author: Johnson, C. J.

text:
    State ex rel. Attorney General v. Monitor Fire Association.
    1. Sections 3686. 3687, 3688, 3689, 3690 of the Revised Statutes, authorize the formation of corporations to insure its members against loss by fire or other casualties, and empower them to make and enforce among their members contracts of indemnity, by which those entering therein shall agree to be assessed specifically, from time to time, as may be necessary to pay losses which occur to its members, and also to pay incidental expenses in the management of the business.
    2. Such members are liable to be specifically assessed, from time to time, to pay losses which occur while they are such, but no member is liable to such assessment to pay losses occurring before he became a member, or which may occur after he ceases to be a member.
    3. These sections do not authorize a contract with members, by which they, upon advance payment of an agreed annual deposit during the life of their policy, shall be exempted from liability to assessment to pay losses occurring during the year for which such prepayment was made ; or by which a member’s liability to assessment is limited, without regard to the amount that may be necessary to pay losses to fellow members, that may occur during such year.
    4. These sections do not authorize the organization of corporations with a view to profit to its officers or members; therefore any plan or scheme by which profits are made or divided is unauthorized.
    5. Section 3680 authorizes the adoption, by the corporation, of a constitution and by-laws, regulating the assessment and collection of such sums of money as may be necessary to pay losses as they occur, and for incidental purposes; but it does not authorize a regulation by which a policy may be declared forfeited, for the non-payment in advance of an annual deposit or premium, whether an assessment during such year, to pay losses, may be necessary or not.
    6.' Such an annual deposit paid in advance, based upon the hazards of the risk, and without reference to an amount necessary to pay losses that may occur during the year, is in fact a premium paid for carrying the risk, and not a specific assessment authorized by the statute.
    7. The funds derived from assessments upon members to pay losses to fellow members, are, in their nature trust funds, to be applied to the payment of such losses; hence the application of such funds, or of the annual deposits received in lieu of assessments, to tlie purchaser of the assets of another like corporation, including real estate not necessary to its business, or to the payment of losses to members of such other corporation whose risks it has assumed, is a misapplication of such funds.
    Quo WarrANTO.
    Proceedings to oust the defendant from being a corporation under the laws of Ohio. It is charged with having offended by the misuse of its franchises and privileges, and having exercised franchises and privileges not conferred, in the following, among other particulars, to wit: It has transacted a general fire insurance business, employing agents, and soliciting business at great expense, and has collected moneys in advance from its members, and taken risks of the most hazardous character on property belonging to non-residents of the state, not members of the association. . . . It has purchased real estate, in Canton, Ohio, said to be worth $13,000, which it cannot use in the transaction of its business, and which was not intended for such use. To obtain business, it has falsely represented to the public, that it is possessed of a guarantee capital of $158,358.42 and aggregate assets amounting to $174,955.48. It has borrowed money at large rates of interest to meet its losses, and has given its notes for the payment of losses due. . . .
    Other specifications are made, not necessary to be here noted, as they are not material to the decision. The answer of defendant admits that it became incorporated December 28, 1883, under sections 3686, 3687, 3688, 3689 and 3690 of the Revised Statutes of Ohio. It denies that it is doing a general fire insurance business, but admits it has received, under its agreement with its members, made in conformity to its constitution and by-laws, a deposit on the issuing of the policy, which deposit is to be paid annually at the beginning of each year during the continuance of the contract, in such sum as may be assessed by the directors of the association, pursuant to the laws of the state of Ohio, and the constitution and by-laws of the association, but such assessment in no event to exceed in any one year the annual deposit. The object of this annual deposit in advance, is stated to be, to enable the defendant to meet promptly, and without the expense of collecting assessments after a loss, as they might occur. It denies taking risks of the most hazardous character belonging to non-residents of the state, but admits issuing policies to its members residing outside of this state on their application at its office in Cincinnati, Ohio, and insists that non-residents have the right under the law, of becoming members.
    It denies having purchased real estate in Canton, Ohio, but admits that on the retirement of the Monitor Association of Canton it received from the latter company a piece of real estate, together with other property and assets, with the understanding that the defendant should apply the same to the payment of the debts of the Canton company, which defendant had assumed, and which have been so apolied before the commencement of this action.
    The other charges are specifically denied.
    It appears from the proofs that prior to the incorporation of the defendant, there existed a corporation at Canton, Ohio, known as the Monitor Association of Canton, Ohio, organized under the same sections of the statute as this defendant is, and upon the same general plan. For the purpose of extending its business, that company resolved to remove its office and place of business to Cincinnati, Ohio.
    Upon application to the secretary of state, for leave to make such transfer, it was ascertained that there was no law to authorize such removal. Thereupon, a number of the members of the Canton company obtained a like charter for the defendant corporation, under the name of the Monitor Fire Association with its business office at Cincinnati, Ohio. Three days thereafter, the' board of directors of the Canton company held a meeting, and adopted the following resolution: “Resolved, that the building known as the Monitor Block, situated in Canton, Ohio, owned by the Monitor Fire Association be sold, and that the president of the association be authorized and empowered, to negotiate the sale of the same, and to execute and deliver title, therefor, provided the price sold for, shall not be less than twelve thousand dollars ($12,000) cash.”
    The following was offered by Mr. Barrows and seconded by Mr. Kugernann. “Whereas, the Monitor Fife Association, of Canton, Ohio, decided by authority of a majority of its members, to transfer and remove its center or business office, from Canton, to Cincinnati, Ohio, and whereas, there is no law of the state to confirm and ratify such change and removal, and whereas, a charter has been obtained for the Monitor Fire Association, of Cincinnati, Ohio, therefore in consideration of the premises, and for the purpose of continuing and carrying out the contracts of the Monitor Fire Association, of Canton, Ohio.
    “Be it resolved, by the directors of the Monitor Fire Association, of Canton, Ohio, that the business and assets of the Monitor Fire Association of Canton, Ohio, be transferred and conveyed, to the Monitor Fii-e Association, of Cincinnati, Ohio, said association to assume all risks, and carry out all contracts, and discharge all obligations of said Monitor Fire Association of Canton, Ohio.
    “ Resolved, that the executive committee, be appointed a committee to carry out the resolution of directors, and' complete and consummate the transfer of business to the Monitor Fire Association of Cincinnati, Ohio.”
    At the same time and place the incorpoi’ators of the defendant, which -consisted of the same pei-sons and pex-haps others, who were members of the Canton company, organized the Monitor of Cincinnati and adopted a constitution, by-laws and a foi-m of conti-act or policy of insurance, also the following agreement, prepared by committees of the two corporations, which shows the manner in which the Canton company transferred its property and business to the Cincinnati company, and the obligations which the latter assumed.

      “ Cincinnati, Ohio, Januaiw 4th, 1884.

      “ Board met pursuant to adjournment. Present, Mitchell, Kugernann, Henshaw, Meader, Sexfcro and Patterson.

