text:
    No. 13508.
    The Delaware County Telephone Co. v. Shaver.
    Decided May 12, 1914.

      Error to Circuit Court of Delaware county,,

      Ml Harry Leonard and Messrs.:Jewell &■Benton,. iox plaintiff in error.

      Messrs. Marriott, Freshwater & Bliss, for defendant in error.
   On rehearing, Judgr ment modified. See journal entry.

It is ordered and adjudged by this court that the judgment heretofore ehtered in this cause be, and the same hereby is, modified in this to-wit: That that,part of the former judgment of this; court ordering and adjudging, “that defendant in'error pay the costs in this court and in the courts below” be, .and,the s.ame hereby, is, opened up.and*set aside; and it,.is. now ordered and adjudged-.that said defendant in error pay the costs in this court in this action,-and in the court, of common pleas and all other costs in the circuit court of Pelaware county, except the costs in said court in the former error proceedings heretofore ordered and .adjudged by that court, to be paid by the plaintiff in error, and which judgment of the, circuit.court in that behalf was final in that error proceedings and is still unre.versed and unsatisfied.

It is further ordered and, adjudged that all the rest and residue of said judgment entered by this court on.the 7th day of October, 1913 [88, Ohio St., 629], in connection with this modification and as a part thereof be, and remain, the judgment of this court in this cause.

Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, )j., concur.


source: Caselaw Access Project

license: Public Domain

text:
    No. 13747.
    The Reeves Bros. Co. v. Buchholzer, Guardian.
    Decided May 12, 1914.

      Error to Circuit Court of Stark county.

      Messrs. Welty &, Albaugh, for plaintiff in error.

      Mr. William M. Roach and Messrs. McCarty & McClintock, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13750.
    McFarland et al. v. The Cambridge Collieries Co.
    Decided May 12, 1914.
    Error to Circuit Court of Guernsey county.

      Messrs. Rosemond, Bell & Dugan, for plaintiffs in error..

      Mr. Robert T. Scott, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson and Donahue, JJ., concur. Wanamaker, J., dissents.


text:
    No. 13757.
    Norfolk & Western Ry. Co. v. Rader, Trustee, et al.
    Decided May 12, 1914.
    Error to Circuit Court of Pike county.

      Mr. S. L. Patterson and Messrs. Bannon & Bannon, for plaintiff in error.

      Mr. John A. Eylar and Messrs. Dougherty & Moore, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donai-iue, Wanamaker and Wilkin, JJ., concur. Newman, J., not participating.


text:
    No. 14163.
    The Ohio Electric Ry. Co. v. The Newark Telephone Co.
    Decided May 12, 1914.
    Error to Court of Appeals of Licking county.

      Messrs. Filzgibbon, Montgomery & Black, for plaintiff in error.

      Messrs. Kibler & Kibler, for defendant in error.
   Judgment of the court of appeals reversed and that of the common pleas court affirmed.

Shauck, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 14268.
    Frey et al. v. Agler.
    Decided May 12, 1914.
    Error to Court of Appeals of Franklin county.

      Messrs. Donaldson & Fussing, for plaintiffs in error.

      Mr. M. E. Thrailkill and Mr. J. F. Rogers, for defendant in error.
   Judgment affirmed.

Shauck, Johnson, Donahue, Wanamaker and Wilkin, JJ., concur. Nichols, C. J., dissents.


text:
    No. 14355.
    The Trustees of Original Surveyed Fractional Township Number Seven, Range Twenty-one, v. The State, ex rel. Board of Education of Liberty Township et al.
    Decided May 12, 1914.
    Error to Court of Appeals of Ross county.

      Mr. John I. Van Meter; Messrs. Clay pool, Minshall & Clay pool; Mr. R. R. Freeman and Mr. Peter J. Blosser, for plaintiffs in error.

      Mr. James I. Boulger, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Donahue, Wanamaker and Wilkin, JJ., concur.


text:
    No. 14379.
    The Rudolph Wurlitzer Co. et al. v. Newell et al., Trustees.
    Decided May 12, 1914.
    Error' to Cdurt of Appeals' of Hamilton county.

      Mr. W, S. Little and Mr. Otto Bfié c)er, for1 plaintiffs in error’

      Messrs. Moulinier; Betimdn & Hunt and Mr. Elliott H. Pendleton,' for" defendants in " error,
   judgment affirmed.-

Johnson, !Dona-hue, Wanamaker and NewmAn, JJ., concur.


text:
    No. 14384.
    Pflueger et al. v. Van Antwerp et al., Trustees.
    Decided May 12, 1914.
    Error to Court of Appeals of Hamilton county.

      Mr. Otto Pflegerf for plaintiffs in error.'

      Mr. 'Chas. B. Wilby; Mr. Stanley W. Lewis and Mr. Thqs. B. Paxton, for defendants in error.
   Judgment affirmed.

Nicí-íóls, C. J., Johnson, Donai-iue, Wanamaker, Newman and Wilkin", JJ., concur. ’f'‘,'


text:
    No. 14388.
    The Baltimore & Ohio Rd. Co. v. Graziosi.
    Decided May 12, 1914.
    Error to Court of Appeals.of Franklin county.

      Mr. F..A. Durban. and Mr. Robt. J. King, for plaintiff in error.

      Mr. E. D. Howard and Mr. Hugh Huntington, foi: de-, fendánt in error.
   Judgment, affirmed..

-.Nichols, C. J., Johnson, Wanamaker - and Wilkin, JJ., concur.


text:
    No. 14391.
    Stacy v. Rice.
    Decided May 12, 1914.
    Error to Court of.Appeals of Montgppiery county.

      Mr. Robert C. Pattei'.son and Mr. John Egan, for plaintiff in. error.

      Mr. Daniel Nevins and Mr. Roy G. Fitzgerald, for defendant in error.
   Judgment affirmed.

Nichols, C. T.. Johnson. Donahue,- Wanamaker, Newman and-, Wilki:n, JJ., concur.,, - . i , -, ,' ,


text:
    No. 14394.
    The Marsh Farm Co. v. Spain.
    Decided May 12, 1914.
    Error to Court of Appeals of Franklin county.

      Mr. Louis G. Addison and Mr. ArlingtóW G. Harvey, for plaintiff in error.

      M'essrs'.Sheets & West3 for defendántiri error,
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Wanamaker and Wilkin, JJ.; concur.


text:
    No. 14416.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Applegate.
    Decided May 12, 1914.
    Error .to- Court of Appeals of Cl'er-' mont county.

      Messrs. Maxwell & Ramsey} for plaintiff in error.

      Mr. S. A. West; Mr. Louis Hicks afíd'Mí.' Eli H. Speidel,. for defendant .in error...
   Jlidgliierit"" dffirinéd."

'Niciiols, C.' J.,'’ Johnson, Dó’nai-iüe; - WanAmaker, Newman .and WiLiciN, JJ.A'cdnciir. ■ -


text:
    No. 13751.
    The Dayton Gas Light & Coke Co. v. Broadus, Admx.
    Decided May 19, 1914.
    Error to Circuit Court of Montgomery county.

      Messrs. McMahon & McMahon, for plaintiff in error.

      Mr. R: E. VanDerveer arid Mr. Ó. C. Sipe, fdri defendant iri efror.
   Judgment affirined.

Nichols; C. J., Johnson, Wanamaker'and Wilkin, JJ-i doncur. • " ' V " .


text:
    No. 13755.
    McCoy et al. v. Burbsal et al.
    Decided May 19, 1914.
    Error to' Circuit Court of Hamilton county.

      Mr. David Davis; Mr. Williami'
      M. Tugman and Mr. Frank E. Wood, for plaintiffs in error.

      Mr. Scott Bonham and Mr. Charles S. Burdsall, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 13758.
    Cramer v. Farwell.
    Decided May 19, 1914.
    Error to Circuit Court of Hamilton county.

      Mr. Wm. Hartley Pugh and Mr. Elliott Pugh, for plaintiff in error.

      Mr. Moses Ruskin and Mr. J. L. Kohl, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13761.
    Fronizer et al. v. The Bellevue Farmers Grain Co.
    Decided May 19, 1914.
    Error to Circuit Court of Sandusky county.

      Messrs. Kinney, O’Farrell & Rimelspach and Messrs. Parkhurst & Vickery, for plaintiffs in error.

      Mr. Allan G. Aigler and Mr. Jesse Vickery, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13766.
    Cady et al. v. The Fremont Savings Bank Co. et al.
    Decided May 19, 1914.
    Error to Circuit Court of Sandusky county.

      Mr. F. J. Flagg and Messrs. Hunt & Gam. for plaintiffs in error.

      Mr. Emmett C. Say les and Messrs. Kinney, O’Farrell & Rimelspach, for defendants in error.
   Judgment affirmed.

Shauck. Donahue, Newman, and Wilkin, JJ., concur. Wanamaker. J., dissents.


text:
    No. 13767.
    Riley et al. v. Boltz.
    Decided May 19, 1914.
    Error to Circuit Court of Monroe county.

      Messrs. Lynch & Lynch; Mr. Chas. S. M. Krumm and Mr. Clayton A. McCleary, for plaintiffs in error.

      Messrs. Mats & Kremer, for defendant in error.
    And the court coming now to render the judgment that the circuit court should have rendered, it is hereby ordered and adjudged that the petition of the plaintiff be dismissed, and that the title of the defendant Emma E. Riley in and to the undivided one-ninth part of the premises described in the petition be quieted as against the claim of said plaintiff and all other parties to this suit.—Reporter.
   Judgment reversed.

Journal entry: It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed.

Nichols, C. J., Johnson, Donahue and Wanamaker, JJ., concur.


text:
    No. 13768.
    Young v. The Marietta & Lake Railroad Co. et al.
    Decided May 19, 1914.
    Error to Circuit Court of Guernsey county.

      Mr. J. B. Ferguson, for plaintiff in error.

      Messrs. Sheppard & Eagleson, for defendants in error.
   Judgment affirmed.

Shaucic, Johnson, Wanamaker and Newman, JJ., concur.


text:
    No. 14245.
    McLean et al. v. Forquer et al.
    Decided May 19, 1914.
    Error to Court of Appeals of Perry county-i

      A. D.omhue átíáíMnÁW. A. Allen,, for plaintiffs in .error.-

      Mr-. JFe/ngdson, ■ for .defendants. in', error.-
   Judgment reversed on authority of Glass v. Dunn, 17 Ohio St. 413.

