text:
    Railroad Co. v. Cunnington.
    1. Where a private road extends across the track and right of way of a railroad company, and connects with a public highway, the company is required to maintain across such private road suitable fences, or provide other protection against injuries which may result from animals passing from such highway, through the private road, on or along the ' railroad track.
    2. Books kept by a railroad company solely for its own use in the management of its business, are not admissible as evidence, when offered by the company, in an action against it by a stranger to such company seeking to recover damages sustained by the company’s negligence.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Mahoning county.
    A. Cunnington & Son, peddlers of queensware and glassware, were traveling on the public highway, in 1880, from Lowellville to Y oungstown. Their wares were contained in a two-horse wagon and a one-horse wagon. Night coming on and the road being rough, danger to their wares prevented them from proceeding further, and they determined to stop for the night, removing the wagons from the traveled portion of the road. They claim that they fastened the three horses: to the tail of the larger wagon by a strong strap. The road on which they were traveling ran parallel with and near to the railroad track of the Pittsburgh and Lake Erie Railroad Company. There was a private road twenty feet and upward in width, belonging to one Quiesner, leading from the public highway across the railroad track and right of way, to Quiesner’s residence on a farm near the railroad. The crossing for the private road was made at the time the railroad was completed. There was no fence or gate across the private road on either side of the railroad, nor was there any cattle-guard, at the private way crossing, across the railroad track. Late in the night, it is claimed, the horses became frightened at the approach of a freight train, broke their fastenings, ran along the highway a short distance to the private road, passed out that to the railroad track, and ran along the railroad track several rods until they were overtaken by the train and killed.
    In an action in the court of common pleas of Mahoning county to recover the value of the horses, the plaintiffs relied on the fact that no fence or gate or cattle-guard had been erected. The company denied that there was any obligation upon it to place such structures there, and requested the court so to instruct the jury, but the instruction was refused, and on the contrary the court charged the jury, that if they should find that, without fault of the plaintiffs, the injury was caused by-the absence of such structure, the plaintiffs were entitled to recover the value of the horses. To this ruling the company excepted.
    The company also claimed on the trial that the plaintiffs were precluded from recovering by contributory negligence, in camping so near the railroad track. The claim was also made that several trains had passed after the encampment, and before the arrival of the train by which the horses were killed; that the horses had not broken loose; that they had not been fastened, but had been suffered to wander along the highway, the private road and the railroad track. As tending to show such defense, the company called Jones, its master of transportation and superintendent of telegraph, as a witness, who produced the company’s register of trains, to show the number of trains which passed along that part of the road, after the encampment and before the arrival of such freight train. The witness did not speak as to any of the entries from personal knowledge of the fact recorded, but said the book was made at Pittsburgh from telegrams and that the trains were moved on .the information thus received. The court excluded the book and the testimony of the witness as to its contents, no claim being made that his memory was refreshed by anything in the book. To the decision excluding the evidence the company excepted.

      Yerdict and judgment for $300. Affirmed in the District Court. This is a motion for leave to file a petition in error to •reverse the judgments, and presents only questions of law. 80 Ohio L. 169.

      James P. Wilson, for plaintiff in error:
    1. There was no obligation to fence. Pierce on Rail. 417, 422; 43 Iowa, 207; 29 Ind. 545; Ib. 40; 47 Iowa, 76 ; 24 Ind. 222. 2. The train record and testimony of Jones in relation thereto were competent. 1 Grreen. Ev. (13th ed.) 486, 487, 550; Starkie’s Ev. 157.

      B. B. Murray and M. G. MoNabb, for defendants in error.
   Okey, J.

The act requiring railroad companies to fence their tracts (Rev. Stats. § 3324, note; 78 Ohio L. 199 ; 3 Rev. Stats, [by Aldrich] 184, note) exempts from .its operation ways used by the public, and requires cattle-guards to be placed where such highways cross the railroad track; but the statute is otherwise general. In Railroad Co. v. Newbrander, 40 Ohio St. 15, it was held that the necessities of the public and the company and its employes may be such as to create an exception with respect to the depot grounds and yai’ds, but that in such case it is the duty of the company ‘-‘to construct and maintain cattle-guards across its roadway and grounds, at the first point from the highway which will not interfere with the necessities and convenience of the public and the company.”

No express exception as to fencing is made in the case of -private roads or ways, nor is such exception to be implied from any other statutory provision, nor does it arise, as in case of depot grounds, from necessity. The protection against injury to animals, and incidentally to human life, afforded by properly constructed cattle-guards, at points where public highways cross railroad tracks on a level, is acknowledged to be of much importance; but if private roads leading from public highways across railroad tracks may be left without the same, or an equivalent protection, the utility of such guards at public highway crossings will be greatly impaired. ' To hold that such protection was not contemplated would be to violate not only the spirit, but the plain words of the statute. The company has discretion, no doubt, to determine whether such protection shall consist of gates or other structure; but, whatever the form, the protection afforded must be reasonable, and reasonable facilities to the owner of such private road must also be afforded, and moreover there must be, on the part of the company, reasonable diligence to keep such structures in repair. The whole subject has been recently considered in Indiana, where the legislation is similar, and after disapproving some of the decisions in that state, the same view here stated is enforced by the supreme court in an able opinion by Elliott, J. Indianapolis., etc. Ry. Co. v. Thomas, 84 Ind. 194.

There was no error in excluding the register of trains. It was not of a public or quasi public character, but made solely for the convenience and use of the corporation in managing its trains, and hence was not admissible against a stranger. The witness was not prevented from using it to refresh his memory, nor was his testimony, as to any fact within his knowledge, excluded. His evidence as to the contents of the book stood on no better ground than the book itself. The exclusion of both was proper. Pittsburgh, etc. R. Co. v. Noel, 77 Ind. 110; Chase v. Railroad Co., 38 Ill. 215; Whart. Ev. §§ 661-663.

Motion .overruled.


source: Caselaw Access Project

author: MoIlvaine, J.

license: Public Domain

text:
    Railway Company v. Fisher.
    The act of April 7,1876, “ relative to changing of proposed lines and termini of railroads,” authorizes a railroad company, in certain cases, by a majority of its directors, with the written consent of three-fourths in interest of the stockholders, to change the location of its proposed line of road, or a part thereof, provided “ that any subscription of stock made upon the faith of the location of such railroad, or a part thereof, upon any line abandoned by such change, shall be canceled al the written request of the subscriber not having assented as aforesaid, filed with the secretary or other chief officer of the company.” Held: A subscriber, who expressly stipulates against any change in the line of road, though after the passage of the statute, is not concluded by its provisions. The failure of such subscriber, after a change in the location has been made, to request in writing the cancellation of his subscription, is not a waiver of the conditions of his contract.
    Motion for leave to file a petition in error to the District Court of Clermont county.

      Nichols, Griffith & Davis, for the motion.

      Mallon & Ooffey, contra.
   MoIlvaine, J.

The original action was prosecuted by the plaintiff in error against defendant in error to recover the amount of a subscription to its capital stock, made on condition that the money should be applied to the construction of a branch road, as then surveyed, “ from a point on the line of the Cincinnati and Eastern narrow gauge railway at or near Newtown, Hamilton County, Ohio, from. thence by the most practicable route passing through or near Mt. Washington via Clough creek, Nine Mile creek and the Ohio river, tó a point within the corporate limits of New Richmond.” This subscription was made in December, 1876. Subsequently, the plaintiff, under authority of the statute of April 7, 1878 (73 Ohio L. 115), changed the location of a part of the line of its branch road, described in the condition of defendant’s subscription, and abandoned that part of original surveyed line passing through or near Mt. Washington via Clough creek.

By the terms of the statute above referred to, in force at the time the defendant’s subscription was made, and under which the line of branch road was changed, it was provided that any subscription of stock make upon the faith of the location of such railroad or part thereof, upon any line abandoned by such change, shall be cancelled at the written request of the subscriber not having consented as aforesaid, filed with the secretary or other chief officer of such company.”

The defendant Fisher neither consented to the change of line, nor filed a written request for the cancellation of his subscription as authorized by the statute.

The plaintiff in error, against whom judgment was rendered below, contends that defendant, by failing to file his written request for cancellation of his subscription, waived the condition stipulated therein, and is liable for the amount thereof.

In our opinion, this statute was not intended to release a railway company changing its line of road, from the performance of conditions attached to stock subscriptions.

The right given to subscribers to demand, in writing, the cancellation of subscriptions made on the faith that the road would be constructed on a line afterward abandoned by the company, is not limited to conditional subscriptions. The language is; “ any subscription of stock made upon the faith of the location of such railroad, or part thereof, upon any line abandoned by any such change, shall be canceled,” &e. But the extension of this remedy to conditional subscribers does not deprive them of any right secured by express stipulation in the contract. That consent to such change of route would be a waiver of a stipulation against the change, does not rest on the statute, but upon general principles independent of the. statute. So that, when a stipulation against such change is made an express condition in the contract of subscription, the rights and duties of the parties, under the contract, are not changed by the statute. True, such conditional subscriber may avail himself of the remedy given by the statute, whenever he can show himself to be within its terms, but his failure to resort to such remedy does not deprive him of the right, in an action on the contract, t'o insist upon the 'performance of ' any condition precedent, which has not, in fact, been waived.