      “ Tbe following was agreed to : Whereas, the Monitor Fire Association of Canton, Ohio, has proposed to transfer risks, business and assets, to the Monitor Fire Association of Cincinnati, Ohio, now, therefore, in consideration of the premises, and for the purpose of securing the risks, business and assets of the Monitor Fire Association of Canton, Ohio; Be it resolved, that said proposition be accepted, and that the Monitor Fire Association of Cincinnati, Ohio, shall assume all risks, and discharge all obligations, of said Monitor Fire Association of Canton, Ohio, and continue the business, according to the charter of said Monitor Fire Association of Cincinnati, Ohio, and such constitution and by-laws, as have been made and adopted. Resolved, that Edward Henshaw and J. G-. Sextro, be appointed a committee to carry out the resolution of directors, and complete and consummate the transfer of the business, of the Monitor Fire Association of Canton, Ohio, to the Monitor Fire Association of Cincinnati, Ohio.
    “ The following was agreed to. Agreement made and , entered into, January 4, 1884, by and between the Monitor Fire Association of Canton, Ohio, and the Monitor Fire Association of Cincinnati, Ohio.
    “ That in consideration of the transfer of business and assets, of the Monitor Fire Association of Canton, Ohio, the Monitor Fire Association of Cincinnati, Ohio, hgrees to assume all risks amd contracts, and discharge all liabilities and obligations of said association of Gcmton, Ohio, as fully as could be done by said association, without prejudice to the right or interests of the members of the said association of Canton, Ohio.
    “ In testimony whereof the respective committees of the said associations have signed their names, the day and year above written.

      “ Emil KugemaNN, ) Committee Monitor Fire A. H. Mitchell, V Association, Canton, Ohio. J. F. Meades, )
    Edwaed HeNshaw, ) Committee Monitor Fire Jas. G. Sextro, j Ass’n Cincinnati, Ohio.”
    By resolution of the board the officers of the defendant were instructed to proceed without delay, to put into effect the agreement to transfer the business of the Canton company to defendant.
    The property and assets of the Canton company, including said real estate, were transferred to the defendant, and it proceeded to take up the policies of the Canton company and substitute its own, bitt without requiring members of the Canton company who became members of the defendant, to pay any advance deposit. Such members became members of the new company, by signing the constitution, and accepting a policy in the latter, for the unexpired term in the Canton company, thereby becoming full members of the new company and liable to it for future annual deposits.
    For a further statement of the facts, see the opinion of the court.

      James Lawrence, attorney general, for plaintiff.

      R. II. Stone and Ramsey, Maxwell <& Matthews, for defendant.
   Johnson, C. J.

This corporation was formed under sections 3686, 3687, 3688, 3689 and 3690 of the Revised Statutes, which are as follows:

Section 3686. Any number of persons of lawful age, residents of this state, not less than ten in number, may associate themselves together for the purpose of insuring each other against loss by fire, and may make, assess, and collect upon and from each other such sums of money, from time to time, as may be necessary to pay losses which occur by fire to any member of such association ; and the assessment and collection of such - sums of money shall be regulated by the constitution and by-laws of the association.
“ Section 3687. Such persons shall make and subscribe a certificate, setting forth therein—
'1. The name by which the association shall be known.
2. The place which shall be regarded as its center or business office.
3. The object of the association shall only be to enable its members to insure each other against loss by fire and other casualties, and to enforce any contract which may be by them entered into by which those entering therein shall agree to be assessed specifically for incidental purposes, and for the payment of losses which occur to its members.
Section 3688. The certificate shall be filed in the office of the Secretary of State, and a copy thereof, duly certified by the Secretary of State, shall be evidence of the existence and due incorporation of the association for the purposes therein named.
Section 3689. When such certificate is so filed, and a copy thereof, so certified, forwarded to the association, the persons named therein shall elect their directors, and a president, secretary, and treasurer, and such other officers as may be necessary for the complete performance of all the business and objects of the association herein provided, to serve for one year; such officers shall thereafter be elected annually by the members of the association, at such time as shall be fixed upon in the constitution ; and such association so organized shall be known and held to be a body corporate for all the purposes aforesaid, and may sue and be sued, and plead and be impleaded, in all courts of law and equity ; but in no instance shall the power to insure against losses by fire be exercised to other than members of the association.
“ Section 3690. Every such association shall adopt such constitution and by-laws not inconsistent with the constitution and laws of this state or of the United States, as will, in the judgment of its members, best subserve the interests and purposes of the association; and all persons who sign such constitution shall be considered and held to be members of the association, and shall be held in law to comply with all the provisions and requirements of the association; and the president or vice-president and secretary of every such association shall, annually, on the first day of January, or within thirty days thereafter, prepare under oath and deposit in the office of the superintendent of insurance a statement of the condition of such association on the thirty-first day of December then next preceding, exhibiting such facts as are enumerated m section tliirty-six hundred and fifty-four [3654], and applicable to such associations and such other information necessary to reveal the financial condition of such associations as the superintendent may require, in a printed form to be by him supplied to such associations for that purpose, and every ■such association which fails to make and deposit such statement or to reply to an inquiry of the superintendant, shall be subject to a penalty of five hundred dollars and an additional five hundred dollars for every month that it continues thereafter to transact any business of insurance.” [80 v. 197.]

The declared object of the association, as stated in the certificate of incorporation was :

“Third.' That the object of the association shall be to enable its members to insure each other against loss by fire and other casualties, and to enforce any contract which may be by them entered into, by which those entering therein shall agree to be assessed specifically for incidental purposes, and for the payment of losses which occur to its members

They adopted a constitution and by-laws and issued policies of insurance, not on the plan of specific assessments, to pay expenses and losses as they should occur, but upon what is termed “ the deposit plan.” Instead of assessing its members from time to time to pay incidental expenses and losses, they are required to pay an annual deposit in. advance each year their policy runs. The amount of this annual deposit is based upon the hazards of the risk, estimated by the executive officers of the association.

The members are entitled to dividends out of saving, to be declared each year. The power of the association to assess its members is thus limited.

“Artiom X. The assessment liability of members shall be for each year of the term of the contract, equal in amount to the annual deposit, but in no case shall any member be assessed in one year for an amount exceeding the annual deposit.”

It is also provided in the by-laws, that:

“ N o. 5. All contracts of indemnity on which annual deposits shall fall due and not be paid, shall be deemed void until such animal deposits shall have been received by the association, and all contracts on which assessments have been made, and notice thereof given to the member, shall be void if not paid within thirty days from date of notice.”
In a circular issued to the public is the following :
Cincinnati, Ohio, April’!, 1884.
Guaranty Capital . . $152,538.47
Surplus .... 16,742.66
Total Assets . . . $169,281.13
No Unpaid Losses.

By “ Guaranty Capital,” is not meant any actual capital, but simply the aggregate amount of promises by members to pay future annual deposits.

Thus, a policy which has five years to run, has four .annual deposits to be paid at the commencement of each year, and the amount of so called guarantee capital is the amount of -the five annual deposits on such policy. It requires no legal acumen to see that this advertised “ guarantee capital ” is a mere fiction, well calculated, if not intended to deceive the public. The same is true as to what is called “ aggregate capital.” As the by-laws provide that on failure to pay an annual deposit, the policy shall be void, it is evident that these promises to pay annual deposits, are not absolute contracts to pay the money, but merely promises to be performed at the will of the members, and, therefore, only conditionally assets of the company, payable if assessments become necessary. The “ surplus,” which is advertised is also deceptive in its nature.

