text:
    The State, ex rel. The Hartford Life Insurance Co., v. Douds et al.

      Writ of prohibition — Purpose and scope.

    (No. 15628
    Decided July 3, 1917.)
    In Prohibition.

      Messrs. Jones, Hocker, Sullivan & Angert and Messrs. Arnold & Game, for relator.

      Mr. Smith W. Bennett, for respondents.
   This case came on to be heard on the petition of the relator, the answer of the defendants, and the demurrer of the relator to such answer, and was argued by counsel. The court finds that said demurrer searches the record and raises the question of the sufficiency of the facts and allegations set forth in the said petition and the right of the relator upon such facts and allegations to have and receive the relief therein prayed for, and the court now therefore coming to consider said demurrer as a demurrer to the petition finds that the same is well taken upon the cases of State, ex rel. Nolan, v. ClenDening et al., 93 Ohio St., 264; State, ex rel. Garrison, v. Brough et al., 94 Ohio St., 115; State, ex rel. Barbee, Exr., v. Allen, Probate Judge, ante, 10, and State, ex rel. Faber, v. Jones et al., Judges, 95 Ohio St., 357, in that said facts and allegations of such petition are .insufficient, and do not entitle the relator to the relief prayed for, and does therefore sustain such demurrer as a demurrer to said petition.

The relator not desiring to plead further herein it is ordered and adjudged that said demurrer as a demurrer to the petition be and the same is hereby sustained, that the alternative writ heretofore allowed herein be quashed, that the writ of prohibition and relief prayed for by the relator in said petition be and the same is hereby refused and denied, and that said petition be and the same is hereby dismissed.

Writ denied.

Wanamaker, Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Slusser v. Baker.

      Election contest — Probate judge — Corrupt practices act — Procedure.

    (No. 15638
    Decided July 3, 1917.)
    Error to the Court of Appeals of Summit county.

      Messrs. Payer, Winch. Rogers & Minshall, for plaintiff in error.

      Messrs. Decker & Platt, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the court of appeals be, and the same hereby is, reversed, for the reason that it appears from the record that the contestor was not entitled to judgment against the contestee in this proceeding. Even if it be proven that there was a violation of the section of the statute under which this proceeding is brought it would not constitute a ground for removal. And coming now to render the judgment that the court of appeals should have rendered, it is hereby ordered and adjudged that the judgment of the court of common pleas be, and the same is hereby, affirmed.

Judgment of the court of appeals reversed and that of the court of common pleas affirmed.

Nichols, C. J., Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.

Wanamaker, J., not participating.


text:
    The State, ex rel. McGhee, Atty. Gen., v. Walters et al.

      Supreme court—Jurisdiction — Quo warranto — Injunction.

    (No. 15649
    Decided July 3, 1917.)
    In Quo Warranto.

      Mr. Joseph McGhee, attorney general; Mr. C. A. Radcliffe and Mr. Frank Davis, Jr., for relator.

      Messrs. Squire, Sanders & Dempsey and Mr. Robert F. Denison, for respondents.
   This day this cause came on to be heard upon the petition of the relator, the joint answer of .Charles W. Walters and The Cleveland Stone Company, the reply of relator thereto, and the evidence, and was argued by counsel. And the court being fully advised in the premises find that a railway corporation has been organized under the laws of Ohio to take over and operate as a common carrier that portion of the tracks formerly owned by The Marietta, Columbus & Cleveland Railroad Company lying between Vincent, Ohio, and Moore’s Junction, Qhio, in accordance with the prayer and demand of relator’s petition, and that for that reason all questions touching the right or authority of said defendants or either of them to operate that portion of said railroad as an industrial branch is eliminated from the consideration of this court in this case.

And the court further find, in reference to the further allegations in relator’s petition, that it has no jurisdiction, in an action in quo warranto, to grant relief by way of injunction, other than as incident to and necessary for the enforcement of the provisions of Sections 12303 and 12304, General Code,' authorizing an action in quo warranto, and that the further averments of said petition do not bring this cause within the provisions of either of said sections, and that the sole and only relief sought in plaintiff’s petition is an injunction restraining acts not corporate in their character, and that this court has no original jurisdiction in an action where injunction is the sole relief prayed for and not merely incident to a suit in quo warranto.

The court further find that the nonanswering defendants Robert Grant and Harris Brothers are mere nominal defendants, and for the reasons aforesaid, the petition of relator is dismissed and defendants discharged without day.

Writ denied.

Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.

Nichols, C. J., and Wanamaker, J., dissent.


text:
    No. 15325.
    John A. Roebling's Sons Co. v. The Troy Trust Co. et al.
    Decided March 20, 1917.
    Error to the Court of Appeals of Marion county.

      Messrs. . Wilkin, Cross & Daoust and Messrs. Tolies, Hogsett, Ginn & Morley, for plaintiff in error.

      Messrs. Finley & Gallinger; Mr. Paul Bonynge; Mr. George B. Scofield and Mr. D. R. Cris.singer, for defendants in error.
   Judgment affirmed.

Wanamaker, Newmán, Jones and Johnson, JJ., concur.


text:
    No. 15398. and No. 15399.
    Moton et al. v. Kessens, Moton et al. v. Dewell et al.
    Decided March 20, 1917.
    Error to the Court of Appeals of Mercer county.

      Mr. William E. Henderson and Mr. L. H. Shipman, for plaintiffs in error.

      Mr. John W. Loree; Mr. P. E..Kenney and Mr. John G. Romer, for defendants in error.
   Judgments affirmed. See journal entry. (Same journal entry in both cases.—Reporter.)

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; for the reasons:

First. That the will of John Randolph, deceased, vested in William Leigh, as executor, full power, authority and discretion to determine the location, plans, methods and means of transporting and settling the manumitted slaves of John Randolph in some state or territory of the United States, other than the State of Virginia, in which state the testator resided at the time of his death, all of which not only appears by the direct terms of the will, but by the further provision therein, that “no inventory or appraisement be made of my estate, and no security shall be required of my said executor for the faithful discharge of the trust imposed in him, — his own character being the best security, and when that is wanting, all other is unavailing.” That in the exercise of the absolute and unlimited discretion so vested in him, the said William Leigh, as such executor, purchased after the death of John Randolph, the lands described in the petition, together with a large amount of other land adjoining and surrounding the same, for the evident purpose of settling the manumitted slaves of John Randolph upon this land, and in pursuance of such purpose undertook to transport them and settle them upon it, but that the people then living in the locality of these lands, with force and arms and by menaces and threats of violence, interrupted the transportation of these former slaves while en route to these lands and before they had reached the same, and compelled the said Wdliam Leigh, as executor, in the interest and safety of these people to abandon these lands for the purposes for which he had purchased the same, and seek another locality, in which they might be settled in peace and safety. That the said William Leigh, executor, in the exercise of the discretion vested in him by the will of John Randolph, deceased, had the right and authority at any time before putting these former slaves in possession of these lands, for reasons which might be satisfactory to him, to abandon this location and select another in which Jo settle these former - slaves, and that the conditions that confronted him at that time and the necessity of making such change in location were so apparent, that he not only exercised a sound discretion in doing so, but in the interest of the peace and safety of these former slaves, he was absolutely compelled to make such change in his original plans, and seek another location for their homes. That the lands he had so purchased, and taken the title in his own name, having thereby become absolutely useless to him for the purposes for which he had purchased the s^me, he had full power and authority to sell and dispose of these lands, and apply the proceeds arising from such sale, to the cost of transporting and settling these former slaves in homes in other localities, and that in the absence of proof to the contrary, the presumption obtains that the funds were properly expended in accordance with the terms and provisions of the will, in so far as the amount received therefrom was sufficient for these purposes, and that these beneficiaries of the will of John Randolph received. in full the benefits of all the funds arising from the sale of these lands.

Second. That said manumitted slaves of John Randolph never were put in possession or occupation of these lands, nor were the same or any part thereof ever allotted to any individual in such manner as to vest in any one of these individuals, any right, title, or interest in any specific part or parcel of this land. That but few of these manumitted slaves were entitled under the will of John Randolph, to receive land, and they could acquire no right or title in law or equity to any particular land until the same was specifically aparted or allotted to them. That the rights of those entitled to land were not rights in common, but individual and specific rights to particular lands after the same had been allotted to each in severalty, and after such allotment their rights thereto either at law or in equity must be established in a separate and individual action and not as a class.

Third. That John Randolph was never seized of these lands in his lifetime; that the title was taken in the name of William Leigh, executor, who was vested with full right and authority by the will of John Randolph, to dispose of the same before putting these manumitted slaves in occupation thereof and devote the proceeds of such sale to the same purposes for which he had acquired the land, and that if any trust arose in these lands by reason of the purchase of the same with trust funds, that trust was divested by their sale occasioned by the necessity of the conditions that confronted the trustee in his efforts to administer this trust properly and effectively, and attached to the purchase money received therefor.