Motion overruled.■


author: Johnson, C. J.

text:
    Branahan v. Hotel Company.
    Under authority of an ordinance of the city of Cincinnati, B., and others, who were the owners and drivers of Hackney coaches, used and occupied the side of the public street on which the plaintiff’s store rooms fronted, as a hackney coach stand, in such manner and so constantly, as to constitute an unlawful interference with the use and enjoyment of plaintiff’s premises, and so as to render access to the store rooms of the plaintiff impossible. Held: That such grant was without authority of law, and constitutes no justification for obstructing the plaintiff’s right of access to the street.
    Motion for leave to file a petition in error to the District Court of Hamilton county.
    The Cincinnati Hotel Co. is the perpetual lessee of a lot one hundred and seventy-eight feet on Fourth street, Cincinnati, and two hundred feet deep on Central avenue, on which there is a large and costly building used partly for hotel purposes, and partly rented out as store rooms. That part of said building fronting on Fourth street is known as the Grand Hotel. On the side fronting on Central avenue there is an entrance to the hotel, and seven store rooms rented and occupied separately from the hotel. Access to these store rooms and to the side entrance of the hotel, is from Central avenue.
    The plaintiffs in error are the owners and drivers of hackney coaches, and under an ordinance passed by the city council, have appropriated and occupy as a stand foi1 their coaches, the side of Central avenue, between Fourth and Third streets, next to plaintiff’s property. The hotel company commenced an action to enjoin such use, on the ground that such use and occupancy was without authority, and materially injured the property of plaintiff, and constitute a private nuisance.
    In the district court it was specially found, “that said defendants use and occupy said Central avenue in such a manner, that such use and occupation is an unlawful interference with the use and enjoyment of the premises by the plaintiff, and so obstructs the street and avenue aforesaid as to render access to the rooms occupied and used by the plaintiff’s tenants impossible; that the defendants are insolvent, and that the plaintiff is entitled to the relief prayed for. ” A perpetual injunction was upon hearing granted.
    A motion is now made to review this judgment.

      Campbell, Bates da Bettman, for the motion.

      Paxton da Warrington and M. F. Wilson, contra.
   Johnson, C. J.

The findings of the court below, that the use of Central avenue from Fourth to Third streets as a hack stand, is such an unlawful interference with the use and occupation of the premises by the adjacent owner, the plaintiff, as to obstruct the avenue and render access to the store rooms fronting thereon by the plaintiff’s tenants impossible, leaves little to be said.

The owner of lots abutting upon a public street in a city or village has a peciiliar interest in the street; distinct from the right of the public to use the street. It is a private property right in the nature of an incorporeal hereditament attached to his contiguous grounds and the erections thereon, without which his property would be of comparative little value. The right of access to the street for business purposes is of great value. The finding of the court is, that this is destroyed. This easement appendent to the abutting property is a valuable property right of which the owner cannot be divested except when; taken for public use and after due compensation.

The city is clothed with power over the streets, and is charged with the duty of keeping them open for public use and free from nuisance. It may enlarge these general public uses without infringing the rights of the adjacent owner, but where additional burdens are imposed even for a public purpose, which materially impair the incidental property right of the lot owner, equity will enjoin, until compensation is made. Railway v. Lawrence, 38 Ohio St. 41; Street Railway v. Cumminsville, 14 Ohio St. 524; Crawford v. Village of Delaware, 7 Ohio St. 459. This ordinance granted a permanent use of the street for mere private uses. As well might the city authorize permanent booths or structures for the use of dealers in the various articles of trade. Having no rent to pay, the occupants could accommodate the public at better rates.

The supervision and control of the public highways of a city is a public trust, and while additional uses may be imposed, not subversive of, or impairing the original use, such as laying ■ down gas and water mains; yet the rights of the public to use it as a street, and of the adjacent lot owner to enjoy it as the means of access to his property, cannot be materially impaired.

The city has the right to regulate hackney coaches (R. S. § 1692), and also the right to appropriate private property for the use of the corporation, but it has no power to appropriate the easement of an adjacent owner to a mere private use. This permanent occupancy of the streets cutting off access to plaintiff’s store rooms, for the convenience and benefit of a private business, cannot be justified on the plea that the public who use hacks are accommodated more readily and on better terms.

The same would, doubtless, be the case with other kinds of business located in the streets. The finding of the court is, that the use complained of deprives the owner of all access to his premises.

Even if, as is suggested, this is in the nature of a public use, like a market, the city could not appropriate it to such use without proceeding according to law as settled in the cases already cited.

The doctrine of these cases is so just. They rest upon a satisfactory foundation. The principle there settled is no longer open to discussion. Whatever criticism of that doctrine may be met with in some of the states, it has rapidly grown in favor and is now generally accepted as the true exposition of the rights of the public, and of property owners affected.

The following among numerous authorities may be cited in support of the principle, that the lot owner has property rights in the street in front, of his property, which he has the right to have protected. A careful examination of these cases will, I think, show, that while these private rights are generally conceded both in England and in all the states, the doubt was merely whether this right was property within the meaning of the constitution, which had to be taken under the power of eminent domain, or merely gave a right of action to the owner for damages. In either view the plaintiffs below were entitled to the relief sought, it being in the nature of a continuous trespass or interference with an easement, and the defendant being insolvent. 2 Dill. Mun. Corp. § 656 et seq.; Lyon v. Fishmongers, 1 Law Rep. App. Cases, 662; Brayton v. Fall River, 113 Mass. 218; Pratt v. Lewis, 39 Mich. 39; State v. Lawrence, 34 N. J. Law, 201; Schulte v. N. P. Transp. Co., 50 Cal. 592; Note to Fritz v. Hobson, 19 Am. Law Reg. 615.

Motion overruled.


author: Okey, J.

text:
    Allen v. Russell.
    Under the act of 1878 (75 Ohio L. 692, § 62 ; Rev. Stats. § 5135), a widow may hold exempt from execution a homestead, not exceeding one thousand dollars in value, although she is not “living with an unmarried daughter or unmarried minor son.” ■
    Error to the District Court of Summit county.
    May 6, 1878, William E. Russell obtained a judgment in the court of common pleas of Summit county, against Jane Allen, for $424.17' debt and $15.63 costs. Levy was made upon the defendant’s house and lot in Akron, in that county, on which she resided, being her homestead owned by her in her own right, and the only real estate which she possessed. She demanded that the property be set off to her as a homestead. Its value did not exceed $1,000. She was at the time and ever since has been a widow, but was not at any time living with an unmarried daughter or unmarried minor son. The sheriff refused to cause the homestead to be set off, and in 1879 sold the property on vendi. ex. for $667; but the court of commoD pleas, in 1880, set the sale aside and ordered the demand for the homestead to be allowed. The district court reversed tbe order, and this petition in error is presented to reverse the judgment of reversal.
    : G. K. Pardee and J. S. Carpenter, for plaintiff in. error.

      J. J. Hall, for defendant in error.
   Okey, J.

The act of 1871 (68 Ohio L. 106), amendatory of the homestead act of 1850, in force when the judgment recited in the vendi. ex. was rendered, provided as follows: Every widower having an unmarried minor child or children residing with him as part of his family,, and every widow, shall have the benefit of this act.” This act was repealed by the act of 1878 (75 Ohio L. 597, 692), which was in force when the vendi. ex. was issued and the demand for the homestead was made. The latter provision has been incorporated into the Revised Statutes, § 5435, and properly punctuated, is as follows: “ Husband and wife living together, a widow, or a widower living with an unmarried 'daughter or unmarried minor son, may hold exempt from sale, on judgment or decree, a family homestead not exceeding one thousand dollars in value.” That courts will repunctuate if necessary to render the meaning clear, see Hamilton v. Steamboat Hamilton, 16 Ohio St. 428; 1 Ohio, 385; 23 Ohio St. 140.

Where one or more sections of a statute are repealed and re-enacted in a different form, the fair inference is, in general, that a change in meaning was intended ; though even in such a case the intention may have been to correct a mistake or remove an obscurity in the original act, without changing its meaning. But where all the general statutes of a state, or all on a particular subject, are revised and consolidated, there is a strong presumption that the same construction which the statutes received, or, if their interpretation had been called for, would certainly have received, before revision and consolidation, should be applied to the enactment in its revised and consolidated form, although the language may have been changed. Gardener v. Woodyear, 1 Ohio, 170, 176; Swasey v. Blackman, 8 Ohio, 5, 20; Ash v. Ash, 9 Ohio St. 383, 387; Tyler v. Winslow, 15 Ohio St. 364, 368; Williams v. The State, 35 Ohio St. 175; Jackson v. The State, 36 Ohio St. 281, 286; The State v. Com., 36 Ohio St. 326: The State v. Vanderbilt, 37 Ohio St. 590, 640; Bishop’s Written Laws, § 98. Of course, if it is clear from the words that a change in substance was intended, the statute must be enforced in accordance with its changed form. lb.

The commissioners appointed under the act of 1875 (72 Ohio L. 87) were required to revise and consolidate the statutes of a general nature, and make report to the general assembly. They determined that the best way to perform that duty was to arrange all the general laws under proper heads, and report the same to the general assembly in the form of a bill. Their power to change was very limited. It was confined to “making alterations to reconcile contradictions, supply omissions, and amend imperfections in the original acts, so as to reduce the general statutes into as concise and comprehensive a form as is consistent with the clear expression of the will of the general assembly.” Their power to change did not extend to matters of substance, like the right to a homestead. The commissioners were vested with no legislative power. They could recommend, and that was all; and the bill which they prepared obtained its vitality solely from its adoption by the general assembly. Changes were undoubtedly made in the bill by the general assembly, but they were not numerous. That the rule which I have stated as applicable to revisions should be applied to the Revised Statutes, can admit of no doubt; and, applying the rule, it is clear a widow is entitled to a homestead, although she may not be so fortunate as to live with, or even have, “ an unmarried daughter or unmarried minor son.”

