author: Jones, J.

text:
    The State, ex rel. Davis, etc., v. Hildebrant, Secretary of State, et al.

      Congressional districts — Power to redistrict — Section 4, Article I, U. S. Constitution — Term “legislature” comprehends legislative power, including referendum — Sections 1 and lc, Article II, Ohio Constitution, 1912 — Legislative act invalid if defeated by referendum, when — Effect of congressional apportionment act (37 U. S. Stats, at Large, 14) —Jurisdiction of courts — Judicial and political questions.

    1. The term “legislature,” in Section 4, Article I of the United States Constitution, comprehends the entire legislative power of the state; and, as so used, includes not only the two branches of the general assembly but the popular will as expressed in the referendum provided for in Sections 1 and lc of Article II of the Ohio Constitution.
    2. If a congressional redistricting act, passed by the general assembly and lawfully submitted to a referendum for popular vote under the foregoing provisions, fails of approval by a majority of those voting upon the same, such act is invalid and inoperative.
    3. Under the latter clause of Section 4, Article I of the United States Constitution, complete and plenary power over state legislation enacted thereunder rests in the federal congress, and its laws supersede all state regulations upon the same subject. Under its grant of power to “make or alter such regulations,” congress did, by its apportionment act of August 8, 1911, legislate upon the subject, by recognizing as lawful such congressional districts as may be created in the manner provided by the laws of those states employing the constitutional referendum.
    4. Where a ministerial officer assumes to act under a law or constitutional provision which is claimed to be invalid or of doubtful construction, although the election of an officer is indirectly involved, the subject-matter becomes one for judicial cognizance and is not political.
    (No. 15160
    —Decided April 18, 1916.)

      In Mandamus.
    This action was brought by the relator, David Davis, as a citizen of the United States and an elector of this state, and who is a resident and elector in Hamilton county, Ohio, seeking to invoke the original jurisdiction of this court in mandamus.
    The salient and pertinent facts set forth in the petition are as follows: On May 27, 1915, the general assembly of the state passed an act, which was approved by the governor and filed in the office of the'secretary of state on June 4, 1915, redistricting and apportioning the state into twenty-two congressional districts, of which portions of Hamilton county constituted the first and second districts. Prior to that time, by virtue of an act of the general assembly, the state had theretofore been redistricted and divided into twenty-two congressional districts under an act passed April 28, 1913, in which the districts, including the first and second, were geographically different from the later act of May 27, 1915.
    Assuming to act under Article II, Section 1c, of the Constitution of Ohio, adopted in 1912, for the purpose of causing the later act, that of 1915, to be submitted to the people of the state for their approval or rejection, a petition containing the required number of signatures was filed with the secretary of state conformable to law, and at the general election following, on November 3, 1915, the act of May 27, 1915, was submitted to the electors of the state for their approval or rejection. At such election, however, the same did not receive the votes of, and was not approved by, a majority of the electors voting on the same.
    By reason of these facts it is alleged that the defendant, Hildebrant, secretary of state and state supervisor and inspector of elections, and his associated defendants, who are deputy state supervisors and inspectors of elections for Hamilton county, now refuse and will continue to refuse to hold elections in the year 1916 in the first and second congressional districts composing Hamilton county, as divided and described in the act of 1915, which was submitted to referendum and failed of approval by popular vote; that delegates and alternates to political party conventions and political party committeemen are required by law to be elected at the elections ensuing in 1916, and furthermore that candidates for congress are required to be elected in the several lawful congressional districts at such ensuing election.
    It is alleged that the state and deputy state supervisors and inspectors of elections, whose duty it is to provide for the machinery and control the elections, unless directed otherwise by the court, will proceed in the conduct of elections in the several districts under the act of 1913, although it is their duty to conduct the same in the districts as described in the act of 1915, which was subjected to referendum as aforesaid.
    It is further alleged in the petition that the submission by referendum to the people of the act of 1915 was void for the reason that the referendum provisions comprised in Article II, Section le, of the Constitution of Ohio, could not affect or apply to an act of the legislature of Ohio districting or making an apportionment of the state of Ohio into congressional districts, and that the sole power therefor is lodged strictly in the state legislature, irrespective of the referendum so authorized and employed.
    A writ of mandamus is prayed for, asking that the act of May 27, 1915, entitled “An act to amend Section'4828-1, General Code,” etc., be held valid, that the referendum proceedings be declared invalid and that defendants be directed to hold, conduct and supervise the several district elections ensuing in the Hamilton county districts as territorially divided in the legislative act of May 27, 1915. The defendants challenge the sufficiency of the petition by a general demurrer.

      Messrs. Keifer & Keifer and Mr. Sherman T. McPherson, for relators.'

      Mr. Edward C. Turner, attorney general; Mr. T. S. Hogan; Mr. E. H. Moore; Mr. J. E. Campbell and Mr. A. G. Turnipseed, for defendants.

      Mr. J. V. Campbell, prosecuting attorney, and Mr. Smith Hickenlooper, assistant prosecuting attorney, for the deputy state supervisors and inspectors of elections for Hamilton county, answering defendants.
   Jones, J.