Fourth. That if under the laws of Virginia, it was necessary for William Leigh, executor, to obtain the consent and order of a court of competent jurisdiction to sell lands of which his testator had not died seized, but were purchased by the executor after the death of his testator in pursuance of the authority and discretion vested, in him by the will, the presumption obtains that such order and direction of a court of competent jurisdiction was obtained prior to the sale and conveyance of the lands, and that he fully accounted for the proceeds of the sale; that no evidence was offered to the contrary, and that by reason of the fact that the records of the proceedings of the executor and the settlements made by him were destroyed by fire when the court house in Richmond, Va., was burned almost fifty years before the commencement of- this action, the burden is upon the plaintiffs to prove by preponderance of the evidence that no such order was obtained and that no record thereof was ever made.

Fifth. That no evidence was offered tending to prove, that William Leigh, executor, had not fully, properly, and honestly administered his trust, according to intent and purpose of the testator and according to the terms and directions contained in the will of John Randolph, or that the beneficiaries of the trust created by this will have not received the full benefit of the entire trust fund including the part invested in these lands and restored to the trust funds from the proceeds'of their sale.

Sixth. That it appears from the evidence, that these manumitted slaves were fully advised of their destination and of the fact that these lands had been purchased for their use in Mercer county, and if William Leigh as executor had no power or authority to sell said lands and apply the proceeds. of the sale of their uses in other localities, that his act in so doing was an open, notorious violation of his trust, known to them and acquiesced in by them at the time, and this action is barred by the statute of limitations.

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

Matthias, J., not participating.


author: Johnson, J.

text:
    Mumaw v. The Western & Southern Life Insurance Co.

      Insurance — Construction favoring insured — Intent of contract — . Conditions precedent — Burden of proof — Health of insured— ■ Interpretation of contracts.

    I. Policies of insurance which are prepared by the insurance company and which are reasonably open to different interpretations will be construed most favorably to the insured. Courts will o;f •fiavcscrin mind the relation of the parties to each other. They will give the language of the contract the meaning on which -the minds of the parties may be said ;to have met and which will effectuate their object in entering into it.

      2. Whether a provision in a contract constitutes a condition precedent or a warranty of a fact vital to the contract is a question of intent; and the intention will be ascertained by considering the language not only of the particular provision, but of the whole contract and its subject-matter.
    3. In an action on a policy of life insurance which contains the following provisions, “But this contract shall not be in force unless the first weekly premium has been paid, and the insured is alive and in sound health upon the date hereof, meaning thereby and referring solely to the state of health of the insured at the date of the delivery of this policy, and not to any changes which may have taken place in the health of the insured, between said date and any previous date; and shall also be void -if the insured before its date, has been rejected for insurance by this or any other company, or has been attended by a physician for, or has had before said date any tubercular disease or consumption, or chronic bronchitis, or cancer, or epilepsy, or disease of the brain, heart, liver or kidneys and the evidence or testimony of any physician to, or medical adviser of, the insured as to such diseases or complaints shall be admissible,” the breach of such provisions is matter of defense. The burden of proving the breach is upon the defendant.
    (No. 15478
    Decided November 6, 1917.)
    Error to the Court of Appeals of Ashland county.
    Plaintiff in error brought suit against the defendant in error, an Ohio life insurance company, in the court of common pleas of Ashland.
    She brought her suit as the beneficiary under an insurance policy issued by the defendant upon the life of her husband. In her petition she averred that the policy was issued on the 20th day of May, 1914, in consideration of the weekly premium payments of 20 cents per week, and averred that all payments were made as provided in the policy. She averred that defendant, by its agents and officers duly authorized, made and delivered to her husband its policy of insurance upon his life, payable to the plaintiff as beneficiary under the terms of the policy, and thereby insured the life of said John W. Mumaw in the sum of $448, payable to the plaintiff within twenty-four hours after the death of said John W. Mumaw on receipt by the defendant at its office, of proof of the death of the insured, made upon blanks furnished by the defendant, together with a full statement of the nature of the claimant’s interest and demand. She averred that her husband died on the 23d of April, 1915; that proof of his death was furnished the defendant; that the policy was delivered to the defendant with proof of loss; and that she was unable to set out a copy of the policy of insurance in the petition for the reason that the same had been delivered to the defendant, but that all conditions and requirements of the policy had been complied with.
    In its answer the defendant admitted its incorporation; the issuance and delivery of the policy sued on; that the premiums were paid until the death of Mumaw on the 23d of April, 1915; that proofs of death were furnished; and that it has not paid the amount of the policy. Defendant denied each and every other allegation of the petition.
    For a second defense the defendant alleged that it was one of the conditions of the policy that it was not to be in force unless the insured is alive and in sound health upon the date thereof, and defendant averred that said insured, John W. Mumaw, was not in sound health upon said date, and that no proofs to the contrary had been produced and presented to the defendant.
    For a. third defense defendant alleged that it was a condition of the said policy that the same should be void “if the insured before its date had been attended by a physician for, or has had, any tubercular disease,” and further alleged that Mumaw “was attended by a physician for a tubercular disease in the months of May, June and July, 1912, and also in the month of November, 1913, and that the death of said John W. Mumaw finally resulted from such tubercular affection.”
    A fourth defense, which was included in the amended answer filed on the day of trial, by leave of court, contained the averment that one of the conditions of the policy was that the said policy shall be void if there be any previous policy in force, issued by the said defendant company on the same life, unless the existence of such previous policy be noted by an endorsement upon such subsequent policy, signed by the president or secretary of the company; and said defendant avers that on the- 6th of May, 1912, a prior policy was issued by the defendant company upon the life of the said decedent, John W. Mumaw, but that no endorsement was placed by defendant company upon the policy in question in this suit, such previous policy being in full force and effect on the 18th of May, 1914.
    On the trial the plaintiff called the agent of the defendant company, who, as such witness, produced the policy sued on, which was introduced in evidence. No further evidence was offered by the plaintiff, and the court, on motion of the defendant, instructed the jury to render a verdict for the deferldant, which was done. A motion for a new trial was overruled and judgment was entered, which was affirmed by the court of appeals. This proceeding is brought to reverse the judgments below.

      Messrs. Mykrantz & Patterson, for plaintiff in error.

      Messrs. Semple & Sherick, for defendant in error.
   Johnson, J.

The plaintiff brought her suit as the beneficiary under an industrial insurance policy. The defendant admitted the issuance and delivery of the policy; that the premiums were paid until the death of the insured; that proofs of death were furnished; and that it has not paid the amount of the policy. The controversy arose out of the following provisions therein: “But this contract shall not be in force unless the first weekly premium has been paid, and the insured is alive and in sound health upon the date hereof, meaning thereby and referring solely to the state of health of the insured at the date of the delivery of this policy, and not to any changes which may have taken place in the health of the insured, between said date and any previous date; and shall also be void if the insured before its date, has been rejected for insurance by this or any other company, or has been attended by a physician for, or has had before said date any tubercular disease or consumption, or chronic bronchitis, or cancer, or epilepsy, or disease of the brain, heart, liver or kidneys and the evidence or testimony of any physician to, or medical adviser of, the insured as to such diseases or complaints shall be admissible.”

Defendant pleaded noncompliance on the part of insured with the provisions quoted. The trial court entertained the view that upon the issue thus tendered the burden of proof rested upon the plaintiff, and, therefore, after the plaintiff had introduced the policy and rested her case, sustained the motion of the-defendant to instruct a verdict in its favor.

The contention is that the provisions quoted constitute conditions precedent, and that the burden was cast upon the plaintiff to prove compliance with those conditions.

There is a conflict in the decisions of the courts of this country on that question. The courts of appeals of this state are not in harmony concerning it, and the case of Prudential Insurance Co. v. Zimmer, Admr., decided by us this day, was certified here by the court of appeals of Hamilton county on the ground that its judgment was in -conflict with a judgment on the same question rendered by the court of appeals of Highland county.

A policy of life insurance is a contract. It implies a meeting of minds. A contract of life insurance ordinarily, and particularly one such as involved in this case, differs from most other contracts in that it is not entered into for the benefit of the insured, but for some dependent. Its fundamental purpose is to secure by small premiums the payment of a sum certain, to the beneficiary. The rules which control the interpretation of life insurance policies are those which govern contracts generally. They are usually prepared by the company, and, where they are reasonably subject to conflicting interpretations as to the intention of the parties, must be construed strictly against the company. They must be given such a construction as will effectuate and sustain, rather than defeat, the object of parties in entering into them.

Courts should have in mind the parties and their relation to each other when the contract was made, in the effort to find the meaning of provisions upon which their minds may reasonably be said to have met at the time. And in all cases the endeavor should be to arrive at the intention of both parties; of the insured, as well as of the insurer. We suppose these principles to be not open to dispute.