There is another question presented on the record, but as it has not been argued, I will do no more than state it. No one doubts that under the act of 1871, the widow would have been entitled to the homestead. When the judgment was rendered and the lien attached (May 6, 1878), that act was in force, and it remained in force until it was repealed by the act of 1878, above montioned. (75 Ohio L. 597, 692, 800, 821.) Assuming that a statute securing a homestead, in force when a judgment is rendered, may, without infringement of the constitutional provision as to retroactive laws (Const, art. 2, § 28; Rev. Stats. § 99, note; Bull v. Conroe, 13 Wis. 233; Cooley’s Const. L. 474; cf. Finley v. Dietrick, 12 Iowa, 516), be repealed, so as to deprive, .the debtor of such exemption,— still, even in cases where such constitutional inhibition does not apply, if it be doubtful whether it was intended that the new act should operate retrospectively, the doubt should be resolved against such operation. Bishop’s Written Laws, § 82. Or, as expressed by White, J., in Bernier v. Becker, 37 Ohio St. 72, 74: “A statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively.” Besides, by force of the saving clause in the act of 1878 (75 Ohio L. 821), the act of 1871 may control. Indeed, the execution may have been in the hands of the officer when the act of 1878 took effect. The repealing and saving clause, so far as it is applicable, is as follows: “ This act shall take effect and be in force from and after the first day of September, 1878 ; but process then issued shall be executed, jurors then selected may be drawn and impaneled, actions, suits and proceedings then pending shall be conducted to final judgment, and liens of judgments and decrees then existing shall continue and be preserved, in all respects, as if this act had not been passed.” But it is unnecessary to express any opinion on the question whether the case is controlled by the act of 1871, for the i*eason that it is disposed of on the other ground.

Judgment reversed.

Upson, J., having been of counsel in the case, did not participate in the decision.


author: MoIlvaine, J. Okey, J.

text:
    Holst v. Roe.
    1. A per ca/pita tax on dogs is not inhibited by tbe constitution.

      2. Where tbe purpose of a statute imposing such tax, is tbe protection of wool-growers, it is an exercise of tbe police power, and not tbe taxing power, vested in tbe general assembly.
    Error to the Court of Common Pleas of Washington county. . Reserved in District Court.
    The original action was brought by plaintiff in error, as treasurer of Washington county, against defendant in error, before a justice of the peace, to recover four dollars and forty cents, per capita taxes and penalty, assessed on four dogs, in the year 1881, under sections 2754, 2833, and 2855 of Revised Statutes.
    The action having come into the court of common pleas by appeal, it was there held and decided, on demurrer to petition, that the statute authorizing a per capita tax on dogs was unconstitutional, and the action was thereupon dismissed by the court.
    The plaintiff, thereupon, filed this petition in error, in the district court, to reverse the judgment of the court of common pleas, and the district court being of opinion that important and difficult questions were involved in the case, reserved the same for decision in this court.

      2Tye ds Oldham,, for plaintiff in error :
    It may be doubted whether dogs are property within the meaning of the constitution. They were not absolute property at common law Blair v. Forehand, 100 Mass. 140; Bac. Abr. Replevin, F; 2 Blacks. Comm. 393; State v. Lymus, 26 Ohio St. 400. The dog has not been considered by the legislature of Ohio as property for taxation purposes. The constitution provides “ laws shall be passed taxing by a uniform rule all real and personal property.” Const, art. 12, § 2. “In listing personal property for taxation it shall be valued at the usual selling price thereof.” 1 Rev. Stats. § 2739. As to dogs, “ the owner may, if he so desire, affix any value thereto he wishes, without swearing to the valuation.” 1 Rev. Stats. § 5724. The legislature having adopted the “ usual selling price ” as the “ uniform rule ” required by the constitution, and the dog having no selling price, but his value “ depending only on the caprice of the owner ” (2 Blacks. Comm. 393), it follows either that the dog must escape taxation, or that he must be specially taxed by some other rule. Nor do we see how the legislature could have adopted any uniform rule taxing dogs as other property, since there is no standard by which the value of an ordinary dog can be ascertained. We maintain that the word “ property,” as used in the constitution should be construed to include only such property as can be taxed by a uniform rule, and not a species of property the largest portion of which has neither market nor actual value. If the dog is not “ property ” within the meaning of the constitution he may be specially taxed, although he may have value. Baker v. Cincinnati, 11 Ohio St. 534; West. Un. Tel. Co. v. Mayer 28 Ohio St. 521. The exact question has been decided in Texas under a similar provision of the constitution, where it is held that the dog is not “ property,” and so may be specially taxed. Exp. Cooper, 3 Tex. App. 489; s. c., 30 Am. R. 152.
    II. "We claim,however, that the statutes are constitutional as a proper exercise of the police power of the state. 100 Mass. 140; 13 Johns. 312; 26 Vt. 638; 31 Conn. 121; Dillon on Mu. Corp. §§ 150, 358; 26 Ohio St. 400; 42 N. H. 375 ; Rev. Stats. §§ 4215, 7008; 18 Ohio St. 243; 74 Ohio Laws, 117; 16 Wis. 317, 591; 7 Bush 486; 27 Ind. 62; 82 N. C. 175; 46 Mich. 183.

      W. B. Loomis, for defendant in error:
    The section of the statutes under consideration (Rev. Stats. § 2833) is in conflict with sections 2 and 5 of article 12 of the constitution.
    If, in contemplation of the constitution and laws, digs are personal property and the per capita levy of one dollar1, required by section 2833, is a tax, then section 2833 plainly disregards the constitutional requirements, in neither taxing by “ a uniform rule,” nor according to “ true value in money,” nor stating any object for the taxation. This per capita tax is not laid by a rule uniform with that by which other personal property is- taxed (see tax laws as to personal property in general), nor is the rule uniform as to the taxation of all dogs; for the section itself provides for a per capita or specific tax upon all dogs, and an ad valorem tax upon some dogs, viz.: such as may be listed with values by their owners. In providing for the one dollar tax, no regard whatever is had to the “true value in money” of the dog on which it is imposed. And, while the general assembly provided in the section for the imposition of the specific tax to raise a special fund, they not only failed to state the object, but seem to have discovered no object, and to have reserved both the discovery and promulgation of the object for future legislation. We are brought then, to the questions — are dogs property in Ohio, and is this one dollar imposition a tax ? See 26 Ohio St. 400; Rev. Stats. §§ 2754, 4214, 2833, 4213, 4214, 4215, 2730. If this one dollar per capita levy, provided for by section 2833, is in the purview of the law a tax, then it is clearly unconstitutional. Rut it is said it is not a tax but a police measure. It might well be conceded, for the purpose of argument, that dogs are legitimate subjects for the exercise of police power, but that concession would not relieve this law of its infirmity, for the question is not what may the general assembly do, but what has it done in this law now under consideration ? This provision has all the characteristics of taxation. It is found embodied, with the other provisions for taxation; in “ Title xiii. Taxation,” of the Rev. Stats. It uses the terms appropriate to taxation. It calls itself taxation. It deals with a proper subject of taxation. See Rev. Stats. § 2731. Its only avowed purpose is to create a special fund, and it leaves that fund for future appropriation to such objects as the legislative mind may discover. “ The word tax means burden, charge, or imposition, put or set upon persons or property for public,uses.” 11 Johns. 77; Cooley's Const. Lim. 586 ; Dillon on Mu. Corp. §§ 291-4. The attention of the court is invited to the following cases as reflecting strongly upon the questions here involved. Mayor of Washington City v. Meigs, 1 McArthur, 53 ; s. c., 49 Am. R. 578; Harrington v. Miles, 11 Kan. 480 s. c., 15 Am. R. 355, and notes.
   MoIlvaine, J.

Section 2754 of Revised Statutes, which is found in the. chapter relating to tijs listing of personal property for taxation, is as follows : “ Every dog, over three months of age, shall be listed by the owner or by the assessor in the name of the owner, without affixing any valuation thereto; but the owner may, if he so desire, affix any value thereto he wishes without swearing to the valuation,” &e. And section 2833, found in the chapter relating to the levying of taxes, provides: In the tax list and duplicate there shall be columns for the number of and per capita tax on dogs, and in addition to the proper tax on the valuation that may be fixed upon dogs by the owners, which shall be included with the personal property valuations and taxed therewith; the auditor shall levy one dollar on each dog, which per capita tax shall constitute a special fund to be disposed of as provided by law.”

By section 4215, this special fund is devoted to the payment of losses sustained by owners of sheep killed by dogs.

"Whether the per capita dog tax thus imposed is in conflict with seption 2, article 12 of the constitution, which provides, Laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies or otherwise; and also all real and personal property, according to its true value in money,” is the sole question in this case. It is perfectly clear that the tax thus levied on dogs is not by a uniform rule according to the true value in money of the property taxed.

A question has been raised, whether dogs are property within the meaning of this constitutional provision ; but we think the solution of that question is not decisive of this ease.. If they be not property, and, therefore, are not subject to the-taxing power of the general assembly, or, if they.be property, and, therefore, must be taxed according, to'their true- value in. money, it does not follow, that the legislation in question is not a constitutional exercise of the police powers vested in the general assembly under the general grant of legislative powers, .which include the power to protect citizens in the enjoyment of property and afford redress for injuries done to it. The police and taxing powers of the general assembly, though co-existent, are distinct powers; hence the exercise of the former is not restrained by the existence of the latter, though it may result in producing revenue, as for instance, in imposing fines in punishment for offenses.

Recently we had occasion to recognize this principle, and applied it in support of a statute which imposed a burden or tax upon the traffic in intoxicating liquors, although intoxicating liquors were subject to taxation for public revenues as other personal property. See State ex rel. Attorney-General v. Auditor of Athens county, post.

"While the dog, as a species, possesses many valuable traits which by some are denominated virtues, it is nevertheless known of all men, that he possesses vicious traits which are especially inimical to the important industry of raising sheep and wool. If the government were powerless to protect this industry from the ravages of dogs, it would indeed be impotent to protect its citizens in the enjoyment of property, than which none other is' more essential to the public welfare. But such power is unquestionably vested in the general assembly as a police power, and, in the judgment of the general assembly a per capita tax on dogs has been deemed a means of securing the necessary protection to sheep owners ; and, as the choice of means was within the power and discretion of the general assembly, its judgment is not subject to judicial control. The original statute on this subject (which has been, in substance transferred to Revised Statutes above quoted) passed May 5, 1877 (74 Ohio L. 177) was entitled “ An Act for the protection of wool-growers and the confiscation of dogs,” a subject not only within the police powers of the general assembly, but one deserving ©f its consideration.

The conclusion which we have reached is, as we think, not only sustained by sound reasoning, but is supported by abundant authority.