As explained by the officers, it means the excess of assets over liabilities, and not a particular fund set apart to cover losses, or for re-insurance.

If their valuation of the assets is too high as is generally the case, or their liabilities are greater than their books show, then this so-called surplus might amount to nothing.

The provisions of the statute above cited, and under which the defendant is incorporated, are very general in their terms. In view of the important interests involved, by introducing a new system of fire insurance into this state before unknown, it is to be regretted that such safeguards as are proper have not been provided, specific as to the mode and manner of transacting business.

These sections, however, do place a specific limitation on the powers of such corporations. So far as these limitations apply to the case at’bar we will state them.

1. They do not authorize the organization of a corporation having a capital stock, and its members are not stockholders in that sense which subjects them to individual liability to an amount equal to his stock in addition thereto. 2. Such corporations cannot be organized with a view to -profit. The law imposes a trust upon the officers for the mutual benefit of all the members, and permits insurance, the losses to be paid by specific assessments upon members. They may assess and collect upon and from each other such sums of money, from time to time, as may be necessary for incidental purposes, as well as losses which occur to its members.

These incidental purposes include the necessary expenses of administering the trust. Any scheme of management which contemplates profits or dividends is imauthorized.

3. This corporation is not formed upon the theory of specific assessments upon members made, from time to time, to pay losses as they occur, but upon what is called the annual “ deposit plan.” An estimated amount, determined by the hazards of the risk, is fixed by previous contract with each member, which he pays annually in advance, in lieu of a specific assessment made, from time to time, as losses occur.

By the terms of this contract, “the assessment liability of members shall be for each year of the term of the contract equal in amount to the annual deposit, but in no case shall any member be assessed in one year for an amount exceeding the annual deposit.”

Thus the liability of members to assessment is expressly limited, regardless of the losses to be paid during any given year. Some doubt is expressed as to the true meaning of the provision above quoted. Whether it means that the payment of the annual deposit frees a member from an assessment during that year, or limits the assessment during the year to an additional amount equal to sucb deposit, it is immaterial now to decide, as in either view, it is a limit on the assessment liability of members, which is unauthorized. Every member who meets with a loss is entitled to call upon his fellow members to share it with him, and these fellow membeis owe it as a duty to contribute sufficient for that purpose.

The present scheme, is radically wrong. It seeks to relieve members from this burden, and may deprive the insured of his full indemnity, unless the corporation borrows money in anticipation of the receipt of future annual deposits, which it has no right to do, The evidence shows that the defendant has been compelled to borrow money for this purpose. It may be said that members have agreed to such limit to their assessment liability, and therefore the maxim volenti jit non injuria applies. To this we answer that we are called upon to determine what are the rights and powers of this corporation, and whether they are exercising franchises and privileges not granted, and not what are the rights of members uuder this contract of indemnity.

4. The statute contemplates speeijic assessments of members, from time to time, to pay losses as they occur. These assessments must be devoted to the payment of such losses so far as may be needed. No member can be assessed to pay a loss, which did not occur during his membership. Hence, the use of funds derived from members, to pay losses prior to their becoming such, or after they cease to be such, is unauthorized.

This corporation is not authorized to borrow money to pay losses expecting to be reimbursed from future payments of annual deposit by new members.

5. This corporation had no power to purchase the property of a similar corporation which had been doing business at Canton, Ohio. The assests which it received by virtue of that purchase amounted to $21,633.56, of this amount $13,000 was the estimated value of real estate in Canton, not needed or used nor necessary for its corporate business, and which under the statute it had no right to buy.

For the first six months of its- business it received in the way of annual deposits or premiums from its members $23,201.25, and during the same time paid sundry liabilities of the Canton company in the sum of $18,687.58, thus devoting a large amount of money collected from its members, as but little of the assets of the Canton company had been converted into cash, to pay losses and other liabilities of the latter company.

6. The evidence shows that this company is engaged in a general fire insurance business, as distinguished from a cooperative mutual company upon the assessment plan.

The annual deposit,” required, is but another name for annual premiums. If these annual deposits exceed the necessary expenses and losses, during a given year, they are treated as savings” out of which dividends are made to those who may then be members. As a consequence, if the annual deposits exceed the expenses and losses, there is a net profit to be divided or carried forward each year, derived from those who may not be members the next year, but if expenses and losses exceed the receipts from such source during a given year, the deficit becomes a burden upon succeeding members, equally with those who were members when the losses occurred, and so continued. Those who were members when the loss occurred, and ceased to be such before the deficit was ascertained, were free from this burden.

7. By-law No. 5 provides, “All contracts of indemnity on which annual deposits shall fall due and not be paid, shall be deemed void until such annual deposits shall be received by the association.” The statute authorizes the association to' adopt a constitution and by-laws regulating the assessment and collection of such sums of money as the parties have agreed to be specifically assessed, for incidental purposes, and for the payment of losses, but itdoes not authorize the forfeiture of a contract for non-compliance with the provision of a contract which it was not authorized to make, to wit, for the non-payment of a deposit in advance, to pay losses that may or may not after-'Wards occur. This by-law which forfeits the policy for non-pay ment of an annual deposit, not covered by a specific assessment, and which may not be needed to pay losses then due and in' advance of any losses for whicb a member is liable to assessment, is the exercise of the power of forfeiture, not authorized by the statute.

Something has been said in argument, in favor of the comparative merits of the system of insurance based upon this plan of annual deposits in advance. We are not called upon to consider or determine the comparative merits of the vari■ous plans upon which companies are organized for insurance. The assessment plan authorized by the statutes under review •has been thought by the law-making power to be worthy of 'adoption in this state. It, doubtless, has its merits, and is entitled to equal regard before us, with any other ‘ plan sanctioned by law. While it may be wise, prudent, and within the scope of its authority, to require pre-payment of a premium or annual deposit by members, to be covered by specific assessments to pay expenses and losses which occur while they -are members, yet the scheme before us which requires such annual deposit from those who are then membei’s to accumulate a fund to pay losses after they have ceased to be such, or before they became members, is not insurance upon the assessment plan but upon the general plan of stock companies. The plan upon which this company is organized and doing business, may have much to commend it, if sanctioned by legislative authority. It is due to those engaged in the management of this corporation to say, that there is nothing to impeach their integrity and good faith, yet we are compelled to hold that they have misinterpreted the provisions of the law providing for insurance on the assessment plan, and that they have been doing business upon a plan unauthorized by these provisions of the statute.