The question to be decided is succinctly stated in the brief of relator’s counsel as follows:

“Whether or not the apportioning and redistricting act of May 27, 1915, was annulled by petition and referendum vote held under the constitution of Ohio.”

For the proper determination of this question it is necessary to refer, for the purpose of construction, to the following provisions of the state and federal constitutions, and to the laws passed pursuant thereto, so far as they may be germane to the proposition involved.

Section 4 of Article I of the Constitution of the United States provides as follows:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

Section 1 of Article II of the Constitution of Ohio, as amended September 3, 1912, is as follows:

“The legislative power of the state shall be vested in a general assembly consisting of a senate and house of representatives but the people reserve to themselves the power to propose to the general assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided. They also reserve the power to adopt or reject any law, section of any law or any item in any law appropriating money passed by the general assembly, except as hereinafter provided; and independent of the general assembly to propose amendments to the constitution and to adopt or reject the same at the polls. The limitations expressed in the constitution, on the power of the general assembly to enact laws, shall be deemed limitations on the power of the people to enact laws.”

The sections immediately following provide for the initiative and referendum powers reserved to the people of the state and for the method in which such powers shall be exercised.

Section lc of Article II of the Constitution of Ohio provides that —

“No law passed by the general assembly shall go into effect until ninety days after it shall have been filed by the governor in the office of the secretary of state, except as herein provided. When a petition signed by six per centum of the electors of the state and verified as herein provided, shall have been filed with the secretary of state within ninety days after any law shall have been filed by the governor in the office of the secretary of state, ordering that such law, section of such law or any item in such law appropriating money be submitted to the electors of the state for their approval or rejection, the secretary of state shall submit to the electors of the state for their approval or rejection such law, section or item, in the manner herein provided, at the next succeeding regular or general election in any year occurring subsequent to sixty days after the filing of such petition, and no such law, section or item shall go into effect until and unless approved by a majority of those voting upon the same.”

The act of congress of August 8, 1911, Chapter 5, Section 4, provides:

“That in case of an increase in the number of Representatives in any state under this apportionment such additional Representative or Representatives shall be elected by the State at large and other Representatives by the districts now prescribed by law until such State shall be redistricted in the manner provided by the laws thereof and in accordance with the rules enumerated in section three of this act; and if there be no change in the number of Representatives from a State, the Representatives thereof shall be elected from the districts now prescribed by law until such State shall be redistricted as herein prescribed.” (37 U. S. Stats, at Large, 14.)

Section 5 of the same act provides:

“That candidates for Representative or Representatives to be elected at large in any State shall be nominated in the same manner as candidates for governor, unless otherwise provided by the laws of such state.”

Does the term “legislature,” as used in Article I, Section 4 of the Federal Constitution, comprehend simply the representative agencies of the state, composed of the members of the bicameral body, or does it comprehend the various agencies in which is lodged the. legislative power to make, amend and repeal the laws of the state, including the power reserved to the people empowering them to “adopt or reject any law” passed by the general assembly under the provisions of Section 1, Article II of the Constitution of Ohio?

By the adoption of the constitution of 1912, as affecting the passage and finality of laws passed by the general assembly, the people provided for certain checks upon both the legislature and -the people.

Section Id of Article II of the Constitution of Ohio provides that laws providing for tax levies and certain emergency laws, when passed by a yea and nay vote of two-thirds of all members elected to each branch of the general assembly, shall go into immediate effect and shall not be subject to the referendum imposed by the preceding section. As to all'other laws passed by the general assembly, the people have reserved to themselves the power of adoption or rejection.

These various sections disclose that, while the legislative power has been delegated to the bicameral body composed of the senate and house of representatives, the people of Ohio have by the aforesaid provisions of their constitution determined the manner by which such legislative power may be exercised, under what circumstances the laws passed by it may become operative without an appeal to the people, and have further imposed the conditions under which such laws may become operative or inoperative as they may have been adopted or rejected by the popular vote designated as the “referendum.”

While Article I, Section 4, of the United States Constitution is controlling upon the states in so far as it grants the legislature of the state authority to prescribe the times, places and manner. of holding elections, this is the quantum of the federal grant. The character of the legislature, its composition and its potency as a legislative body are among the powers which are, by Article X of said Constitution, “expressly reserved to the states respectively, or to the people.”

Webster’s New International Dictionary defines “legislature” as follows: “The body of persons in a state, or politically organized body of people, invested with power to make, alter and repeal laws.”

The Century Dictionary defines the same term as follows: “Any body of persons authorized to make laws or rules for the community represented by them.”

