filed with the auditor, or with the board, or made by the auditor himself, and authorizes the board to increase or decrease-any valuation so complained of, and no others. It is urged by the relator that to allow the board of revision to thus increase, or decrease the valuations, would destroy the work of the county and city boards, of equalization, and of the state board, and that the work to be performed by such boards of revision is in irreconcilable conflict with the work of the state board as fixed by the Royer law, and therefore inoperative. But, as already shown, the state board equalizes only the valuation among the several counties and towns of the state, and does not equalize as between the property of individuals. The state board equalizes the valuation among the counties and towns by means of a per centum, to be added to, or deducted from, the valuations of real property in the several counties and towns, as shown by section 2819, Revised Statutes. After this per centum has been added to, or deducted from, the valuation as fixed by the county or city boards of equalization, the board of revision hears complaints and adds to, or deducts from, the valuations as left after the auditor has added or deducted the per centums of the State Board from the valuations as fixed by the board of equalization. It is therefore clear that the state board and the board of revision, do not act on the same subject matter, and not at the same time, and therefore there is no conflict between them, or the work to be performed by them.

Neither is there any force in the claim of the relator, that the board of revision if allowed to make additions to, or deductions from, valuations, will destroy the work of the board of equalization. No valuation can be increased by the board of revision without reasonable notice to all persons directly interested, and an opportunity for a full hearing. Sections 2814a and 2804, Revised Statutes, 94 O. I,., 247 and 319. Said section 2814a provides in addition to the notice required, that the board of revision shall in all respects, be governed by the laws in force governing the valuing of real property, and shall make no change in any valuation complained of, except in accordance with such laws, and subject to the laws regulating and restricting the limit of equalization. So that whatever changes in valuations the board of revision desires •to make, it must make in accordance with the laws governing the valuation of real property, and subject to the laws regulating and restricting the limit of valuation. Therefore the board of revision will be lim: ited in its powers of revision to the rules, restrictions and limitations contained in sections 2814 and 2804, Revised Statutes, 94 O. L., 246 and 319, and whatever other sections there may be bearing on the subject. And if it should be found that certain things are authorized to be done by the board of revision, and nó statute can be found prescribing the exact mode of performing that duty or thing, the presumption would be that the general assembly intended that it might be performed in a reasonable manner, not in conflict with •any law of the state. This principle was recognized by this court in Jewett v. Railway Co., 34 Ohio St., 601, 608, where the following is found in the opinion: “Where authority is given to do a specific thing, but the precise mode of performing it is not prescribed, the presumption is that the legislature intended the party might perform it in a reasonable manner.”

But it is not likely that resort must be had to this principle, as the statutes are probably broad enough to cover the entire scope of the powers and duties of the board of revision. As the board of revision acts upon the valuations as fixed in the year 1900, it is clear that it is not bound by the limitation as to the “aggregate value on the duplicate of the preceding year,” as found in said section 2804.

As the boards of revision will perform the same work in 1901 that would otherwise be performed in that year as to valuations of real estate by the boards of equalization, the latter boards Avill, for that year only, be superseded by the boards of revision as to equalizing the valuations of real estate in the several counties and cities, upon the principle that a later statute supersedes an earlier one, when both cover the same subject matter. The same is true as to the board of supervisors of Cincinnati, section 2690m. Its duties as to equalizing the valuations of real property for the year 1901, will be performed by the board of revision.

The statute providing for boards of revision, is not only a valid act, not inconsistent with the Royer law, but it is a Avise provision, because the persons who composed the board of equalization and equalized the valuations of real estate in the year 1900, are likely to be more competent to reAÚse inequalities in those same valuations upon complaint, than another board not familiar with the subject.

If a. city board of revision should prolong its session to the fourth Monday of January, 1902, it might seriously inconvenience the completion of the tax duplicate for the year 1901, but that cannot be remedied by this court. This inconvenience can be avoided by closing the session at an earlier date, as the board is not required to remain in session the full time.

Being of opinion that the Hendley law is not in conflict with the Royer law, the demurrer to the answer must be overruled, and the petition of the relator dismissed.

Petition dismissed.


source: Caselaw Access Project

author: Williams, J. Davis, J.,

license: Public Domain

text:
    The Board of Education of Bath Township, Allen County, v. Townsend.

      Inevitable accident Will not excuse performance of contract— Where its essential purposes are still capable of accomplishment — Party not relieved from obligation when he retains consideration for promise — School house partial subject of contract — Blown down — Contract still capable of performance — Law of contracts — Act of God.

    1. Inevitable accident will not excuse the performance of a contract where its essential purposes are still capable of substantial accomplishment, though literal performance has become physically impossible.
    ¡2. When a party has one or the other of two modes of performing a contract, and one of them becomes impossible by the act of God, he is bound to perform it in the other niode.
    3. A party will not be relieved from the obligations arising from his contract when he has received and retains the consideration for his unfulfilled promise.
    4. Where, in consideration of the conveyance by a board of education, of a. lot on which was situated a school house and other buildings suitable for a public school, the vendee agreed to convey to - the board another lot then vacant, and to remove, reconstruct and rebuild thereon, the school house, so that it would he in a suitable and proper condition for school purposes, it is not a defense to an action for damages for failure to perform the contract with respect to the school house, that it was blown down by a storm, and could not, on that account, be removed as a standing building. The contract was nevertheless capable of substantial performance.
    (Decided December 18, 1900.)
    Error to the Circuit Court of Allen county.
    This is a proceeding to reverse a judgment of the circuit court affirming a judgment rendered adversely to the plaintiff in error by the common pleas, in an action brought to recover of the defendant in error, damages for the breach of a contract. The action was tried and decided upon an agreed statement of facts, which, so far as they are deemed material, will be found in the opinion.

      Gable & Parm,enter, for plaintiff in error.
    The contract involved in this action was made in good faith, viz.: The defendant required a part of the school grounds for railroad purposes, obtained the same and went into the possession thereof, and thereby destroyed the premises for school purposes. In consideration of which, as appears from a fair interpretation of the contract, the defendant, without any provision relieving him, agreed, in effect, to place the school board in as good a situation as before. The contract clearly shows that the matter of this, contingency of the “house falling down” or being destroyed was within the contemplation of the parties at the time, and the contract makes it incumbent upon the defendant, not only to remove the building, but to rebuild and reconstruct it, which language would never have been used if the parties had not contemplated this possibility. The defendant did not provide in his contract that he was not to perform it in event the building, by unavoidable accident, was destroyed before he began the removal. In short, he is not excused because of the act of God, since it is his contract obligation, and, in his contract he did not provide against such a contingency, but rather provided that he would, in any event, remove, rebuild and reconstruct the school building. If the contract had simply provided that the said Townsend shall remove said building and repair the same, then under the well settled rules of construct]' on, the defendant would be required to rebuild. Meriwether v. Lowndes Co., 7 Southern Rep., 199.