NiqhOLíS, ;Q J-., .Sitauck,, -Johnson, Newman.-aid Wilkin, JJ., concur. - ,-v, m- , ...;_ . ;> •*> s-» «d mic


text:
    No. 14254.
    The Vindicator Printing Co. v. Breneman.
    Decided May 19, 1914.
    EdRb'Kl"tb Goürt of Appeals of'Mahdiiing* county.

      '^M'Pdfvhn •H'.Clarké'"’and- Messrs. ILin’e■ Kennedy'"fy Mtifi■chester, for plaintiff in error.1 -

      Mr. D: E\ And]er^o% fór; defendant ;iríK; error.
   11' Judgment-’' RffiÑñéd.

Bi-iauck; Wanamaker/ Newman - - and-' :Wtí.kiÑ, JJ:, concur. - - ' '• ’ ¡ ;


text:
    No. 14345.
    Piatt et al. v. Straub et al.
    Decided May 19, 1914.
    Error to Court of Appeals of Monroe county.

      Mr. C. E'. T'imbcrlaiic'1 and Messrs. Lynch & Lynch, for plaintiffs in error.

      Messrs. Mats & Kremer and Messrs. Rosemond, Be-lV-& Dugan, -for defendants in -error.
   NAJiidgrdent affir-nied.-

S-ttausk, Donaiiue, AVanamaker .'add WibiaÑj JJ., concur. * ■ - ;br>d ' cm


text:
    No. 14346.
    Piatt et al. v. Straub et al.
    Decided May 19, 1914.
    ’’Error to Court of Appeals .of Monroe county.

      Mr. C .E. Tlhhberlake -arid Md'sSPs. Lynch & Lynch, for plaintiffs in error.

      Messrs. Mats & Kremer and Messrs.„ Rosemond, Bell & Dugan, fbr'defendants iñ'erróla
   Judgment^ affirmed.

St-tauck, Donahue, ’ WanaMakeR añil Wilkin, JJ., concur.


text:
    No. 13769.
    Grett v. The Buckland Guards Club et al.
    Decided May 26, 1914.
    Error to Circuit Court of Sandusky county.

      Mr. J. D. Finch and Mr. E. C. Sayles, for plaintiff in error.

      Messrs. FLunt & Gam; Messrs. Kinnéy, O’Farrell & Rimel-. spach; Mr. A..E. Culbert; Mr. Lester Wilson; Mr. H. C. DeRan and Mr. D. B. Love, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaicer, Newman and Wilkin, JJ., concur.


text:
    No. 13770.
    Grett v. The Buckland Guards Club et al.
    Decided May 26, 1914.
    Error to Circuit Court of Sandusky county.

      Mr. J. D. Finch and Mr. E. C. Sayles, for plaintiff in error.

      Messrs. FLunt & Gam; Messrs. Garver & Garver; Mr. H. C. DeRan; Mr. L. Wilson; Mr. D. B. Love; Mr. A. E. Culbert; Mr. J. B. Stahl and Messrs. Kinney, 0’Farrell & Rimelspach, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaicer, Newman and Wilkin, JJ., concur.


text:
    No. 13772.
    Koblitz et al. v. Koblitz.
    Decided May 26, 1914.
    Error to Circuit Court of Cuyahoga county.

      Mr. John H. Hogg and Mr. Robt. M. Morgan, for plaintiffs in error.

      Messrs. Wing, Myler & Turney, for defendant in error.
   Judgment affirmed.

Ñichols, C. J., Shauctc, Johnson, Donapiue, Wanamaicer, Newman and Wilicin, JJ., concur.


text:
    No. 13773.

    Slack et al. v. The Ohio Electric Railway Co.
    Decided May 26, 1914.
    Error io Circuit Court of Muskingum county.

      Mr. C. T. Marshall, ior plaintiffs in error.

      Mr. F. A. Durban and Mr. E. R. Meyer, for defendant in error.
   Judgment of circuit court reversing common pleas court áffirmedj and judgment of circuit court rendering final judgment reversed. Cause remanded.

' It is! ordered and adjudged by this court, that the judgment of the said circuit court reversing the judgment of the court of common pleas be and the same is hereby affirmed, and that portion of the 'judgment óf the circuit court in this cause dismissing'the plaintiffs’ petition and rendering final judgment' against the plaintiffs in error is hereby revérsed; set aside-and held for naught, and said cause is- remanded 'to the common pleas court of Muskiilgum county for new'trial and further proceedings' according to law.

- • It-is this day (June 9, 1914) ordered and adjudged that the entry of the order and judgment of this court, made and entered May 26th in the above entitled cause, is hereby opened up, set aside and held for naught, and the following is ordered to be entered upon the record of this court, as the entry of’-the judgment of the court in this case, to-wit:

; • This cause came- on to be heard upon the transcript of the record of the circuit court of Muskingurii county, and was argued by counsel, and on consideration whereof and it appearing from the récord that error intervened in the trial of this causé, to the prejudice of the defendant in error in the admission of the evidence offered by the plaintiffs with reference to other transactions of a similar nature, and in the admission of further evidence offered by the plaintiffs as to custom generally for the reason that both parties to this suit were at the time of the accident in the lawful use of the street, and their respective rights must be determined by their respective acts and conduct at the time of the transaction complained of. It is therefore ordered and adjudged by this court that the judgment of the said circuit court reversing the judgment of the court of common pleas be and the same is hereby affirmed, and that portion of the judgment of the circuit court in this cause dismissing the plaintiffs-petition and rendering final judgment against the. plaintiffs in error is hereby reversed, set aside and held for naught, and said cause is remanded to the common pleas court of Muskingum county for new trial and further proceedings according to law.

Nichols, C. J., Johnson, Donatiue, Wanamaker, Newman and Wilkin, JJ., concur;


text:
    No. 13777.

    Emerine v. Grapes, Admr., et al.
    Decided May 26, 1914.
    Error to Circuit Court of Seneca county.

      Mr. Charles A. Strauch; Mr. Charles L. Guernsey and Mr. Benjamin F. James. for plaintiff in error.

      Mr. Alexander Kiskad'den and Mr. George E. Schroíh, for defendants in érror.
   judgment affirmed.

Nichóls, C. J., SiiAuckj Johnson, Donai-iue, Wanamaker, Newman ahd' Wilkin, JJ., concur.


text:
    No. 13784.
    The Fourth National Bank of Cadiz, Ohio, v. McDivitt.
    Decided May 26, 1914.
    Error to Circuit Court of Harrison county.

      Mr. Albert 0. Barnes, for plaintiff in error.

      Messrs. Hollingsworth & Worley, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 14232.
    The Baltimore & Ohio Southwestern Rd. Co. v. Aarons.
    Decided May 26, 1914.
    Error to Court of Appeals of Ross county.

      Mr. John P. Phillips; Mr. J. D. Withgott and Mr. Edward Barton, for plaintiff in error.

      Mr. James I. Boulger, for defendant in error.
   Judgment affirmed.

Shauck, Johnson, Wanamaker.. Newman and Wilkin, JJ., concur. Nichols, C. J., and Donahue, J., dissent.


text:
    No. 13785.
    The Nasby Building Co. v. The Widell Hotel Co.
    Decided June 2, 1914.
    Error to Circuit Court of Lucas county.

      Mr. J. W. Lane, for plaintiff in error.

      Mr. M. O. Rettig; Mr. Alonso G. Duer and Mr. Thomas L. Gifford, for defendant in error.
   Judgment affirmed.

Shauck, Johnson, Donahue and Newman, JJ., concur.


text:
    No. 13793.
    The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Holt, Admr.
    Decided June 2, 1914.
    Error to Circuit Court of Delaware county.

      Mr. George W. Carpenter, for plaintiff in error.

      Messrs. Owen & Carr and Messrs. F. A. & E. S. Owen, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donai-iue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13795.
    The O'Bryonville Building & Loan Co. v. Mathers et al.
    Decided June 2, 1914.
    Error to Circuit Court of Hamilton county.

      Mr. Oscar W. Kuhn, for plaintiff in error.

      Mr. W. F. North and Mr. C. B. Wilby, for defendants in error.
   Judgment affirmed.

Siiauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13799.
    The Zanesville Telephone & Telegraph Co. et al. v. Reasoner, Admr.
    Decided June 2, 1914.
    Error to Circuit Court of Muskingum county.

      Mr. F. A. Durbin and Mr. Sherman M. Granger, for plaintiffs in error.

      Mr. E. F. O’Neal, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13801.
    Dawson v. The Pennsylvania Co. et al.
    Decided June 2, 1914.
    Error to Circuit Court of Belmont county.

      Mr. J. M. Fits and Mr. Geo. A. Blackford, for plaintiff in error.

      Messrs. Mitchell & Mitchell and Mr. T. D. Healea, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Shaljck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13802.
    Foullioux v. Bruml.
    Decided June 2, 1914.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Wing, Myler & Turney, for plaintiff in error.

      Mr. Fred E. Bruml, P. P., for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13818.
    Scott et al. v. Moses.
    Decided June 2, 1914.
    Error to Circuit Court of Miami county.

      Mr. W. A. ITaines; Messrs. Broomhall & Broomhall and Messrs. E. IT. & R. A. Kerr, for plaintiffs in error.

      Mr. G. T. Thomas and Mr. A. B. Campbell, for defendant in error.
   Judgment affirmed.

Nicciols, C. J., Johnson, Donahue, Wanamaicer, Newman and Wilkin, JJ., concur.


text:
    No. 13847.
    O’Neill v. Bissman et al.
    Decided June 2, 1914.
    Error to Circuit Court of Richland county.

      Mr. Hozvard B. Dirlam, for plaintiff in error.

      Mr. Lezuis Brucker; Mr. R. E. Hutchison; Mr. C. IT. Workman; Messrs. Reed & Beach; Mr. W. IT. Gifford; Mr. Jesse E. JmDozv; Mr. C. E. McBride and Mr. Van C. Cook, for defendants in error.
   Judgment affirmed.

Nichols, C. J„ Johnson, Donaiiue, Newman and Wilicin, JJ., concur-


text:
    No. 13902.
    The Cleveland, Painesville & Eastern Rd. Co. v. Suonio, Admr.
    Decided June 2, 1914.
    Error to Circuit Court of Lake county,

      Mr. ITarrv E. Hanmmr, for plaintiff in error.