It is urged that the insured will be presumed to have read and understood the terms of his policy; and, in the absence of fraud or circumstances legally shown to the contrary, this is true. But if we adopt the view entertained by the courts below we must find that the insured intended that before his widow should have the right to recover the $448 named in the policy, on his death at some future time, she should be compelled to undertake the task of going into the past and producing affirmative evidence on her side of an issue of wide range tendered by the company concerning the health and condition of her husband at the time of and prior to the issuance of the policy. The difficulties ant impracticable character of such an undertaking are at once apparent.

There has been no decision of this court on the question made in this case, but in Metropolitan Life Ins. Co. v. Howle, 68 Ohio St., 614, the following was held: “Where a policy of life insurance has a condition to the effect that the company assumes no obligation unless the insured is at the date of the policy alive and in sound health, and there is an issue as to whether at that time the insured was in sound health, the insurance company is entitled upon the trial to have the jury instructed unconditionally to find for the company in case they find that the insured was not in sound health at the date of the policy.”

The defendant in that case offered testimony tending to show that on the date of the issuance of the policy the insured was not in sound health. There is in that case no expression of opinion by the court as to where the burden of proof upon that issue rested. So far as the record discloses the trial may have proceeded on the theory that the defendant had the burden. There is in the proposition above stated no requirement that the jury must find affirmatively that the insured was in sound health. It is wholly unnecessary here to enter into an examination of the cases on the different sides of this question. The same general reasons are given by the different courts, varying in accordance with the conclusion adopted.

On the question of the nature of the provisions under consideration it is said in Chambers v. Northwestern Mutual Life Insurance Co., 64 Minn., 495, 497: “A condition precedent, as known in the law, is one which is to be performed before the agreement of the parties becomes operative. A condition precedent calls for the performance of some act or the happening of some event after the contract is entered into, and upon the performance or happening of which its obligation is made to depend. In the case of a mere warranty, the contract takes effect and becomes operative immediately. It is true that, where a policy of insurance so provides, if there is a breach of a warranty, the policy is void ab initio. But this does not change the warranty into a condition precedent, as understood in the law. It lacks the essential element of a condition precedent, in that it contains no stipulation that an event shall happen or an act shall be performed in the future, before the policy shall become effectual. It is more in the nature of a defeasance, where the insured contracts that, if the representations made by him are not true, the policy shall be defeated and avoided. But, even if these warranties are to be deemed conditions precedent, it has become settled in insurance law, for practical reasons, that the burden is on the insurer to plead and prove the breach of the warranties.”

The case which has probably come to be regarded as the leading one in support of the opposite view is that of Lee v. Prudential Ins. Co., 203 Mass., 299. In that case the defendant contended that-the payment of the premium while the insured was in good health was a condition precedent to the policy’s taking effect, and that it was incumbent upon plaintiff to prove, not only that the policy was delivered, but that the first premium was paid while the insured was in good health. This was held to be correct. The court, however, point out that the ruling of the trial court went further, to the effect that there was no evidence to submit to the jury on this point, and a verdict for the defendant was directed.

It will be observed that that was the view of the trial court in the case we are now examining.

As to this ruling of the trial court, in the Lee case, the Massachusetts supreme court says, at page 302: “As the first premium was to be paid at the time of the delivery, it was perhaps a fair matter of inference from the language of the policy as to the consideration, that the defendant’s premium had been paid. There was ground for a contention that the delivery of the policy containing this recital is evidence in the nature of an admission, not binding, of course, that this premium had been paid ‘in the manner specified,’ and that ‘in the manner specified’ meant while the insured was in good health. We appreciate that there might be force in a contention to the contrary. * * * Not only was the policy delivered, but it was delivered by an agent of the defendant, who, to a certain extent, was charged with the duty of ascertaining whether it ought to be delivered, and ought to take effect, and whether the company ought to receive the payment of the premium upon it.”

The exceptions of the beneficiary in that case were sustained on these and other grounds, and it was held that the case should have been submitted to the jury.

In Mohr v. Prudential Ins. Co., 32 R. I., 177, the same view was sustained.

In the Lee case, supra, the court remarks at page 303: “It is matter of common knowledge that life insurance companies do not issue such policies until they have received what they regard as satisfactory evidence that the person to be insured is in good health.”

It is also common knowledge that policies are issued at the solicitation of the company, and it may well be said that it is the duty of the insurance company not to enter into a contract of such a character until it is convinced that the insured is in good health. It would seem to be a just and reasonable proposition that the insured has a right to believe that the company has become so convinced, and to rely on his contract, in the absence of fraud or misrepresentations on his part, or a failure of some warranty made by him. In such -case the company is not denied any proper defense; but, if it asserts a defense, it must assume the burden of proving it. The time to demand from the insured such satisfactory evidence is when the contract is being made and while the insured is alive.

There is general agreement in the definition that a condition precedent is one that is to be performed before the agreement becomes effective.

It calls for the happening of some event, or the performance of some act, after the terms of the contract have been agreed on, before the contract shall be binding on the parties.

In the case of a warranty, the contract takes effect; but it may provide that if there is a breach of the warranty or a misrepresentation of fact the contract is void ab initio.

The term “warranty” is used in various distinct connections. In a note in 40 Cyc., 493, it is said: “Warranty is used as equivalent to a condition precedent in the sense of a descriptive statement vital to the contract.”

Now in this case k does not appear that any application for the policy was made in writing before its issuance. It was delivered and the premium paid. The presumption is that the company then had what it regarded as satisfactory evidence that the insured was in sound health. The provisions in question do not require that “some event shall happen,” or “some act shall be performed” afterwards, in order that the contract shall be in force. They are rather in the nature of a warranty that a certain state of facts which the parties supposed to then exist did in truth exist. That is the construction which the parties themselves placed upon the contract, for they proceeded to carry it out by the payment and acceptance of premiums in accordance with its terms. When the company accepted the premium and delivered the policy it became effective, and, if the insured, relying on the validity of his policy, continued to pay the premiums until his death, and the company continued to receive such payments believing the facts warranted to be true — and it surely would not put'itself in the attitude of asserting the contrary — the policy remains effective unless the company alleges and proves the breach of the warranty. All of the provisions referred to were included in the policy for the benefit of the defendant. Non-fulfillment of them is matter of defense to' be alleged and proved by defendant. Any other rule would impose unreasonable hardships on the plaintiff.

We think that the purpose and intent of the parties in entering upon the contract will be better effectuated by holding that the burden of alleging and proving the noncompliance with those provisions rests upon the defendant company, and that justice requires it.

The judgment below will be reversed.

Judgment reversed.

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


text:
    The Prudential Insurance Company of America v. Zimmer, Admr.
    (No. 15533
    Decided November 6, 1917.)
    Certified by the Court of Appeals of Hamilton county.
    The facts are stated in the opinion.

      Mr. Michael G. Heintz, for plaintiff in error.

      Messrs. Fulford, Shook, Wilby & Fricke, for defendant in error.
   Johnson, J.

The defendant in error brought suit against the plaintiff in error in the municipal court of Cincinnati upon an industrial policy of insurance. The defendant in its statement of defense admitted the issuing qf the policy, the death of the insured, and that the premiums were paid in full during his lifetime. It alleged that the policy contained the provision, “This policy shall not take effect if the insured die before the date hereof, or if on such date the insured be not in sound health, but in either event the premiums paid thereon, if any, shall be returned.”

On the trial the court charged the jury that the burden of proof was on the defendant company to establish that the deceased was not in sound health at the time of the delivery of the policy. Verdict was rendered and judgment entered for the plaintiff below, which judgment was affirmed by the court of common pleas and by the court of appeals.

The court of appeals certified the case to this court for review and final determination, because it found its judgment in conflict with the judgment announced by the court of appeals of Highland county upon the same question in a case decided by that court.

For the reasons given in the opinion in the case of Mumaw v. The Western & Southern Life Ins. Co., ante, 1, this day decided, the judgments of the courts below in this case will be affirmed.

Judgments affirmed.

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


author: Jones, J.

text:
    Creisar v. The State of Ohio.

      Juvenile court — Jurisdiction—Failure to support minor — Section 1655, General Code (103 O.L., 873) — Father of illegitimate child — Paternity not acknowledged — Section 8591, General Code.

    The term “minor” found in Section 1655, General Code (103 O. L., 873), should receive its ordinary legal signification, and so construed embraces only minor children who are legitimate. The juvenile court acting under that section has no authority to proceed and punish the father of an illegitimate child, unless its paternity has been acknowledged after intermarriage in conformity to Section 8591, General Code.
    (No. 15463
    Decided November 6, 1917.)
    Error to the Court of Appeals of Cuyahoga county.
    In an affidavit filed in the insolvency court of Cuyahoga county plaintiff in error was charged with being “the father, and charged by law with the care, support, maintenance and education of William Leopold, a minor under the age of eighteen years,” and, being able to contribute toward the support and education of said minor, with wilfully and unlawfully failing to do so.
    Upon the trial it appeared from the testimony of the prosecuting witness that she was an unmarried woman, and that the child was illegitimate. The defendant upon the trial denied his paternity.
    The defendant was found guilty and sentenced to the Cleveland workhouse for the term of one year and required to pay a fine in the sum of $400. Upon the development of the facts disclosed, the defendant’s counsel moved to withdraw the case from the jury, and also filed motions in arrest of judgment and for a new trial, each of which was overruled.
    . The judgment of the insolvency court was affirmed by the court of appeals, and error is now prosecuted to this court.