      The meaning of “repair,” as defined by the decisions, is “to rebuild.” The language used in the contract is “remove, reconstruct and rebuild.” It would be a strange distinction to say that if the party agreed to remove and repair that he would be compelled to rebuild, even though an act of God intervened and destroyed the structure, and, then to say that where he agreed to remove, rebuild and reconstruct, and the act of God intervened and destroyed the structure, he would not be compelled to rebuild. Taylor on Land, and Ten. (8 Ed.l, Sec. 357.
    If in every contract the condition is implied, though not written therein, viz., that the subject matter of the contract shall continue in existence, as in this case the building, then why does not the act of God always excuse a party from his contract obligation, and why were not the defendants in the 25th Conn, and in the 25th N. Y. cases cited, relieved from the performance of their contract. They agreed to do no more than the defendant in this case, yet the court held that they were not to be relieved from contract obligations. This is not the class of cases for personal services, for the delivery of a specified chattel, where the chattel is lost, destroyed or dies, or where the person to perform services of a personal nature by subsequent cause is prevented; nor is it a case where a person agrees to sign in a certain hall or building which is afterwards destroyed, because in all such cases, a clear distinction is apparent from the one at bar. Beach on Modern Contract Law, Sec. 218.
    . We maintain that this does not constitute a defense, because it was not stated that he could not provide a school house; and as that was what he contracted, in effect, to do, he is not relieved.

      A person is relieved from the performance of a duty imposed by law when prevented by some act coming within the classification known as the act of God, but he is not relieved wholly or partially from his contract obligations, even though the act of God (so-called) intervened. If, in the act of removal, or before, a part of the material composing the structure was lost, then it became necessary in the act of restoring and rebuilding, which the defendant at his own expense undertook to do, that he supply such material necessary in the reconstruction and rebuilding of said building. And there was no less a duty incumbent upon him because the building was entirely demolished. School Dist. No. 1. v. Dauchy, 25 Conn., 530; Thompkins v. Dudley, 25 N. Y., 272.
    The above cases are the leading ones upon the questions involved.
    The defendant did not simply agree to remove the school house from one location to another, but he agreed to “reconstruct and rebuild the said building so that it mil be in suitable and proper condition for school purposes.” Central Trust Co. v. Railroad Co., 31 Fed. Rep., 440.
    If, however, the act of God rendered it impossible for the defendant to perform, then the finding and judgment should have been for the plaintiff for damages and costs, because the answer admits the conveyance of the land to defendant, and the agreed statement of facts, that he took possession thereof on November 12, 1895, and “built a railroad over and upon it.” Beach on Modern Contract Law, section 216 and cases cited; School Dist. No. 1 v. Douchy, 25 Conn., 530; Willey v. Fredericks, 10 Gray, 357; Meriwether v. Lowndes Co., 89 Ala., 362.

      Even though the house may have been demolished, it was necessary for the defendant to rebuild the samé, or, in event of his failure so to do, to pay the reasonable cost of doing that which he' agreed to do. To the same effect, Reach, section 1736; Doolittle & Chamberlain v. McCullough, 12 Ohio St., 360; Adams v. Nichols, 19 Pickering, 277-8; Steel v. Buck, 61 Ill., 343.

      W. B. Richie and W. H. Leete, for defendant.
    The defendant by the express terms of the contract agreed “to remove the present school house building located on, etc., and front the same.” It is evident --'that the parties had in their minds the structure then in use as a school building, not a pile of wreckage and debris, that which at some time had been a structure; the contract referred to the conditions existing at the time, the existence of a building, a structure then being used as a school house, and it was this structure which toas to be removed, fronted and rebuilt.

    We see but one reasonable interpretation of this contract, i. e., when the plaintiffs had actually delivered the building to the defendant, he was to remove it, and front it upon the highway, and in the event of injury to the building caused by the defendant,-he was to be answerable for that injury; that unti] the building was actually in the possession of the defendant, he was not answerable for its safety.
    Plaintiffs further insist that defendant is bound by the covenant to rebuild and reconstruct, and that there is no escape from the covenant; but we insist that these terms can only be taken to mean, that the defendant was bound to make good any injury that might come to the building through the performance of the primary covenant to remove the building. Railway Co. v. Hoyt, 149 U. S. Rep., 1.
    The Supreme Court in the case above cited uses almost the identical language of Bailey v. DeCrispigney, L. R., 4 Q. B., 185.
    But that court went further, and said: “That it is on this principle that the ‘act of God’ is sometimes said to excuse the breach of a contract. This is an inaccurate expression, because where it is an answer to a complaint of an alleged breach of contract that the thing done or left undone was so by the ‘act of God;’ what is meant, is, that it was not within the contract.”
    By the modern understanding of the law we are not bound to seek for a general definition of the term “act of God,” or vis major, but only to ascertain what kind of events were within the contemplation of the parties; this becomes apparent if one attempts to frame a definition of the term “act of God.”
    We cannot arrive at a more distinct conception than this: “An event which, as between the parties, and for the purpose of the matter in hand, cannot be definitely foreseen or controlled.” Pollock, Principles of Contracts, page 362.
    This being the English rule in cases similar to the one at bar we can see but little cogency in counsel for plaintiffs arguing for, and citing the English rule as to repair between landlord and tenant, for if the argument would not tend to support the proposition in England, how much less available is it here in this country where the law of landlord and tenant has been so largely modified.
    An American case in point is Butterfield v. Byron, 27 N. E. Rep., 667, citing 79 Mich., 47; 80 Mich., 448; 58 N. Y. Sup. Ct., 10; 85 Va., 500.

      Beach in his work on Modern Contracts, Vol. 1, page 217, discusses the question and sustains the position taken by the defendant.
    The attention of the court is also called to the Board of Education v. Townsend, 15 C. C., 674, 8 Circ. Dec., 732, where the decision of the circuit court in this case is given at length.
   Williams, J.