      Messrs. Anderson. Cook & Mathews, for defendant in error.
   Tudurnent affirmed.

Ntct-tols. C. J., To.hnson, Donahue. Wanamaicer, Newman and Wilkin. JJ., concur.


text:
    No. 13930.
    The Possum Run Oil & Gas Co. v. Broughton et al.
    Decided June 2, 1914.
    Error to Circuit Court of Richland county.

      Mr. W. S. Kerr, for plaintiff in error.

      Messrs. Douglass & Hutchison, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 14216.
    The City of Cincinnati v. Fisher.
    Decided June 2, 1914.
    Error to Court of Appeals of Hamilton county.

      Mr. Alfred'Bettman, city solicitor, and Mr. John W. Weinig, assistant city solicitor, for plaintiff in error.

      Messrs. Gordon, Morrill & Ginter; Mr. Gabriel H. Wolff and Mr. H. C. Bolsinger, for defendant iri error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13718.
    The City of Columbus, by etc., v. The Standard Chain Co. et al.
    Decided June 9, 1914.
    Error to Circuit Court of Franklin county.
    Mr* Stuart R. Bolin, city solicitor; Mr. George D. Jones; Mr. James A. Miles; Messrs. Addison & Addison; Mr. John Morrissey and Mr. W. G. Brossman, for plaintiff in error.

      Messrs. Henderson, JJvesay & Burr; Messrs. Booth, Keating, Peters & Pomerene and Mr. James M. Butler, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker and Wilkin, JJ., concur. Newman, J., not participating.


text:
    No. 13771.
    The Indiana, Columbus & Eastern Traction Co. v. Hecker, by etc.
    Decided June 9, 1914.
    Error to Circuit Court of Franklin county.

      Messrs. Booth, Keating, Peters & Pomerene, for plaintiff in error.

      Mr. Thomas E. Powell and Messrs. Belcher & Connor, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donai-iue, Wanamaicer and Wilkin, JJ., concur.


text:
    No. 13804.
    The Toledo & Ohio Central Railway Co. v. Stokes, Admx.
    Decided June 9, 1914.
    Error to Circuit Court of Fairfield county.

      Messrs. Pickering & Pickering and Messrs. Doyle & Lewis, for plaintiff in error.

      Mr. J. H. Fultz and Mr. Wm. Davidson, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker, Newman and Wilkin, . JJ., concur. Shauck, J., dissents.


text:
    No. 13805.
    Gross et al. v. Stevens et al.
    Decided June 9, 1914.
    Error to Circuit Court of Tuscarawas county.

      Mr. Henry Bowers; Mr. J. F. Stephenson and Mr. P. S. Olmstead, for plaintiffs in error.

      Mr. W. B. Stevens and Mr. W. I. Kinsey, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaicer, Newman and Wilkin, JJ., concur.


text:
    No. 13806.
    Noble v. Bruner.
    Decided June 9, 1914.
    Error to Circuit Court of Seneca county.

      Mr. Milton Sayler, for plaintiff in error.

      Mr. A. Skransewfky and Mr. E. E. Williams, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker and Wilkin, JJ.,. concur. Newman, J., not participating.


text:
    No. 13809.
    The West Carrollton Parchment Co. v. Bauchmiller.
    Decided June 9, 1914.
    Error to Circuit Court of Montgomery county.

      Messrs: Gottschall & Turner, for plaintiff in error.

      Mr. Lee Warren James, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13812.
    W. C. Heller Co. v. The First National Bank of Montpelier, Ohio.
    Decided June 9, 1914.
    Error to Circuit Court of Williams county.

      Mr. D. A. Webster and Mr. R. L. Starr, for plaintiff in 'error.

      Mr. Charles A. Bowersox and Mr. Edward Gaudern, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13875.
    Aman v. Brownell.
    Decided June 9, 1914.
    Error to Circuit Court of Montgomery county.

      Messrs. Dale & Kuszvorm, for plaintiff in error.

      Messrs. Burnham & Snyder, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 14330.
    Blinn, County Treasurer, et al. v. Cole et al.
    Decided June 9, 1914.
    Error to Court of Appeals of Jefferson county.

      Mr. William C. Brozvn, prosecuting attorney; Mr. Timothy S. Hogan, attorney general, and Mr. Clarence D. Laylin, for plaintiffs in error.

      Mr. R. G. Porter and Mr. S. A. Bean, for defendants in error.
   Judgment affirmed.

(June 26, 1914). This court having heard the above cause upon the transcript of the record of the court of appeals of Jefferson county on Tuesday, June 9, 1914, and having affirmed the judgment.of the said court of appeals in said cause, hereby makes the following amendment to the entry of said judgment. It appearing to this court from the agreed statement of facts in the case that Elizha L. Brown, the duly elected and qualified appraiser of said township in the year 1910, at the quadrennial appraisement appraised and assessed all the real estate described in plaintiffs’ petition at its full and true value in money; that the various amounts named in the petition and set opposite the various owners’ names are the true amounts as valued by said Elizha L. Brown, the county auditor and quadrennial county board of equalization of Jefferson county, and the full and true value in money of each and every tract as valued by the above-named parties; that the valuations, appraisements and assessments made by the defendant tax commission are at least twenty per cent, more than the various plaintiffs could get for their farms in the open market and is in excess of the true market value of each and every tract of land as above referred to, and that no notice or notices were given by the tax commission or any other taxing or equalizing power to any of the plaintiffs mentioned in the petition as provided by the General Code when the said increase was made.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilicin, JJ., concur.


text:
    No. 14361.
    Taggart v. The City of Chillicothe.
    Decided June 9, 1914.
    Error to Court of Appeals of Ross county.

      Mr. John P. Phillips and Mr. John C. Milner, for plaintiff in error.

      Mr. Marshall G. Fenton, city solicitor, • and Mr. Seymour Cunningham, for defendant m error.
   Judgment affirmed.

Nichols, C. J., Shaucic, Johnson and Newman, JJ., concur.


text:
    No. 13724.
    Henkel et al., Partners as Henkel & Sullivan, v. Dunn.
    Decided June 16, 1914.
    Error to Circuit Court of Hamilton countv.

      IVlessrs. Dolle, Taylor & O’Donnell, for plaintiffs in error.

      Mr. A. D. Cole and Messrs. Pogue & Pogue, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Sttauck, Johnson, Wanamaker and Wilicin, JJ., concur.


text:
    No. 13810.
    The Cincinnati Traction Co. v. Shorey, Jr.
    Decided June 16, 1914.
    Error to Circuit Court of Hamilton county.

      Messrs. Paxion, Warrington & Seasongood, for plaintiff in error.

      Messrs. Philip & S. C. Roettinger and Mr. Thos. A. Michie, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker and Newman, JJ., concur.


text:
    No. 13814.
    Skiles v. Leary, Receiver.
    Decided June 16, 1914.
    Error to Circuit Court of Hamilton county.

      Mr. L. B. Sawyer and Messrs. Skiles, Green & Skiles, for plaintiff in error.

      Mr. A. B. Benedict; Messrs. Kramer & .Bettnian and Messrs. Pogue, Hoffheimer & Pogue, for defendant in error.
   Judgment reversed and judgment for plaintiff in error. See journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed and this court finds that the said circuit court erred in finding and adjudging that the railroad scales and tracks in question are trade fixtures properly in the hands .of the receiver for sale as personal property.

This court further finds that the motion of the said Skiles to require the receiver to eliminate and emit from the sale the said property should have been sustained.

It is further ordered and adjudged that this cause be remanded to the court of appeals of Hamilton county, Ohio, with instructions to sustain the motion of said Skiles above referred to, and for further proceedings according to law.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13817.
    Evans, Admx., v. The Provident Coal Co.
    Decided June 16, 1914.
    Error to Circuit Court of Belmont county.

      Mr. A. M. Brown and Mr. T. C. Ayers, for plaintiff in error.

      Mr.

      Charles J. Lynch; Mr. Albert W. Kennon and Mr. Newell K. Kennon, for defendant in error.
   Judgment affirmed.

Shaucic, Johnson, Donahue, Newman and Wilicin, JJ., concur.


text:
    No. 13849.
    Stern, Assignee, v. Patterson et al.
    Decided June 16, 1914.
    Error to Circuit Court of Cuyahoga county.

      Mr. Joseph L. Stern and Mr. Berne Jones, for plaintiff in error.

      Messrs. Patterson & Nieding, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donai-iue, Wanamaker, Newman and Wilicin, JJ., concur.


text:
    No. 13886.
    The Cincinnati, Hamilton & Dayton Ry. Co. v. Woulfe, Admx.
    Decided June 16, 1914.
    Error to Circuit Court of Hamilton county.

      Messrs. Waite & Schindel, for plaintiff in error.

      Messrs. Powell & Smiley, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 14104.
    Bittikofer et al. v. Meister et al.
    Decided June 16, 1914.
    Error to Court of Appeals of Crawford county.

      Messrs. Leuthold & McCarron, for plaintiffs in error.

      Mr. Benjamin Meek; Mr. R. V. Sears; Mr. Godfrey Leuthold and Mr. O. W. Kennedy, for defendants in error.
   Judgment affirmed. See journal entry.

■ It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same is hereby, affirmed; as to the first ground of reversal stated by the court of appeals in its journal entry, to-wit: “In the refusal of the court to charge the jury as requested by plaintiffs in error, and also the general charge to the jury as requested by plaintiffs in error, and also in its general charge to the jury.”

This court further finds that the trial court did not err in the particular stated by the court of appeals in the second ground for reversal of the trial court “in overruling the motion for new trial on .the ground that the verdict is contrary to law,” and that part of the judgment of the court of appeals is hereby reversed, set aside and held for naught, and said cause remanded to the common pleas court for new trial and further proceedings according to law.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 14170.
    The Eldridge & Higgins Co. v. Monett, Exrx.
    Decided June 16, 1914.
    Error to Court of Appeals of Franklin county.

      Messrs. Wilson & Rector, for plaintiff in error.

      Mr. W. E. Babcock, for defendant in error.
   Judgment reversed on authority of Perkins v. Commissioners, 88 Ohio St., 495. See journal entry.