Under the reserved power committed to the people of the states by the federal constitution, the people, by their state organic law, unhindered by federal check or requirement, may create any agency as its lawmaking body, or impose on such agency any checks or conditions under which a law may be enacted and become operative. Acting under this recognized authority, the Ohio constitution, prior to the adoption of the amendment of 1912, provided that the “legislative power” of the state should be vested in the general assembly, consisting of a senate and house of representatives. The same provision now exists, but by the adoption of the amendment of 1912 the people expressly limited this legislative power by reserving to themselves the power to reject any law by means of a popular referendum. The lawmaking body, the legislature, as defined by lexicographers, comprehends every agency required for the creation of effective laws. It cannot be claimed that the term “legislature” necessarily implies a bicameral body. When the term was originally embraced in the constitution the legislatures of Pennsylvania, Georgia and Vermont consisted of but a single house, with a second body in each, called an executive council. These states later abolished their councils and established a legislature consisting of two branches, and such is the character generally of the various state legislatures to-day. 1 Bryce’s American Commonwealth, page 461, note.

The constitutional provision relating to the election of congressmen, conferring the power therein defined upon the various state legislatures, should be construed as conferring it upon such bodies as may from time to time assume to exercise legislative power, whether that power is lodged in a single or two-chambered body, or whether the functions of the latter be curbed by a popular vote or its enactments approved by a referendum vote. This view was sustained in State, ex rel. Schrader, v. Polley, 26 S. Dak., 5, a case similar to this. The case of McPherson v. Blacker, 146 U. S., 1, is relied on by the relator as sustaining his contention. That case simply decides that under clause 2, Section 1 of Article II of the United States Constitution, state legislatures had exclusive and plenary power to direct the manner in which electors of president and vice president should be appointed, and that the legislature might appoint the same directly or provide for their appointment by popular vote. The court did not undertake to define the term “legislature,” or to deny that the authority granted to the legislature as a representative body might not likewise be exercised by any agency invested by the people with legislative power. In disposing of the case Mr. Chief Justice Fuller said, at page 25: “The legislative power is the supreme authority except as limited by the constitution of the state, and the sovereignty of the people is exercised through their representatives in the legislature unless by the fundamental law power is elsewhere reposed.”

However, there is another valid reason why the writ should be denied in this case. While Article I, Section 4, of the United States Constitution, commits to state legislatures the right to prescribe the times,- places and manner of holding elections, that article expressly reserves to the congress full and complete control of that subject. If there be any conflict between the legislative and congressional provisions upon that subject the latter control and the law of congress supersedes any law or regulation upon the subject made by the state legislature. The concluding sentence of the article is as follows: “But the congress may at any time by law make or alter such regulation.”

Recurring now to the provisions of the act of congress of August 8, 1911, Chapter 5, Section 4, it was stipulated that the representatives to congress should be elected by the districts “now prescribed by law until such state shall be redistricted in the manner provided by the lazvs thereof and in accordance with the rules enumerated in section three of this act.” Under the constitutional provision that congress might at any time by law make or alter regulations prescribed by the state legislature, it had full power to direct, as it did, that congressmen should be elected by the districts prescribed by the law.s of the various states.

The congress could, under its supervisory control granted by Article I, Section 4, of the United States Constitution, require that a legislature must act with an eye to the referendum. It could require legislative action in accordance with local state constitutions. This congress did, in its apportionment law of August 8, 1911, when it recognized as lawful newly created districts after the state had been “redistricted in the manner provided by the laws thereof.”

Section 4 of the original act as introduced in congress contained, after the word “redistricted,” the following language: “By the legislature thereof in the manner herein prescribed.” When the bill came before the senate of the United States, Mr. Burton, senator from Ohio, offered an amendment, which was passed, striking out that language and inserting in lieu thereof the words found in the present act, to-wit: “In the manner provided by the laws thereof and in accordance with the rules enumerated in Section three of this act.” This action was taken by the senate advisedly and for the purpose of meeting such a situation as we have in Ohio, where the initiative and referendum is employed under state constitutions.

In the report of the 62d Congress, found in Volume 47, Congressional Record, Part 4, pages 3436-7, and in support of the amendment referred to, Senator Burton said:

“A due respect to the rights, to the established methods, and to the laws of the respective States requires us to allow them to establish congressional districts in whatever way they may have provided by their constitution and by their statutes. * * * If you have a referendum in a state the object of which is to submit to the people at large the question of whether or no a statute shall stand, the question whether it is just or unjust, that provision ought especially to apply to a law dividing a state into districts, where there is such an opportunity for monstrous injustice. If there is any case in the whole list of laws where you should apply your referendum, it is to a districting bill.
“Senators on the other side, and on this side as well, have of late addressed the Senate ardently advocating the principle of the referendum and the initiative. I shall be interested to know whether they will permit the restriction, ‘by the legislature thereof,’ to remain in this statute. * * *
“So I have suggested that the Senate strike out the words ‘by the legislature thereof in the manner herein prescribed,’ and insert in lieu thereof, first, the words ‘in the manner provided by the laws thereof.’ This gives to each State full authority to employ in the creation of congressional districts its own laws and regulations. What objection can be made to a provision of that kind? Pass this amendment, and you will transmit to each State the message ‘Proceed and district your State in accordance with your laws.’ This act does not do that. It sends the message, ‘Do it in only one specified way; that is, by your legislature.’ ”

The fact is, and it was conceded in the discussion, that the earlier apportionment acts passed by congress, following the decennial censuses of 1880, 1890 and 1900, employed the language of the bill, “by the legislature thereof.”