In Vanhorn v. People, 46 Mich. 183, the identical question was considered. Graves, J., in delivering the opinion says: “ The fundamental proposition is that the exaction attempted by the statute is a tax within the meaning of article 14 of the constitution.....and not being laid according to any mode of uniformity nor assessed according to the cash value of the property, the imposition is unconstitutional. It is also suggested that dogs are included in the mass of property annually taxed under the general law, and that it is not competent to select one species of property and subject it to double taxation. It is unnecessary to point out the various inaccuracies of this reasoning. The foundation on which it rests is fallacious. The supposition that the statute is an emanation from the taxing power in the sense in which that power is regarded by article 14 is a mistake.....The act is an execution of the police power, and no reason is perceived for denying its validity.”

The same general doctrine has been maintained in Blair v. Forehand, 100 Mass. 136; Tenney v. Lenz, 16 Wis. 566; Mitchel v. Williams, 27 Ind. 62; Morry v. Brown, 42 N. H. 373; Woolf v. Chalker, 31 Conn. 121; Ex parte Cooper, 3 Texas C. App. 489; Cooley Const. Law, 741.

Judgment reversed.

Okey, J.

I concur in holding the legislation necessarily involved in this case to be within the police power vested in the general assembly. The statutory provisions on the subject amount to a license. Rev. Stats. §§ 1052, 2754, 4214, 4215, 7008; Tenney v. Lenz, and Blair v. Forehand, cited by Mc-Ilvaine, J. But there is no inhibition against legislation of this character as applied to such a subject. 38 Ohio St. 225.


text:
    Gregory v. Small.
    The local directors of a sub school district, dismissed a person found in possession of the school-house and teaching the public school, under their control, on the ground that he had not been employed, and placed a teacher they had employed, in charge of the school. Held: that they were not liable personally, in damages, for such dismissal, if they acted in their official capacity, in good faith, and in the honest discharge of official duty.
    Error to District Court of Logan county. '
    • In the common pleas, Gregory sued Small, Baldwin, and ■Iioge, who were the local directors of a school district, for wilfully and oppressively dismissing him as a teacher, while he was fulfilling a contract to teach a four-months school, before the expiration of his first month.
    The petition alleges a contract to teach, the commencement of his term, his teaching some three weeks, his discharge, and his readiness to perform, and asks damages for breach of this contract.
    A demurrer to this petition was overruled, and exception noted.
    Two of defendants, Small and Hoge, filed a general denial, Baldwin making no defense.
    The jury rendered a verdict against the answering defendants for $121.66, being the amount of plaintiff’s salary for the entire term, had he taught the school.
    A motion for a new trial was made, on the grounds, among others, that the court erred in its charge, and in refusing to charge as requested.
    From the bill of exceptions it appeared that evidence was offered tending to show a contract for plaintiff to teach the school, made by two of these local directors, acting in their official capacity — also tending to show, there was no such contract, that plaintiff under claim of right took possession of the school-house and taught some three weeks — that the majority of the directors denied his right to teach on the ground that he had not been employed, and at a meeting for that purpose, regularly employed another teacher, and placed him in possession of the school, refused plaintiff in error possession, and refused to pay him. for services rendered.
    In this act, the defendants, Small and Hoge, were guided by .the advice of the prosecuting attorney, and acted in their official capacity. There was no evidence tending to show they acted from corrupt motives.
    The defendants asked the court to charge:.
    “ 1st. That if said defendants, Small and Hoge, at the time of ousting plaintiff from the school, believed plaintiff was not the legally employed teacher thereof, and in so ousting him, were acting in their capacity as local directors thereof, they cannot be held personally liable, unless it is shown to your satisfaction by fair preponderance of evidence that they acted from corrupt motive.
    “ 2nd. That if said defendants, or either of them, in ousting plaintiff from said school, acted in good faith, and in the honest discharge of what they believed to be their duty as school directors, such defendant or defendants so acting is not personally liable to plaintiff.”
    Which instructions the court refused to give the jury; but the court did charge the jury: “that if they find that said defendants, or either of them, employed plaintiff to teach said school, and afterwards discharged him without sufficient reason, such defendant or defendants so employing him, are liable, personally, tó the plaintiff, at. common law, notwithstanding he was not employed by them as directors,” to which refusal and charge said defendants, Small and Hoge, excepted, and prayed that their bill of1 exceptions in that behalf might be allowed, which is accordingly done, and upon their motion ordered to be made part of the record in this case.”
    The district court reversed the judgment of the common pleas, founded upon the verdict rendered under the above charge.

      G. W. Emerson and E- J. Howenstine, for plaintiff in error..

      McLaughlin & Dow, for defendants in error.
   Johnson, C. J.

This plaintiff sought to hold the local directors personally liable for damages sustained in not allowing him to teach the public school under their control. The plaintiff is not seeking from the school district compensation for his services rendered, as in Case v. Wresler, 4 Ohio-St. 561 j nor to recover against the local school district in its quasi corporate capacity.

In Directors Sub-School District v. Burton, 26 Ohio St. 421, this court held there was no redress against the school directors in their official capacity, or against the district, for dismissing a teacher for insufficient cause. A teacher who is so dismissed is therefore left to his remedy at common law against the officers personally. That is the nature of the present action. It seeks to recover against two of the local directors, damages for dismissing plaintiff as a teacher. The court charged the jury that if they, or either of them, employed plaintiff to teach the school, and afterwards discharged him without sufficient cause, such defendant or defendants are liable personally at common law, notwithstanding he was not employed by them acting as school directors. It refused to charge that if defendants were acting in their official capacity, they cannot be held personally, unless it is shown they acted from a corrupt motive. Also refused to charge, that if the defendants acted in good faith in the honest discharge of what they believed to be their official duty, they are not personally liable.

The averments of the petition show that defendants are sued for acts done in their official capacity. No one, except duly authorized, has the right to employ or dismiss a teacher, or to give to or take from a teacher, possession of the schoolhouse in charge of such authorities.

Hence, the court erred in telling the jury that if the defendants, Small and Hoge, or 'either of them, employed plaintiff, they were personally liable at common law, if they after-wards discharged him without sufficient cause. If there was not a legal contract of employment, the teacher had no right to teach the public school, and the directors in their official capacity might dismiss him, and put a teacher duly employed in possession of the school-house.

The common law right of action for dismissal is founded on a valid contract of employment. When an officer acts within the scope of his authority, he is not responsible personally, unless he acts from a corrupt motive. Stewart v. Southard, 17 Ohio, 402; Ramsey v. Riley, 13 Ohio, 137; Morrison v. McFarland, 51 Ind. 208.

If there was no valid employment, and there could be none except by official action when the salary was payable out of the public funds, the directors acting officially might refuse him possession of the school-house, or to recognize him as teacher. Indeed it was their duty to do so. If there was a valid contract of employment, followed by a subsequent dismissal, for sufficient cause, the plaintiff was without remedy even at common law; but if there was no sufficient cause for such dismissal, the directors are not personally liable when they acted in good faith, in what they'supposed was the honest discharge of official duty. They are,, personally liable, only when they act with-a corrupt intent.

Judgment affirmed.


author: Johnson, O. J.

text:
    Forsythe v. Mintier.
    A testator by will disposed of Ms entire estate. Item 2 reads as follows : “ I give and bequeath to my son William, 61.83 of land, for wbicb I have given Mm a deed already.” Using the same form of expression, he gives to his living children, and to the children and widows of deceased sons, money legacies, and provides that: “ If my estate, after paying all my just debts, should not amount to the above bequests, the deficiency shall come off each in proportion to their bequests, except William, Noah’s children and widow, Elijah’s widow, and Charles Riley's child and widow. And if my estate amounts to more than above bequests, surplus shall be divided and given to each in proportion to their bequests, except Noah’s widow and children, Elijah’s widow, and Charles Riley’s child and widow, whose estates shall not be altered.” Held: There being a surplus? that William was entitled to share in it under the residuary clause of said will.
    Error to tbe District Court of Muskingum county.

      In 1870 John Forsythe died, leaving the following last will and testament, which was duly probated, and under which the widow elected to take:
    “I, John Forsythe, of Eich Hill township, Muskingum county and state of Ohio, of the age of seventy-four years, and being of sound mind and memory, do make, publish, and declare this my last will and testament in manner following, that is to say :
    “ Item 1. — I. give and bequeath to my beloved wife Susanna, her lawful dower in my farm, and whatever else the law allows her.
    “Item 2. — I give and bequeath to my son William, the [6183-100] sixty-one eighty-three-hundredths acres of land for which I have given him a deed already.
    “ Item 3. — I give and bequeath to my son Noah’s children one hundred dollars to each of them, and to his widow one hundred dollars.
    “ Item 4. — I give and bequeath to -my son John five hundred dollars.
    “ Item 5. — I give and bequeath to my son David four hundred dollars.
    “ Item 6. — -I give and bequeath to my son Elijah’s widow one hundred dollars.
    “ Item 7. — I give and bequeath to my son Charles Eiley’s child one hundred dollars, and to Charles Eiley’s widow fifty dollars.
    “ Item 8. — I give and bequeath to my daughter Susanna Wilson four hundred dollars.
    “Item 9. — I give and bequeath to my daughter Eebecca Mintier four hundred dollars.
    “ Item 10. — I give and bequeath to my daughter Elizabeth Given four hundred dollars.
    “ If my estate, after paying all my just debts, should not amount to the above bequests, the deficiency shall come off each in proportion to their bequests, except William, Noah’s children and widow, Elijah’s widow, and Charles Eiley’s child and widow.

      u And if my estate amount to more than above bequests, surplus shall be divided and given to each in proportion to their bequest, except Noah’s widow and children, Elijah’s widow and Charles Riley’s child and widow, whose bequests shall not be altered. Lastly, I do nominate and appoint my son William Eorsythe, and Thomas Haney, to be executors of this my last will and testament, with power and authority to settle all claims against my estate, and to collect all debts due to me, and to sell my real estate to the best advantage within the space of three years after my decease.
    “ The above instrument, consisting of one sheet, was at the date thereof signed, sealed, published and declared by the said John Eorsythe, as and for his last will and testament, in pre. sence of us, who at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto.
    ■ “ Thomas P. Wilson,
    David P. Wilson.
    “In witness whereof, I, John Eorsythe, do set to my hand and seal this first day of June, in the year of our Lord one thousand eight hundred and sixty-nine.
    John Eorsythe.”
    The executor filed his petition to obtain a construction of this will, alleging that there is a surplus, and ashing whether William is entitled to share therein, or whether it is to be divided among the legatees named, excepting the children and widows of his deceased sons.
    The courts below held that he was excluded, and gave this surplus as follows : To John, five parts ; to David, four parts; to Susanna, four parts; tó Rebecca, four parts ; and to Elizabeth, four parts.
    There was no evidence offered or fac s admitted to aid the court in the construction of the will.