■ ' It is ordered and adjudged by this court, that the 'judgment of the said court of appeals be, and the same hereby is, reversed; and this court coming now to render such judgment as the court of appeals should have rendered . . o

It is ordered and adjudged that,the judgment of the court of common pleas be and the same hereby is reversed and said cause remanded to the- court of common pleas for a new trial, for the reason that said court of common pleas erred in .refusing - to submit the cause to the jury at the request of plaintiff in error.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur. ■ • ;


text:
    No. 14263.
    Bohrman v. Wheeler.
    Decided June 16, 1914.
    Error to Court of Appeals'of Crawford county.-

      Messrs. Finley & Gallinger, for plaintiff in error.

      Messrs. Lcuthold & McCarron, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker, Newman and Wiliun, JJ., concur.


text:
    No. 14432.
    Rigby et al. v. Fraser et al.
    Decided June 16, 1914.
    Error to Court of Appeals of licking county.

      Messrs. Fit ^gibbon, Montgomery & Black, for plaintiffs in error.

      Mr. A. A.,Stasel, for defendants in error.
   Judgment of the court of anneals reversed and judgment for plaintiffs in error. See journal entry. , -

It is ordered and adjudged by this court, that"the judgment of the said court of appeals be, arid the same hereby is, reversed. And the court coming now to render the judgment that the court of appeals should have rendered upon the agreed statement of facts and facts found by the court, it is ordered and adjudged that the receiver out of the funds in his hands pay: ( b) The costs of this action in the common pleas and circuit courts; (2) to A. M. Rigby seven hundred and twenty dollars and twenty-eight cents ($720.28) or such part thereof as there are funds in his hands to pay the same; (3) the balance, if any remaining in the receiver’s hands, to be divided between Anna B. Fraser and A. M. Rigby.

Nichols, C. J., Si-iauck, Donahue and Wilkin, JJ., concur.


text:
    No. 13822.
    Rogers et al. v. VanPelt et al.
    Decided June 23, 1914.
    Error to Circuit Court of Fayette county.

      Messrs. Creamer, Creamer & Thompson and Messrs. Post & Reid, for plaintiffs in error.

      Mr. Humphrey Jones, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13823.
    Hess et al. v. VanPelt et al.
    Decided June 23, 1914.
    Error to Circuit Court of Fayette county.

      Messrs. Creamer, Creamer <5r Thompson and Messrs. Post & Reid, for plaintiffs in error.

      Mr. Humphrey Jones, for defendants in error.
   Judgment of the circuit court reversed, and that of the common pleas court affirmed.

Nichols, C. J., Shaucic, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13824.
    Hyde v. VanPelt et al.
    Decided June 23, 1914.
    Error to Circuit Court of Fayette county.

      Messrs. Creamer, Creamer & Thompson and Messrs. Post & Reid, for plaintiff in error.

      Mr. Humphrey Jones, for defendants in error.
   Judgment of the circuit court reversed, and that of the common pleas court affirmed.

Nichols, C. J., Siiauck, Johnson, Donai-iue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13827.
    Giddings v. Schmuck, Exr., et al.
    Decided June 23, 1914.
    Error to Circuit Court of Cuyahoga county. Mr. Chas. W. To land, for plaintiff in error.

      Mr. M. P. Mooney, for defendants in error.
   Judgment affirmed.

Nici-tols. C. J., Siiauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13851.
    Oberlander v. Abel et al., Partners.
    Decided June 23, 1914.
    -Error to Circuit Court of Marion county.

      Messrs. Finley & Galling er, for plaintiff in error.

      Messrs. Mouser & Moloney, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Sliauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13853.
    Ohio Hay & Grain Co. v. Adams.
    Decided June 23, 1914.
    Error to Circuit Court of Hancock county.

      Mr. William S. Snook, for plaintiff in error.

      Messrs. Franks & Franks, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Si-iauck, Johnson, Donai-iue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13892.
    The M. F. Mason Hat Co. v. Mason et al.
    Decided June 23, 1914.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Smith, Taft & Arter, for plaintiff in error.

      Messrs. Klein & Harris and Messrs. Ford, Snyder & Tilden, for defendants in error.
   Judgment affirmed.

'Nichols, C. J., Siiauck, Johnson, Donai-iue, Wanamaker and Newman, JJ., concur.


text:
    No. 13893.
    The Cincinnati Traction Co. v. Colter.
    Decided June 23, 1914.
    Error to Circuit Court of Hamilton county.

      Messrs. Kittredge, Wil|by & Stimson, for plaintiff in error.

      Mr. D. C. Keller, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13895.
    The G. Henshaw & Sons Co. v. Tappehorn.
    Decided June 23, 1914.
    Error to Circuit Court of Flamilton county.

      Mr. Stanley K. Flenshaw and Mr. E. R. Donohue, for plaintiff in error.

      Mr. H. C. Busch and Mr. William Shepard, for .defendant in error.
   Judgment of the circuit court reversed and that of common pleas court affirmed.

Nichols, C. J., Si-iauck, Johnson, Donai-iue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13912.
    The Evangelical Lutheran St. Pauls Congregational Unaltered Augsbierian Confession et al. v. Sheffield et al.
    Decided June 23, 1914.
    Error to Circuit Court of Plenry county.

      Messrs. Donovan & Dittmer and Messrs. Donovan & Warden, for plaintiffs in error.

      Messrs. Cahill & Mulcahy and Mr. U. V. Fiser, for defendants in error.
   Judgment reversed and judgment for plaintiff in error. See journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed; and this court coming now to render such judgment as the circuit court should have rendered

It is ordered and adjudged that the petition of plaintiffs be and the same hereby is dismissed, this court being of the opinion that the estate devised to Ada May Sheffield by Rebecca J. Clay in item sixth of her will was an estate tail and that upon her death without children the real estate mentioned in said item reverted to the heirs at law of said Rebecca J. Clay, subject to the estate of Thomas J. Clay therein under item fifth.

Nichols, C. J., Johnson, Donai-iue, Newman and Wilkin, JJ., concur.


text:
    No. 14049.
    Hupp et al. v. The Hock-Hocking Oil & Natural Gas Co.
    Decided June 23, 1914.
    Error to Circuit Court of Hocking county.

      Mr. W. E. Sykes and Mr. A. M. Whit craft, for plaintiffs in error.

      Mr. M. A. Daugherty, for defendant in error.
   Judgment affirmed.

Niciiols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 14155.
    Dougherty v. The State, ex rel. VanEpp, Prosecuting Attorney, et al.
    Decided June 23, 1914.
    Error to the Court of Appeals of Medina county.

      Messrs. M. B & H. H. Johnson and Mr. W. W. Green, for plaintiff in error.

      Messrs. Henry & McGrazv and Messrs. M. B-. & H. H. Johnson, for defendants in error.
   Judgment reversed. Original petition dismissed.

Nichols, C. J., Si-iaucic, Johnson, Wanamaker and Wilkin, JJ., concur.


text:
    No. 14157.
    McCoy et al. v. Brundage.
    Decided June 23, 1914.
    Error to Circuit Court of Madison county.

      Mr. Richard H. McCloud and Messrs. Murray & Emery, for defendant in error.

      Mr. John A. Lincoln, for plaintiffs in - error.
   Judgment affirmed.

Nicitols, C. J., Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 14319.
    Long, County Treasurer, v. The Champion Coated Paper Co.
    Decided June 23, 1914.
    Error to Court of Appeals of Butler county.

      Mr. J. E. Brate and Mr. Ben A. Bickley, prosecuting attorney, for plaintiff in error.

      Mr. W. C. Shepherd, for defendant in error.
   Judgment affirmed. See journal entry.

It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same is hereby, affirmed; it appearing to this court that the said defendant in error is a private corporation, all of whose property and assets are operated in the conduct of its private business, said company, defendant in error, not having or exercising any public or other franchise in addition to that stated.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13816.
    Nichol v. McWilliams.
    Decided June 26, 1914.
    Error to Circuit Court of Belmont county.

      Mr. T. C. Ayers and Mr. A. M. Brown, for plaintiff in error.

      Mr. W. W. Cowen; Mr. Albert W. Kennon and Mr. Newell K. Kennon, for defendant in error.
   Judgment- affirmed.

Shauck, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13821.
    Rawson, Admr., v. The Olds Motor Works.
    Decided June 26, 1914.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Seaton & Paine, for plaintiff in error.

      Mr. Vernon H. Burke, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Donahue, Newman and Wilkin, JJ., concur. Wanamaker, J., dissents.


text:
    No. 13855.
    Walters v. Butt et al.
    Decided June 26, 1914.
    Error to Circuit Court of Hancock county.

      Messrs. Axline, Betts & Kerns, for plaintiff in error.

      Mr. Marion G. Foster, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13861.
    Dean, Exr., v. Harris et al.
    Decided June 26, 1914.
    Error to Circuit Court of Greene county.

      Mr. Frank H. Dean, for plaintiff in error. .

      Mr. Marcus Shoup; Mr. H. C. Armstrong and Mr. John H. McVay, for defendants in error.
   Judgment affirmed.

Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13865.
    The Franklin National Bank of Newark, Ohio, v. The City of Newark.
    Decided June 26, 1914.
    Error to Circuit Court of Licking county.

      Messrs. Kibler & Kibler; Messrs. Fits gibbon, Montgomery '& Black; Mr. Carl Norpell and Messrs. Fulton & Fulton,, for plaintiff in (error.

      Mr. Roderic Jones, city solicitor; Mr. J. Howard Jones and Mr. Frank A. Bolton, for defendant in error.
   Judgment affirmed. Grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is, hereby affirmed. This court finds that said circuit court correctly found that the demurrer of the defendant to the amended petition in the court of common pleas should have been overruled, this court being of the opinion that if the deposit involved in-the proceeding is claimed by the plaintiff in error to have been a special deposit, or that no interest was received thereon it should plead such a state of facts by affirmative allegations in an answer to be filed in the cause.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13871.
    The Aultman & Taylor Machinery Co. v. McKeefrey et al., Partners.
    Decided June 26, 1914.
    Error to Circuit Court of Richland county.

      Messrs. Cummings, McBride & Wolfe, for plaintiff'in error.