In the controversy over the amendment the storm raged over the single question whether there was any necessity for the Burton amendment; that the language of the bill would vouchsafe a referendum of an act of the legislature without employing the language proposed in the amendment.

On page 3508 of the record the senator from Ohio said:

“In several states * * * the referendum has been adopted. It was very natural in 1890, and even in 1900, that a provision should be incorporated that the State should be redistricted 'by the legislature thereof,’ because that was the only law-making power; but since then a new method of making laws has been devised, and we cannot afford to cling either to obsolete phraseology or, in our dealing with the States, to adhere to obsolete methods — that is, to ignore their methods of enacting laws.
“Mr. Shively: Mr. President, it is not a matter of adhering to obsolete methods or dealing with obsolete phraseology. I am entirely willing that a State shall determine what shall be the rule of apportionment within that State, but I still insist that the language of this bill does not prohibit the legislature from arranging the districts by referendum of the act to the people.”

In view of what we have said as to the construction to be given to the term “legislature” in the constitutional provision referred to, it would seem that the amendment offered by Senator Burton was not necessary to accomplish the result sought. However that may be, it is self-evident that congress took the subject out of the realm of doubt by providing that the redistricting should be made in the manner provided by the state laws, and furthermore that the language of the act was specifically changed to conform to the constitutions of those, states where the referendum is employed. Congress had full power, under the provision of Section 4 of Article I of the United States Constitution, that “the congress may at any time by law make or alter such regulations,” to pass an act of this character.

The act of congress is paramount and supersedes any and all laws or regulations made by the state legislature upon that subject. This is implied in the power to “make or alter.” Ex parte Siebold, 100 U. S., 371, 383.

We therefore hold that the act of April 28, 1913, passed by the general assembly of Ohio, was valid and that the act of May 27, 1915, thereafter passed by the general assembly and failing of approval by popular vote under the referendum, was invalid and void.

On behalf of the defendants the attorney general contends that the questions involved in this case are not justiciable; that they are political rather than judicial.

In support of this contention many cases have been cited. Section 5 of Article I of the Federal Constitution provides that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members * * Did the case presented involve questions which affect the wisdom or policy of legislation, this court could, of course, not intervene. Thus, in cases where the legislative discretion in the creation of congressional districts was sought to be reviewed, the question would be purely political and not judicial. In such cases the furthest that the courts have gone is to interfere only where there has been such a gross abuse of legislative discretion as to be palpably an evasion of the law or constitution. The record in this case discloses that the defendants, as ministerial officers of the state, are refusing to proceed under an act of the general assembly which they claim to be an invalid law. The power of determining whether a law or constitutional provision is valid or otherwise is lodged solely in the judicial department. The construction of the laws and constitution is for the courts, and it is generally held in such cases, although they may indirectly involve the election of political officers, that where the validity of such election depends upon the construction of a law or constitutional provision under which such election is held, then the question is justiciable and not political. This rule has been applied in cases involving apportionment of congressional and other districts in the following cases: State v. South Kingstown, 18 R. I., 258; State, ex rel. Morris, v. Wrightson, 56 N. J. Law, 126, 187; Denney, Clerk, et al. v. State, ex rel. Basler, 144 Ind., 503; Harmison v. Ballot Commrs., 45 W. Va., 179; State, ex rel. Lamb, v. Cunningham, Secy. of State, 83 Wis., 90, 135; People, ex rel. Woodyat, v. Thompson, 155 Ill., 451; Giddings v. Blacker, Secy. of State, 93 Mich., 1, and McPherson v. Blacker, Secy. of State, 92 Mich., 377.

The last-named case was taken on error to the supreme court of the United States and reported in 146 U. S., 1. It was urged in that case that the subject-matter of the controversy was not of judicial cognizance, for the reason that all the questions connected with the election of a presidential elector were political in their nature and that any decision the court might make would be subject to review by political officers or agencies, such as a state board of canvassers or the congress. Mr. Chief Justice Fuller, on page 24, touching that question, said:

“The question of the validity of this act, as presented to us by this record, is a judicial question, and we cannot decline the exercise of our jurisdiction upon the inadmissible suggestion that action might be taken by political agencies in disregard of the judgment of the highest tribunal of the State as revised by our own.”.

Therefore, whether the secretary of state and his deputies in their ministerial capacity shall act under the legislative act of April 28, 1913, or under the later act of May 27, 1915, and the determination as to which of said acts is valid, is a judicial question and not a political one, and this court, under the constitutional provision giving it original jurisdiction in mandamus, assumes jurisdiction.

The demurrer to the petition will be sustained, and the writ denied.

Writ refused.

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


source: Caselaw Access Project

author: Matthias, J.

license: Public Domain

text:
    The State, ex rel. Lattanner, Deputy Superintendent of Banks, v. Hills.