The defendant in error, desiring to obtain for the Lima Northern Railway, the school lot in one of the sub-districts of Bath township, in Allen county, on which there was located a brick school house and other necessary buildings, entered into a written agreement with the board of education, the-plaintiff in error, on the 7th day of November, 1895, whereby he agreed that in consideration of the conveyance by the board, of the school lot for the use of the-railway, he would, within sixty days from that time, convey to the board another described lot, then vacant, and remove thereto and reconstruct and rebuild thereon, the school house “so that it will be in a suitable and proper condition for school purposes.” And he further agreed that he would remove the wood house and other out buildings to the new site, and place them there in proper place and condition, dig-a well, put a. good pump in it, and construct a good and suitable fence around the lot. The board, in performance of the agreement on its part, on the 12th day of November, 1895, conveyed the school lot to the railway company, w7hich then took possession, constructed its road over the same, and has continued in its. occupation. And the defendant performed all the stipulations of the contract on his part, except the one by which he agreed to remove the school house to the-new site and there reconstruct and rebuild it. Having failed and refused to perform that part of his agreement, the board proceeded to, and did erect on' the new site, at a cost of $1,349, a new school house exactly like the one that was on the lot conveyed to the railway company, except the addition of a cupola, which cost fifty dollars. The reasonable cost of building a school house on the new site, of the same size and material as the one which the defendant agreed to remove, reconstruct and rebuild there, it is agreed in the statement of facts, would be one thousand dollars. After having made due demand of the defendant, the board of education brought the action below to recover, as its damages for his breach of the contract, the amount expended in the building of the new school/ house. The defense, which is admitted to be true, is based solely on the ground that on the 28th day of November, 1895,> the school house mentioned in the contract was blown down and demolished by a violent wind storm so that it “could not, as a school house,, be removed.”

The effect of the storm, it is claimed, rendered im-' possible the performance by the defendant of that stipulation of the contract by which he undertook to remove the school house and reconstruct and rebuild it on the new site, because its existence and identity as a building were destroyed, and that discharged him from all liability on his undertaking. It appears to be accepted by the authorities that, as a rule, there is an implied condition in executory agreements, to the effect that their performance shall not be rendered impossible by the intervention of unforeseen,accidental and uncontrollable superior agencies, and that their performance will be excused when it is prevented by such agency; as where there is a contract for the delivery of specific property at a future time, and before tbe time of delivery arrives, tbe property is destroyed by inevitable accident. But, it is an important part of that rule, that tke_\intervention of such inevitable accident will not excuse performance when the essential purposes of the contract are still capable of substantial accomplishment, although a literal performance has become physically impossible. 7 Am. & Eng. Ency. of Law, 2d ed., 14=8 and cases there cited. White v. Mann, 26 Me., 361, 368; Williams v. Vanderbilt, 28 N. Y., 217, 223; Robson v. Mississippi River Logging Co., 61 Fed. Rep., 893.

The impossibility of performance of the contract by the defendant is supposed to have arisen from the fact that, as the building was blown down, it could not thereafter be removed “as a school house,” that is, as a standing building. But, to remove it in that wray was not exactly the obligation of the contract. The school building is spoken of in the” contract as the thing to be removed, and not as designating the manner of removal. It is practicable to remove a building intact; but that is not the only way. It may be removed, within the common understanding, by taking the material and reconstructing or rebuilding it at another locality. Which method w-ould, in this instance, have been the more practicable and less expensive, does not appear. But the latter appears to have been in the contemplation of the parties; for, the contract is not only that the defendant should remove the school building from ydiere it stood, but also that he should reconstruct and rebuild it on the new site, so that it should be in suitable and proper condition for school purposes. To '^reconstruct is to rebuild, and to rebuild is to “build up again; to build or construct after having been demolished.” Century Dictionary. Nor is the meaning of the term restricted to the erection of the new building on the site of the old one. So that, notwithstanding the school house was blown down by a storm, it remained possible for the defendant to reconstruct and rebuild it on the new school site and thus perform his contract, not only substantially but strictly and exactly. This construction of the contract is strongly accentuated by reference to the provision for removing tbe wood house and out buildings. These buildings probably being small wooden structures, the agreement with respect to them is, simply that the defendant shall remove them to a proper place on the new site and there put them in proper condition. The absence of any stipulation to reconstruct or rebuild them, shows that those terms were used understanding^ and accurately with respect to the school house. It seems evident, looking to the entire agreement, that the essential purpose which the parties had in mind was, that there should be placed by the defendant, without expense to the board of education, the same facilities in the way of buildings for carrying on the public school there, that existed at the time of the contract on the lot then owned and in use by the board. And if, because it was cheaper to do so, or for other reason, the defendant had constructed on the new site entirely new buildings, equivalent of the old ones, that would have been a substantial compliance with his contract, which the board of education could not refuse to accept. The most favorable view that can be taken of the case for the defendant is, that under the contract two disitinct modes of performance were open to him; one by removing the school house as a standing building by means of jacks and rollers, or other appliances, the other by tearing it down and using the material for its reconstruction, either of which he was at liberty to adopt, and either of which, it may be conceded, would have been a sufficient compliance with his contract. Though the former mode of performance became impossible, the latter was not.. And/“it can hardly admit of contradiction,” said the-vice-chancellor, in Barkworth v. Young, 4 Drewry, 1, 24-25, that where a party is allowed at his option, to-perform his contract in “one or the other of two modes; and one of them becomes impossible by the act of God he is bound to perform it in the other mode.” And see State v. Worthington, 7 Ohio, 171-172. This rule rests upon the substantial reason that, so long as the contract is capable of performance in any mode contemplated by the parties, its performance cannot be said to have become impossible. A clearer case fob the application of the rule than the one before us can hardly be conceived. Beside, the act of God, so-called, which excuses the performance of a contract because that has become impossible, does not necessarily discharge the party from the obligations arising from the contract, except, it may be, when the contract is wholly executory on both sides. If an artist contracts to paint a picture for ten thousand dollars received from his patron, and thereafter becomes incapacitated from blindness to fulfill his promise, by what right is he justified in claiming the money? We are not aware of any principle, and have not been referred to any adjudicated case, that would give absolution from the obligations of a contract to a party who has received from the other full consideration for a promise which the former has become unable to fulfill, and at the same time protect him in the enjoyment of the consideration paid. The act of God may properly lift from his shoulders the burden of performance, but has not yet been extended so as to enable Mm to keep the other man’s property for nothing. ■ It is plainly apparent from the contract in hand, that the parties, as the basis of the agreement, estimated the value of the lot conveyed by the board of education to the railway company to be as much more than that of the lot conveyed to the board as it would cost to place on the latter a school house, in suitable and proper condition for school purposes, and other conveniences for a public school, equivalent to those on the lot owned by the board when the contract was made. And, in so far as the defendant has failed to do those things, he has received from the board a valuable consideration which he retains, and for which he has not given what he promised, nor anything whatever. It appears from the agreed statement of facts that the reasonable cost of doing what the defendant so failed to do, is one thousand dollars, which amount the plaintiff expended in the fall of 1896, toward placing a school house on the newly acquired site, after demand on the defendant to perform his contract in that behalf, and his failure to do so. We think the judgments below should be reversed, and judgment rendered for the plaintiff in error.