      Mr. R. J. Selzer and Mr. C. V. Hull, for plaintiff in error.

      Mr. Samuel Doerfler, prosecuting attorney, for defendant in error.
   Jones, J.

The prosecution was based on Section 1655, General Code, which is a part of the juvenile act, and is as follows:

“Whoever is charged by law with the care, support, maintenance or education of a minor under the age of eighteen years, and is able to support or contribute toward the support or education of such minor, fails, neglects, or refuses so to do, or who abandons such minor, * * * upon complaint filed in the juvenile court, as provided in this chapter, shall be fined not less than ten dollars, nor more than five hundred dollars, or imprisoned not less than ten days nor more than one year, or both.”

The sole question here presented is whether the insolvency court had jurisdiction to inquire into and punish, under the provisions of that section, a father of an illegitimate child. The terms, “minor,” “child” or “children,” utilized in the j'uvenile act, are used interchangeably and have the same legal signification. At common law wherever such terms have been employed they have been held to apply only to those children who are legitimate, and, whether utilized in the statutes of descent and distribution or in connection with criminal offenses, unless such terms have been so enlarged as to include illegitimate offspring, they have invariably been held as applicable only to children born in lawful wedlock.

In the case of Firmeis v. State, 61 Wis., 140, it was held that under a penal law which provided that “If any father shall wilfully abandon his child or children,” etc., such law applied only to the legitimate children of such father, and that the proof must show that the children thus abandoned were legitimate.

And in the case of Overseers of the Poor v. Overseers of the Poor, 176 Pa. St., 116, under a poor-settlement law which provided that a settlement could be gained “by any unmarried person not having a child,” etc., it was held that the word “child” referred to in the act means one who is ’ legitimate.

A comparison of Section 1655, General Code, with Section 13008, General Code, clearly evidences the fact that the juvenile section above named relates entirely to the parental duty in relation to • those children only who are legitimate and constitute the family group. The latter section is the only criminal section of the Ohio code which explicitly deals with illegitimate children and the parental obligation to provide for them home, care, food and clothing. That section is as follows:

“Whoever, being the father, or when charged by law with the maintenance thereof, the mother, of a legitimate or illegitimate child under sixteen years of age, or the husband of a pregnant woman, living in this state, being able by reason of property, or by labor or earnings, to provide such child or such woman with necessary or proper home, care, food and clothing, neglects or refuses to do so, shall be imprisoned in a jail or workhouse at hard labor not less than six months nor more than one year, or in the penitentiary not less than one year nor more than three years.”

The fact that the legislature of the state used the term “illegitimate” in this section is .significant, and is evidence that the legislative intent was to confine parental obligation in relation to illegitimate children within the requirements of that and the succeeding section. It is significant also that the succeeding section, 13009, General Code, penalizes only the abandonment of legitimate children.

If the construction of Section 1655, General Code, urged by the state, were adopted, applying its provisions alike to legitimate and illegitimate children, then under the provisions of that section the father would be required not only to contribute to the support but to the education of the illegitimate child, and furthermore would be criminally punished if he abandoned it; whereas under Sections 13008 and 13009, General Code, referring explicitly to illegitimate children, neither is their education required, nor abandonment prohibited. But abandonment of a legitimate child is expressly prohibited thereby.

The fact that both the juvenile section referred to and Section 13008, General Code, were amended by the same session of the general assembly (99 O. L., 196, Sec. 15; 99 O. L., 228, Sec. 1), and that a class of obligations was imposed in the one act and omitted in the other, seems conclusive that the support, education and abandonment referred to in the former act apply only to minor children who are legitimate. Any other construction of the juvenile section would place the illegitimate child upon the same plane as that of children born in lawful wedlock. It would require its reasonable education, where maintenance simply has been provided for by the bastardy act; and, although furnishing the full legal measure for its maintenance, care and support, it would deny the convicted parent the right of personal abandonment of an illegitimate child, which is altogether out of harmony with Section 13008, General Code. A full and complete remedy has been provided in cases of this character by indictment and prosecution under that section, which remedy should be invoked rather than the 'filing of an affidavit in the juvenile court under the juvenile act. This remedy by indictment, in cases relating to illegitimate children, was pursued in the following cases: Ogg v. State, 73 Ohio St., 59; State v. Veres, 75 Ohio St., 138; and State v. Teal, 77 Ohio St., 77.

The legal obligation for the father’s support of his minor children is expressly provided by Section 7997, General Code. This parental duty attaches to children adopted under the adoption statutes and to illegitimate children acknowledged by him after intermarriage in pursuance of Section 8591, General Code.

Undoubtedly, under the provisions of the juvenile statutes, the court has plenary jurisdiction over children, legitimate or illegitimate, for protective and corrective purposes; and this jurisdiction extends to any person, parental or otherwise, who may contribute to their delinquency. We therefore hold that Section 1655, General Code, in so far as it attempts to penalize a parent for the neglect, non-support and abandonment of minor children, relates only to those minors who are legitimate. In the case of State v. Bone, 25 C. C., N. S., 447, the court of appeals evidently held a different view from the principle here announced, and in that case this court refused to certify the record for review. In this court the state filed no brief. An examination of the brief of counsel for Bone discloses that the only point presented in this court was the contention that the municipal court had no jurisdiction to render a final judgment in said case, for the reason that the affidavit was based on Section 13008, General Code, and, being a felony, the municipal court should have bound the defendant over to the grand jury. The particular question raised in this case — the illegitimacy of the child — was not called to the attention of this court so far as we were apprised by the brief filed.

The judgments of the court of appeals and the insolvency court are reversed, and the plaintiff in error discharged.

Judgments reversed.

Nichols, C. J., Newman, Matthias, Johnson and Donahue, JJ., concur.


author: By the Court.

text:
    The State, ex rel. Jones, v. O’Dwyer et al., Board of Deputy State Supervisors, Etc.

      Elections — Municipal — Death of candidate — Filling vacancy — Absence of charter or statutory provisions.

    (No. 15778
    —Decided October 23, 1917.)
    In Mandamus.
    This is an action in mandamus by which the relator seeks to compel the defendants to place his name upon the municipal ballot of the city of Toledo, Lucas county, Ohio, for the election to be held in November, 1917. By virtue of the provisions of the charter of Toledo, regularly adopted, a primary election for municipal officers was held in said city on the 11th of September, 1917, and, among others, three candidates for mayor were nominated, to be voted for at the ensuing November election. One George A. Murphey was so nominated, but on the 29th of September, 1917, said Murphey died. Thereafter, on October 4, 1917, certain electors who had theretofore signed the declaration of candidacy of said George A. Murphey, and who had been declared by him to be the committee authorized to fill the vacancy, should any vacancy occur by reason of death or otherwise, selected as a substitute candidate the relator in this cause, Alvin C. Jones, and on October 5, 1917, duly certified his name to the deputy board of supervisors and inspectors of elections of Lucas county.
    On the same day, October 4, 1917, the party organization and interest that had contributed to the candidacy of said George A. Murphey, and styling themselves “The Murphey Campaign Committee,” called a convention and adopted a resolution instructing the chairman and secretary to certify the name of said Alvin C. Jones to said board of elections to fill the vacancy caused by the death of said George A. Murphey. Said certificate was duly filed with the defendants herein, but the defendants then refused and do now refuse to recognize such certification, or to place the name of said Alvin C. Jones as a candidate for mayor upon said municipal ticket.
    Is the relator entitled to the relief he here seeks?

      Mr. John Schlatter; Mr. Robert V. Phillips; Mr. Raymond T. Garrison and Mr. S. S. Burts field, for relator.

      Mr. John C. D’Alton, prosecuting attorney, and Mr. Allen J. Seney, assistant prosecuting attorney, for defendants.
   By the Court.

Whatever rights the relator has in this cause must arise either out of the charter of the city of Toledo or the statutes of the state of Ohio pertaining to the filling of vacancies.

We find in the charter no authority whatsoever for the filling of vacancies. The statute formerly relating to vacancies in municipal elections has been repealed and the amended statute relating to municipal elections has omitted all reference to municipal candidates.

The writ is denied.

T77 Writ denied.

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


text:
    The State, ex rel. McGhee, Attorney General, v. The Black Diamond Company.

      Railroads — Purchaser at judicial sale — Common carrier — Operation for private purpose — Rights of general public.