      Negotiable instruments — Defenses — Want or failure of consideration— Note given to enable bank to continue business — Duress —-Threats of prosecution — One issue properly submitted to jury — General verdict returned for prevailing party — Errors in submitting other issues, disregarded, when.

    1. Where a note is executed to a bank for the purpose of meeting the requirement of the state superintendent of banks that deficiency of the assets of said bank be made good, and for the purpose and with the result of enabling such bank to continue its business for some period during which debts are created and new depositors acquired, neither the defense of want of consideration nor failure of consideration for such note is available in an action brought to recover thereon by the state superintendent of banks.
    2. However, the defense of duress is available to the maker of such note, and if the execution thereof was induced solely by threats of criminal prosecution of a brother of the defendant, ■ made for that purpose by officers of the payee bank and a representative of the state superintendent of banks, and under such circumstances as to constitute a reasonable and adequate cause to control the will of the maker of said note, he may be relieved from payment thereof.

      3. Where, upon the issues made by several defenses to a claim sued upon, a general verdict is found for the defendant, it not being disclosed by answers to interrogatories or otherwise upon which issue the verdict was based, and the record disclosing no error touching either the presentation or submission of at least one of such issues, a finding upon which in favor of the prevailing party would justify a general judgment which is rendered, error of the trial court in the submission of other issues will be disregarded.
    (No. 14957 —
    Decided April 25, 1916.)
    Error to the Court of Appeals of Delaware county.
    The original petition filed by the relator, Emery Lattanner, deputy supervisor of banks, was for the recovery of $2,000 and interest upon a promissory note of which the following is a copy:
    “$2000.00 Gambier, Ohio, Feb’y 1st, ipio.

    “On or before three years after date I promise to pay The Gambier Banking Co. or order two thousand no/100 dollars for value received, payable at the office of said Co. with interest at 3 per cent, per annum, having deposited as collateral security for the payment of this note as stated on back hereof.
    “And I hereby give to the holder hereof full power and authority to sell or collect at my expense all or any part or portion thereof, at any place, either in Ohio or elsewhere, at public or private sale, at holder’s option, on the non-performance of the above promise and at any time thereafter, and without advertising the same or otherwise giving to me any notice. In case of public sale, the holder may purchase without being liable to account for more than the net proceeds of such sale.
    “And it is also agreed that the holder or assigns may also hold said property as security for, dr out of the proceeds thereof may pay any other claims the holder may have against me while said property or the proceeds thereof remain in holder’s hands.
    “Collateral Note No. 6949 Frank A. Hills.”
    On the back of the note are the following credits and indorsements:
    “For the protection of the maker of this note the Gambier Banking Company deposits the one-twentieth part of the following securities: — 9988 shares Pref’d — 32488 shares common stock of the Cashier Mining & Milling Co. — 1950 shrs.,- Pref’d stock of the Oppenheimer Institute. — Equity in 1300 acre farm in Pike county, Ohio, and $10,000 policy No. 57612 in the Berkshire Life Insurance Co. In the event that these securities realize more than the face value of this note and interest due, the balance shall be the property of the said Banking Co.
    “Int. Pd. to Feb. 1st, 1911.
    “Int. Pd. to Feb. 1st, 1912 — $60.00.”
    By an amendment to the petition it is averred that the collateral mentioned on the back of the note, and which came into plaintiff’s possession, was sold for the highest price obtainable, the total amount realized therefrom being $5,774.34, which entitles plaintiff to a credit on the note in the sum of $288.87.
    The defendant by his amended answer, after admitting the execution of the note sued upon and denying other averments of the petition, set up further defenses, in substance as follows: Second, that there was no consideration for the execution of said note; third, that it was executed for the purpose of being held by said bank as a pretended asset to meet the requirement of the state superintendent of banks that the assets of said bank be replenished, that it was expressly understood and agreed that there would be no obligation upon the defendant to pay said note, and that the only purpose on the part of the superintendent of banks was to lead the creditors of said bank and the general public to believe that said note was a valuable asset of the bank; fourth, that said note was signed under duress, the defendant being induced to execute the same by threats of officers of said bank and the state superintendent of banks that his brother, a former official of the bank, would be criminally prosecuted unless the defendant executed said note; fifth, that said note was paid by subsequent cash contribution to the assets of said bank by the brother and brother-in-law of the defendant, and that it was understood and agreed that said payment constituted a settlement of said note as well as all notes theretofore given by said brother and brother-in-law of the defendant; sixth, that there was a failure of consideration for said note in that said bank was not permitted to continue in business for a period of three years, and criminal prosecution was caused to be instituted against defendant’s brother, contrary to an agreement made and in consideration of which said note was executed.
    The court of common pleas having overruled a demurrer to the answer and each defense set forth therein, the plaintiff filed a reply which, in addition to admitting certain allegations and denying others, ■ averred that by reason of the execution of the note said bank was permitted to continue until May 16, 1911, and that after the delivery of the note a large amount of deposits were received from persons who are now unpaid creditors of said banking company; that said note was listed among the assets of said banking company and that the defendant is estopped to deny the validity thereof or his liability thereon as against plaintiff.
    The case was submitted to a jury, which returned a general verdict in favor of the defendant, upon which the court of common pleas rendered judgment, which judgment was affirmed by the court of appeals. Error is now prosecuted to this court and a reversal sought.