Judgment of ouster.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Hartnett v. State.
    1. The “errors of law. occurring at the trial,” within the meaning of Revised Statutes, § 7356, that can he reviewed in this court, include errors of law prejudicial to the defendant, occurring whilq the court is impaneling a jury for the trial.
    2. When a person is arrested and duly committed for a crime, for which he is' thereafter indicted, the prosecution for that crime is pending, within the meaning of Rev. Stats. § 79, as soon as he is arrested and committed.
    3. By virtue of Revised Statutes, § 79, in impaneling a jury for the trial of a person accused of a crime, an,d against whom the prosecution was pending when section 7278 was amended, March 18, 1884, such accused person is not precluded, by that amended act, from using causes of challenge allowed by the section thus repealed.
    4. Where, on the trial of a criminal prosecution, a juror is challenged for cause by the accused, and the challenge is erroneously refused, and the juror is then peremptorily challenged, if the accused exhaust his peremptory challenges before the jury is completed, the error will be considered material and to the prejudice of the accused.
    EeROR to the Common Pleas of Hamilton county.
    On January 31,1881, Patrick Hartnett was arrested on the charge of killing his wife, Mary Hartnett, on that day. Prom the time of his arrest he was held a prisoner on that charge. For this crime an indictment, charging murder in the first degree, was reported on April 17, 1881, and on April 21, 1881, he was arraigned and pleaded not guilty. He was put. on trial July 18, 1881, and the jury returned a verdict of guilty of murder in the first degree, as charged in the indictment. A motion for a new trial was overruled, and he was' sentenced to be executed on December 5, 1881. A bill of exceptions was taken, and Hartnett is seeking a reversal of the judgment of the:common pleas.
    On July 18, 1881, while a jury was being impaneled to try the issue in the case, one Henry Wellman was called and was sworn and examined touching his qualification as a juror, and testified as follows:

      Direct examination. By Mr. Gerard: — Q. Have you formed or expressed any opinion as to the guilt or innocence of the accused ? A. Yes, sir.
    Q. Could you lay aside that opinion and hear the testimony and the law here in court, and bring in a verdict fairly between the prisoner and the state ? A. Yes, sir.
    Q. Are you opposed to capital punishment ? A. No, sir.
    Q. You live in this county ? A. Yes, sir.
    Q. What is your business ? A. Harness maker.
    Q. You haven’t been on the grand jury here? A. No, sir.

      The witness: I would like to state that I desire to be excused.

      Cross-examination: By Mr. Jackson: — Q. I understand you to say you have formed an opinion. A. Yes, sir.-
    Q. Upon what did you form that opinion ? A. Upon reading newspapers and hearing the coroner’s inquest, reading the testimony about that.
    Q. You read the newspapers, the ordinary accounts ? A. Yes, sir.
    Q. And you read the testimony at the coroner’s inquest ? A. Yes, sir.
    Q. Do you remember whether you read any statement made by the witnesses of this transaction in the papers ? A. Not particularly, but I know that I passed my opinion on what I read at that time, and I still adhere to the same thing unless it would be changed.
    Q. It would require evidence to remove that opinion, would it not ? A. Yes, sir, it would.
    Q. And you say that notwithstanding it would require evidence, strong evidence, would it? A. Well, of course it would have to be good evidence to remove that.
    Q. Notwithstanding you say it would require good evidence to remove that opinion, yon think you could render a fair and impartial verdict upon the law and the evidence if yon were accepted as a juror ? A. Yes, sir.

      Mr. Jackson: I challenge the juror for cause, your honor.

      Q. By toe Court : You are not the client of any of these attorneys here ? A. No, sir.
    Q. I understand that you say this opinion you have formed is based upon what you may have read in the newspapers ? A. Yes, sir.
    Q. Coroner’s inquest ? A. Yes, sir.
    Q. Do I understand you to say that you believe, notwithstanding that opinion, you could render an impartial verdict after you heard the evidence in the case and the charge of the court? A. Yes, sir, I would conform to the law of the court and the evidence certainly.
    Q. You believe you could render an impartial verdict, do you? A. Yes, sir.
    Q. Notwithstanding what you may have formed upon reading newspapers ? A. Yes sir.

      Mr. Jackson: I would like to be heard on that. If the court please, there is no question but that under the old law, before the passage of the act known as the Pruden bill, that sufficient evidence has been developed by this juror’s examination to constitute a good challenge for cause. I concede, that under the recent statute the challenge for cause should be overruled. And the one question therefore is, as to whether in this case that statute applies, passed on March 16,1884, or the old statute applies which was in force at, the time that the alleged crime was committed, and at the time that the prisoner was arrested and bound over in the police court. lie was indicted, I believe, on the 7th of April, or the 17th of April. At all events, he was indicted after the passage of the act.
    The challenge was overruled, to which counsel for defendant excepted.
    Q. By Mr. Jackson : I understand if you were sworn and accepted as a juror in this case your opinion is such that it would require strong evidence to remove it. A. Yes, sir.

      Mr. Jackson : We challenge the juror.
    Q. Br the Court : But you would be governed by the evidence in the case ? A. Yes, sir.
    Q. And the law as laid down by the court. A. Yes, sir

      Mr. Jackson: I meant to say that the challenge is made peremptory, yonr honor.
    The Coukt : Yery well, he can stand aside.
    And thereupon three other jurors were called and gave substantially the same answers and were challenged for cause by plaintiff in error, which challenges were overruled, to which ruling of the court the plaintiff in error excepted. The plaintiff in error thereafter exhausted his twenty-three peremptory challenges.

      Lowrey Jackson and Eugene Heim, for plaintiff in error :
    1. There was error in permitting the names of jurors to be drawn from the wheel in the absence of the sheriff. Rev. Stats. § 5167, as amended 80 Ohio L. 119 ; Hulse v. State, 35 Ohio St. 421.
    2. The accused was entitled to a copy of the panel returned by the sheriff. Rev. Stats. § 7273 ; People v. Coyodo, 40 Cal. 586.
    3. Henry Wellman was disqualified to sit as a juror under section 7278 Revised Statutes, and his disqualification as to this case was not removed by the amendment to that section (81 Ohio L. 53). The accused was entitled to be tried by a jury, constituted and selected under section 7278, which was in force at the time of the commitment of the crime charged, and the arrest of the accused, and not one under the amendment of that section (81 Ohio L. 53) in force at the time of the trial.
    The act of March 1884 (81 Ohio L. 53) is an act restricting the causes of challenge for cause, to jurors in criminal cases. It is an act relating to remedy in prosecutions and therefore comes within the meaning of section 79 of the Revised Statutes, and does not affect- pending actions.
    It is unquestionably the law that a civil action is commenced and pending from the date of the issuance of the summons. Swisber v. Swisher’s Adm’r, Wright, 755 ; Meisse v. McCoy’s Adm’r, 17 Ohio St. 225 ; Bradford v. Andrews, 20 Ohio St. 208 ; Buckingham v. Com. Bank of Cin’ti, 21 Ohio St. 131; Robinson v. Orr, 16 Ohio St. 285.
    And by every principle of analogy a prosecution should be deemed commenced from tHe date, or at least the service of the warrant. We are unable to find that the question has arisen in this state, but elsewhere it has been fully and ably considered. See State v. Cox, 6 Iréd. 448 ; State v. Howard, 15 Kich. 274; State v. May, 1 Brad. 160 ; State v. Groome, 10 Iowa, 308; People v. Olarle, 33 Mich. 112 ; R. v. Wülace, 1 East P. C. 186 ; R. v. Brooles, 1 Den. C. C. 217; 2 0. & IL 402; R. v. Austin, 1 C. & K. 621; 8th Report of British Commissioners, 359; London Law Magazine, No. 64; Wharton Am. Cr. Law, § 459, note.
    The overruling the prisoner’s challenge of the juror Well-man for cause, compelled him to exhaust his peremptory challenges before the jury was completed, which was error to his prejudice.