    Where a railroad company organized under -the laws of the state, with authority to exercise the sovereign power of the state, has constructed and operated as a common carrier a line of railroad, portions of which are along and across public highways, or other railroads, such railroad becomes impressed with a public interest. A purchaser thereof, either at judicial sale or otherwise, has no right to operate it for its own private purpose or the purposes of those with whom it may privately contract, to the exclusion of the public.
    (No. 15671
    Decided November 13, 1917.)
    In Quo Warranto.
    This proceeding in quo warranto is brought by the attorney general to oust the defendant company, an Ohio corporation, from the right to own, operate and control that portion of The Marietta, Columbus and Cleveland Railroad which lies north and west of the first now-existing public road-crossing south or east of Curtis Junction, said portion being located in the counties of Athens and Morgan, state of Ohio, and in length about 16.5 miles. The petition alleges that the defendant, in claiming to own and control said portion of said railroad and in controlling and operating the same as a railroad, has assumed franchises and privileges not granted to it. It alleges that the said railroad is a public railroad under the laws of Ohio, and that the defendant has no right, authority or power to own, operate or control the same, or any part thereof.
    The petition alleges that in its articles of incorporation the purpose of defendant was stated to be:
    “Said corporation is formed for the purpose of acquiring,' holding and owning either by purchase or lease, coal, clay and other mineral lands, and such other real estate as may be necessary for the purpose of its business; of mining, shipping and selling -coal, clay and other minerals; of manufacturing, shipping and selling coke, clay, brick and all other mineral products; of buying and selling coal, coke and other mineral products; of conducting and carrying on general supply stores and general merchandise business necessary to the proper conduct of its business; of constructing and owning railroads with single or double tracks, switches, sidetracks, tramways, turnouts, offices and depots as may be necessary in order to connect its mines and properties with any other railroad or navigable watercourse, and in general, to do any and all things reasonable and necessary to be done to carry out the general objects of the incorporation.”
    In its answer the defendant admits that since November 28, 1916, it has owned and operated, in its business of coal mining, the portion of the railroad property described in the petition, but denies that it has done so unlawfully. It denies that it has operated the same as a common carrier or held itself out to be a common carrier, and denies that the portion of the railroad described is a public railroad.
    Further answering it says that the railroad known as The Marietta, Columbus & Cleveland Railroad has for many years last past been totally insolvent and unable to meet its operating expenses.
    It avers that in a foreclosure proceeding in the common pleas court of Washington county, said railroad was sold; that at the time of the sale, in open court, and before the confirmation of the sale, the bidder advised the court that if the sale was confirmed he would discontinue the operation of the road as a common carrier, and ■ would dismantle and sell the same for scrap; that the court confirmed the sale, knowing and reciting in its order of confirmation that said railroad would not be operated as a common carrier, but would be scrapped, and directed its receiver to discontinue passenger, mail, express and freight service; and that said court has certified to the secretary of state, and other departments, that said company has surrendered its franchise and discontinued the operation of the road.
    Defendant avérs that it has for many years operated a coal property on the portion of the road described in the petition, and is without the means of conveying its coal to market other than by the tracks of said railroad; that it was obliged to and did buy from the purchaser of said road, under the order of the court, that portion of the railroad which leads from its mines to the nearest railroad, The Toledo & Ohio Central; that it has a right, under its charter, to operate a railroad as a switch from its mines to the nearest connecting railroad, and without such rights its property would be wholly destroyed; and that it has no right to become a common carrier and that to incorporate a company for such purpose would practically take away all profit from the normal operation of its business.
    The relator in his reply admits that the foreclosure suit was brought, but denies that a proper sale of said railroad was made in said proceedings, or that the defendant had any authority to purchase any part of same; he avers that the said railroad company was incorporated as a railroad company under the laws of Ohio; that the railroad was operated by said company and its predecessors as a public railroad for more than forty years in the counties of Washington, Athens and Morgan, in the state of Ohio; that its right of way was acquired under the laws of Ohio governing the acquisition of rights of way by railroad companies; that said railroad was operated continuously as a freight and passenger road' from the time of its construction to November 1, 1916; that it passes through a very-rich coal field and serves a large number of cities and villages, which are named, and which are wholly dependent for railroad transportation on said railroad; and that during the years in which it has been in operation large investments have been made and extensive enterprises founded and carried on by the public generally, solely on account of the facilities offered by the railroad as a public corporation.
    The reply sets out the steps taken in the foreclosure proceedings referred to and alleges that no application was made in said action to sell said railroad other than as a single and entire railroad; that no application was made in any way for authority to abandon said railroad or sell any part of the same as junk; and that no such order was made.
    It alleges that the purchaser at the foreclosure sale, H. H. Isham, claimed to assign to one Earnshaw, president of the defendant, all his right and interest in that portion of the said railroad above described; that the receiver subsequently made a deed purporting to convey the same to said Earnshaw, and that since that time the defendant has operated said portion solely for its own use and has refused to furnish service to anyone else except to four favored shippers for whom it has been rendering services, and in whose favor it has been discriminating since its control of said railroad; and that it is now assuming and exercising rights, privileges and franchises it does not possess, in that it had no right to purchase or assume the ownership of the portion of the railroad referred to, or to operate the same for the sole use of itself and certain favored shippers, and no right to operate it at all.
    The relator in his reply also denies that there is not sufficient freight outside of that furnished by defendant to justify the operation of trains or the furnishing of service to the public.
    By a stipulation of the parties the cause was heard on an agreed statement of facts, which includes a copy of the journal entries in the foreclosure suit referred to and other matters which will be referred to.

      Mr. Joseph McGhee, attorney general; Mr. C. A. Radcliffe and Mr. Frank Davis, Jr., for the relator.

      Mr. Talfourd P. Linn, for the defendant.
   Johnson, J.

From the papers referred to in the stipulation it is shown that The Marietta, Columbus & Cleveland Railroad Company was incorporated as a railroad company under the laws of Ohio, and for many years operated its line of railroad as a common carrier through the counties of Washington, Athens and Morgan. Its right of way was acquired under and by virtue of the laws of Ohio governing the acquisition of rights of way by railroad companies. Whatever rights the public has in connection with the railroad and property of a corporation created by the state and organized under its laws as a common carrier it had in this railroad.

In July, 1914, the common pleas court of Washington county on the application of the Columbia-Knickerbocker Trust Company of New York, as trustee, holding a mortgage on the property of the company, appointed a receiver who continued the operation of the railroad in that capacity. In June, 1916, the court ordered the advertisement and sale by the receiver, as special master commissioner, of the property encumbered by the mortgage, “as a single and entire railroad property.” The property was so advertised, and in September, 1916, the receiver reported that he had sold'the property, “as a single and entire railroad property,” to one H. H. Isham, and the court thereafter confirmed the sale “as a single and entire railroad property.”

Prior to the execution of the deed the purchaser assigned to Charles W. Walters about 30 miles of the road between Curtis Junction and Marietta, and to J. H. Earnshaw, the remainder of the road, from Sharpsburg through Curtis Junction to Palos, about 16.5 miles. Deeds for the portions designated were executed and delivered to those persons.

The defendant in this case acquired from Earnshaw the portion deeded to him.

The complaint here is that The Black Diamond Company, contrary to law, assumes to exercise franchises and privileges not allowed to it, and now operates said railroad for its own purposes solely; that it wholly excludes the public from any right or benefit in the use of said railroad as a common carrier. The defendant claims that it rightfully purchased the portion of' the railroad referred to and that it uses the same as an industrial switch from its coal mines to the nearest connecting railroad. It admits that it has contracted with four parties by special contracts to carry their freight, expressly providing that it does not do so as a common carrier.

The purpose clause of the articles of incorporation of the defendant company includes the provision, “of constructing and owning railroads with single or double tracks, switches, sidetracks, tramways, turnouts, offices, and depots, as may be necessary in order to connect its mines and properties with any other railroad or navigable watercourse.” It asserts that its right is based on Section 10141, General Code. Under that section mining companies are authorized to construct such a switch as above described from their mine to any other railroad, and it is provided in respect to such switch that “they shall be subject to and governed by the provisions of chapter two of this title.”

It is conceded that this section must be strictly construed, and that it does not confer power on the company to operate such road as a common carrier.

In Miami Coal Co. v. Wigton, 19 Ohio St., 560, it was held, that, under the strict construction applicable to the grants of the power of eminent domain to corporations, the act does not authorize a mining company to exercise the same power to appropriate private property that is conferred on railroad companies by acts in relation to railroads.

By the provisions of Section 8861, General Code, “A person owning or operating a coal or iron-ore mine * * * who, as a means of removing the product thereof, uses or desires to use a railway, may construct one and run cars thereon, over or under any railroad or public highway, the consent of the owner of the fee in the land at such crossing first being obtained. Such railway shall be so constructed as in no wise to impede or interfere with the running of cars or the travel upon such railroad or highway, or in any manner injure or impair either, or any switch, building, or appurtenance connected therewith or belonging thereto. * * * ”

It is manifest that the legislature, in recognition of the fact that the operation of such a line across railroads and public highways at grade would be dangerous, felt the necessity of making specific provisions as to the construction of an industrial line. We think it must be conceded that the portion of the railroad which the defendant is now operating is not an industrial road or switch, such as is authorized to be constructed and operated under the statutory provisions referred to.