      Moses M. Granger and John O'Neill, for plaintiff in error.

      F. Jl. Southard and A. W. Tram, for defendant in error.
   Johnson, O. J.

Is the son William entitled to share in the surplus ?

This is to be determined by ascertaining the testator’s intention, as expressed in the terms of the will, as the court is unaided by extraneous or surrounding circumstances.

The will disposes of the entire estate. By item 10 it is provided that: “ If my estate, after paying all my just debts, should not amount to the above bequests, the deficiency shall come off each in proportion to their bequest, except William, JYoah’s children and widow, Elijah’s widow, cmd Charles Riley’s child and widow.” “ And if my estate amount to more than the above bequests, surplus shall be divided and given to each in proportion to their bequests, except Noah’s widow and children, Elijah’s widow and Charles Riley’s child and widow, whose bequests shall not be altered.” By excepting William from sharing any part of the deficiency, if there should be one, the testator gave to the term “ each in proportion to their bequest,” a definite meaning, not limited to those receiving money bequests, but embracing William as well as the others named. Again, in the same connection, provision is made in case of a surplus. It is then provided that such surplus shall be divided and given to each in proportion to their bequest,” except the same widows and children, but not excepting William. This express exception of his name in case of a deficiency in connection with others named, and the omission of his name in the exception where there is a surplus means something. We are not at liberty to ignore or construe away these words, “except William,” in construing the clause under consideration. The phrase, “ each in proportion to their bequests,” has the same meaning in each clause. It is said, however, that this phrase does not include William, because no “ bequest ” in its legal sense was given him by the will. Item 2 reads: “ I give and bequeath ' to my son William (61 83-100) sixty-ono eighty-three-hundredtlis acres of land for which I have given him a deed already.”

The phrase “ give and bequeath” when applied to land, is sufficient to pass real estate, though “ give and devise ” would be technically more accurate. This item clearly shows an intention to devise the land mentioned, though he uses the words “ give and bequeath.” It is said, however, that as. the testator had already given William a deed for this land, nothing passed by this item, and therefore William was not included in the phrase “ each in proportion to their bequest,” in the 10 item.

The meaning of this phrase is to be ascertained by finding out what the testator intended by using it, and not what it may in legal effect mean. It is evident by devising this land to William, the testator, for the purposes of his will, regarded it as part of the estate to be divided. It had been part of his estate, doubtless accumulated by him, and intended for the very purpose for which- it was' used. He anticipated his wall, by giving a deed of it to William, and still, in his mind, it was a part of his estate, for making a distribution among the objects of his bounty. To each of his family he gave something and as he had already made a deed to William for this land, in the nature perhaps of an advancement, he names it in item 2, as a specific devise to him, thus ratifying his deed of gift. This is followed by money bequests to each of the other brothers and sisters, and the widows and children of deceased sons. So far, the will has remembered all, but if there should be a deficiency, that is, if after payment of his just debts, his estate, should not amount to the above bequests,’ ’ (and he had called the devise of land in item 2 a bequest) then the deficiency should come off of each in proportion to their bequest, except William, etc. And if it amounted to more, the surplus to be divided to each in proportion to their bequests, not excepting W illiam. In the testator’s mind he was one of the persons entitled to some part of the surplus if “ the above bequests,” do not exhaust the estate.

If we concede that item 2 made neither a bequest or devise to William, as a matter of law, yet it is too clear for argument that the testator so regarded it, when he expressly provided that he should suffer no abatement of his share, and as if to emphasize this evident case for William, he does not except him in case of a surplus. It is said this construction will lead to gross inequality. This is on the assumption that the land is of greater value than the money legacies to the others.

What the land is worth does not appear. Neither do we know how much had been given to the other children already, nor that there were not facts in the family history, inducing the testator to favor William. When he takes especial care to except him from sharing a deficiency and does not exclude him from sharing a surplus, we may assume the testator had good reason for his action.

Whether the widow, if living, is entitled to share in this surplus, or whether William’s proportion is to be ascertained from the value of the land at date of his deed, the date of the will, or death of the testator, are questions suggested in argument, but do not arise upon the record.

Judgment reversed.

Doyle, J., dissented.


author: Doyle, J.

text:
    Woolley v. Staley, Treasurer.
    1. Money paid under a mistake of facts, and without consideration, may, as a general rule, be recovered back.
    2. Where a tax-payer, under a belief, justified by the circumstances, that there is a legal charge against his property upon the tax duplicate in the hands of the treasurer, pays the amount thereof to such treasurer, when, in fact, no such charge appeared on the duplicate, and the payer was under no legal or moral obligation to pay the same, he may recover it back as a payment made under mistake of fact.
    3. Where a bill of exceptions discloses all the evidence offered on the trial, and this court, upon examination thereof, finds that all the facts which such evidence in any degree tends to prove will not sustain the judgment, it must be reversed.
    Motion for leavé to file a petition in error to the District Court of Hamilton county.
    Plaintiff in error commenced an action in the superior court of Cincinnati, against the defendant, to recover back the sum of $121.81, paid to the defendant as treasurer of Hamilton county, upon an illegal demand, and under a mistake of fact. The petition alleges the facts substantially as they are hereafter recited. The defendant filed the following answer :
    “ Defendant says that in December, 1880, there was due and unpaid on said premises, taxes to the ¿mount of $121.81. That plaintiff came to the auditor of Hamilton county, and admitted to him an indebtedness in said sum as taxes on said premises, and asked the said auditor for a bill of the same, and an order upon which he, the plaintiff, could pay the said taxes to the treasurer of said county, and that upon said order from the auditor, duly presented to the treasurer at his office, said taxes were received by the defendant from the plaintiff as such taxes on said premises.
    “ Defendant says that said payment was made by the plaintiff voluntarily, and with full knowledge of all the facts; that no demand was made for the same by any one legally authorized to make or enforce such demand.”
    “ And he denies all other allegations of the petition not herein specifically admitted.”
    It was admitted upon the trial, that in 1871, one Lucien Ford was the owner of lot seven, in Kemper’s subdivision, in the city of Cincinnati, that the decennial appraisement of real estate was made that year, and this lot returned by the assessor at $5,000. The Decennial Board of Equalization increased the amount to $6,250; which amount was subsequently equalized and reduced by the county and state boards of equalization to $1,180, at which valuation it was placed on the tax duplicate. In 1871 Ford sold a part of the lot to the plaintiff, and the remaining part to one Evans. The auditor divided the total valuation between the two parcels, by placing the part bought by plaintiff on the duplicate at $2,480, and the part bought by Evans at $2,000. Afterwards, during the same year, Evans sold his part to plaintiff, who thereupon became the owner of the whole lot. The separation made on the tax duplicate, however, was continued; the lot appeared upon the duplicates from 1871 to 1880, inclusive, as follows:

    The taxes charged thereon for each of said years were duly paid. In 1880 the commissioners of the county entered into a contract with one C. F. Hornberger, by which said Hornberger was employed to ascertain and furnish to the county auditor such facts and evidence as were necessary to authorize him to subject to taxation any property improperly omitted therefrom, etc.; agreeing to pay him as compensation therefor twenty-five per cent, of all sums collected and actually paid into the county treasury as taxes on such omitted real property.
    That plaintiff owned the said lot seven, and had regularly paid all taxes thereon, and that there was no charge for back taxes upon the duplicate against said property.
    That plaintiff received a written notice from C. F. Horn, berger, notifying him that he was employed by the county commissioners to hunt up property omitted from the tax duplicate — that some of plaintiff’s property had been omitted, and that he was indebted for back taxes on said property, and requested',him to call on him.
    That plaintiff, in company with C. F. Hornberger, went to the auditor’s office; that a wrangle over this matter took place there ; that the auditor asked plaintiff if the tax was all right; plaintiff said: “Lf I have to pay the tax, I presume it must be all rightthat the auditor gave plaintiff an order on the treasurer, in terms authorizing the treasurer to receive “ $424.84 tax from 1872 to 1880, on $1,800 value, on part of lot seven aforesaid omitted from duplicate,” and signed the same as auditor. Plaintiff thereupon paid the same to the treasurer, taking his receipt therefor as for taxes from 1872 to 1880 on part of lot seven, valuation $1,800 omitted from tax duplicate.

      All the above recited facts were admitted on the trial.
    The plaintiff then offered by his own testimony to prove, and was prepared to testify, and would testify, “ that in obedience to said notice, he called on C. F. Hornberger; that said Hornberger represented to him that he was regularly employed by the county commissioners to hunt up property omitted from the tax duplicate; that a part of lot number seven had never been returned by the decennial assessor of 1870, and had been omitted from the tax duplicates of 1871 to 1880, inclusive ; that there were taxes due on the omitted part of said lot, amounting to over $400 ; that the same, were charged on the duplicate against him; that if he did not pay them, penalties would be added, and the lot placed on the delinquent list and sold.
    The defendant objected to said evidence, the objection was sustained by the court, to which the plaintiff at the time by his counsel excepted.
    The plaintiff then testified as follows: “ At the time I paid said taxes, I believed that said taxes were charged up against my property on the tax duplicate, and that the auditor had so certified the said taxes upon the -tax duplicate to the treasurer for collection, and that these charges of back taxes existed against my property, in the auditor’s and treasurer’s offices. I did not find out that these taxes- were not charged against me on the duplicate, until some time after I had paid them.”
    The defendant then called E. W. Pettitt, who testified as follows: “ I am the deputy auditor. I drew the order on the treasurer to receive this. This tax was for part of lot seven, owned by plaintiff, and claimed by us to be omitted from the duplicate. This tax was never charged upon the duplicate. 1 generally attend to the business of making out orders; sometimes the auditor does it. These back taxes on this omitted land was unpaid.”
    The defendant also called W. S. Cappellar, who testified as follows : “ I am the county auditor. These taxes are for an omitted part of the land in lot No. 7, Kemper’s estate, belonging to plaintiff, not returned by the decennial assessor of 1870.”