Judgment accordingly.

Davis, J.,

dissenting:

The general rule Avhich is so clearly stated in the majority opiMon is incontrovertible. There is an exception to it, however, which is equally Avell recognized. It is thus formulated in 1 Am. & Eng. Ency. Law, 2nd ed., 590: “It has long been conceded that where a contract is entered into, of a continuing character, or to be performed at a future time, dependent upon the continued existence of a particular person or thing, or the continuing ability of the obligor to perform, subsequent death, destruction, or disability will excuse the obligor from compliance with the terms of the contract.”

■ It seems to me that the construction put upon the terms of this contract is forced and unwarranted by the language of the agreement. These are the words of the contract: “Said James B. Townsend further agrees within said time, to remove the present school house, * * * and rebuild and reconstruct the said building, so that it will be in suitable and proper condition for school purposesTownsend does not agree here to build a new school house. He only agrees to remove the present school house. He does, not agree to remove the materials when it ceases to be a school house, and to rebuild and reconstruct the building from these materials. He agrees to remove the present school house, and to rebuild and reconstruct the said building, that is, the present building,, so that it, that is the present building, will be in suitable and proper condition for school purposes. “Rebuild” does not always mean to build anew. It has a very common secondary meaning, for example, “2. To make extensive repairs and alterations in.” Standard Dictionary. From these considerations it appears to me to be the clearly expressed intention of the parties to this agreement that Townsend should remove the school house to its new site and put it, the-identical school house, “in suitable and proper condition for school purposes.” That is the natural and obvious import of their language. If Townsend’s contract obligation was to build a new school house, why should he be required to put it in suitable and proper-condition for school purposes? The condition is implied in the obligation itself.

The argument that the railroad company has the plaintiff’s land without having given all of the agreed consideration therefor, has little weight with me. It is based on an assumption of the very thing in dispute here, namely, that ToAvnsend agreed to re-erect the school house, and not merely to remove it and put it in condition for school purposes. If he did not agree to rebuild the structure, in case it was destroyed by the act of God, then the argument of the majority falls to the ground; for the plaintiffs have already received all of the consideration which he was to give in the exchange of property in such case. Other objections might be urged against the reasoning of the majority; but no good purpose would be served by extending the discussion.

In my opinion, when the tornado destroyed the school house, Townsend was released from the obligation to remove that building and to put it in suitable and proper condition for school purposes; and therefore I maintain that the judgment of the circuit court ought to be affirmed.


author: Minshaix, J.

text:
    Cobble et al. v. The Farmers' Bank.

      .Fictitious use of names in partnership — Certain partnerships required to file certificates — Section 8170-1-7 — “Banking partnership” is within■ provisions of act of May 19, 1891/, when— Judgment taken after change in firm and before filing new certificate is invalid, when — Bights of creditors — Partnership law.

    1. A “banking partnership” whose capital stock is not divided into shares and transferable on the books of the “concern,” is within the general provisions of the act of May 19, 1894, and the amendments, prohibiting the use of fictitious names in partnerships, Bates’ Statute, sections 3170-1 to 7; and, at each change in the partnership, is required to file a new certificate.
    2. A judgment taken by such partnership in its firm name upon a note with a power of attorney to confess judgment, and releasing all errors, after a change has taken place in its membership, and before the filing of a new certificate, is invalid, and may be set aside by the debtor or his assignee for the benefit of creditors; and where the latter refuses on request of the creditors to bring suit, the creditors, or any of them, may maintain an action to set it aside for the benefit of themselves and all other creditors of the debtor.
    (Decided December 18, 1900.)
    Error to the Circuit Court of Stark county.

      Harter & Krichbaumj U. S. Johnston and W. H. .Smith, for plaintiffs in error.
    First. There have been two views taken of the effect of this statute by the Ohio courts. Bank v. Brown, 11 C. C., 77, 5 Circ. Dec., 94. This opinion is based upon the construction of a similar statute by the Supreme Court of California.
    If this construction of the statute prevails in Ohio, then it is clear that the court of common pleas and the circuit court of Stark county erred in their judgments, and said judgments must be reversed, provided the plaintiffs in the case below had the right to bring the action. Hartzell v. Warren, 11 C. C., 269, 5 Circ. Dec., 183.
    Should this latter construction of the statute finally prevail in Ohio, it is not fatal to the right of,the plaintiffs in error to set aside the judgment of the Farmers’ Bank, obtained in its fictitious name, against Walter S. Putman, before it had complied with the provisions of the statute under discussion, because if the statute means anything, whenever the attention of the court which has entered a judgment in behalf of a fictitious partnership which has not complied with the law which we are now considering, by filing the certificate provided for therein, is called by a party having the right so to do, to the fact of the disability of the fictitious partnership to commence a suit at the time it was begun, and where the fictitious partnership, as in this case, did not comply with the law until after judgment, and where the rights of other parties have intervened between the commencement of the suit and the filing of the partnership certificate, as in the case at bar, it Avill set aside such judgment, because it had no right to enter it. The province of the court is to interpret, not to enact or repeal statutory law by construction. It must take the statute as it is and determine its meaning. Bridge Company v. Bowman, 41 Ohio St., 52; Patton v. Sheriff, 2 Ohio, 395.
    This rule of construction does not exclude the consideration of the intention of the legislature unless restrained by the rigid and inflexible letter of the law. Moore v. Given, 39 Ohio St., 661; Wehrle v. Wehrle, 39 Ohio St., 365.
    A judgment against an infant, where infancy was not disclosed on the face of the record, might appear to be a valid judgment, but as soon as the attention of the court rendering the judgment against the infant is called to that fact, by a party entitled to invoke the action of the court, the judgment would be vacated by the court. The infant in the supposed case would be a party laboring under a legal disability which would preclude the court from rendering a valid judgment. This is an elementary principle of the law. Long v. Mulford, 17 Ohio St., 485.
    The case at bar is analogous to the case of infancy, because the Farmers’ Bank, was under a disability which precluded it from bringing an action.
    What sufficient reason is there why a court which did not know of this disability when the judgment was rendered should not set the judgment aside when it is advised of the disability? Spier v. Corll, 33 Ohio St., 236.
    The legal disability of the Farmers’ Bank to commence the action, and to maintain it, was not removed until the 21st day of July, 1896; then it had the right not only to commence the action, but if commenced theretofore, to maintain the same and prosecute it to judgment. But the statute does not provide that a judgment entered on behalf of a fictitious partnership before it had the right to either commence or to maintain the action, in which the judgment Avas rendered, shall be a valid judgment, after compliance with the provisions of the act, and if it did so provide such provision, where interwening rights have been acquired, would be unconstitutional and void. Templeton v. Kroner, 24 Ohio St., 554; Elliott v. Plattor, 43 Ohio St., 198.
    The claim of the plaintiffs in error is, that the amendments referred to do not cover the case of a banking partnership, such as the bank of Wilmot was, and that the disability of the bank of Wilmot was not removed by virtue of these amendments. Further, the amendment of section 4 of the act under consideration provides, that, in the cases therein specified, it shall be sufficient if the certificate provided for in section 1 of this act, is filed once in each year on or before the first Monday in April. This the Farmers’ Bank failed to do. The year referred to in the statute, is the calendar year, and not a year to be fixed In each case by the date of the formation of the partnership. Any other construction given to this language involves the absurdity of saying, that a day after the first Monday in April in any year, is a day before the first Monday in April. Spiedel Grocery Co. v. Armstrong, 8 C. C., 489, 4 Circ. Dec., 498.
    So in the case at bar, but for the statute the court of common pleas of Stark county, would have had jurisdiction to enter the judgment complained of, but by virtue of the statute prohibiting the Farmers’ Bank from commencing or maintaining the action in which the judgment was entered by the court of common pleas of Stark county, Ohio, on the 16th day of June, 1896, the court had no jurisdiction, in fact, to enter the same. 28 Am. & Eng. Ency. Law, 533; 13 Am. & Eng. Ency. Law, 718; Sharpley v. Abbott, 42 N. Y., 433; Knettle v. Newcomb, 22 N. Y., 249.