      W. H. Pugh, prosecuting attorney, for defendant in error.
   Follett, J.

Can this court review the errors of law occurring in impaneling the jury ? Section 7356 of the Revised Statutes, provides: “But in the supreme court only errors of law, occurring at the trial, or appearing in the pleadings or judgment can be reviewed.” What is meant by the words, “ at the trial ?” They may signify more than, in the trial, or on the trial.

Section 7269 provides: “ The first thirty-six jurors who answer to their names at the trial,” etc. And section 7280 provides : “ If two or more persons be put on trial at the same time, each must be allowed his separate peremptory challenges.” The foregoing and other sections of the statutes, and the constitutional provision (Const. Art. I. § 10) that, “the party accused shall be allowed. . . a speedy public trial by an im- ■ partial jury of the county or district in which the offense is alleged to have been committed,” not only justify but compel the belief that, by the words “ errors of law occurring at the trial,” the legislative intent was, to include errors of law occurring at the impaneling of the jury by the court, whether the word trial, alone, does or does not include such impaneling.

The deputy sheriff may act for the sheriff in drawing additional- jurors. Hulse v. State, 35 Ohio St. 221-227. The accused is not entitled to be served, three days before the day of trial, with the list of additional jurors.

But there is another question that is decisive of this case, did the court of common pleas err as to the causes for which a juror may be challenged, or as to the law governing such causes ?

We need not examine or apply the constitutional prohibition as to ex post facto laws, — a provision that is sacred in every land governed by law, — for our statutes amply provide for such cases as this.

Long prior to this homicide, Ohio had a law upon this subject that is now contained in Revised Statutes, § 79, and is as follows: “ Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions or proceedings, unless so expressed ; nor shall any repeal or amendment affect causes of such action, prosecution or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

In this case when plaintiff in error was arrested for the homicidej on January 31, 1884, and up to March 18, 1884, among other causes for challenge to any person called as a juror for any criminal trial, was the following (Rev. Stats. § 7277,2): “ That he has formed or expressed an opinion as to the guilt or innocence of the accused, but if a juror state that he has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine such jurors, on oath, as to the ground of such opinion, and if it appear to have been founded upon reading newspaper statesments, communications, comments, or reports, or upon rumor or hearsay and not upon conversations with witnesses of the transaction or reading reports of their testimony, or hearing them testify, and the juror state, on oath, that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and evidence, the court, if satisfied that be is impartial, and will render such verdict, may, in its discretion, admit him as competent to serve in such case.”

On March 18, 1884, the above part of section 7278 was repealed and amended without any express provision as to pending causes of action, actions, prosecutions or proceedings, and as a cause of challenge the amendment (81 Ohio L. 54) provides : “ That he has formed or expressed an opinion as to the guilt or innocence of the accused; but if a juror has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine such juror on oath, as to the grounds of such opinion, and if such juror shall say that he believes he can render an impartial verdict, notwithstanding such opinions, and if the court is satisfied that such juror will render an impartial verdict on the evidence, may admit' him as competent to serve in such case, as a juror.”

But the last above repeal and amendment could not affect any action, .prosecution or proceeding pending March 18, 1884, when the amendment was passed and took effect. How was this pendency in case of the plaintiff in error?

In minor offenses, where the plea of the statutes of limitations may be interposed, “ The issuing of a warrant in good faith and delivery to an officer to execute, whore the defendant was afterwards arrested upon that warrant and bound over for trial, is a sufficient commencement of the prosecution to satisfy the requirement of the statute of limitations.” People v. Clark, 33 Mich. 113. That was the holding in a prosecution for seduction. State of Iowa v. Groome, 10 Iowa. 308, was a similar case, and the-statute of limitation was one year. The court held, “The filing of an information, the arrest of the accused, and his recognizance to appear and answer in the district court, if done within one year after the offense is alleged to have been committed, is a commencement of a prosecution within the meaning of the statute of limitations.”

R. v. Willace, 1 East P. C. 186, is a case in point. Willace was indicted for high treason in coloring a piece of base coin, resembling a shilling, with materials producing the color of silver, on May 5, 1797. ’Ey statute 8 and 9 W. III, c. 26, no prosecution could be made unless commenced within three months. Willace was apprehended May 5, 1797, and was afterwards carried before a magistrate, and by warrant dated May 8, 1797, was committed to jail, charged on oath “ with suspicion of high treason in counterfeiting the current money of this kingdom, viz. shillings,” etc. “ The assizes of Durham were liolden on the 8th of August, so that more than three months had elapsed between the commission of the ofíense and the preferring of the indictment. But the judges, at the conference, unanimously held that the information and proceeding before the magistrate was the commencement of the prosecution within the meaning of the act; and that the variance between the manner of laying the offense in the indictment and charging it in the commitment made no difference.” In case of R. v. Austin, 1 C. & K. 621, the court approved and followed R. v. Willace, supra. Pollock, C. B., said, “ I think that the warrant of commitment must be taken in this case to show the commencement of the prosecution. The first proceeding was to take the party before the magistrate, and he grants his warrant of commitment.”

The case of R. v. Brooks and Gibson, 2 C. & K. 402, was, where the limitation was one year, and was a case of night poaching by persons armed, and the offense was committed on the 4th of December, 1845. On the 19th of December, 1845, information of the offense was made before a magistrate, who, on that day, granted warrants to apprehend A. and B., two of the offenders. On one of these warrants A. was apprehended and committed for trial on the 16th of September’, 1846, B. being apprehended on the other warrant and committed for trial on the 21st of October, 1846. The indictment was preferred and found on the 5th of April, 1847 : Held, that the prosecution was commenced within twelve calendar months after the commission5 of the offense, and that it was commenced by the information and warrants to apprehend, or at all events by the apprehension of the prisoners.” And in the ensuing term the case was considered by the fifteen judges, who held the conviction right, and approved the holding.

In State v. Howard, 15 S. C. 274, the court held, that, “ A nol. pros, does not put an end to a criminal prosecution, as non-suit does to a civil action.” And Wardlaw, A. J., says, A. nolle prosequi entered by the prosecuting officer, is not the termination of a criminal case, as a non-suit is of a civil one. The indictment is one of the stages of proceedings, and a discharge of that by nol. pros, does not impair the previous proceedings.” State v. Hackett, 3 Hill, 95; Smith v. Shackleford, 1 N. & McC. 36; Tiague v. Wilks, 3 McCord, 463.”

Mr. Wharton, in his Criminal Pleading and Practice, says, in the index, “ Prosecution usually begins with oath before magistrate,” and in section 1 says, “ The usual commencement of a criminal procedure is a preliminary oath before a magistrate, upon which, a warrant is issued for his arrest.”

Mr. Bishop, in his Criminal Procedure, § 28, says, “ This chapter will present,, in brief outline, the successive steps in a criminal cause.” Then in section 29 he divides these steps as, I. The steps which precede the indictment, complaint, or information ; II. What follows, down to the finding upon the facts ; III. From the finding of guilty to the complete execution of the sentence.” “ § 30. To convict and punish an offender, possession must be obtained of his person. Hence, in general, when a crime has been committed, and suspicion rests on a particular person, the first thing done is to arrest him.”

Thq first step, the arrest, the examination and commitment, the presentment by the grand jury of the written accusation of the crime, which becomes the indictment, the arraignment, plea, trial, verdict, sentence, and execution, are regarded as successive steps in a criminal cause or prosecution.