      Mr. Edward T. Powell and Mr. John M. Elliott, for plaintiff in error.

      Messrs. Marriott, Freshwater & Wickham, for defendant in error.
   Matthias, J.

The substance of the pleadings heretofore stated sufficiently shows the issues upon which .the case went to trial. The controlling facts may readily be gleaned from the record, and there is little conflict or. dispute in the evidence.

Harry N. Hills, a brother of the defendant in this action, in the year 1900 opened a private bank in Gambier, Ohio, known as the Gambier Savings Bank, and as the president and general manager continued such business about five years. During that period he had borrowed large sums of money from the bank, executing his individual notes and pledging as collateral security therefor his equity in a Pike county farm, shares of stock of The Cashier Mining & Milling Company and The Oppenheimer Institute, and also a life insurance policy upon his own life in the sum of $10,000.

In 1905 The Gambier Banking Company was organized under the laws of the state and took over all the assets of the Gambier Savings Bank. Harry Ñ. Hills then ceased to have any connection with the bank except as a debtor, the successor bank having among its assets the notes of Harry N. Hills and the property heretofore referred to as collateral security.

In the year 1909 the state superintendent’ of banks ascertained that The Gambier Banking Company had not assets sufficient to meet its obligations and that it was in an unsafe and unsound condition to transact the business for which it was organized. Under authority of Section 730, General Code, he required the bank to make good such deficiency in its assets or suffer its doors to be closed and fits business liquidated. In accordance with the requirement of the superintendent of banks the officers of The Gambier Banking Company raised the sum of $25,000 as additional assets of the bank, included in which was the note for $2,000 executed by the defendant, sued upon herein; a note for $3,500 executed by Frederick P. Hills, another brother, and a note for $2,000 executed by Dr. G. N. Ferris, a brother-in-law of said Harry N. Hills. At the time of the execution of these notes the property which had been assigned to the bank' by Harry N. Hills and carried by the bank as assets, was no longer carried as assets of the bank, the notes being substituted therefor, and the property, in accordance with the condition indorsed on the notes, was deposited for the protection of the makers thereof. The bank was permitted to continue its business, but later a demand was made by the superintendent of banks for a further increase in the assets of the bank, in response to which $27,-741.69 additional assets were raised in September, 1910, of which $11,741.69 was furnished by Frederick P. Hills and Dr. G. N. Ferris, the defendant Frank A. Hills having refused to contribute anything thereto. The Gambier Banking Company was permitted to continue its business until May, 1911, when the state superintendent of banks found it necessary to take possession thereof for the purpose of liquidation.

Among the assets which came into the hands of the superintendent of banks was the note of the defendant Frank A. Hills, herein sued upon.

At the close of the evidence counsel for plaintiff below, plaintiff in error here, moved the court for a directed verdict against the defendant and also asked for specific instruction to the jury to disregard the claims made by the several defenses set up in the amended answer. These several motions were overruled, the case was submitted to the jury and a general verdict rendered for the defendant. The action of the court in overruling the motions and also in refusing to instruct the jury upon the issue of estoppel made by the reply, is urged as prejudicial error for which the judgment should be reversed by this court.

In our opinion the trial court might properly have stated to the jury that under the facts disclosed by the record the defenses of want of consideration and failure of consideration were not available to the defendant. However, the court did instruct the jury in substance that if they found from the evidence that at the time the note sued upon was made the bank was in a failing condition, and.that the note was executed for the purpose and with the result of enabling the bank to continue its business for some period, that would constitute a sufficient consideration for the note, and that the closing of the bank subsequently because of further impairment of its assets would not constitute a failure of consideration of said note. The jury could not have understood this instruction otherwise than as a direction not to consider the defenses of want of and failure of consideration, set up in the amended answer. By such instruction, therefore, the trial court did in fact sustain the motion óf counsel in such respect and properly took from the jury the consideration of the defenses indicated.

It clearly appears from the record that by reason of the execution of the note sued upon, and others which went to make up the required amount of additional assets, the bank was permitted to continue business for a period during which further credits and deposits were acquired, and it,would therefore be'entirely inequitable to permit the defendant to avert liability on his note on the ground that there was a want of or failure of consideration for said note, nor was the defense available that officers of the bank represented that such note would be treated as assets only for the purpose of misleading the public. No evidence was offered tending to support such claim, and even if it had been it would have been clearly incompetent. Beecher v. Dunlap et al., 52 Ohio St., 64.