It is contended that the provisions of Section 8861, General Code, as to elimination of grade crossings, are permissive and not mandatory, except the portion thereof that requires that such freightway or switch shall be so constructed as not to impede or interfere with the running of cars or travel on such railroad or highway. As above shown the statute must be strictly construed. There would be no right whatever to construct or operate such a line in the absence of statute, and nothing can be done under it different from or in excess of what is expressly permitted. It is conceded that the crossings referred- to are at grade, but it is suggested that even if the statute is mandatory the public rights can be enforced by a proper action. But the question here is, whether the defendant company, not being a common carrier, can operate for its own purposes, and for the purposes of those with whom it may privately contract, the portion of this railroad that it has acquired, which was constructed for and devoted to the public service by a corporation organized and operated as a common carrier. Much stress is laid upon the fact, that, at the time of the confirmation of the sale “as a single and entire railroad property,” the purchaser stated to the court that in case the sale was confirmed, as soon as he acquired title and was placed in possession of the property by the court, he would at once discontinue the operation of the railroad. As to this it must be noted that there was no application made to the court to dismantle the railroad or abandon its use as a public carrier; no notice was given during any stage of the proceedings that any such application would be made; and, as already indicated, the order of sale, the advertisement of the sale, and the confirmation of the sale, were of one single and entire railroad property.

In the entry of confirmation, following the recital of the statement above referred to by the purchaser, is the further recital that the court, finding “that the sudden cessation of the operation of said railroad property at the present time would be a serious inconvenience to the general public now being served by said railroad property,” suspended the completion of said purchase until November 1, 1916, and ordered the receiver to continue the operation of the railroad until that date and thereupon to discontinue the same. It will be noted that at the time named the title passed to the purchaser; and it is significant that the court found that serious inconvenience would result to the general public then being served by said railroad property by its sudden discontinuance. It is not shown or suggested that it was not an equally serious inconvenience to the general public to discontinue the service after the date named.

The portion of the road now held and operated by the defendant begins at the village of Sharps-burg, extending southwardly to Curtis Junction, a distance of 2.8 miles, and thence to Palos, a distance of 13.7 miles, traversing portions of Athens and Morgan counties.

Where the public has a real and substantial right in the use of property which has been devoted to the public use under the sanction of the state, that right should be properly safeguarded in every legal proceeding concerning the property. D., X. & B. Rd. Co. v. Lewton, 20 Ohio St., 401, 412.

There is not involved in this case any question as to the right to dismantle, abandon or scrap a line of railroad on account of failure to return a. proper compensation for its operation. We know of no way to compel the owner of a line of railroad, which in its proper operation does _not produce sufficient revenue to afford proper compensation, to continue its operation. We think it obvious that there could be no such compulsion. Such a situation has been considered in many cases.

In a leading case, Jack v. Williams et al., 113 Fed. Rep., 823, the company which built the road had become insolvent and it appeared that any attempt to operate it would result in loss. Under these circumstances the court authorized the road to be dismantled and the rails sold. At page 827 it is said: “Whilst thus serving the public, however, no corporation or private person is obliged to continue the service without a reasonable remuneration. No one can be compelled to serve the public for nothing. Private property of no kind, including railroad property, can be used for public purposes without compensation. Smyth v. Ames, 169 U. S. 467, 18 Sup. Ct. 418, 42 L. Ed. 819; Road Co. v. Sandford, 164 U. S. 578, 17 Sup. Ct. 198, 41 L. Ed. 560; Chicago, M. & St. P. R. Co. v. Minnesota 134 U. S. 418, 10 Sup. Ct. 462, 33 L. Ed. 970; Railway Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. 565, 43 L. Ed. 858.”

Upon proper notice and showing the court in the foreclosure proceeding, or in any other proper proceeding, might authorize the discontinuance and dismantling of the road.

There is in this case no intention or attempt to dismantle the property or abandon it; but the defendant is operating a line of railroad which was constructed by a corporation organized as a common carrier by the state, with authority to exercise the sovereign power of the state in the interest of the general welfare. The only constitutional warrant for the taking of private property and public highways is that their use is needed for the common good.

In Gates v. Boston & N. Y. Air Line Rd. Co, 53 Conn., 333, 342, it was held that when railroad property essential to the public use is once devoted to that use, the public has a right that it shall remain pledged to that use, and this is superior to the property rights of the corporation, its stockholders and bondholders. In the opinion it is said: “Upon principle it would seem plain that railroad property once devoted and essential to the public use, must remain pledged to that use so as to carry to full completion the purpose of its creation; and that this public right, existing by reason of the public exigency, demanded by the occasion, and created by the exercise by a private person of the powers of a state, is superior to the property rights of corporations, stockholders and bondholders.” Authorities holding a similar view as to the nature of such property are as follows: Metz v. Buffalo, C. & P. Rd. Co., 58 N. Y., 61; Northern Pac. Ry. Co. v. Townsend, 190 U. S., 261, 267; Connor v. Tenn. Central Ry. Co., 109 Fed. Rep., 931, 940; Lawrence v. Morgan’s L. & T. Rd. Co., 39 La. Ann., 427; D., X. & B. Rd. Co. v. Lewton, 20 Ohio St., 401, 412; Coe v. Columbus, P. & I. Rd. Co., 10 Ohio St., 372, 378.

In State v. Hazelton & Leetonia Ry. Co., 40 Ohio St., 504, a proceeding in quo warranto was brought to oust the company for the misuse of powers, franchises and privileges conferred on it. The court held that a railroad company assumes the performance of duties for the benefit of the public generally, and that when such a corporation, for a period of five years, fails to construct a line'of railroad named in its charter, but condemns private' property and constructs a railroad wholly unsuited to the wants of the public, and for the benefit only of coal mines, owned and operated by the principal corporators and stockholders of such railroad company, it is a misuse of its corporate powers, franchises and privileges. In the opinion it is said:. “Judging from the things done by the corporation, its. sole object was to furnish a means of transferring the products of the private mines, owned and operated by the principal incorporators and stockholders, to a place where they could be carried to market.”

It is said by Minshall, J., in State, ex rel., v. P., Y. & A. Rd. Co., 50 Ohio St., 249: “It may well be conceded, that the condemnation of private property for a private use, and its use for such purpose only, constitutes a flagrant abuse of the power of eminent domain, and that a company guilty of such abuse of its power should be deprived of its corporate franchises and be dissolved.”

It is very clear from these authorities that The Marietta, Columbus & Cleveland Railroad Company could not have operated its line of railroad, nor any portion thereof, as the defendant now claims the right to operate it. Has the purchaser of the part of the line which he acquired pursuant to a judicial sale any greater right in its operation than the original corporation owner ? The statutes of Ohio regulating the transfer of railroad property by a private sale and by judicial sale are very comprehensive.

Sections 9054 to 9063 provide for the transfer, by a company unable to complete its road, to any other railroad company incorporated under the laws of Ohio.

Sections 9064 to 9075, inclusive, contain provisions for transfer by receivers and by judicial sales, and under these sections the only purchaser authorized is a company organized under the laws of the state, or any number of persons not less than five, who, having purchased such road and franchises at such a sale, may become a corporation by filing a transcript with a decree of confirmation in the office of the secretary of state. This was the state of the law until the act found in 77 Ohio Laws, page 60, was passed. By this act, which is Sections 3426a and 3426b, Revised Statutes, and which is included in Sections 9076, 9077 and 9078, General Code, it is provided that the purchaser or purchasers of the property, roadbeds, rights of way, fixtures and franchises of a railroad company in this state, situated wholly or in part in this state, sold pursuant to judicial order, judgment, or decree, which sale has been confirmed by the court making the order of sale, may sell the same, or any part thereof; and that the title thereto, with all the rights, liberties, facilities and franchisés, shall pass by such sale and vest in the purchaser or purchasers.

By the second section of the law, which became 3426b, Revised Statutes, and is now Sections 9077 and 9078, General Code, it was provided that any railroad company may become the purchaser of such property, as provided in the first section of the act, and any number of persons may become the purchasers of such road, either directly at such judicial sale or by grant from the purchasers at such sale, and on filing a copy of the deed in the office of the secretary of state, with articles of incorporation, such persons, not less than five in number, shall become a corporation, and in the operation and maintenance of its railroad such corporation shall be entitled to all the rights and subject to all the obligations and restrictions imposed upon railroad companies by the laws of the state.

It seems clear from these provisions that the sale and transfer contemplated is of the railroad property as such. The rig-hts, liberties, facilities and franchises shall pass by such sale as fully as if the same had been possessed, exercised and enjoyed by such railroad company. It is provided that the franchises shall pass to the purchaser.