      James Sterling, for defendant in error.
    1. The demurrer to the ansAver to the amended petition searches the record, and a judgment must be given against the party committing the first error in pleading. Headington v. Neff, 7 Ohio, 229; Short v. Lancaster, 17 Ohio, 96, 97; Trott v. Sarchett, 10 Ohio St., 241; Hilliar v. Stewart, 26 Ohio St., 652; State ex rel. v. Crites, Auditor, 48 Ohio St., 142.

      2. The amended petition does not state facts sufficient to constitute a cause of action.
    First. The judgment sought to he attacked in this action was taken on a warrant of attorney (see averments as to warrant of attorney, first defense in answer) ; in it the judgment debtors authorized the Farmers’ Bank to take a judgment in the manner in which it did; and we submit that they, the defendants in the cognovit suit, could not attack this judgment successfully by proceedings to set it aside. They could not even open or vacate it, except to make a meritorious defense in the same proceeding, and it cannot be collaterally attacked. Callen v. Ellison, 13 Ohio St., 446; Hammond v. Davenport, 16 Ohio St., 177; Railway Co. v. Village of Belle Centre, 48 Ohio St., 273; McCurdy v. Baughman, 43 Ohio St., 78; Wehrle v. Wehrle, 39 Ohio St., 365; Heckman v. Adams, 50 Ohio St., 305; Sipes v. Whitney, 30 Ohio St. 69; New man’s Lessee v. Cincinnati, 18 Ohio, 323; Haskins v. Alcott, 13 Ohio St., 210; Farran v. Robinson, 17 Ohio St., 242; Cochran’s Heirs v. Loring, 17 Ohio, 409; Reynolds v. Stansbury, 20 Ohio, 344.
    Second. The defendant may waive error. Bank v. Reed, 31 Ohio St., 435.
    Third. The defendant Putman had a right to prefer creditors at the time said judgment was taken. Cross, Trustee, v. Carstens, 49 Ohio St., 548.
    Fourth. There is no means of setting aside a preferential judgment or conveyance by persons not parties to the judgment, except by establishing intentional, actual, collusive fraud, and that is not averred in this amended petition. Shorten v. Woodrow, 34 Ohio St., 645;Bloomingdale v. Stein, 42 Ohio St., 168; Freeman on Judgments, Secs. 334, 335 and 336.

      Fifth. There is no averment or claim made in the ■ petition that the note upon which judgment was taken was without consideration, or that the consideration thereof was inadequate, or that there was an intention to defraud the plaintiffs or any creditor. The note imported a consideration, the consideration in the state of the pleadings stands admitted, and we submit the demurrer which searches the record should he sustained, to the petition.

    3. It is claimed on behalf of plaintiffs in error that the judgment attacked in this proceeding is void for non-compliance with the statute requiring partnerships with fictitious names, to file certificates with the clerk of courts, in the county in which said partnerships transact business.
    In reply to this proposition, we submit, first, the compliance with the provisions of said statute (section 3170) are not jurisdictional. The warrant of attorney authorizes “any attorney of record to appear for the defendants Walter S. Putman and Abbie E. Putman and waive the issue of process and confess judgment thereon against said defendants Walter S. and Abbie E. Putman in favor of these defendants in said firm name of Farmers’ Bank, and which warrant of attorney contained a release of all errors in the judgments so confessed, and waived the right and benefit of appeal and any and all proceedings to set aside, vacate, open, suspend or reverse such judgment or any execution issued thereon.”
    The demurrer admits these averments to be true. Now, if it be true that Walter S. and Abbie E. Put-man authorized a confession of judgment against them, in favor of these defendants in error, in said firm name of Farmers’ Bank, can it be said with any reason, that Walter S. Putman could have successfully assailed said judgment after having authorized such confession thereof? 28 Amer. and Eng. Enc. of Law, page 706; 147 Pa. St., page 162; Black on Judgments, page 77; Ohio Code, Sec. 5324 and 5354, paragraph 9; Wellman v. Wellman, 9 C. C., 72, 6 Circ. Dec., 61; Weyer v. Zane, 3 Ohio, 305; Douglass v. McCoy, 5 Ohio, 522; 30 Ohio St., 69.
    Second, but it does not appear in the record of the judgment sought to be set aside, that said statute was not complied with. Beers v. Gurney, 14 C. C., 82, 7 Circ. Dec., 411; Haskins v. Alcott, 13 Ohio St., 210; Abernathy v. Latimore, 19 Ohio, 286; Sanders v. Keber & Miller, 28 Ohio St., 630.
   Minshaix, J.