We are also in accord with the contention of counsel for plaintiff in error that there was no evidence warranting the trial court in submitting to the jury an issue of payment. The defendant pleaded the payment of $11,741.69 into the assets of the bank by Frederick P. Hills and Dr. G. N. Ferris, as a settlement of his note, and that question was submitted to the jury in the face of the statement made by the defendant himself that “he refused to contribute anything to that end” and the undisputed evidence that no reference whatever was made to the note of the defendant, directly or indirectly, either in the conversation at the time such sum was furnished by Frederick P. Hills and Dr. G. N. Ferris or in the receipt then given. Frederick. P. Hills, who now claims to have then represented his brother, the defendant, testified that when that sum was paid no reference whatever was made to the note of the latter, and there is no evidence that the note of the defendant entered into the second transaction.

The trial court might well have followed the admonition of the judge announcing the opinion in the case of The Cincinnati Gas & Electric Co. v. Archdeacon, Admr., 80 Ohio St., 27, who there said: “It is subversive of the public interests and promotive of no right of either party to continue a contest before a jury when nothing is involved but the application of the law to a state of facts conclusively established.”

However, the defense of duress is available to the defendant, and as against that defense there are no facts warranting the imposition of the principle of estoppel. It clearly appears from the record that neither the defendant nor his brother, Frederick P. Hills, nor his brother-in-law, Dr. G. N. Ferris, prior to or at the time such notes were executed, had any relation whatever to the bank, either as officer, director or stockholder, and that neither of them was a debtor or creditor of the bank, and that neither would be affected financially if the bank were closed by order of the state superintendent of banks and its business liquidated. The only motive apparent, therefore, for the giving of their notes was to avert the threatened criminal prosecution of Harry N. Hills. There is evidence that the president, vice president and cashier of the bank, in their endeavor to procure the execution of these notes, had impressed upon the brother and brother-in-law of Harry N. Hills the very grave danger confronting him, and on several occasions had said to Frederick P. Hills that if the notes were not furnished the bank would be closed and Harry N. Hills,' the brother, would be prosecuted for a criminal offense, and it further appears that additional force was given these statements by clear intimations of similar .consequences made by examiners of the banking department.

It further appears from the record that these representations and threats were communicated by Frederick P. Hills to his brother, the defendant, and there is evidence in the record that by means of such threats the defendant was coerced into signing the note, and that but for such representations and threats he would not have executed the note now sued upon. The evidence further indicates that these threats were made under such circumstances as to constitute a reasonable and adequate cause to control the will of the defendant, and that it was intended that they should be communicated to and influence the action of the defendant and induce the execution of the note. It was, therefore, competent to show that they were in fact communicated to the defendant and also to show what, if any, effect they had in inducing the defendant to sign the note. Objection made to such evidence was, therefore, properly overruled. Fountain v. Bigham, 235 Pa. St., 35; Henry et al. v. State Bank, 131 Ia., 97, and Sharon v. Gager, 46 Conn., 186.

' In our opinion the evidence disclosed by the record justified the submission of but one issue to the jury — that of duress — and the record does not disclose any error either in the admission or rejection of evidence touching the issue of duress or in the submission of that issue to the jury.

The verdict returned by the jury is a general verdict. No request for a special verdict was made and no interrogatories submitted; hence it is not disclosed upon which defense the verdict was based. If any presumption is to be indulged it would be that the verdict is not based upon defenses which were not supported by any evidence whatever. The rule laid down in Sites v. Haverstick et al., 23 Ohio St., 626, approved and followed in Beecher v. Dunlap et al., 52 Ohio St., 64, and McAllister v. Hartsell, 60 Ohio St., 69, clearly applies and requires an affirmance of the judgment. Applying that rule to the instant case we hold that where, upon the issues made by several defenses to a claim sued upon, a general verdict is found for the defendant, it not being disclosed by answers to interrogatories or otherwise upon which issue the verdict was based, and the record disclosing no error touching either the presentation or submission of at least one of such issues, a finding upon which in favor of the prevailing party would justify a general judgment, which is rendered, error of the trial court in the submission of other issues will be disregarded.

Judgment affirmed.

Nichols, C. J., Johnson, DonAhue, Newman and Jones, JJ., concur.


author: By the Court.

text:
    McDorman v. Ballard et al., Trustees, et al.

      Constitutional law — Maintenance of fences around enclosed lands — Section 5go8 et seq., General Code, constitutional.

    (No. 14962
    —Decided April 25, 1916.)
    Error to the Court of Appeals of Greene county.

      Mr. Harry T. McDorman and Mr. Charles E. Ballard, for plaintiff in error.

      Messrs. Smith & Smith and Mr. F. L. Johnson, for defendants in error.
   By the Court.

Plaintiff in error, Harry T. McDorman, brought an action in the court of common pleas of Greene county to enjoin William Ballard, S. K. Turnbull and James Gorman, trustees of Ross township in that county, from interfering in any way with his rights in his portion of a certain partition fence by reason of the trustees’ purported view, award and assignment under the provisions of Section 5908 et seq., General Code. Defendant in error, John Diffendall, upon whose complaint the proceedings.were had before the trustees of the township, was made a party defendant and the court was asked to enjoin him from interfering with, molesting or controlling any part or portion of plaintiff’s fence, and further, from recording or causing to be recorded the purported award and assignment made by the trustees. A demurrer to the petition was sustained and plaintiff not desiring to plead further a temporary restraining order which had theretofore been granted was dissolved and the action was dismissed at the costs of plaintiff.