The term “franchise” has a dual meaning. Its scope and meaning must be determined by its application. There is a wide difference between a franchise which inheres in the right to exist as a corporation and a franchise to exercise certain special privileges as such; for instance, the right to occupy or cross public highways and to construct in or across them and operate thereon a public utility.

The defendant is using for its own purposes a line of railroad which has become clothed and impressed with a public use. The company not being organized as a common carrier could not itself have acquired the rights and constructed the line as the rights and the line here involved were acquired and constructed. The railroad company itself could not have transferred the property to defendant company with the right to operate it privately, and we find no warrant in law to hold that the defendant company acquired that right through the foreclosure proceeding.

It cannot accomplish by indirection what it is not permitted to do directly.

In Dayton, X. & B. Rd. Co. v. Lewton, supra, in which the subject is considered, Judge Mcllvaine says, at page 412: “The rights of the public must not be ignored; and it is the right of the public that this highway be maintained. It was by and through the exercise of its power of eminent domain that it was established.”

Otherwise purely private enterprises could cause the organization of a railroad company, which would acquire rights of way with the privilege of operating dangerous agencies on and across public highways, interurban lines and other railroads — all of which it could only do in the advance of the public .interest — and then could go forward with steps by which the private concern would acquire for its private purposes the public privileges and property so created.

In this particular case the defendant was doubtless actuated by the feeling that it was compelled to proceed as it has in order to find access to its markets, but by the formation of a common-carrier corporation it will accomplish this commendable object and will use a public property for a public purpose.

Writ allowed.

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


author: Donahue, J.

text:
    The State, ex rel. D’Alton, etc., v. Ritchie et al.

      Constitutional law — Establishment of courts — Section I, Article IV, Constitutioni — Court of Domestic Relations for Lucas County — •Section 1683-12 et seq., General Code (107 O. L., 732) — Exclusive and concurrent jurisdiction — Local and common pleas courts' — Uniform operation of general laws — Section 26, Article II, Constitution — Entire act not void because particular sections unconstitutional, when.

    1. Section 1 of Article IV of the Constitution confers upon the general assembly of Ohio authority to establish by law courts inferior to the courts of appeals, throughout the entire state, or in any one or more localities within the state.
    2. A law establishing a local court is not a law of a general nature, and is not required to have uniform operation throughout the state.
    3. All laws or parts of laws relating to the jurisdiction of the com- ' mon pleas court are laws of a general nature, and must have uniform operation throughout the state.
    4. An entire act of the general assembly of Ohio will not be held unconstitutional merely because a part of one of the sections of that act is in conflict with some provision of the constitution of the state, unless the unconstitutional part is of such importance and so inseparably connected with and related to the entire act as to raise a presumption that the constitutional part wbuld not have been enacted without the unconstitutional provision.
    5. Section 3 of the act of the general assembly of Ohio, passed March 21, 1917 (107 O. L., 732), entitled “An act to provide a court of domestic relations for Lucas county, Ohio, and prescribing the jurisdiction of said court,” is in conflict with Section 26 of Article II of the Constitution of Ohio, in so far as it purports to confer jurisdiction upon that court to the exclusion of the jurisdiction conferred upon the common pleas court by the general laws of this state; but is valid as conferring jurisdiction concurrent with the jurisdiction of the common pleas court.
    (No. 15768
    Decided December 11, 1917.)

      In Prohibition.
    On the 3d day of October, 1917, the relator, John C. D’Alton, filed in this court a petition praying that a writ of prohibition issue, restraining O’Brien O’Donnell, judge of the probate court of Lucas county, from acting as judge of the court of domestic relations, and restraining Byron F. Ritchie, Brownell T. Brough, John P. Mantón, and Curtis T. Johnson, as judges and as the court of common pleas, from certifying and transferring to the court of domestic relations any cause in habeas corpus, divorce and alimony cases, and all cases of civil or criminal neglect or failure to provide proper home, food, clothing, shelter or care of a minor child or children.
    The petition avers that the relator is the prosecuting attorney of Lucas county, Ohio, and that he brings this action on behalf of the state of Ohio.
    It avers that the defendants Ritchie, Brough, Mantón and Johnson are judges of the court of common pleas of Lucas county, Ohio, and that the defendant O’Donnell is the probate judge of that county; that under the act of the general assembly of Ohio passed on the 21st day of March, 1917 (107 O. L., 732), the above-named defendant judges of the court of common pleas and judge of the probate court of. Lucas county, by a majo'rity vote, selected O’Brien O’Donnell as the judge of the court of domestic relations, to act as judge of said court of domestic relations until the first day of January, 1921; and that the act of March 21, 1917 (107 O. L., 732), entitled “An act to provide a court of domestic relations for Lucas county, Ohio, and prescribing the jurisdiction of said court,” is in conflict with Section 10 of Article IV, Section 14 of Article IV, and Section 26 of Article II of the Constitution.
    To this petition and each cause of action contained therein the respondents filed a general demurrer, and, not desiring to present by answer any issue of fact, this cause is submitted to the court for final judgment on the issue of law presented by the demurrer to the petition.

      Mr. John C. D’Alton, prosecuting attorney, and Mr. Allen J. Seney, assistant prosecuting attorney, for relator.

      Mr. Joseph McGhee, attorney general; Mr. L. D. Johnson and Mr. Frank Davis, Jr., for respondents.
   Donahue, J.

It is contended by the relator that the provision of the act authorizing judges of the court of common pleas and the judge of the probate court of Lucas county to select by majority vote one of themselves to act as the judge of the court of domestic relations until the first day of January, 1921, is in conflict with Section 10 of Article IV of the Constitution, which provides that “All judges, other than those provided for in this constitution, shall be elected by the electors of the judicial district for which they may be created.”

This provision of the act contemplates the selection, as acting judge of the court of domestic relations, of a judge who has been elected by the electors of the judicial district for which this court was created.

In the case of Logan Branch Bank, Ex-parte, 1 Ohio St., 432, 434, cited by counsel for relator, it was held that, “It is not within the competency of the Legislature to clothe with judicial power any officer or person, not elected as a judge.”

Clearly this act does not attempt to do this, but, on the contrary, provides that the person to be selected as acting judge of the Court of Domestic Relations for Lucas County must be a person elected as judge by the electors of that county.

In the cases of State, ex rel., v. Yeatman and State, ex rel., v. Bundenthal, 89 Ohio St., 44, this court held that the provisions of the acts creating municipal courts for Cincinnati and Dayton, designating the then judge of the police court of each of these cities to act as the presiding judge of the municipal court during his term of office, are constitutional.

This question was fully considered by this court in the case of Ide v. The State, 95 Ohio St., 224. It is therefore unnecessary to repeat the reasons given for the judgment entered by this court in that case.

This provision is not in conflict with Section 10 of Article IV of the Constitution.

Nor does this provision offend against Section 14 of Article IV of the Constitution, which provides, among other things, that the judges of the court of common pleas shall receive no fees or perquisites, nor hold any other office of profit or trust, under the authority of this state, or of the United States. On the contrary, the judge so selected is merely assigned as acting judge, to exercise the jurisdiction conferred by this act upon the judge of the Court of Domestic Relations for Lucas County. His assignment as acting judge of that court is clearly not in conflict with the spirit, meaning, and intent of the provisions of Section 14 of Article IV.

It is averred in the petition that this act is in conflict with that part of Section 16 of Article II of the Constitution which provides that no bill shall contain more than one subject, which shall be clearly expressed in its title, and 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.

It is the purpose of this act to provide a court of domestic relations for Lucas county, Ohio, and to prescribe the jurisdiction of that court. Under no construction of this act could it be held to amend or revive any of the sections found in Chapter 8, Title IV, Part First, of the General Code. If it affects in any particular the sections found in that chapter it is by the repeal of such parts thereof, if any, as may be inconsistent with the provisions of this act. Therefore the subject of the act is clearly expressed in its title, as required by Section 16 of Article II of the Constitution of Ohio.

The contention of the relator that this act is in conflict with the provisions of Section 26 of Article II of the Constitution, which provides that all laws, of a general nature, shall have a uniform operation throughout the state, is far more serious than any of the other constitutional objections urged against it.

In so far as it creates this court of domestic relations for Lucas county, and prescribes and defines the jurisdiction of that court, it is not a law general in its nature, and therefore does not require uniform operation throughout the state.

Section 1 of Article IV vests in the general assembly of Ohio authority to establish by law courts inferior to courts of appeals. This provision of the constitution was adopted after the decision of this court in the case of State, ex rel., v. Bloch, 65 Ohio St., 370, holding that similar language in the Constitution of 1851 vested in the general assembly “full power to determine what other courts it will establish, local, if deemed proper, either for separate counties or districts, and to define their jurisdiction, and powers.” When this provision was written into the amendment of 1912, and adopted by the electors of the state, it was done with the knowledge of the construction given it by this court. It must have been the intention not only of the constitutional convention, but of the electors adopting it, that the same construction would obtain; otherwise the language would have been changed to indicate a different intent and purpose.