Then, as early as the arrest and commitment, for a crime for whiclj he is afterwards indicted, the cause or prosecution is pending. And if pending as against the accused, it will be pending when in his favor.

This cause or prosecution against the plaintiff in error was pending, January 31, 1884; and section 79 of the Revised Statutes, conclusively provides that the amended law of the following March 18, 1884, cannot prevent the plaintiff in error from using causes of challenge allowed by law when his prosecution was first pending.

Section 7278, (2) of the Revised Statutes, before the amendment of March 18,1884, allowed plaintiff in error to challenge Henry Wellman for cause, as he had read newspaper reports of witnesses’ testimony in the case, and had heard the witnesses testify in the coroner’s inquest. This position was so held in case of Frazier v. State, 23 Ohio St. 551, where this court held, “ Where a person called as a juror in a criminal case is challenged, on the ground that he has formed or expressed an opinion as to the guilt or innocence of the accused, if it shall appear that such opinion was formed upon reading what purported to be a report of the testimony of witnesses of the transaction, he is not, under section 134 of the criminal procedure (as amended February 10, 1872) now Revised Statute, § 7278 before amended March 18, 1884, competent to serve as a juror in the case, and should be set aside by the court.”

The challenge of Wellman for cause was overruled, and plaintiff in error was compelled to use one of his peremptory challenges to prevent having a juror who should have been excused for cause.

The court erred as to which law applied to the case. This is true as to Henry Wellman, and as to some other jurors in this case.

There was error in the court below, but was it error to the prejudice of the accused? Wellman did not sit on the jury as he was peremptorily challenged.

There are two cases in Ohio that point to the true solution of this question. The first one is Mimms v. State, 16 Ohio St. 221, where the court held, “ The sente'nce on a conviction for murder, will not be reversed upon error, assigned to the rulings of the court on the examination of a juror upon his voir dire, or to the refusal of the court to sustain the defendant’s challenge of such juror for cause, where the juror was set aside on the peremptory challenge of the defendant, and where, without exhausting his peremptory challenges, he permits the jury, called as provided by law, to be sworn and to try the case without further challenge or objection.” Mimms had twenty-three peremptory challenges, but he needed to uso only seventeen of them, to protect himself against all objectionable jurors. lie had remaining, six peremptory challenges that he did not wish to use. And he thus secured a jury acceptable to him. The court strongly imply that if Mimms had needed to exhaust his peremptory challenges, the result would be different.

In cáse of Irwin v. State, 29 Ohio St. 186, several persons were examined as to their qualifications, as jurors, who stated that the}r had formed and expressed an opinion as to the guilt or innocence of the accused from reading a report of the testimony of witnesses offered on a former trial of the case. They were challenged by the accused for cause, and the challenges were overruled. The court, following Frasier v. State, supra, held that was error; but Mcl.lvaine, J., says, “ It appears from the record, however, that each of these objectionable jurors was afterward excused on a peremptory challenge, and that a full panel of impartial and acceptable jurors was obtained from the persons named in the special venire, before the defendant had exhausted his right of peremptory challenge, so that, in fact, no prejudice resulted to defendant from such erroneous ruling of the court.” And so they followed Mimms v. State, supra.

Rut the case is different, where, as in this case, the accused does exhaust his peremptory challenges before the jury is impaneled. In such case it cannot bo said, “ no prejudice resulted to defendant from such erroneous rulings of the court.”

In the case of People v. Weil, 40 Cal. 268, the court held, “Where a challenge for cause was erroneously disallowed by the court, and the juror then peremptorily challenged, if the defendant exhausted the number of peremptory challenges to which he was entitled before the jury was completed, the practical result of the erroneous disallowance of defendant’s challenge for cause was to contract the number of peremptory challenges to which he was entitled, and may have been seriously prejudicial to the defendant.”

In State v. Brown, 15 Kan. 400, the court bold, “ and the defendant having exhausted all his peremptory challenges in said case, the error will be considered material, although said juror was afterward discharged by the court on one of the defendant’s peremptory challenges.”

In Hubbard v. Rutledge, 57 Miss. 7, the court held, “ the defendant’s cleric is an incompetent juror; and his peremptory challenge will not cure the erroneous overruling of objection to him, if the plaintiff’s challenges are exhausted before the panel is completed.” See also Whar. Cr. Pl. § 694.

The error was prejudicial to the plaintiff in error, and the sentence and verdict are set aside, and the case is remanded to the court of common pleas for further proceedings.

Judgment reversed and cause remanded for further proceedings.


author: Owen, J.

text:
    State ex rel. Attorney General v. Peoples’ Mutual Benefit Association.
    1. Associations organized under the provisions of the law embodied in the Revised Statutes, § 3630, “ for the mutual protection and relief of its members, and for the payment of stipulated sums of money to the families or heirs of deceased members,” are not authorized to issue certificates of membership payable to the named beneficiary “or assigns,” nor payable in case of death to others than the family or heirs of the insured member.
    2. Trustees of such associations having voted to themselves and accepted designated sums of money, as compensation for their services for particular years, have no power, in subsequent years of their service, to vote themselves “back pay” for their services during such former years.
    3. Such trustees have no authority, by virtue simply of their trusteeship, to act for, or hind their association, except in their aggregate and administrative capacity as a hoard ; and where they assume, by virtue of their trusteeship, to act in the separate and individual capacity of treasurer, secretary or as general or special agent of their association, they cannot thereby create against it a legal liability to compensate them as trustees for such services.
    4. Such trustees, unless especially invested with the additional capacity and authority of officers or agents, are limited in their claims to compensation, to such sums as will reasonably compensate them for the time and expense incurred in going to, attending, and returning from, their official meetings, and for their services while in session.
    5. Whether a corporation which is shown, upon a quo warranto proceeding, to have misused or abused its franchises, should be ousted of its corporate franchises, is a question not capable of determination by any fixed rule or test, but rests in the sound discretion of the court, in the light of all the circumstances of the case before it.
    Quo WarrANTO.
    The defendant is a corporation organized on the 17th day of April 1877, under the provisions of the law since embodied in the Revised Statutes, § 3630, for the mutual protection and relief of its members, and for the payment of stipulated sums of money to the families and heirs of deceased members. The object of the present proceeding is to oust it from its franchises to do business as such corporation.
    Of the grounds alleged against it, those considered in the opinion of the court are, (1) that it has issued certificates of membership) for the payment of stipulated sums of money for the benefit of persons who are not of the family, or heirs of the assured; (2) that the certificates of membership issued by it, are made payable to the beneficiary or assigns, and .provide for the assignment of the same with the consent of the company, and that such certificates have been so assigned to p;>er-sons not of the family or heirs of the assured ; and (3) that it has been, and was at the commencement of this proceeding, operated for the profit of the trustees; that the sum of • $32,983.06 has been paid to its trustees under the pretence of remunerating them for attending the meetings of the board, whereas only forty-eight meetings have been held since its organization, making the average amount paid to each trustee for each attendance $77.24.
    The defendant admits that it issued some certificates payable to persons who were not of the family, or heirs of the assured ; avei’S that their issue was in good faith, but that up>on learning of a decision of this court that such certificates were' unauthorized, to wit, in August 1882, their issue was discontinued.
    The defendant also admits the issuing of its certificates payable to the beneficiaries or assigns, and their assignment as alleged, but avers that such form of certificate was approved by its legal adviser, and also presented to a former superintendent of insurance, and the attorney general, and that the trustees-understood them to give the opinion that the issuing of such form of certificate would be legal. That no objections had been made to such form until that of the present superintendent of insurance in August last. All bad faith is disclaimed, and the legality of such form is submitted to the court here for. determination, with the assurance that if it be adjudged illegal, no such certificate will be issued thereafter.
    The defendant denies that it has been operated for the profit of its trustees. Admitting that the sum of $33,700 has been paid to the trustees, it avers that only a small part of the amount so paid to them was for attendance at the sessions' of the board ; that its success — issuing over 6,800 certificates aggregating about $10,000,000, and paying all its matured claims promptly and in full, aggregating $258,117.41 — has. been accomplished by the labors of its trustees. That the trustees have, from the beginning “spoken, written and labored to build up the association, and all of them have shared in the responsibility and the work.” That the compensation paid the trustees was reasonable.
    The reply denies the new matter in the answer.
    • The cause was heard by the court on the evidence.
    The management of the association was entrusted to eleven trustees, a “ prudential committee ” of three trustees, a president, vice-president, secretary, treasurer, and general and special agents.