On June 16, 1896, the Farmers’ Bank of Wilmot, Ohio, a partnership doing a banking business at that place, obtained a judgment in the court of common pleas of Stark county on a cognovit note, dated June 12, 1896, due one day after, given by Walter S. Putman for |5,139.67, and on the 18th day of the same month, caused an execution to be levied on the property of Walter S. Putman. On the first of July following Putman made an assignment of all his property for the benefit of his creditors, to Charles E. Spiedel,wko accepted the trust and proceeded to administer the same in the probate court.

On the day the note was given Putman was a member of the firm, but ceased on that day to be such, and the persons comprising the partnership after the retirement of Putman were Abraham Grafe, John Longenecker and Timothy C. Putman. No compliance with the statute in regard to the use of fictitious names in partnership, was had until the 21st day of July following, when a new certificate was filed with the clerk of the court, giving the names composing the firm, formed upon the retirement of Putman. Catherine Cobble and others, creditors of Putman, claiming that the judgment rendered on the cognovit note, having been taken after a change had occurred in the membership of the firm and before the new certificate was filed, was without authority of law and created no valid lien on the property, requested Spiedel, assignee, to take the necessary steps to set it aside, that the property might be administered for the equal benefit of all the creditors, and offering to indemnify him by bond should he do so. The assignee refused to act, and thereupon the creditors commenced a suit against him and the members of the partnership, asking to have the judgment and execution set aside and the property administered for the equal benefit of all the creditors under the assignment. By way of defense the defendants relied upon the giving of the note, with the power of attorney attached, the recovery of the judgment, and the release of all errors, contained in the power. And also the compliance with the statute, made July 21, after the judgment had been rendered. The case was taken by appeal to the circuit court where the case was heard on a demurrer to the defenses in the answer. The court overruled the demurrer and dismissed the petition.

The principal questions in the case arise upon the construction of the act passed May 19, 1894, “To prohibit the use of fictitious names in partnership,” and the amendments thereto; and in addition to these, the right of the creditors to maintain the action.

The statute with the amendments affecting the case will be found in Bates’ Annotated Statutes, sections 3107-1 to 7, and reads as follows:

“3170-1. Sec. 1. Except as otherwise provided in the next section, every partnership transacting business in this state under a fictitious name, or a designation not showing the names of the persons interested as partners in such business, must file with the clerk of the court of common pleas of the county in which its principal office or place of business is situated, a certificate to be indexed by said clerk stating the names in -full of all the members of such partnership and their places of residence.”

3170-2. Excepts foreign partnership doing business in this state.

“3170-3. Sec. 3. The certificate filed with the clerk of the court of common pleas provided in section 1 of this act, must be signed by the partners and acknowledged by some officer authorized to take acknowledgments of conveyances of real estate; except that in case of a joint stock company or a commercial or banking partnership, u’hose capital stock is represented by shares or certificates of stock transferable on the books of the concern and Avhose business is conducted by a board of directors and officers, the president, secretary or cashier of such company or commercial or banking partnership, may sign and acknowledge such certificate, giving therein the names of all the persons interested as partners or shareholders in such company or partnership.”
“3170-1. Sec. 1. On every change of the members of a partnership transacting business in this state under a fictitious name or designation which does not show the names of the persons interested as partners in the business, except in the cases mentioned in section 2 of this act, a new’ certificate must be filed with the clerk of the court of common pleas, as required by this act, on the formation of such partnership; except that in case of a joint stock company or banking partnership, it shall be sufficient, if the certificate-provided for in section 1 of this act, is filed once in each year, on or before the first Monday in April; and for the filing and indexing of each certificate under the provisions of this act, said clerk shall be entitled to charge the partnership filing the same the sum of forty cents.”

3170-5 provides for the registration of the names, of partners.

“3170-6. Bee. 6. That after the passage and approval of this act, any persons doing business as partners contrary to the provisions of this act, shall not. commence nor maintain an action on or on account, of any contracts made, or transactions had in their' partnership name in any court of this state, until they shall have first filed the certificate herein required;, provided, however, that if such partners shall at any time comply with the provisions of this act then such partnership shall have the right to commence an action, or if such action has been commenced to maintain the same on all such partnership contracts and transactions entered into prior as well as after such compliance with this act.”

3170-7. Makes copies competent evidence.

It will be observed that by section 6 of this act “any persons” doing business as partners contrary to the provisions of the act, shall not commence nor maintain an action on any contract made in the partnership name in any court of the state until they shall have first filed the certificate required by it; and, by the first section, the requirement is that partnerships, transacting business in this state, in a fictitious name,, must file with the clerk of the court of common pleas in the county in which the principal place of business. is situated, a certificate stating the names in full of all the members of the partnership; and by section four it is further provided, that on every change of the membership, except as therein provided, a new certificate must be filed, as required by the act. One of the exceptions is, that in the case of a “banking partnership,” it shall be sufficient if the certificate required by the act, be filed once in each year, on or before the first Monday of April. This exception was made by an amendment that took effect April 27, 1896; and if applicable to the Farmers’ Bank of Wilmot, it was under no requirement to file a new certificate, until the first Monday of April, 1897, notwithstanding the change that occurred in its membership on the 12th of July, 1896, and it would have been under no disability to commence an action in its firm name at the time the judgment was taken on the cognovit note. But we think it apparent from the ordinary rules of construction, that the “banking partnership” referred to in this section, and in favor of which the exception is made, is necessarily of the class described in the preceding-section; that is, such as have a capital stock, represented by shares, transferable on the bpoks of the “concern.” The reason of the exception evidently is, that the members of such a partnership will be more or less numerous, and it would be very inconvenient in the transaction of its business, if it were required to file a new certificate every time a member should transfer his stock to a third person. Hence, a partnership of this class, doing a business in a fictitious name, is only required to file annually a certificate at the time named, indicating changes in its membership. No reason is perceived why a banking partnership composed of a few persons, whose stock is not divided into shares and transferred on its hooks as the stock of an incorporated company, should be excepted from the general rule of the statute, that would not apply to a manufacturing, or any other kind, of a partnership. And it seems but reasonable that where the legislature in one section makes an exception in favor of “banking partnerships,” having a capital stock divided into shares transferable on the books of the company, and in an immediately following section, makes another exception in favor of “banking partnerships,” the exception is not to apply generally to all banking partnerships, but to such as are defined in the previous section, unless some reason should appear-why the term adopted in the latter section should not have the same meaning given to it in the previous one; and, as we have said, no such reason appears.