This court has since that time sustained similar acts creating local courts. See State, ex rel., v. Yeatman, and State, ex rel., v. Bundenthal, supra; Kelley v. State, ex rel., 94 Ohio St., 331, and In re Hesse, 93 Ohio St., 230.

This question was also involved, but not discussed, in the case of State, ex rel., v. Archibald, 52 Ohio St., 1.

The vice, if any, in this act, is the attempt to confer exclusive jurisdiction upon the Court of Domestic Relations for Lucas County “in and over all matters or proceedings, actions and causes that are now or may hereinafter be within the jurisdiction conferred on a juvenile court or a juvenile judge or judges of the juvenile court, by chapter 8, title 4, part one, or under Section 11181-1 of the General Code of this state including the granting of allowance for the partial support of women who are poor and have children to support as provided in said chapter 8, of said juvenile court act.”

If this provision means that the jurisdiction conferred is exclusive only of the jurisdiction of the juvenile court or a juvenile judge or judges of the juvenile court, then perhaps it does not offend against Section 26 of Article II of the Constitution; but if this language must be construed to divest the common pleas court of Lucas county of the jurisdiction conferred by laws of a general nature upon the common pleas courts of this state, then this provision of the act is unconstitutional and void.

Section 4 of Article IV of the Constitution authorizes the general assembly of Ohio to confer by law jurisdiction upon the courts of common pleas. In the case of Kelley v. The State, 6 Ohio St., 269, it was held by this court (page 272) that laws “which relate to and regulate their organization and jurisdiction are laws of a general nature, and are imperatively required to have a uniform operation throughout the state. They can not be withdrawn from the operation of the plain constitutional prohibition, unless by an exemption contained in the same instrument.” To the same effect is the holding of this court in the case of Meyer v. Dempsey, Trustee, 62 Ohio St., 637.

Section 8 of Article IV of the Constitution, which relates to the jurisdiction of the probate courts, specifically provides that, in addition to the jurisdiction conferred upon these courts by the Constitution itself, they shall have such other jurisdiction, in any county or counties, as may be provided by law. This is in accord with the judgment of this court in the case of Kelley v. The State, supra. There is no such exemption found in the Constitution as to common pleas courts.

Section 4, Article IV of the Constitution, was not amended September 3, 1912. In view of the fact that this provision of the Constitution of 1851 was construed by this court in Kelley v. The State and Meyer v. Dempsey, Trustee, supra, prior to the adoption of the amendments in 1912, it follows that it was not the purpose to change this section as construed by this court; otherwise it would have been so amended as to express such intention. Therefore, the construction by this court of this section, in the two cases just mentioned, is approved and followed.

Whenever it is possible to do so, a court will construe an act of the general assembly in harmony with constitutional provisions, but this provision of the act now under consideration does not seem to be possible of such construction.

It is true that nothing is said in relation to the jurisdiction of the common pleas court, but the Court of Domestic Relations for Lucas County is given exclusive jurisdiction in and over all matters or proceedings, actions or causes, that are now or may hereafter be within the jurisdiction or conferred upon a juvenile court, or juvenile judge or judges of the juvenile court, by Chapter 8, Title IV, Part First. That chapter confers concurrent jurisdiction on the common pleas and the juvenile courts, and it would be a strained construction to hold that this language means that the Court of Domestic Relations for Lucas County shall exercise this jurisdiction, exclusive only of the juvenile court, and that the jurisdiction of the court of common pleas in Lucas county shall not be affected thereby.

On the contrary, we are forced to the conclusion that the language permits of no interpretation or construction other than that the Court of Domestic Relations for Lucas County shall exercise this jurisdiction to the exclusion of all other courts in that county. For this reason, this provision of the act of March 17,1917, conferring exclusive jurisdiction on that court, is clearly in conflict with Section 26 of Article II of the Constitution.

The only remaining question is whether this conclusion requires this court to hold the entire act unconstitutional. In the case of Meyer v. Dempsey, supra, the majority of the court held the entire act unconstitutional for this reason.' Davis, J., dissented from the judgment announced by the majority of the court, for the reason that, in his opinion, “the act is valid as conferring jurisdiction concurrent with the probate and common pleas-courts.” That act, however, was merely an amendment of two sections of the original act establishing a court of insolvency in Hamilton county. The main purpose and intent of the amendment was to confer exclusive jurisdiction on that court over the particular matters named therein, and, of course, where the principal purpose and intent.of an act fail by reason of its unconstitutionality, the minor provisions must also fall; for there would be no presumption that the general assembly intended to enact the law regardless of the unconstitutionality of the part relating to its major purpose. But here we have the original act establishing a court of domestic relations in Lucas county. The establishment of this court was undoubtedly the main purpose and intent of the legislature. Undoubtedly the legislature would have passed this act and created this court even had it known that it could not confer jurisdiction upon it over these subjects to the exclusion of the jurisdiction of the common pleas court of that county. Little Miami Rd. Co. v. Commissioners, 31 Ohio St., 338.

While the jurisdiction of a court is not merely a minor Retail in relation to its establishment, nevertheless this act does confer full and complete jurisdiction over the subject-matters mentioned therein. The entire act should not be held invalid merely because the attempt to make that jurisdiction exclusive of the jurisdiction of the common pleas court of Lucas county is unconstitutional.

This act is unconstitutional in so far as it purports to confer such exclusive jurisdiction, but it is valid as conferring jurisdiction concurrent with the common pleas court of that county.

This act contains a further provision requiring that “Whenever any magistrate or court having jurisdiction in any cause, proceeding or prosecution shall find the controversy to be within the jurisdiction conferred upon the court of domestic relations, whether said cause or proceeding be civil or criminal, such magistrate or court shall immediately certify such cases to the court of domestic relations and proceed no further therein.”

If this provision is mandatory, then it is equally objectionable to Section 26 of Article II, for it would in effect deprive the common pleas court of Lucas county of jurisdiction conferred upon it by the general laws of this state. It is, however, a mere detail in furtherance of the exercise of the jurisdiction conferred upon the court of domestic relations, and similar provisions, not purporting, however, to be mandatory, are found in the several acts creating local courts, which acts have been held constitutional by this court.

It was probably not the intention of the legislature that this should apply to the court of appeals of Lucas county, but only to the courts named in Chapter 8, Title IV, Part First. However, the language would seem to be broad enough to include the court of appeals, at least in habeas corpus, but as to that court it can have no effect whatever. Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, and Wallace v. Leiter, 76 Ohio St., 185.

Neither can the mandatory provisions thereof apply to the common pleas court of Lucas county, but as to that court it must be held to be directory only.

It is also urged that the provision in Section 3 of this act, conferring jurisdiction on the court of domestic relations to transfer and certify any such case and cause for trial to any judge of the common pleas court or magistrate or other judge of said county having jurisdiction of the subject-matter, whether such cause was originally commenced in said court or certified thereto, is unconstitutional because the statute confers the jurisdiction upon the common pleas court and not upon the judge thereof.

If this language is to be taken literally, then it . means nothing in so far as certifying to a judge of the common pleas court is concerned, and cannot affect the constitutionality of the act one way or the other. But we think that a fair construction of this means that the court of domestic relations shall-have jurisdiction to transfer and certify any such case or cause for trial to the common pleas court or magistrate or other judge in said county having jurisdiction of the subject-matter.

So far as the disposition of this case is concerned, it is unimportant whether it be given this construetion, or a literal construction that would make the whole provision inoperative in so far as certifying to a judge of the common pleas court is concerned.

It is further insisted that the act is unconstitutional because it does not provide for a jury trial. Clearly the jurisdiction conferred in this act is to be exercised in the manner and form provided by Chapter 8, Title IV, Part 'First, of the General Code. Section 1651, General Code, which is a part of that chapter, provides for a jury trial in proper cases.

The conclusion reached by this court in reference to the unconstitutionality of that part of the act purporting to confer exclusive jurisdiction upon the court of domestic relations, yet sustaining the constitutionality of the other provisions of the act, practically eliminates the constitutional objections considered in the earlier part of this opinion. The jurisdiction of the common pleas court not having been affected by this act, the authority conferred to select one of the judges of that court as acting judge of the court of domestic relations certainly is not in conflict with Sections 10 or 14 of Article IV, for these judges are elected by the electors of the judicial district to exercise judicial power, including the identical jurisdiction conferred upon the court of domestic relations, and the act in question does not divest the common pleas court of that jurisdiction nor interfere with its exercise, in any manner or form provided by law. Nor does the assignment or selection of a judge of the common pleas court to preside over the court of domestic relations increase or diminish his judicial authority, or constitute another “office of profit or trust, under the authority of this state.”

The demurrer to relator’s petition presents the further questions — whether prohibition is the proper remedy, and the right of the relator to bring this action. In view of our conclusion touching the constitutionality of this act, it becomes unnecessary to consider these questions. In any event, the writ must be refused, and the petition of the relator dismissed.

Judgment for respondents.

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