      James Lawrence, attorney general, for plaintiff.

      Harrison, Olds <& Marsh and O. N. Olds, for defendant.
   Owen, J.

It is admitted by the defendant that its certificates of membership were issued payable to the named beneficiary or “ assigns ” and that .with the consent of the company, certificates have been assigned to persons neither heirs, nor of the family of the assured. May this lawfully be done ? The purposes of the organization of the defendant are (1) the mutual protection and relief of its members, and (2) the payment of stipulated sums of money to th & families or heirs of the deceased member.

It seems clear that the beneficiary named in each certificate must be an heir, or of. the family, of the deceased member. If the named beneficiary may assign his interest in the certificate to a stranger, who may thereby become invested with all the rights of his assignor, that may be effected by indirection, which is not permitted by direct means, and might result in the creation of a class of beneficiaries neither contemplated nor authorized by the defendant’s charter. We are riot now discussing the right of a beneficiary to assign his death claim, matured by the death of the insured member, or other matured claim, but the right of a named beneficiary, during the life of the insured member, to endow those who are neither of the family, nor can become heirs of the insured, with all the rights of the beneficiary. Such form of certificate is unauthorized.

2. The matters pleaded as defense to the charge of issuing certificates of membership, payable in case of death, to others than the families or heirs of the insured member are substantially established by. the proof. That they were unauthorized is conceded.

It is admitted that $33,700 have been paid to the trustees, as such, as compensation for their service since the organization of the defendant.

The evidence shows that a large proportion of the money, voted by the trustees to themselves, was paid to them upon the pretended warrant of resolutions authorizing i‘ back pay ” for service claimed to have been rendered during years prior to those in which the resolutions were passed.

The new members of the association had a right to assume that the sums appropriated and paid by and to the trustees as for their services in former years, were in full compensation tlierefor, and this scheme of voting back pay to themselves, by the trustees, cannot be justified by the most liberal construction of the statute under which the defendant was chartered.

The sums so paid to the trustees were largely in excess of a fair and reasonable compensation for service actually rendered by them as such trustees. The trustees holding other offices of the company, including members of the' prudential committee, were liberally salaried and paid for their services in their respective official capacities.

These allowances and payments to the trustees, are sought to be justified on the ground that, in addition to the ordinary duties peculiar to their trusteeship, they rendered services in the interest of the company, which were peculiar to the duties of secretary, treasurer, and general and special agents.

These trustees who wei’e constituted agents of the association -were, as such, liberally salaried and paid.

The duties peculiar to trusteeship are to be performed in an aggregate and administrative capacity. Their trusteeship does not equip them for the promiscuous and indiscriminate services for which they now claim to have been entitled to compensation. Their trusteeship does not constitute them agents,” .either general or special. As trustees, they have no power, acting in a separate and individual capacity, to bind the company. As trustees, they can bind the company- only by their action in their aggregate capacity as a board. For the time and éxpense incurred in going to, attending, and returning from, their official meetings, and for their services at such meetings, they are entitled to reasonable compensation. The assumption, however, that the trustees voted these sums to themselves simply as compensation for services actually rendered, is shown to be unwarranted by the fact that they were allowed without regard to the respective character, extent or value of such services. While the services for which they now claim the right to be compensated were widely unequal in extent and value, exact uniformity was observed in the amounts paid them. In fact, these payments seem to have been regulated rather by the condition of the treasury than by the compensation actually earned. To be plain about it, this system of paying so called compensation is but a poorly disguised scheme for a division of profits ” among the trustees.

Our inevitable conclusion from all this is, that the charge preferred against the defendant that it has been “ operated for the profit of its trustees,” is sustained.

In view of the admissions of the defendant and the foregoing findings of the court concerning the exercise and abuse of its franchises, ought the prayer of the relator to be granted and the defendant ousted of its franchises to do business as a corporation ? This question involves the discharge of an exceedingly delicate and responsible duty, and is one upon which we are not all agreed. It is conceded that the determination of this question rests with the sound discretion of this court, in the light of all the circumstances of the case.

Many things may be said to the credit of this defendant, the methods of its management, the care and fidelity of its principal officers and agents in the selection of risks, the promptness and fairness of the adjustment and payment of death claims, the class and character of those who chiefly constitute its membership. But it would be as injudicious as it is impracticable to attempt to fix a rule or establish a test by which the life of such a corporation, whose franchises have been abused, is either to be taken or spared.

The present membership of the defendant numbers about 3,500, chiefly worthy and deserving people, utterly innocent, if not wholly ignorant, of any misuse or abuse of its franchises. Purged of the unfortunate features of its management which this trial has developed, this association is capable of much usefulness. To visit the perversion of its objects by a few, upon the heads of the entire membership must result in irremediable hardship; and without stating more fully the grounds of our action, or the considerations which move us, it must serve our present purpose to say that the relator’s prayer that the defendant be ousted of its franchise to be a corporation is refused. Judgment will be entered, however, ousting it of the use of its franchises for the profit of its trustees, and for the issuing of certificates of membership in the form complained of by the relator. ^

Judgment accordingly.

Ohey, J., took no part in the decision of this case.