      And this was all the testimony offered in the ease.
    Judgment was rendered for the defendant. The district court affirmed that judgment, and leave is now asked to file a petition in error in this court to obtain a reversal of such judgment.

      John R. Von Seggern, for the motion,
    on the question as to the right of recovery of back taxes, cited Stephan v. Daniels, 27 Ohio St. 517; Bank v. Doty, 9 Ohio St. 508; Covington v. Powell, 2 Met. 226 ; 15 Vt. 460 ; 51 Miss. 27; 77 N. Y. 342; Ins. Co. v. Britton, 8 Bosw. 154.

      O. J. Cosgrove, contra.
   Doyle, J.

That the judgment of the superior court is erroneous seems to us quite clear, and if we have power to review it, in tbe manner in which the question is. presented, it must be reversed.

The question arises in the case, how far and for what purpose, if at all, we can look at the bill of'exceptions to determine whether the judgment was based upon any evidence to sustain it, under the act of April 18, 1880, 80- Ohio L. 169.

That we cannot consider the weight of the testimony, or examine the bill of exceptions to determine whether the verdict or judgment is against such weight, is clear.' Watson v. State, ante. If there is any evidence in the record which, if true, would support the judgment it cannot be reversed here, whatever the fact may be as to where the clear preponderance is.

There is, however,-in the record before us no evidence-which, in view of the admitted facts, tends to establish that-any tax was due from the plaintiff upon the lot in question, or that any was in fact charged to him upon any duplicate in the hands of the treasurer; which duplicate is alone his authority to receive or collect any money as taxes from the citizen. That which was admitted upon the trial clearly shows that the. plaintiff had,paid all the taxes assessed or charged against his lot for the years in question; that no part of such lot had ever been omitted from the tax duplicates; that there was no error to correct, and the auditor never .exercised the power granted him by sections 1038, 1039, 1010, Revised Statutes, to correct errors' in the duplicate; that the payment was made under a mistake to an officer having no authority to receive it, wholly without consideration, and under circumstances which justified the plaintiff in error in believing that it was charged against him on the duplicate, and that he was obliged to pay it.

These facts are not questioned here, but the judgment is sought to be maintained on the ground that the payment was voluntary, and hence no action to recover back the money thus paid, can be maintained.

The error, which appears to us manifest in this position, is in calling this the payment of a tax. If it be conceded that the payment was voluntary, in the sense that there was no legal process in the hands of the treasurer, and no duplicate containing the charge upon which he could distrain, or by returning the property delinquent sell the land, it nevertheless remains true that it was not the payment of a tax, but of a sum of money under a mistake to persons having no authority to receive it, although claiming such authority.

It was not a tax. It was never levied by any authority. It was never assessed, legally or illegally, upon any property or against any person. It was never charged upon any duplicate, either originally or by the auditor in the way of correction. It had no semblance of a tax, which may be so paid by the voluntary act of the party as will prevent him from recovering it back.

The paymeht was made, however, in pursuance of a demand made by this agent of the county commissioners, upon an order from the county auditor to the treasurer, authorizing him to receive it, and the delivery by the treasurer of a receipt for it as taxes. Assuming that these officers acted in good faith, and upon the belief that the sum was due, it was a mistake. The fact that they thus acted was sufficient to justify the belief, on the part of the plaintiff, that the requisite'steps had been taken to charge his lot with this tax on the duplicate. That alone would justify the treasurer in receiving it, and the plaintiff had the right to assume that he was acting legally, however illegal the tax might be. It was, therefore, a payment of money under a mistake of facts, and the question of whether it was voluntary or not, is not involved.

We find nothing in the oral testimony given ou the trial, 'which tends to qualify or contradict these admitted facts. If there was any conflict in the testimony as to whether this was a payment under mistake, we would still be compelled to reverse the judgment.

Upon that question, if it was disputed, the testimony offered by the plaintiff as to what occurred between himself and Hornberger was competent. He offered to show that Hornberger, who, it is admitted, was employed by the county commissioners, represented to him that this property was omitted from the duplicate; that over $400 was due from plaintiff for taxes upon such omitted part; that they were now charged against him on the duplicate, and that if he did not pay them penalty would be added, and his land placed on the delinquent list and sold. Taken in connection with the admitted facts, that every one of the statements thus made was untrue; that Hornberger accompanied plaintiff to the auditor’s office; that the auditor and treasurer both acted as if such statements were true, and received his money, which they would have no authority to do unless they were true, it was clearly competent for him to show that the statements of Hornberger led him into the mistake under which both himself and the officers acted. To determine whether that money was, in fact, paid under a mistake, all the circumstances attending such payment were competent to be proved.

We are not required, however, to place the decision upon that ground. We will assume that the officers acted in good faith, but under a mistake of the facts; that their action justified the belief by the plaintiff that this money was charged to him as a tax upon his property, and that he paid it undei that belief is quite clear.

Seeing nothing, therefore, in the record to support the judgment of the court, we think we have the power to reverse it. Whether there is any evidence to support a verdict or judgment is a question of law. It is as if, had the case been tried to a jury, the plaintiff had requested the court to direct a verdict in his favor. If the action had been thus tried, we think it would have been the duty of the court to have directed the jury to return a verdict for the plaintiff at the close of the evidence.

In view of the admitted facts in the case, the testimony of the auditor and his deputy was wholly immaterial and incompetent. They say that these back taxes on this omitted land. were unpaid, and that these taxes are for an omitted part of the land not returned by the decennial assessor. It amounts to nothing more than saying that this $424.84 was unpaid, and that they claimed it was due for omitted land. But as it is admitted that no land was omitted, and no taxes due, it is of no importance whatever, and is wholly immaterial.

Motion granted and judgment reversed.


author: Upson, J.

text:
    Ward v. Carey.
    1. Where a deed of land is executed and, simultaneously therewith, the purchaser gives to the vendor a mortgage on the property purchased, to secure a part of the purchase price, the lien of such mortgage is prior to that of any judgment against the purchaser.
    2. The same rule applies where a third person, who holds a mortgage on the property purchased, receives from the purchaser, as a part of the same transaction, and as part of the purchase price, a mortgage on such property, in place of the previous mortgage.
    Motion for leave to file a petition in error to the District Court of Warren county.
    Mary A. McCurdy was the owner of certain real estate, situate in Warren county, which she agreed to sell to Jesse Gustin, on the 26th day of February, 1876. She had previously given a mortgage of the property to the Warren County Building and Loan Association to secure the payment of certain promissory notes, made by her,, to the association, and which had now become duo. In payment of a part of the purchase price to be paid by him, Gustin agreed to assume and pay the amount due upon these notes and mortgage, and for the. remainder to give his notes and mortgage on the property to Mrs. McCurdy. In pursuance of this agreement, Mrs. McCurdy and her husband executed a deed of the property to Gustin, and he at the same time paid to the Building and Loan Association a part of the amount due to it from Mrs. McCurdy, and for the balance, executed and delivered to the association his promissory note and mortgage, to secure its payment, on the property purchased, the association agreeing to receive this mortgage in place of the one made by Mrs. McCurdy, on the express condition that it should be the first lien upon the property. The deed and mortgage were then both placed in the hands of the agent of the Building and Loan Association, and by him handed to the recorder of Warren county for record, the deed not being previously delivered to Gustin, and the association thereupon released the mortgage made to it by Mrs. McCurdy. For the remainder of the purchase money, Gustin gave to Mrs. McCurdy, at the time of tlie execution of her deed to him, his promissory notes and a mortgage on the property purchased to secure such notes.
    These notes and mortgage were afterwards transferred by Mrs. McCurdy to Joshua Carey.
    At the January term, 1876, of the court of common pleas of Warren county, Elom B. Ward and John Custis, partners under the name of Ward & Custis, recovered a judgment against Gustin, in an action which had been commenced before that term, but the judgment was not actually rendered until the 14th dayof March, 1876. Upon this judgment executions have been issued, but no levy made upon the property in controversy.
    In October, 1882, Joshua Carey brought suit, in the court of common pleas of Warren county, to foreclose the mortgage transferred to him by Mrs. McCurdy, and made Ward & Custis and the Building and Loan Association defendants, who filed answers setting up their respective liens, each claiming priority. In this action the only controversy was in regard to the priorities of the judgment and mortgage liens respectively.
    The ease was, on appeal, tried in the district court, which, upon finding the facts above stated, decided that the mortgage liens were prior to the lien of the judgment obtained by Ward and Custis, and rendered judgment accordingly.
    The plaintiffs in error ask leave to file a petition in error to reverse the judgment of the district court.

      Savage <& Smith, for the motion.