      Mr. Jesse E. LaDoiv, for defendants in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13876.
    McCarthy, Exr., et al. v. Sheehy, Admr.
    Decided June 26, 1914.
    Error to Circuit Court of Lucas county.

      Messrs. Fell & 'Schaal and Mr. M. B. McCarthy, for plaintiffs in error.

      Mr. P. J. Phelan and Mr. L. F. Conway, for defendant in .error.
   Judgment affirmed.

Nichols, C. ]., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13889.
    The City of Akron v. Tressel.
    Decided June 26, 1914.
    Error to. Circuit Court of Summit county.

      Mr. Jonathan Taylor, city solicitor, for plaintiff in error.

      Mr. W. J. Laub and Mr. L. D. Slusser, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Newman and Wilkin, JJ., concur. Wanamaker, J., not participating.


text:
    No. 13896.
    Horst, Admr., v. McMahon, etc., et al.
    Decided June 26, 1914.
    Error to Circuit Court of Franklin county.

      Mr. A. PI. Johnson and Mr. John R, Horst, for plaintiff in'error.

      Mr. E, L.

      DeWitt; Mr. John R. Horst; Mr. A. H. Johnson and Mr. B. G. Watson, for defendants in error.
   Judgment modified. See journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, modified as follows: . That the third conclusion of law made by the circuit court shall read in words and figures following to-wit, instead of as therein written:

“3. That, relating to the items referred to in the third and fohrth exceptions, said administrator is entitled to credit for the sum of $300 as attorney fees, to be allowed to his attorney, E. L. DeWitt, for legal services rendered in the interest of the said estate; and to the extent of $300 credit allowed as aforesaid, said third and fourth exceptions are each overruled, and in all other respects said exceptions are sustained.”

And the final judgment based upon the finding of facts and conclusions of law is further modified as follows: It is therefore ordered that the said Harry H. McMahon, as administrator as aforesaid, out of the said moneys of said estate in his hands, pay the said sum of $300 to the said E. L. DeWitt, as attorney, and the said sum of $2246.98 to John R. Horst, the present administrator of the. said estate; and that, in default of the same, execution issue against the said Harry H. McMahon therefor; and it is further ordered that the costs of this proceeding, taxed at $-, be, and the same are hereby adjudged, three-fourths thereof against the said Harry H. McMahon, as an individual, and one-fourth thereof against the estate of the said decedent, to be paid by the said John R. Horst, the present administrator, out of said estate.

It is further ordered and adjudged that the judgment of the circuit court as above modified be, and the same hereby is, affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13901.
    Diamond Alkali Co. v. Vliet et al.
    Decided June 26, 1914.
    Error to Circuit Court of Lake county.

      Mr. Harry E. Hammar, for plaintiff in error.

      Messrs. Alvord & Blakely, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Donahue, Newman and Wilkin, JJ., concur.


author: Donahue, J.

text:
    The State, ex rel. Pogue, Prosecuting Attorney, etc., v. Groom, Acting City Solicitor, etc.

      Office and officer — Bzidget commissions — Membership — Section 5049-3b, General Code — As amended 103 O. L., 552, and 104 O. L., 237 — Unconstitutional and void — Repealing clause invalid, when — County duties to be performed by county officers, when — Constitutional lazv.

    1. The act of the general assembly passed February 16, 1914 (104 O. L., 237), amending Section 5649-36, General Code, as amended April 16, 1913 (103 O. L., 552), in so far as it purports to designate who shall constitute the county budget commission, is unconstitutional and void.

      2. The act of the general assembly passed April 16, 1913 (103 O. L., 552), purporting to amend Section 5649-36, General Code, by designating who shall constitute the county budget commission, is to that extent unconstitutional and void, and the repealing clause of the act, in so far as it repeals that portion of Section 5649-36, is invalid.
    3. Where an act of the general assembly, purporting to provide a substitute for an existing law and in terms repealing the existing law, is declared to be unconstitutional and void, the repealing clause must also be held invalid, unless it clearly appear that the general assembly would have passed the repealing clause regardless of whether it had provided a valid substitute for the act repealed.
    4. The general assembly has the authority to create new duties and require such duties to be performed by the incumbents of an existing office, but where the duties so created are in their nature and extent county official duties, they must be attached to a county office and must be required to be performed by a county officer duly elected by the electors of the county, or lawfully appointed to fill a vacancy in that office.
    (No. 14722 —
    Decided September 15, 1914.)
    In Quo Warranto.
    This action was brought by the state of Ohio upon relation of Thomas L. Pogue, prosecuting attorney of Hamilton county, Ohio, against Charles A. Groom, who, on account of the disability of Walter M. Schoenle, the duly elected and qualified city solicitor of the city of Cincinnati, Ohio, was then acting city solicitor of that city and performing and claiming the right to perform the •duties of a member of the budget commission of Hamilton county, Ohio. Later, the disability of the city solicitor having been removed, he returned to the discharge of his duties as such solicitor, and the original defendant retired as a member of the budget commission and the solicitor took the place upon that commission vacated by him.
    A supplemental petition was filed, averring these facts and making Walter M. Schoenle, city solicitor of the city of Cincinnati, a defendant to this action, averring that relator, as prosecuting attorney of Hamilton county, is entitled to sit as a member of the budget commission of Hamilton county, Ohio, and perform and discharge the duties as such member, but that the defendant has unlawfully intruded himself as a member of that commission to the exclusion of relator, and praying for a writ of ouster against Walter M. Schoenle and for an order of this court inducting the relator as a member of the budget commission of Hamilton county, Ohio. To this supplemental petition the defendant, Walter M. Schoenle, filed an answer, averring that he is the duly elected and qualified solicitor of the city of Cincinnati; that the city of Cincinnati is the largest municipality in Hamilton county, as shown by the last federal census, and that the amount of taxable property in that city alone and also in all the cities and villages in that county, exceeds the amount of taxable property of the territory outside of the cities and villages in the county, as shown by the tax duplicate of the preceding year and by the tax lists of the current year as fixed by the district assessors and equalized by the tax commission of Ohio, and claims by virtue of the act of the general assembly of Ohio, passed April 16, 1913 (103 O. L., 552), as amended by an act passed February 16, 1914 (104 O. L., 237), that it is his right and duty to sit and act as a member of the budget commission of Hamilton county, Ohio, and that his acts as such are in all respects valid. To this answer the relator filed a general demurrer, and the cause is submitted to this court upon this demurrer of the relator to the answer of Walter M. Schoenle.

      Mr. Thomas L. Pogue, prosecuting attorney, and Mr. John V. Campbell and Mr. Carl M. Jacobs, Jr., assistant prosecuting attorneys, for relator.

      Mr. Walter M. Schoenle, city solicitor, and Mr. Charles A. Groom and Mr. Constant Southworth, assistant city solicitors, for defendant.

      Mr. Timothy S. Hogan, attorney general; Mr. Clarence D. Laylin; Mr. Prank Davis, Jr., and Mr. James I. Boulger, amici curiae.

   Donahue, J.

This cause is submitted to this court on the demurrer of the relator to the answer of the defendant. No demurrer was filed to the petition, but it is now insisted on the part of the defendant that this demurrer to the answer should be sustained for the reason that a member of the county budget commission is not a public officer, and that, therefore, an action in quo warranto will not lie to oust him as a member of that commission. If Section 5649-3&, General Code, in its original form or as amended, does in fact create a new office, then it is in clear violation of the positive provisions of the constitution, in so far as it purports to appoint the-incumbents of that office. Section 27 of Article II of the Constitution provides that “No appointing power shall be exercised by the general assembly, except as prescribed in this constitution, and in the election of United States senators; and in these cases the vote shall be taken viva voceIt' is apparent, however, from the language used in Section 5649-3&, General Code, either in its original form, or as amended, that this section does not create or purport to create any new office, but rather imposes additional duties upon the incumbent of existing offices. These duties, however, are official duties in every sense of the word, and if they are by statute attached to the office of prosecuting attorney and the defendant is claiming the right and the authority to discharge these duties and is proceeding to act in that behalf to the exclusion of the prosecuting attorney, he is to that extent usurping the office of prosecuting attorney of the county, and an action in quo warranto will lie to inquire by what authority he claims to exercise the rights and authority of the prosecuting attorney to discharge any or all the duties belonging to that office.

It is true the petition avers that the defendant is usurping the office of member of the budget commission of Hamilton county, Ohio, but it further appears from the petition that he is claiming the right to sit as a member of the budget commission of that county to the exclusion of the prosecuting attorney of the county and to discharge and perform the duties and exercise the authority of the prosecuting attorney in that behalf. It follows that if this defendant is in fact wrongfully and unlawfully intruding himself as a member of the county budget commission; if he is wrongfully and unlawfully claiming the right and the authority to discharge these duties and is wrongfully and unlawfully discharging and pretending to discharge the same, he is in fact intruding himself into the office and usurping the powers and authority of the lawful incumbent of that particular office to which these duties attach, regardless of the averments of the petition as to the office he is usurping.

The important question in this case, however, is whether these duties attach by law to the office of prosecuting attorney or to the office of city solicitor of the city of Cincinnati in the county of Hamilton, and this involves the question of the constitutionality of the act of February 16, 1914, entitled “An act to amend Section 5649-3&, of the General Code, as amended April 16, 1913, providing for the time of meeting of the county budget commissions.” It is clear from the facts averred in the answer, and admitted by the demurrer for the purposes of the demurrer, that if this act is constitutional the defendant is entitled to sit as a member of the county budget commission of Hamilton county. If this act is unconstitutional, then, for the same reasons, the act of April 16, 1913, in so far as it purports to amend Section 5649-3&, General Code, is also unconstitutional, and it will be unnecessary in this opinion to refer further to that act, except the repealing clause, which in terms purports to repeal Section 5649-3b, General Code.

The county budget commission is a uniform commission, with uniform duties and authority in each of the counties of the state, yet this amendment does not provide that the several county budget commissions shall be uniformly constituted. On the contrary, in some counties the mayor of the largest municipality within the county, the city solicitor of the same municipality and the county auditor constitute the county budget commission. In other counties, the mayor of the largest municipality within the county, the county auditor and the president of the board of education of the school district containing the largest municipality within the county constitute this commission. This amendment further provides that when the president of that board of education is not an elector, then that board of education shall designate one of its members who is an elector to serve as a member of the county budget commission. No provision whatever is made for the selection of a third member of this commission where no member of the board of education of the school district containing the largest municipality of the county is an elector.