It is averred in the petition and admitted by the ■answer that the capital stock of the Farmers’ Bank of Wilmot was not divided into shares transferable •on the books of the company; it was in fact an ordinary partnership composed of but three persons at the time the note was given and the judgment taken; ■and, therefore, was under a positive disability imposed by the statute to commence an action at the time the judgment was taken on the note. The provisions of the statute rest upon reasons of public policy ; and it would have been the duty of the court, had its attention been called to the facts, to have refused to enter the judgment; and it would have been equally its duty to have set it aside, had a motion been made for that purpose by the maker of the note, notwithstanding the release of all errors contained in the cognovit. It was not in his power to.authorize the commencement of a suit against him in disregard of the provisions of law, particularly where the judgment that might be rendered, would affect the rights of his other creditors. In contemplation of law,the judgment entered was no judgment as there was no party to the suit, in whose favor a valid judgment could be rendered. But as the facts do not appear on the face of the record, it can only be got rid of by a proper-proceeding instituted for that purpose; and the only remaining question is whether the creditors have the right to have the judgment set aside and held for naught in the proceeding commenced by them; and of' this there seems little room for doubt.

In the first place it may be observed that the suit, commenced by the creditors is not a collateral attack on the judgment, but a direct one for the purpose of setting it, and the execution issued thereon, aside, that the property covered by the levy may be administered for the equal benefit of all the creditors of the debtor. It was the duty of the assignee, when requested, to bring this suit, but he refused to do so, which gave to them the clear right upon principle and authority to do so. Spelman v. Freedman, 130 N. Y., 421; Harvey v. McDonnell, 113 N. Y., 526; Goncelier v. Foret, 4 Minn., 13; McDougald v. Dougherty, 11 Ga., 570; Preston v. Spaulding, 120 Ills., 208; Weir v. Tannehill, 2 Yerger, 57. There is no objection under our law to a creditor securing himself or obtaining a preference; and this he may do by obtaining a judgment on a cognovit note and causing a levy to be made on the property of his debtor. But in every case where a preference is claimed to have been obtained, to be good against other creditors, it must be valid in law. Equity will not assist one creditor-in obtaining a preference over another. A preferential creditor must stand strictly upon his rights at. law. If it be by mortgage or by conveyance, in either ■case the instrument must' be a valid one in law; and so, if it be by the levy of an execution under a judgment rendered upon a cognovit note, the judgment must be a valid one, open to no legal objections,, for if it might be set aside in a direct proceeding for that purpose by the debtor, it may be set aside by his assignee for the benefit of creditors; and if the latter refuse, then any of the creditors may on behalf of themselves and all other creditors, institute a suit for the purpose.

The compliance with the statute made after the rendition of the judgment did not validate it. The ■compliance, by the express provision of the statute, should have preceded the judgment.

Judgment reversed, and judgment for the plaintiffs heloio.


author: Si-iaitck, C. J.

text:
    Selby, Auditor, v. The State of Ohio ex rel. Smiley. Selby, Auditor, v. The State of Ohio ex rel. King.

      Mandamus does not lie ■respecting an act not enjoined by law— As a duty resulting from office, etc. — Duty of probate court— Section 1120, Revised Statutes — Employment of examiners of county auditor and treasurer offices.

    1. Mandamus does not lie to compel the performance of an act which is not enjoined by law as a duty resulting from an office, trust, or station.
    2. Under the provisions of section 11 ?9 of the Revised Statutes it is the duty of the’probate judge to determine and certify the number of days necessarily employed by persons appointed by him for that purpose in mating the examination of the offices of the county auditor and treasurer, and of the auditor to draw warrants in favor of the accountants for the time so certified at the rate per diem fixed by the statute.
    (Decided December 18, 1900.)

      Error to the Circuit Court of Trumbull county.
    The relators filed their several petitions in the court of comon pleas of Trumbull county, praying* for a peremptory writ of mandamus against the plaintiff in error to compel the issuance of a warrant on the county treasurer in his favor for $125. Each alleged that he had. been appointed with the other, by the probate judge of the county, to examine and inspect the treasury of said county and of the city of Warren, in said county, and the office of the auditor of said county including all records, vouchers, etc.; that they performed said duty according to law and made report of their examination in triplicate to said probate judge, to the auditor and the-treasurer of the county; that in the performance of said duty they were necessarily employed twenty-five-full days; that they thereby became entitled to receive-$125 each, the per diem of five dollars being fixed by law; that they presented their account therefor to said plaintiff in error whose duty it then was to issue to-each his warrant on the county treasury for the said sum of $125, and that said auditor then refused and has ever since refused to issue the same.
    The auditor answered, admitting his official character and his refusal to issue warrants for $125, and denying all other allegations of the petition. He further alleged that the the probate judge of the-county had never fixed the compensation of the relators at $125, or allowed or .approved their said claims, and that said probate judge had never informed him of said appointment. He further alleged that he had tendered to each of the relators a warrant for $50 for the alleged services, which was, in his judgment, more than said services were worth. The allegations of the answer were not denied. The case was taken by appeal to the circuit court and there tried on these pleadings and the evidence. A peremptory writ was allowed in favor of each relator for the sum of $125.

      T. If. Gilmer and E. E. Roberts, for plaintiff in error.

      E. B. Taylor, for defendant in error.
   Si-iaitck, C. J.

The office of the writ of mandamus, is clearly indicated by the definitive terms of section 6741 of the Revised Statutes. The writ is there defined in accordance with the view taken by the courts at the time of the adoption of the constitution, and the vesting of jurisdiction of the action. The writ may issue to command “the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” It may not issue to compel the performance of an act not so enjoined. The duty of drawing the warrants demanded by the relators is said to be enjoined upon the auditor by the provision of section 1129 of the Revised Statutes that “said accountants so appointed and performing the duties therein required shall be paid five dollars per day for the time necessary to the performance of the same, out of the treasury, on a warrant drawn by the county auditor, and approved by the certificate of said court.” This provision, whether read alone or in connection with other provisions relating to the examination, does not seem to express with clearness any legislative intent suggested by counsel or occurring to us. It is, however, entirely clear that it does not enjoin upon the auditor the duty of drawing warrants in favor of the accountants to compensate them a.t the rate of five dollars per day for as many days as they may claim to have been necessary to the performance of their duties. Obviously, a discretion is to be exercised in determining the number of days necessary. If that discretion is with the probate .judge, the application to the auditor for the warrants was premature, for it is admitted that the probate .judge had not determined what number of days were necessary. If the discretion is wholly or partly with the auditor, he exercised it in tendering warrants covering the time which he thought necessary, and the writ allowed below would have the forbidden effect •of controlling discretion.