An appeal was taken to the court of appeals and a demurrer to the petition consisting of two alleged causes of action was sustained. Upon leave, the petition was amended by adding a third cause of action in which it was alleged that Sections 5908 and 5910, General Code, under and by virtue of whose provisions the defendants committed the purported grievances complained of in the petition, were repugnant to the constitution of the state of Ohio, in that they violated the provisions of Section 19 of Article I thereof. A. demurrer to this cause of action was also sustained and plaintiff not desiring to amend his petition the same was dismissed at his costs. Plaintiff in error is here asking a reversal of the judgment of the court of appeals upon the ground that Sections 5908 et seq., General Code, are unconstitutional.

In the case of The Alma Coal Co. v. Cozad, Treas., 79 Ohio St., 348, the constitutionality of the act of April 18, 1904 (97 O. L., 138), which act is carried into the General Code as Section 5908 et seq., was considered by this court. It was held that the act could not be so construed and administered as to charge an owner of lands which are, and are to remain, unenclosed, with any part of the expense of constructing and maintaining a line fence for the sole benefit of the adjoining proprietor. It does not appear in the present case that the lands of plaintiff in error are unenclosed, and therefore they do not come within the exceptions of the provisions of the statute mentioned in the case to which we have referred, and upon the authority and the holding in that case the judgment of the court of appeals is therefore affirmed.

Judgment affirmed.

Nichqls, C. J., Donai-iue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    Flotron v. Barringer.

      Elections — City commissioners — Authority of commission to determine election and qualification of its members — Section 4237, General Code — Section 40, Charter of Dayton — Section 21, Article II, and Section 8, Article XVIII, Constitution.

    (No. 15121 —
    Decided April 25, 1916.)
    Error to the Court of Appeals of Montgomery county.
    The city of Dayton, under the authority conferred upon it by Section 7 of Article XVIII of the Constitution of Ohio, as amended September 3, 1912, adopted a charter for its municipal government, which charter provides that a commission of five shall constitute the governing body, with power to pass ordinances, adopt regulations and appoint a chief administrative officer to be known as the city manager, and exercise all further powers conferred by the charter.
    At the election held in the city of Dayton in November, 1915, John R. Flotron and Willard Bar-ringer were candidates for members of this city commission. The official return gave Flotron a small majority over Barringer. Barringer filed in the common pleas court of Montgomery county a petition to contest the election of Flotron. On motion, the common pleas court dismissed this petition for the reason that Section 40 of' the city charter provides that “The commission shall be judge of the election and qualifications of its members.”
    Barringer then filed a petition in error in the court of appeals to reverse this judgment of the common pleas court dismissing his petition, and that court reversed the judgment of the common pleas court and remanded the cause for hearing on its merits, upon the theory that the provision in the charter of the city of Dayton, that the commission shall be judge of the election and qualifications of its members, is a concurrent remedy with the remedy provided by the general assembly under authority of Section 21 of Article II of the Constitution.

      Mr. Lee Warren James, for plaintiff in error.

      Mr. John W. Sharts and Mr. Frank W. Krehbiel, for defendant in error.
   By the Court.

The statutes of this state designate the legislative authority of a municipal corporation as “council.” The charter of the city of Dayton, Ohio, provides for a form of government called the commission-manager plan and confers upon a commission the same legislative authority given by statute to the council of other cities of the state, and further provides the manner in which* it shall exercise that legislative authority.

Article XVIII of the Constitution, as amended September 3, 1912, which relates to municipal corporations, refers to “the legislative authority of any city or village” without designating that authority by any name. It is evident, therefore, that in so far as the legislative authority of a city is concerned, the terms “council” and “commission” are identical.

The charter of the city of Dayton, however, confers upon this commission further governing powers not possessed by the city council of other cities of the state and not coming within those powers recognized as legislative. These added powers do not necessarily distinguish that body from a city council, for this charter might have retained the statutory council and conferred upon it all the powers and duties in addition to its legislative authority that it conferred upon the commission. It is not the name, but the powers and duties, of the office, that determines its character.

This commission is the legislative authority of the city of Dayton, and that fact, and not the fact that it has further governmental powers, fixes and determines the nature of the office. In this important respect it corresponds to the council in other cities and is to all intents and purposes the council of the city of Dayton.

That being true, there is no conflict between the provision of Section 40 of the Dayton charter and Section 4237, General Code, passed by the general assembly of the state of Ohio in pursuance of the authority conferred upon it by Section 21 of Article II of the Constitution, for Section 4237 provides that “council shall be the judge of election and qualification of its members.” This provision is identical with the provision in the charter that the commission shall be judge of the election and qualifications of its members.

This is in line with other statutory provisions relating to all legislative bodies on this subject. There is no question whatever that the commission of Dayton is the council or legislative body of that city, and therefore comes within the full meaning, purpose and intent of Section 4237, General Code.

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

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