It appears, therefore, that under the provisions of this amendment this uniform county budget commission, possessing uniform authority in each of the several counties of the state, may not only be constituted in three different ways, but in some instances this third member may be designated by persons who are not electors of the state, and under some circumstances no third member of this commission can be chosen at all.

It may be claimed that the general assembly has the right to make this classification of counties upon the basis of urban and city population, but such a classification with reference to a board or commission charged with the performance of uniform duties and clothed with uniform authority in each of the several counties of the state, regardless of the proportion of city and urban population, would be a mere arbitrary classification that cannot be permitted under our constitution.

Even if such a classification were proper, it is conceded that the duties of this commission are official duties. Therefore, they must be performed by an officer legally elected or appointed to the office to which these duties attach. It is hardly necessary to say that the designation of a person to sit as a member of this commission by persons not electors of this state would not be a legal appointment, even if under our constitution the office to which these duties attach were an appointive one.

It is also possible under the laws of this state that no member of the board of education of the school district containing the largest municipality of the county would be an elector. In such event this amendment provides no possible way for the selection of a third member of the budget commission, and for this reason also this law would not have uniform operation throughout the state. It is true that such a contingencjr is not probable, but in testing the constitutionality of the law we are dealing not with the probabilities but the possibilities that may arise in the course of its operation, and we cannot overlook the provisions of other statutes of our state under which conditions might lawfully arise that would prevent the uniform operation of the law in question.

It is contended further on the part of the relator that Section 5649-3&, as amended April 16, 1913 (103 O. L., 552), and as amended February 16, 1914 (104 O. L., 237), imposes governmental functions necessarily exercised throughout the county, and that the duties created by this section and the amendments thereto cannot be attached to an office the incumbent of which is not elected by a constitutional majority of all the electors of the county. In other words, that the official duties required by these sections are official duties for the whole county and each part and parcel of the county, and therefore must be performed by a county officer.

Undoubtedly the duties of the county budget commission are an inherent part of the sovereign power of taxation. This power can be exercised only by a government through officers duly authorized to perform this important function of government. The character of a public office is determined by the nature of the public service to be performed in connection with the territorial limits of the authority to act in an official capacity. The service performed by this commission is performed for the whole county and each part thereof, regardless of the lesser political subdivisions. This amendment very properly designates it as “the budget commission of each county.” It is clear, therefore, that whoever is lawfully authorized to perform this public service for the county at large is a county officer, not necessarily a separate and distinct officer from the other county officers, for the legislature may create new official duties at will and require the incumbents of existing offices to perform these duties, but the new duties created by law must by law be performed by an officer having constitutional authority to perform the same.

Section 1 of Article X of the Constitution of Ohio reads as follows: “The general assembly shall provide, by law, for the election of such county and township officers as may be necessary.”

It is clear from this provision of the constitution that the legislature of this state cannot create a county office without providing by law for the election of the officer who is to discharge the duties of that office. That being clear, upon what theory then can the general assembly of this state create official duties to be performed for the whole county and attach the same to offices the incumbents of which are not elected by the electors of the county for which these services are to be performed ? Section 1 of Article X of the Constitution gives to the electors of a county the right to say who shall administer its local affairs, and any attempt by the legislature to clothe an individual not elected by a constitutional majority of the electors of the county with such authority would be a clear invasion of this constitutional right. Neither the mayor nor the city solicitor of the largest municipality in the county, nor the president of the board of education of the school district containing the largest municipality within the county, nor a member of that board of education designated by the board of education itself, is elected by the electors of a county, yet if either of these officials should serve as a member of the county budget commission he would be required to serve the entire county in an official capacity, and his authority to perform the duties of this position would extend throughout the entire territorial limits of the county. Therefore the act of February 16, 1914 (104 O. L., 237), purporting to amend Section 5649-2>b, as amended April 16, 1913, and the act of April 16,1913 (103 O. L., 552), purporting to amend Section 5649-Zb, are each in direct conflict with Section 1 of Article X of the Constitution of Ohio and void in so far as either of said acts purports to confer authority to perform official acts for the county upon officers not elected by the electors of the whole county.

Section 2 of the act of April 16, 1913, specifically repeals Section 5649-3&, General Code. It is clear, however, that the general assembly did not intend to abolish county budget commissions, and therefore the presumption obtains that it would not. have passed this repealing clause had it not believed it was providing a valid substitute for the section repealed. All the legislation upon this subject would become meaningless and impossible of operation without a budget commission or some other board or officer clothed with authority to review and revise the various levies of a taxing district so as to bring such levies within the limit provided in other sections of the original act. All the other sections of the original act are retained, and this amendment clearly evidences the intention of the legislature to continue the county budget commission for the purposes and with the authority stated in the original act. It is the unquestioned law of this state that where an act repealing another act and purporting to provide a substitute therefor is found to be unconstitutional and invalid, the repealing clause must also be held to be invalid, unless it shall appear that the legislature would have passed the repealing clause even if it had provided no valid substitute for the act repealed. The act of April 16, 1913 (103 O. L., 552), purporting to amend Section 5649-35, being unconstitutional in the particulars hereinbefore mentioned, the repealing clause of that section must also be held to be invalid in so far as it repeals any part of the original act for which a valid substitute is not provided, and to that extent Section 5649-35, General Code, is still in full force and effect.

It is true that this section is subject to the same objection urged against these amendments, yet it is expressly provided that a quorum of the budget commission is authorized to transact business, and at least two of the members designated by the original act to serve as members of the county budget commission are county officers elected by a constitutional majority of the electors of the county.

The demurrer to the answer of the defendant is sustained, and the defendant not desiring to plead further, judgment is entered for the relator.

Judgment of ouster.

Nichols, C. J., Shauck, Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


author: Johnson, J.

text:
    The State, ex rel. Durr, Auditor, etc., v. Spiegel et al., Budget Commissioners.

      Statutory construction — Amendatory acts construed, how — Amended sections considered with entire subject, when — Limitation of tax rate — Act of April 16, 1913 (103 O. L., 552) — Amends Section 5649-2, General Code, how — Interest and sinking fund included, when.

    1. Where an amendatory act contains the entire section or sections as amended and repeals the original section or sections in compliance with Section 16, Article II of the Constitution, the amended sections are to be given the meaning they would have had if they had read from the beginning as they do as amended, except where such construction would be inconsistent with the manifest intent of the legislature.
    2. An act amending one or more sections of a statute should be considered in connection with the whole statute of which it has become a part, the object intended to be accomplished by the law, the imperfections to be removed and the changes to be made by the amendment.
    3. The only change made in the original Section 5649-2, General Code, by the amendment of April 16, 1913 (103 O. L., 552), is the elimination of the part of the original section that is not included in the amendment. The words “heretofore” and “hereafter,” found in both, refer to the date of the passage of the original act June 2, 1911.
    (No. 14723 —
    Decided September 17, 1914.)
    In Mandamus.
    The petition of the relator, after setting out the official positions of the parties, alleges that by virtue of Sections 5649-1 to 5649-5&, General Code, it is the duty of the budget commission to adjust and determine the amount of the levy to be made for the ensuing year for the city of Cincinnati, including that for the sinking-fund trustees to provide for a sinking fund and interest on outstanding bonds of the city; that the total amount of the levy required for all sinking-fund purposes is $1,623,736, and of this $196,074.47 is required to, provide for the sinking fund and interest for bonds; of the city issued between June 2, 1911, and August 8, 1913, under Section 3939 et seq., General Code, without a vote of the people; that said requirements have been duly certified by the city to the defendants as such commission; that on August 27, 1914, relator requested of defendants that in providing for the levy they include the sum of $196,074.47 within the ten-mill limit provided in Section, 5649-2, General Code, as amended April 16, 1913 (103 O. L., 552), but that the defendants refused to include said amount within the ten-mill limit as provided by law, but voted to levy the sum of $196,074.47 in addition to the said ten mills, contrary to the provisions of said Section 5649-2. The petition prayed for a writ of mandamus commanding the defendants to make the levy for the sum named within the ten-mill limit.
    After admitting the official character and the duties of the parties as stated, the answer admitted that the sum of $196,074.47 is required to provide for the sinking fund and interest for bonds of the city of Cincinnati issued between June 2, 1911, and August 8, 1913, under Section 3939 et seq., General Code, and without vote of the people.
    The answer further admits the making of the request by the relator as alleged and the refusal to comply therewith. It avers that the relator ought not to have the writ because, under Section 5649-2, General Code (103 O. L., 552), which became effective as a law of the state on the 8th of August, 1913, levies for interest and sinking-fund purposes necessary to provide for indebtedness incurred without a vote of the people before the said 8th of August, 1913, are required to be levied in addition to the aggregate amount of ten mills authorized to be levied therein.
    The relator demurs to the answer, and the case is presented here on the demurrer.

      Mr. Thomas L. Pogue, prosecuting attorney; Mr. John V. Campbell and Mr. Carl M. Jacobs, Jr., for relator.

      Mr. Walter M. Schoenle, city solicitor, and Mr. Constant Southworth, for defendants.
   Johnson, J.

The difference of opinion between the parties, as to the duty of the budget commissioners in the premises, will be concluded by the answer to a single question: Do the words “heretofore” and “hereafter,” which occur- in Section 5649-2, General Code, as amended April 16, 1913, and approved May 6, 1913, refer to the date of the passage of the original section on May 31, 1911, or to the date when the amendment became effective, to-wit, August 8, 1913? It is conceded that it is necessary for the defendants to levy the sum of $196,074.47 for sinking-fund and interest purposes for bonds issued by the city of Cincinnati between the dates of June 2, 1911, and August 8, 1913, without a vote of the people. The original Section 5649-2, which is part of the act known as the Smith one-per cent, law, was as follows:

“Sec. 5649-2. Except as otherwise provided in Section 5649-4 and Section 5649-5 of the General Code, the aggregate amount of taxes that may be levied on the taxable property in any county, township, city, village, school district or other taxing district, for the year 1911 and any year thereafter, including taxes levied under authority of Section 5649-1 of the General Code, and levies for state, county, township, municipal, school and all other purposes, shall not in any one year exceed in the aggregate the total amount of taxes that were levied upon the taxable property therein of such county, township, city, village, school district or other taxing district, for all purposes in the year 1910, provided, however, thát the maximum rate of taxes that may be levied for all purposes, upon the taxable property therein, shall not in any one year exceed ten mills on each dollar of the tax valuation of the taxable property of such county, township, city, village, school district or other taxing district for that year, and such levies in addition thereto for sinking-fund and interest purposes as may be necessary to provide for any indebtedness heretofore incurred or any indebtedness that may hereafter be incurred by a vote of the people.”