The position of the relators assumes that, with respect to the duty of the auditor, the statute gives conclusive effect to the claim by them presented to him. It contains no language giving it that effect. Indeed the statute does not even provide or contemplate that a report of the time occupied shall be filed with the auditor. It is not consistent with the object of the statute that the auditor should determine, or have a voice in determining, the extent to which the transactions of his office shall be examined; and that would be involved in deciding as to the time necessarily employed in making the examination. The examinátion •extends to the office of the treasurer as well as to that of the auditor, and the treasurer is confessedly denied participation in this decision. Having in view the object of the statute, it seems natural that both :should be denied such participation and for the same reason.

Our conclusion is that it is the duty of the probate .judge, upon application of the accountants, to determine the number of days necessary to the examination, and to certify his conclusion to the auditor, whose imperative duty it will then be to draw warrants for the time certified at the rate fixed by the statute. This view is as consistent as any other with the provision quoted. It is entirely consistent with the general terms of the statute, and is promotive of the purposes for which the examination is had. It is in accord with the general provisións of the law by which the court making an appointment for public service fixes the compensation of those appointed. It is harmonious with the provisions which define the duties of the treasurer with respect to the payment of warrants drawn by the auditor.

Judgments reversed.


author: By the Court.

text:
    Linerode v. Rasmussen.

      Fraudulent representations in contract — Bale of land with representations of mineral deposit — Buit on purchase money notes — Defense of fraud — Measure of damages — Contract law.

    Where the defendant was sued on notes given for purchase money for a farm, and sought to recoup damages on the ground that the plaintiff had represented that “underlying said premises, was a three or three and a half foot vein of good, bituminous, minable coal,” whereas there was no coal whatever under said premises, the measure of damages is the difference between the value of the farm as it was represented to be and its actual value at the time of the purchase.
    (Decided December 18. 1900.)
    Error to the Circuit Court of Stark county.
    The plaintiff in error was plaintiff below, and filed his petition in the court of common pleas of Stark county against the defendant in error, to recover on five promissory notes, three of which being for $2,800 each, were due, together with interest thereon, and two of which notes, aggregating $2,200, principal, were not due. The plaintiff sought to foreclose a mortgage securing these notes, and the defendant in his answer sought to recoup in damages $4,300 for misrepresentations alleged to be made by the plaintiff, at the time the farm was transferred to him by the defendant. The misrepresentation charged was. that the plaintiff represented that underlying said premises was a three or a three and one-half foot vein of good, bituminous, minable coal. The reply was in substance a general denial. The verdict was for the defendant. Motion for a new trial was overruled and judgment rendered on the verdict; and on petition in error in the circuit court the judgment of the court, of common pleas was affirmed. To reverse this action of the circuit court the petition in error is filed here.

      Virgil P. Kline, and McCarty, Craine & McDowell, •for plaintiff in error.

      Charles O. Upham, for defendant in error.
   By the Court.

Assuming that the plaintiff made the representation as asserted by the defendant, and that it was not a mere puff or an expression of opinion, the true measure of damages would be the difference between the value of the farm as it was represented to be and what it was actually Avorth at the time of the purchase. The trial judge seemed to recognize this, but said to the jury that by consent counsel had adopted as the rule of damages the value of the coal per acre. No intimation of such consent appears in the record except in the charge to the jury ; but on the contrary, whenever the question was asked as to the value of the coal per acre, counsel for plaintiff objected, the objection was overruled and exception was taken. The question was incompetent not only as based on a wrong measure of damages; but, Avhen it was propounded as a hypothetical question to expert witnesses, it did not correspond to the conditions of the alleged representation, as testified to by the plaintiff, nor did it contain the necessary data from which the witness could form a complete opinion.

We have not considered, and do not decide, the question Avhether the representation Avas anything more than an expression of opinion,for the reason that there is some evidence of conduct and language by the plaintiff tending to sIioav the intent with Avhieb the representation was made, if made at all. Inasmuch as this evidence may be qualified on another trial we purposely do not express an opinion on that point.

Reversed.


text:
    The State ex rel. The Attorney General, v. The Home Co-operative Union.

      For what purposes corporations may be formed — Section 8285, Revised Statutes — Companies for dealing in real estate are for profit.

    Companies incorporated under section 3235, Revised Statutes, for the purpose of dealing in real estate are-necessarily for profit, and must be so organized.
    (Decided December 18, 1900.)
    In Quo Warranto.
    It appears from the pleadings and the agreed statements of facts that' the defendant is incorporated under section 3235, Revised Statutes, as a corporation created for the purpose of dealing in real estate on the co-operative plan. It has no capital stock and consequently none divided into shares, being organized, as claimed, not for profit, but to assist its members in acquiring homes by sums contributed by its members for such purpose. The articles of incorporation are as follows:
    Witnesseth, That we, the undersigned, all of whom are citizens of the State of Ohio, desiring to form a corporation not for profit, under the general corporation laAvs of said state do hereby certify:
    First. The name of said corporation shall be The Home Co-operative Union.
    Second. Said corporation shall be located and its principal business transacted at Lima, in Allen county, Ohio.
    Third. The purpose for which said corporation is formed is, first, to purchase real estate on a cash basis by co-operation and sell same to purchasers on long time and easy monthly payments without interest and without profit, providing only for actual expenses, which are limited to a stated amount. Second, to encourage better financial standing among the Avorking classes and promote the general welfare — s'aid corporation to be not mutual in character, but co-operative, without capital stock, under section 3235, Revised Statutes of Ohio.
    In Witness Whereof, We have hereunto set our hands this 19th day of July, A. I)., 1899.
    Philander Conklin,
    James E. Wickham,
    Frederick P. Hofmann,
    O. H. Hollister,
    A. H. Smith,
    J. V. Smiley,
    J. H. Spitler,
    J. N, Hutchinson.

      John M. Sheets, Attorney General; J. E. Todd, Assistant Atty. General, and L. W. Bennett, for relator.

      J. N. Hutchinson; L. D. Heller and Henderson & Sprague, for defendant.
   By the Court.

The organiza tio® of incorporated companies for the purpose of dealing in real estate under section 8235, Revised Statutes, is necessarily for profit, and such companies must have a capital stock divided into shares as all other corporations for profit. The defendant is not so organized and the prayer of the petition must be sustained. Such corporations expire by limitation of the statute in twenty-five years; and it would not be possible for the defendant to conduct its business in the period limited by the statute so as to avoid loss to a large number of its members.

Judgment of Ouster.