      T. F. Thompson, contra.
   Upson, J.

The question to be decided in this case is whether the lien of .the judgment recovered by Ward & Custis, against G-ustin, is prior to both, or either, of the mortgages made by him to secure the payment of the purchase price of the real estate embraced in the mortgages. The statute provides that the lands of the judgment debtor, “ within the county, where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered.” The lien of a judgment, by force of this provision of the statute, therefore attaches to all lands, within the county, owned by the judgment debtor on the first day of the term, and as by a fiction of the common law the whole of a term of court is considered as one day, such lien will attach, without levy, to any lands acquired by the judgment debtor at any time during the term at which the judgment is recovered. It is upon this ground contended that, as soon as it was entered, the Ward & Custis judgment bound the land previously purchased, during the same term of court, by Gustin, and under ordinary circumstances this claim could be sustained. The facts found by the district court, however, bring this case within the operation of a principle which constitutes an exception to the general rules governing judgment liens. This principle is, that a mortgage given to secure the payment of purchase money, executed simultaneously with the deed to the purchaser, is superior to the- lien of a judgment against the mortgagor, or any claim against him. This principle applies to the exclusion of intervening liens only when the deed and mortgage are executed at the same time, so as to be regarded as parts of the same contract. In such case there is no interval of time between the taking of the estate by the purchaser and his conveyance of it to the mortgagee. The seizin of the purchaser is instantaneous only, and does not vest in him a title to which the judgment lien can attach in preference to the mortgage. It is well settled that no judgment lien can be a charge upon any greater interest than the defendant owns, and the only interest acquired by Gustin was the title to the land subject to the mortgages, and upon that interest alone the judgment became a lien. In accordance with these principles it has been held in several cases, decided by this court, that when the deed and purchase money mortgage are executed simultaneously, the purchaser acquires no seizin that will entitle his wife to dower, notwithstanding the provision of the statute that, “ a widow shall be endowed of one-third part of all the lands, tenements and real estate of which her husband was seized as an estate of inheritance at any time during the coverture.” The same principles have, in other states, been applied to the exclusion of liens for labor and materials, and claims for homestead exemptions. The rule thus established, and applied to purchase money mortgages alone, is manifestly just and equitable. The mortgage to Mary A. McCurdy was executed’ and delivered by Gustin, at the date of her deed to him, .and as part of the same transaction. That mortgage is therefore clearly within the rule stated. In regard to the mortgage made by Gustin to the Building and Loan Association, it was found, by the district court, that the parties agreed that this should be the first lien upon the property; that it was executed at the same time with the deed to Gustin, and that both deed and mortgage were then placed in the hands of the agent of the association to be by him handed to the recorder for record, but it is claimed by counsel for plaintiff in error that this mortgage was not given for purchase money ; that the transaction was in law a payment of the debt due from Mary A. McCurdy to the association, and a loan by the latter to G-ustin. Conceding that this arrangement is to be regarded as the making of a loan to Gustin, the case still comes within the same principles, for the substance of the transaction was the same, and it will so be treated in equity, as if the note and mortgage had been made to Mrs. McCurdy in part payment for the pro'perty, and had been by her transferred to the association. The effect of the arrangement was to continue the lien of the association without interruption. The mortgage must be considered a purchase money mortgage, and the association in respect thereto is entitled to all the rights of a vendor.

Motion overruled.


text:
    Wehrle v. Wehrle.
    A homestead having been assigned by metes and bounds, under the act of 1850 (2 S. & 0.1145, Rev. Stats. § 5485 et seq.), to the widow and unmarried minor children of a decedent, in a proceeding in the probate court by an executor to sell lands to pay debts, orders of such court in the proceeding, directing and confirming a sale of the real estate so assigned, subject to the homestead, and while the same is occupied as such homestead, are not merely voidable but void.
    Error to the District Court of Seneca county.
    John Woolenshnider was executor of Xavier Wehrle, who died in 1854. The personal estate being insufficient to pay debts, the executor filed a petition in the probate court of Seneca eounty to obtain an order for the sale of all the real estate of the testator, consisting of three lots with the improvements thereon in the city of Tiffin. The testator having left a widow and four unmarried minor sons of himself and the widow, the widow and sons composing the testator’s family at the time of his death, part of one of the lots was, at their request, set off by metes' and bounds, in the proceeding to sell, to such widow and sons as a homestead, under the statute then in force. The three lots were sold by the executor, under the order of the probate court, in that proceeding. The lot in which the homestead was assigned was sold subject to the homestead, and George Wehrle became the purchaser thereof. The purchase money was paid, the sales were confirmed, and deeds were executed and delivered, in 1856, to the purchasers. Objection is made that the homestead was assigned to the children only, but by a fair construction of the record the assignment is to be regarded as made to the widow and four unmarried minor sons. The sons having become of age, George Wehrle, in 1876, brought an action in the court of common pleas, against them and the widow, to recover possession of the parcel so set off as a homestead, alleging that the widow and four sons unlawfully keep him out of possession. The court of common pleas held that he was not entitled to recover, the district court affirmed the judgment, and this petition in error is prosecuted by him to obtain the reversal of the judgments.

      Moble efe Adams, for plaintiff in error.

      G. M. Seney and M. I. Brewer, for defendants in error.
   Okey, J.

The judgment or final order of a court having jurisdiction of the subject matter and parties, however erroneous, irregular or informal such judgment or order may be, is valid until reversed or set aside; and, however the rule may be in other states (Thompson v. Whitman, 18 Wall. 457), where the judgment or order of a court of general jurisdiction in this state contains a finding that there was jurisdiction, and such finding is consistent with other parts of the record, the judgment or order is protected from collateral attack (Cullen v. Ellison, 13 Ohio St. 446; Scobey v. Gano, 35 Ohio St. 550); within which rule the orders of probate courts are classed. Shroyer v. Richmond, 16 Ohio St. 455. If the judgment or order is erroneous, it may be reversed; if it is irregular or informal, it may be corrected on motion ; in neither case, however, is it subject to collateral attack. But if the court in fact had no jurisdiction of the subject-matter, whether the case be in rem or in personam, or, in cases in personam, of the parties, and there is no finding of the court that it had jurisdiction of the parties, any judgment or order which may be rendered, however regular the same may be in matter of form, is a mere nullity, and may be so treated in a collateral as well as in a direct attack. The distinction is between a case where the court is clothed with power to act, in which case a judgment or order is valid, though it may be erroneous or irregular, and a case in which there was no power to act,' in which case a judgment or order rendered on the assumed existence of such power, is a nullity. Plain as this distinction seems to be, there is sometimes difficulty in applying it.

The homestead act of 1850 (2 S. & C. 1145, Rev. Stats. § 5435 eb seq.), after providing the manner in which an officer holding an execution should set off to the debtor, his wife or ■ widow, a homestead in his lands, further provided (§ 2), where such homestead was set off, that, except as otherwise provided in the act, “if no complaint be made by either party, no further proceedings shall be had against the homestead ; but the remainder of the debtor’s lands and tenements, if any more he shall have, shall be liable to sale on execution, in the same manner as if this act had not passed.” And by the act (§ 3) it was further provided as follows : “ On petition of executors or administrators to sell the lands of any decedent to pay debts, who shall have left a widow and a minor child or children, unmarried and composing part of the decedent’s family at the time of his death, the appraisers shall proceed to set apart a-homestead, in the same manner as is provided in the preceding section; and the same shall remain exempt from sale on execution for debts contracted after the taking effect of this act, and exempt from sale under any order of such court, so long as any unmarried minor child or children shall reside .thereon.”

A fair construction of these provisions requires us to say that the orders directing and confirming the sale of the property set off, though subject to the homestead, were not merely voidable but void. There was no jurisdiction of the subject matter, as the power to make such sale, daring the existence of the homestead, was denied. Rorer’s Judical Sales (2 ed.) § 667; Freeman on Ex. § 215; Freeman’s Yoid Jud. Sales, § 35 ; Thompson on Homestead, § 390 ; Diehl v. Friester, 37 Ohio St. 473. And as George Wehrle, on the issues, could recover not on the weakness of the title of the widow and sons, but only on the strength of his own title, it follows that judgment was properly rendered against him.

According to Taylor v. Thorn, 29 Ohio St. 569, the exec- • utor is now entitled to an order for the sale of the property which was set off as a homestead, if there are existing debts ; and there is reason and authority for saying that George Wehrle, whose money was applied to the payment of debts of the creditors, may be subrogated to the creditor’s rights, and be entitled to demand that the property shall be sold to reimburse him. Scott v. Dunn, 1 Dev. & Bat. Eq. 427, s. c., 30 Am. Dec. 174, 177, note; Springs v. Harven, 3 Jones Eq. 96; Hudgin v. Hudgin, 6 Gratt. 320; McGee v. Wallis, 57 Miss. 638; Valle v. Fleming, 29 Mo. 152 ; Schafer v. Causey, 76 Mo. 365; Herron v. Marshall, 5 Humph. 443, s. c., 42 Am. Dec. 444; Caldwell v. Palmer, 6 Lea. 652; Riddell v. Roll, 24 Ohio St. 572; Eudel v. Liebrock, 33 Ohio St. 254; Sidener v. Hawes, 37 Ohio St. 532; Rev. Stats. §§ 5410, 5411 ; cf. Salmond v. Price, 13 Ohio. 368, s. c., 30 Am. Dec. 177. But we have neither the necessary parties nor the facts to warrant the granting of any such relief in this case.

-, Judgment affirmed.


author: MoIlvaink, J.

text:
    Armstrong v. Grandin.
    1. Subject to administration on tbe personal estate of an intestate, the right of the distributee vests at the death of the intestate.