Experience demonstrated that it was not practicable to limit the political subdivisions named in that section in making up their levies for all purposes to the amount levied in the year 1910. Therefore, in 1913, the legislature passed the amendment referred to (103 O. L., 552). The amendment eliminated from the section the following language: “for the year 1911 and any year thereafter, including taxes levied under authority of Section 5649-1 of the General Code, and levies for state, county, township, municipal, school and all other purposes, shall not in any one year exceed in the aggregate the total amount of taxes that were levied upon the taxable property therein of such county, township, city, village, school district or other taxing district, for all purposes in the year 1910, provided, however, that the maximum rate of taxes that may be levied for all purposes, upon the taxable property therein, * * *

It is apparent that the single intent of the legislature in passing the amendment was to eliminate the requirement that the amount of taxes levied in any year should not exceed the aggregate amount levied for all purposes in the year 1910. The amended section is in the exact words of the original section with the exception of the elimination stated. Both contain the provision that the levy shall not in any year exceed ten mills on each dollar of the tax valuation of the taxable property of the county, township, city, village, school- district or other taxing district for that year, and such levies in addition thereto for sinking-fund and interest purposes as may be necessary to provide for any indebtedness heretofore incurred or any indebtedness that may be hereafter incurred by a vote of the people. Between June 2, 1911, the date when the original act was approved, and August 8, 1913, when the amendment became effective, the city issued its bonds without a vote of the people for which it is necessary to provide sinking fund and interest. Therefore, if the word “-heretofore” refers to the date June 2, 1911, the levy, including the sum for those purposes, must come within the limit of ten mills. If that word refers to the date on which the amendment became effective, the necessary amount for interest and sinking-fund purposes may be levied in addition to the limit of ten mills. The considerations which induced the legislature to pass the amendment would seem to be manifest. The provision in the original section that the levy for all purposes in the year 1910 should not be exceeded did not meet the requirements of growth in population, territory and property from time to time after that year in the different subdivisions. In a municipality or other subdivision in which there was a material growth in these respects it might be found that a sum which was sufficient in 1910 would be wholly inadequate under the new conditions. But the identity of the language of the amendment with the original section, in all other respects, manifests the satisfaction of the legislature with the provisions of the law as originally passed with the exceptions stated. There is an explicit preservation and continuance of the limitation of ten mills. It was evidently contemplated by the legislature that the increased requirements caused by growth would be met by a corresponding increase of taxable property. Generally the rule is that an amended statute is to be given the meaning that it would have had if it had read from the beginning as amended. This rule is stated in McKibben v. Lester, 9 Ohio St., 627, as follows: “Where one or more sections of a statute are amended by a new act, and the amendatory act contains the entire section or sections amended, and repeals the section or sections so amended, the section or sections as amendéd must be construed as though introduced into the place of the repealed section or sections in the original act, and, therefore, in view of the provisions of the original act, as it stands after the amendatory sections are so introduced.” This rule was stated and followed in State, ex rel., v. Cincinnati, 52 Ohio St., 419, 445. The amending act provides that the original section “be amended to read as follows.” The repeal of the original section was in compliance with Section 16 of Article II of the Constitution, which provides “no law shall be revived, or amended unless the new act contains the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.” The obvious purpose of this provision of the constitution was to avoid the confusion caused by the distribution of different parts of the same section in different enactments; but there was no intention to change the operation of the original section as to provisions which are not changed.

In 1 Lewis’ Sutherland on Statutory Construction (2 ed.), Section 237, it is said: “The constitutional provision requiring amendments to be made by setting out the whole section as amended was not intended to make.any different rule as to the effect of such amendments. So far as the section is changed it must receive a new operation, but so far as it is not changed it would be dangerous to hold that the mere nominal reenactment should have the effect of disturbing the whole body of statutes in pari materia which had been passed since the first enactment. There must be something in the nature of the new legislation to show such an intent with reasonable clearness. * * * The portions of the amended sections which are merely .copied without change are not to be considered as repealed and again enacted, but to have been the law all along; and the new parts or the changed portions are not to be taken to have been the law at any time prior to the passage of the amended act.”

In Section 238 of his work the same author says: “Where there is an express repeal of an existing statute, and a reenactment of it at the same time, or a repeal and a reenactment of a portion of it, the reenactment neutralizes the repeal so far as the old law is continued in force. It operates without interruption where reenactment takes effect at the same time.”

In McLaughlin v. Newark, 5 7 N. J. Law, 298, where a similar question was involved, the court say: “By observing the constitutional form of amending a section of a statute the legislature does not express an intention then to enact the whole section as amended, but only an intention then to enact the change which is indicated. Any other rule of construction would surely introduce unexpected results and work great inconvenience.”

Of course this rule would in no case be applied where the provisions of the amendment itself preclude, or where its application would produce, unreasonable or absurd results.

In Parsons v. Wayne Circuit Judge, 37 Mich., 287, an amendment was adopted twenty-two years after the original statute was passed. The amendment provided that actions on judgments “heretofore rendered” should be barred in ten years after entry thereof. The court held that, in view of the fact that it would be absurd to confine this provision to judgments rendered before the passage of the original act, the legislature intended that the words “heretofore rendered” in the amendment should apply as of the date of the amendment.

Judge Cooley in rendering the opinion remarks: “It is further urged that, as a rule of construction, a statute amended is to be understood in the same sense exactly as if it had read from the beginning as it does as amended. This is true as a rule. * * * But such a rule of construction cannot be applied when the effect would be to defeat the manifest intent of the legislature in adopting the amendment. And such would be the effect in this case.”

Authorities as to the time of the taking effect of a statute and of an amendment thereto are of no assistance in this case. Nor is there occasion to invoke the elementary rule that where the language used by the legislature is plain and free from doubt there is no room for construction. The inquiry is not, 'What is the meaning of words employed ? nor When did the amendment take effect? but What period of time do the relative words in the amendment refer to ?

The presumption is that when the legislature adopts an amendment it intends to make some change in the statute amended, and when it reenacts the original statute as amended it has then made the only change it desired to make, leaving the rest of the provisions undisturbed.

The amendment should be considered in connection with the whole statute of which it has become a part. What is the whole scheme of the law? What object was intended to be accomplished by it and what imperfections were intended to be removed by the amendment? There is no uncertainty as to these matters in connection with the statute here involved.

Municipalities incurring obligations without a vote of the people, after the passage of the original act did so with full knowledge of the duty resting on them to provide for their payment within the limit explicitly declared in the law. By no stretch of construction can it be discovered that the amendment was intended to approve of a disregard of the restriction for the period between the date of the original act and that of the amendment. The demurrer to the answer will be sustained and the peremptory writ prayed for will be allowed.

Writ allowed.

Nichols, C. J., Wanamaker, Newman and Wilkin, JJ., concur.


author: Shauck, J.

text:
    The State, ex rel. McKean, v. Graves, Secretary of State.

      Office and officer — Clerk of supreme court appointive officer — Section 1500, General Code (103 O. L., id), constitutional.

    The act of February 4, 1913 (103 O. L., 10), so amending Section 1500, General Code, as to provide that this court shall appoint its own clerk, and repealing the original section which provided for his election by the electors of the state, is not repugnant to any provision of the constitution.
    (No. 14669 —
    Decided September 24, 1914.)
    In Mandamus.
    Petition for a peremptory writ of mandamus to compel the defendant, as secretary of state, to certify the nomination of the relator as a candidate for clerk of the supreme court on the Democratic ticket to be voted at the general election in November, 1914.

      Mr. J. M. McGillivray, for relator.

      Mr. Scott Stahl and Messrs. Price, Alburn & Daoust, for defendant.
   Shauck, J.

The defendant has refused to certify the nomination of the relator as a candidate upon the ticket to be voted at the general election because on the 14th of February, 1913, Section 1500 of the General Code, which had theretofore provided for the election of a clerk of this court by the electors of the state, was so amended as to provide for his appointment by the court and the previous section was repealed. The provision of the amending act for the appointment of a clerk by the court and the repeal of the previous statute providing for his election is admitted, and the question to be determined is made by the relator’s challenge of the constitutional validity of the amending act.

Attention to the relation of its clerk to this court will aid in removing some doubts which appear in the argument. He is vested with no discretion in any respect. He is only an arm of the court for issuing' its process, entering its judgments and performing like duties which the court itself might perform. His services are employed only for the more convenient performance of those functions of the court which are clerical in their nature. It is only in an arbitrary or secondary sense of the word “officer” that it can be applied to him. From the nature of his duties and his relation to the court, the power to appoint a clerk when necessary to the convenient and efficient exercise of its functions is inherent in the court, as are the like powers to punish for contempt, to appoint and remove members of the bar and to grant ancillary injunctions in the exercise of its jurisdiction in order that the status of a subject in controversy may remain unchanged, so that its jurisdiction when exercised will be effective. These powers inhere in the court without special grant, either in constitution or statute, because they are all implied in every conception of a court when courts are created by the constitution. Remembering that the judicial powers of government are all vested in the courts, and that such power is co-ordinate with and in no respect subordinate to the legislative power, it is entirely clear that in the absence of a special constitutional provision the general assembly is without authority to provide for the election of a clerk of this court. Such power, is not embraced in the grant of legislative power to the general assembly. It is not embraced within any proper definition of that power, and the duties of the clerk of the court are the duties of the court itself and embraced within the grant of judicial power. This is obvious, not only from the character of his duties and his relation to the tribunal, but from the practice in the federal courts and the courts of the states where the subject is not affected by special provisions.