      2. Upon the death of such distributee before distribution, the right passes to his or her personal representative.
    3. An order by a probate court that certain funds remaining in the hands of an administratrix “ be distributed and paid over to the next of kin and representatives of said intestate according to the provisions of the statute in that behalf in force at the time of his decease,” where the statute referred to gives the whole fund to the widow of the intestate, cannot be construed or held to bar the widow of her right under the statute, although in the same order the heirs and legal representatives of the deceased are described as “the next of kin and distributees.”
    4. Where an order of a court is susceptible of two constructions, one of which would make it legal and operative, and the other would render it illegal and void, the former must be adopted.
    5. Under the act of March 14, 1853, defining the jurisdiction of probate courts, and, among other things, authorizing them “ to order the dis- ' tribution of estates,” there is no authority to designate by name or otherwise, the persons entitled to receive the funds to be distributed, and such designation if made is void and of no effect.
    Error to the District Court of Hamilton county.
    John H. Piatt died intestate in the year 1822 without surviving issue, but left surviving him the plaintiffs intestate, Martha Ann (who afterward intermarried with David Gwinne) his widow, and defendants, his brothers and sisters and descendants of brothers and sisters.
    Martha Ann Gwinne died in the year 1843, and the plaintiff, Longworth Armstrong, was appointed administrator of her estate in the year 1875.
    After the death of John-H. Piatt, administration on his estate was granted to Nicholas Longworth and Benjamin M. Piatt,, who, after having administered on all the personal estate of the deceased, except a certain claim held by the deceased against the United States, and a large quantity of real estate sold to pay debts, made a final settlement of all matters embraced in their administration, and were discharged in the year 1845.-
    Subsequently, Hannah O. Grandin, a sister of John H. Piatt, was appointed administratrix de bonis non of his estate, who, in the year 1875 recovered and received from the United States, on the claim above mentioned, the sum (as is alleged) of $131,508.90.
    Afterwards, onMay 20, 1875, the probate court of Hamilton county (wherein the letters of administration de bonis non had been issued to Hannah C. Grandin) made and recorded the following order of distribution :

      “ In the matter of the. estate No. 15,771*.] of
    .John H. Piatt, deceased.
    “ This day came the administratrix of said estate, Mrs. Hannah C. Grandin, and the next of kin and distributees, by their counsel, and, on motion of the latter, it is ordered that the fund recently recovered by said administratrix, upon the claim of said intestate against the United States of America, after deducting the fees of the attorneys employed therein, as agreed on part of said distributees, and her commissions and expenses of administration, be distributed and paid over to the next of kin and representatives of said intestate, according to the provisions of the statute in that behalf in force at the time of his decease.”
    Subsequently, on September 13, 1875, the original action was commenced in the probate court of Hamilton county, by the plaintiff in error against Hannah C. Grandin, administratrix de bonis non of John H. Piatt, under favor (as is claimed) of the act of April 17, 1357 (S. & O. 619), the first section of which reads as follows:
    “ Sec. 1. That after thirty days from the time of settlement of the accounts of executors, administrators or guardians shall have been made, or shall hereafter be made, by the probate court, and an order of distribution made thereon, if such executor, administrator or guardian shall neglect or refuse to pay to any person interested' in said order of distribution, as creditor, legatee, widow, heir, or other distributee, or otherwise, when demanded, his or her share of the estate or property ordered to be distributed by such probate court, it shall be lawful for any person interested, as aforesaid, to file a petition in .the probate court of the county in which the settlement and order of distribution is made, against the executor, administrator or guardian making such settlement of his or her account, as aforesaid, briefly setting forth in the petition the amount and nature of the claim of the party filing such petition.”

      The cause was reserved, under the statute, for final trial and judgment in the court of common pleas ; and by order of the court all the heirs of John H. Piatt were made parties defendant.
    From the judgment of tlie common pleas in favor of defendants, an appeal was taken to the district court.
    Final judgment was rendered in the district court as follows :
    “ And, thereupon, on motion of the defendants for judgment upon the pleadings, this cause came on to be heard upon the pleadings, and no evidence was offered by either of the parties, on consideration whereof the court finds that the plaintiff is not a person interested in the order of distribution set forth in the petition, and that the said motion should be granted.
    “ It is therefore considered by the court that the defendants go hence without day, and recover from the plaintiff their costs herein expended — taxed to $-.”
    The foregoing statement contains all the undisputed facts alleged in the pleadings. Upon them were defendants entitled to judgment ?

      Wm. Disney, for plaintiff in error:
    The title to the entire personal estate vested immediately in the widow upon the death of John II. Piatt. Conger v. Barker, 11 Ohio St. 1.
    For the statute of descent and distribution in force at the time, see 2 Chase, 906, § 2, 3, 12. Administration Act, see 2 Chase, 929, § 30; S. & C. 601, § 175. As to probate court jurisdiction, see Cox v. Johns, 32 Ohio St. 532; Swearingen v. Morris, 14 Ohio St. 432; McLaughlin v. McLaughlin, 4 Ohio St. 511. As to meaning of “ next of kin and legal representatives,” see Johnston v. Johnston, 12 Rich. Eq. 259; Rice v. White, 8 Ohio, 216; Ferguson v. Stewart, 14 Ohio, 140; Gardner v. Gardner, 13 Ohio. St. 426; Clayton v. Drake, 17 Ohio St. 368; Coe v. R. R. Co., 10 Ohio St. 377.

      Follett, Ilyman <& Dawson, and T. H. Kelley, for defendant in error :

      The widow is not next of kin. 2 Jarman, 37-49; Watt v. Watt, 3 Ves. 244 and note (a) and cases cited ; Clayton v. Drake, 17 Ohio St. 367; Luce v. Dunham, 69 N. Y. 36; Murdoch v. Ward, 67 N. Y. 387; Brower v. Hunt, 18 Ohio St. 311; Binney v. Wilson, 11 Ohio St. 426; Curry v. Fulhinson, 14 Ohio, 100; 2 Redfield on Wills, 400; Townsend v. Radcliffe, 44 Ill. 446 ; 1 Swan & C. 568, § 12. As to mean ing of “ legal representative and next of kin,” see 2 Jarman on Wills, 39 ; 2 Redfield on Wills, 402; Saltmarsh v. Candin, 51 N. H. 71; Clayton v. Drake, 16 Ohio St. 367; 6 Simons, 47; 14 Ves. 372; 69 N. Y. 36; 67 N. Y. 387.
    If the real estate, which was not primarily liable, is subjected to the payment of debts, the legatees or heirs have the right to be compensated, as far as possible, out of any personalty remaining in or subsequently coming into the hands of the administrator.
    This is in strict accordance with the doctrine of equitable substitution, which places the surety who has been compelled to pay the debt or other obligation of the principal in the position of the creditor, and gives him the right .to recover the amount from the principal. 2 Lead. Cas. in Eq. 218, 249, 263; 2 Redfield on Wills, ch. XYIII. 2, 13, 19 ; 1 Story on Eq. Jnr. §§ 557, 559, 562, 567; Aldrich v. Cooper, 8 Ves. 389, 394; Trimmer v. Bayne, 9 Ves. 210, 211; Plunket v. Penson, 2 Atk. 294; Westfaling v. Westfaling, 3 Id. 467; Davis v. Topp, 1 Bro. Ch. C. 526; Lutkins v. Leigh, Cas. temp. Talb. 53.

      Ben. AT. Piatt and D. S. Bounshell, also for defendant in error.
   MoIlvaink, J.

The statute in force at the time of Piatt’s death, controlling the distributing of his personal estate, was section 30 of the Administration Act of January 25, 1816 (2 Chase, 933), to wit:

“ That it shall be the duty of the administrator or administrators, after all just debts, funeral and other incidental expenses allowed by the court shall have been fully paid, to set off and assign to the widow of the deceased, if any there be, one-third part of all the remaining balance of the personal estate, by her to be held as her proper estate: Provided, The deceased shall have left any legitimate child or children of his body, but, in case the deceased shall not have left-any legitimate child or children as aforesaid, then in that case the widow shall be entitled to all the balance of. such personal estate as aforesaid,” etc.

Under this statute, upon the death of Piatt, the right to the whole of his personal estate, subject to distribution by his administratrix, .became vested in his widow, plaintiff’s intestate, and at her death, although before distribution made, vested in the distributees of her estate according to the statute in- such case made and provided, Conger v. Barker, 11 Ohio St. 1. Upon this state of the law, and the facts essential to its application, it is quite clear that the plaintiff is interested in an order of distribution relating to the personal estate of John H. Piatt, deceased.

It is claimed, however, that the heirs of Piatt, the defendants, are entitled to be subrogated to the rights of creditors whose claims against the estate were paid from the proceeds of real estate sold by the administrators, or to be reimbursed for the loss of the real estate so sold, from the personal estate now ordered to be distributed by the probate court. Let it be granted for the purpose of this case. The plaintiff is not thereby deprived of an interest in the order of distribution. Surely, he is entitled to an account with the heirs, and to any balance that may remain for distribution.

But the principal contention, on the part of defendants, is that the plaintiff is excluded from any interest in the order of distribirtion by the very terms of the order which stands as an adjudication against the plaintiff and is in full force.

The point made is, that, by the terms of the order, distribution is to be made “ to the next of kin and representatives of said intestate,” which description of distributees include defendants and exclude the plaintiff.

True, a doubt might naturally arise as to the meaning of the order, especially from the fact that defendants (as is admitted) are previously described therein as the next of kin and distributees,” were it not for the controlling qualification and explanation of its meaning to wit: According to the provisions of the statute in that behalf in force at the time of his decease.” The statute referred to, as we have shown, gave the whole amount, subject to distribution, to the widow, plaintiff’s intestate.

Again, the only power to make the order in question, was conferred upon the probate court by the act defining its jurisdiction, passed March 14, 1853, in these words: To direct and control the conduct, and to settle the accounts of executors and administrators and to order the distribution of estates.”

It has been settled in Swearinger v. Morris, 14 Ohio St. 432, and Cox v. Johns, 32 Ohio St. 532, that the only order of distribution here authorized to be made, is a general order to the executor or administrator to distribute the funds remaining in his hands according to law. It thus appears that an order designating or naming the distributees is not authorized by law, and therefore would not debar any'one interested in the distribution from asserting his or her interest therein.

In construing this order it is our duty to put upon it such construction as will make it legal and effective, rather than one, which will render it illegal and void.

Applying these principles of construction, we are of opinion that the order of distribution under consideration is a general order, and that the phrase, “ next of kin and representatives of said intestate according to the provisions of the statute in that behalf in force at the time of his decease,” should be construed to mean such person or persons as may be entitled to receive the funds to be distributed.

The district court, therefore, erred in holding that the plaintiff had no interest in the order of distribution.

If, however, the construction we have placed upon this order, could not be maintained, we are quite clear that under the power conferred on probate courts to order the distribution of estates, above stated, there is no authority to designate, by name or otherwise, the persons entitled to take under the order, and if such designation appear in the order it' must be ' as unauthorized and void.

Judgment reversed and cause remand J