But in this state the mode of choosing clerks of local courts is affected by a section of the constitution of 1851, and it is claimed on behalf of the relator that the provision includes the clerk of this court and defeats the operation of the amending statute in question. It was doubtless in view of the fact that in our policy clerks of local courts are charged with duties of an administrative and political nature not relating to the exercise of the judicial function, it was ordained in Article IV, Section 16, that “There shall be elected in each county, by the electors thereof, one clerk of the court of common pleas, who shall hold his office for the term of three years, and until his successor shall be elected and qualified. He shall, by virtue of his office, be clerk of all other courts of record held therein; but, the general assembly may provide, by law, for the election of a clerk, with a like term of office, for each or any other of the courts of record, and may authorize the judge of the probate court to perform the duties of clerk for his court, * * The subject of this provision obviously is courts of the counties. There is neither here nor elsewhere in the constitution any provision which contemplates an election of the clerk of any court by the electors of the state, and from the nature of the subject the provision is necessarily limited to local courts. The phraseology of the provision is doubtless affected in part by the provisions of the constitution of 1802, which made the supreme court a court in every county of the state by the express provision that it should in every year hold a session in each county of the state. It can of course have no application to this court as it is constituted by the constitution of 1851, a court of the state sitting only at the capital of the state. So obvious is this that the validity of the statute now under consideration prior to the amendment whose.validity is challenged was always the subject of doubt, the better opinion apparently being that the statute in its previous form was unconstitutional as being without authority of the constitution and an invasion of the judicial power of the state. But its validity in that form was never judicially considered and it need not be considered now, for the constitutional provision does no more than to ordain that “the general assembly may provide, by law, for the election,” etc. If it be conceded that the general assembly was thus enabled to enact the statute for the election of a clerk of this court by the electors of the state, the repeal of that statute leaves the court to exercise its inherent power to appoint its clerk without regard to the express provision of the amending act that the court shall appoint.

No inference favorable to the relator can be drawn from Article XVII of the Constitution. That article was adopted as an amendment to the constitution without designating any section of the instrument which was to be amended or abrogated. It changed former provisions only in the respects and to the extent which might be necessary to give effect to its provisions as the later expression of the will of the people, and it was subject, in all respects, to the rules relating to amendments and repeals by implication. The State, ex rel., v. Creamer, Treas., 83 Ohio St., 412. Terms of the article evince that its sole purpose was to substitute biennial for annual elections. It did not purport to change the character of any officer as elective or appointive, but only to fix the time for election of officers which by other provisions were to be chosen by the electors of the state. The article could not have the effect to modify any provision of the constitution except for the purpose indicated and to the extent which might be requisite for the accomplishment of that purpose.

It may be that the provision of the amending act under consideration, that the clerk shall be appointed by the court, is without effect. Whether it is or not need not be considered, the court having ample authority without any aid from the legislature to appoint a clerk in the absence of valid provisions providing for his selection in another mode.

Writ refused.

Johnson, Donahue, Newman and Wilkin, JJ-, concur.

Wanamaker, J., dissents.


text:
    The City of Wellsville et al. v. Connor.

      Elections — Municipal bond issue — Section 3939 et seq., General Code — Two-thirds vote — Blank or unintelligible ballots not considered, when — Section 3947, General Code.

    1. Where the question of issuing bonds by a municipality pursuant to Section 3939 et seq., General Code, is submitted to the electors at a special or general election, in ascertaining whether two-thirds of the voters voting at such election upon the question of issuing the bonds have voted in favor thereof, as required by Section 3947, blank ballots or unintelligible ballots are not to be considered.
    2. Where a voter at an election duly held does not by his ballot express his choice for an office to be filled, or on a question submitted to the electors, his ballot should not be counted for such office or on the question. But if it is required by law that a majority or any certain proportion of the votes cast at the election should be in favor of a proposition in order that it should carry, then all the votes cast at the election, including blank and unintelligible ballots, must be considered,
    (No. 14446 —
    Decided September 29, 1914.)
    Error to the Court of Appeals of Columbiana county.
    The facts are stated in the opinion.

      Mr. G. W. Adams and Mr. W. A. O’Grady, city-solicitors, for plaintiffs in error.

      Messrs. Brookes & Thompson and Messrs. Billingsley, Moore & Van Fossan, for defendant in error.
   Johnson, J.

This was a proceeding brought in the common pleas of Columbiana county to enjoin the issuing of bonds by the city of Wellsville for the purpose of constructing a municipal electric-lighting plant. The council of the city on August 30, 1912, passed a resolution declaring the necessity for the issuance of bonds for the purpose stated. The resolution provided that the question should be submitted to the qualified electors of the city on the day of the regular election to be held on the 5th of November, 1912. The action referred to was taken under the provisions of Sections 3939 to 3947, inclusive, of the General Code. The proposition was voted on at a special election held on the day named. The special election was conducted independently of the general election. Separate ballots and ballot boxes were provided, but the special election was under the control and supervision of the officers duly appointed to conduct the general election held on that day. The certificate of the mayor and city auditor, filed as required by law, stated that the votes cast in favor of the proposition were more than two-thirds of the total number of votes cast on the proposition. The petition sets forth a number of different grounds upon which the relief was prayed for, among them being that “two-thirds of the voters voting at said pretended election held November 5, 1912, did not vote in favor of issuing said bonds.” -There was a general denial of these allegations in the answer.

The court of common pleas enjoined the issue and on appeal the court of appeals entered the same decree. It is stated in the entry of the decree of the latter court that “two-thirds of the voters of said city voting upon said proposition did not vote in favor of issuing said bonds, and the defendants are therefore without lawful authority to issue and sell said bonds.” The determination of the issues made by the pleadings involved the construction .of the statute under which the election was held.

It is conceded that there were a number of blank ballots and a number of unintelligible ballots cast at the election and that if these should be counted against the proposition it would be lost. The court below was of the opinion that before the proposition could be adopted it was necessary that two-thirds of all of the votes cast at the election should be in its favor.

Section 3947, General Code, is as follows: “If two-thirds of the voters voting at such election upon the question of issuing the bonds vote in favor thereof, the bonds shall be issued. Those who vote in. favor of the proposition shall have written or printed on their ballots, ‘For the issue of bonds’; and those who vote against it shall have written or printed on their ballots, ‘Against the issue of bonds.’ ”

The cases of Enyart et al. v. The Trustees of Hanover Township, 25 Ohio St., 618, and The State, ex rel., v. Foraker, Governor, 46 Ohio St., 677, are cited by the defendant in error in support, of the judgment below.

In the former case it was held that “Where an act of the legislature authorized the trustees of a township to levy a special tax, with a proviso 'that said trustees shall not cause said levy to be made until a majority of the electors of said township, at some regular election, shall vote in favor of said levy/ it required a majority of all the votes cast at such regular election, and not simply a majority of those voting for or against the levy.”

The court say: “In this case the entire number of votes cast for president and vice-president furnished the basis by which it is to be determined whether or not the levy was authorized.” The statute itself fixed the proportion required — a majority of electors at some regular election.

In The State, ex rel., v. Foraker, Governor, supra, an amendment to the constitution was submitted under the provisions of Section 1 of Article XYI of that instrument which provided for the publication of the proposed amendment prior to the next election for senators and representatives, and “if a majority of the electors, voting at such election, shall adopt such amendments, the same shall become a part of the constitution.”

The court held that a majority of all the votes cast at the “election for senators and representatives” was required for the adoption of such an amendment. In the opinion of the court it is pointed out that the constitution makes a different requirement as to an amendment submitted by a convention called for that purpose in pursuance of the constitution from that made in Section 1 of Article XVI. It is provided in Section 3, Article XVI, that no amendment submitted by a convention called for that purpose shall take effect until submitted to the electors of the state and adopted by a majority of those “voting thereon.” But as to an amendment submitted by the legislature Section 1, Article XVI, as then in force, provided that the proposed amendment should be published prior to an election for senators and representatives and if a majority of electors “voting at such election” shall adopt such amendment, the same shall be a part of the constitution.

The court say: “If then it was intended that a majority of those voting on an amendment, submitted by the legislature, should be sufficient to adopt it, the question arises, why language equally clear and explicit was not adopted to express such intention in the one case as well as in the other; or why, instead of limiting the provision contained in section 3 to amendments ‘agreed upon by any convention,’ it was not extended so as to include an amendment submitted by any legislature. It would have been natural, and it is probable, that if the framers had had the same intention in framing section 1 as in framing section 3, as to how the majority for the adoption of an amendment should be ascertained, they would have provided in that section as in section 3, that it should be a majority ‘of those voting thereon’ instead of a majority ‘of the electors voting at such election.’ Such a plain difference of language indicates a plain difference of intention.” The difference of requirement and intention indicated by the court in that case is plainly disclosed in the language used by the legislature in Section 3947 above quoted. It will be noted that the provision is, “If two-thirds of the voters voting at such election upon the question of issuing the bonds vote in favor thereof,” etc.

Section 5070, General Code, provides rules which the elector shall observe in marking his ballot. Subdivision 7 of that section provides: “If the elector marks more names than there are persons to be elected to an office, or if, for any reason, it is impossible to determine the voter’s choice for an office to be filled, his ballot shall not be counted for such office.”

By analogy, if it is impossible to determine the answer of an elector to a question submitted at the election, his ballot should not be counted upon that question. A ballot is merely the instrument by which a voter expresses his choice between candidates or on a question, and where the voter expresses no choice he has not voted for either candidate nor on the question. If upon any proposition the law requires that there shall be a majority of the votes cast at the election in order that the proposition should carry, it would be necessary to reckon with his vote. But if it is necessary to have - a majority of those voting at such an election upon the question, his vote would not be reckoned with, for he did not vote upon the question.

In order to prevent the casting of more than one ballot by any elector on any pretext the legislature provided in Section 5075, General Code, that when a person has received an official ballot from an election officer, and has delivered it to the officer in charge of the ballot box at the time, and such ballot has been deposited in the ballot box, such person shall be deemed to have voted. The elector who has thus caused a ballot to be deposited has exhausted his privilege. A number of cases have been gathered and cited in the briefs. An examination of them discloses that courts have adopted the interpretation required by the language of the respective statutes involved. We think the court' of appeals erred in its judgment for the reasons stated. There were other grounds stated in the petition for injunction which were met by the answer. The contentions of the parties as supported by the record have been carefully examined by us and upon these we think that the issue must be resolved in favor of the defendants.

The judgment of the court of appeals will be reversed and the petition of the plaintiff dismissed.

Judgment reversed.

Nichols, C. J., Donahue, Wanamaker and Wilkin, JJ., concur.