Follett, J., dissents from the refusal of the prayer for ouster of the defendant of its corporate franchises.


author: Okey, J.

text:
    Hastings v. Columbus. Shufflin v. Columbus.
    1. Publication of the preliminary arid other ordinances, with respect to a street improvement, in a newspaper of general circulation, in accordance with the terms of the statute, is a valid and legal publication, although such newspaper is published only on Sunday
    2. Even if publication in a Sunday newspaper is not such publication as the statute contemplates ; still, where the newspaper is of general circulation in the municipal corporation, and the publication is in accordance with the letter of the statute, and it is shown to be probable that notice of the proceeding reached all interested therein, the irregularity of such publication in a Sunday newspaper does not go to the power to assess, but brings the case within the curative provisions of the municipal code of 1869, § 550 ; Eev. Stats. § 2289.
    8. The contractor for a street improvement having applied to his own use, with the assent of the city, the materials used in a former improvement in the same street, the value of such materials should be deducted from an assessment for such improvement, in an action thereon by the contractor against the abutting lot owners.
    4. Where it satisfactorily appears to the persons representing the city, in superintending a street improvement, that additional expense, not expressly provided for in the ordinances, notices, or contract, is necessary to make the improvement a good job — as the placing of a French drain in the street, or increasing the width of the improvement — the city may authorize the contractor to make such additions, and assess the abutting lot owners therefor, without any additional notice or further letting, although the amount of the expense exceeds $500.
    5. If a contract for a street improvement provides, in effect, so far as it concerns the abutting lot owners, that the improvement should be so perfectly made that it would remain in good repair for seven years, and during tbe same year and tbe year following tbe making of such improvement, extensive repairs by the city became necessary, to make tbe improvement sucb as is provided for in tbe contract, tbe expense of sucb repairs, whether completed or not, should be deducted from any assessment against tbe abutting lot owners, in an action by tbe contractors on tbe assessment.
    6. Tbe fact that a street improvement is to be made with a specific patented pavement, is no valid objection to an assessment for sucb improvement, if, before tbe contract was let, tbe city bad acquired the right to permit any bidder who might be successful, to use, on reasonable terms, sucb patent in making the improvement.
    7. Any action to recover against tbe lot owners tbe amount of au assessment for a street improvement, where tbe municipal corporation is a proper party defendant, may, under tbe statute in force in 1876, be prosecuted by tbe contractors in their own names.
    Appeals from tbe Court of Common Pleas of Franklin county. Reserved in the District Court.
    January 29, 1876, J. L. Hastings and others, brought suit in the court of common pleas of Franklin county, against the city of Columbus, Francis Wenger, Henry T. Chittenden and others. The object of the action was to recover, as contractors, the amount of an assessment for a Parisen patent asphalt pavement, placed by them on High street, Columbus, Ohio, from Naghten street to a point 125 feet south of Friend street. The defendants, other than the city, were owners of lots abutting on High street, and the plaintiffs are seeking to charge them with the cost and expense of the improvement. After the cause had been appealed to the district court, Augustine Converse, one of the defendants, filed, on leave, a demurrer to the petition, which was overruled, and he and others answered, to which answers replies were filed. The cause was referred to John D. Burnett, as a master, to hear testimony and report his findings of fact and conclusions of law. He filed a report, to which exceptions were taken by defendants as well as plaintiffs, and the cause having been thereupon reserved to this court, the same stands for hearing on the demurrer to the petition and such exceptions to the master’s report.
    By the demurrer, the defendants present the question, whether the plaintiffs had legal capacity to bring the suit, in view of sections 546, 547 of the municipal code of 1869, as they existed when this suit was brought; and the demurrer presents the further question, whether it appears from the petition, that the things which, by the municipal code of 1869, were made conditions precedent to a valid assessment, had ever been performed.
    The exceptions to the master’s report present numerous questions, all of which have been considered, but it is deemed unnecessary to notice many of them in this report. So far as it is necessary to notice them, the facts will be stated in the opinion. It is sufficient here to say, that the master found no defect which deprived the council of power to make the assessment, but he found divers irregularities which brought the case within the curative provisions of the municipal code of 1869, § 550 ; Revised Stat. § 2289.
    October 21, 1876, John T. Shufflin and others, partners as F. W. Smith & Oo., brought suit in the court of common pleas of Franklin county, against the city of Columbus, John Field, Celia A. Fay, and others. The object of the action was to recover, as contractors, the amount of an assessment for a Filbert patent pavement on Town street, Columbus, Ohio, from the east side of High street to the west side of Parsons avenue. The defendants, other than the city, were owners of lots abutting on Town street, and the plaintiffs are seeking to charge them with the cost and expense of the improvements. There was a demurrer to the petition, which was overruled, and an answer and a reply were filed. Upon appeal to the district court, the same course was pursued as in the High street case, and this case stands in this court in the same way, and presents for decision precisely similar questions as in that case. So far as it is necessary to notice the questions in this report, the facts will be stated in the opinion.
    • J. W. Baldwin and L. English., for plaintiffs.

      Harrison, Olds & Marsh, for defendants.
   Okey, J.

I. The record discloses the fact, and the alleged error is insisted upon by the defendants, that in the Town street case, the preliminary ordinance declaring the improvement to be necessary, was published in tbe Sunday Morning Mews, a newspaper published and circulated in Columbus on Sunday only, and that the notice was published in no other newspajier. The master finds that newspaper was at the time of general circulation in Columbus. It also appears that in the High street case, the ordinance providing for the improvement, and the assessment ordinance for one section of that improvement, were also published in that newspaper and no other. And it appears that at the time of these various publications, other newspapers, dailies and weeklies, were published and generally circulated in the city of Columbus on week days only. The municipal code of 1869, amended in 1870 (67 Ohio L. 71), and then in force, provided (§§ 100, 103), among other things, that all ordinances “ providing for improvements shall be published in some newspaper of general circulation in the corporation ; if a daily twice, and if a weekly once, before going into operation. And no ordinance shall take effect until the expiration of ten days after the first publication of such notice.” And that “ it shall be deemed a sufficient defense to any suit or prosecution, under any ordinance, to show that no such publication. . . as herein required, was made.”

The question whether such publication in a Sunday newspaper is a legal or valid notice being thus directly presented, we have bestowed upon it that care which its importance demanded, and will now state the result.

1. Anciently, at common law, courts were authorized to and did sit on Sunday, for the rendition of judgments and for all other purposes, precisely as on other days of the week (Swann v. Broome, 3 Burrow, 1595; s. c., 1 W. Bla. 526; Hiller v. English, 4 Strob. L. 486); and process of every sort might be as lawfully executed (Mackalley's case, 9 Coke, 66 b), and work, labor and business of every kind might be as lawfully done (Bloom v. Richards, 2 Ohio St. 387; McGatrick v. Wason, 4 Ohio St. 566), on that day as on any other.

2. By force of the adoption by several Saxon kings, and geueral acquiescence for centuries in such adoption, the canon promulgated A. D. 517 acquired the force of, and became in truth common law, in a single particular, namely, that process awarded, or a judgment rendered by a court on Sunday was void, and that is the law wherever the common law prevails, except as modified by statute. Swann v. Broome, Hiller v. English. Whether this prohibits the receipt of a verdict on Sunday, is a matter about which there is some conflict, with the weight of authority in favor of the power to receive the verdict on that day. In Morehead v. State (reported on other points in 34 Ohio St. 212), the verdict was received on Sunday, and this court unanimously held that there was no error in so receiving it. That process issued by a ministerial officer, in the ordinary course of official duty, is not process awarded hy a court, within the meaning of the above phrase, was shown in Clough v. Shepherd, 31 N. H. 490.

3. While at common law a judgment could not be rendered or process awarded by a court on Sunday, an arrest in a civil cause and service of process of any sort, on that day, they being merely ministerial acts, were at common law as perfectly valid and lawful as if made on any other day. Mackalley's case; Swann v. Broom; Clough v. Shepherd; Matthews v. Ansley, 31 Alabama, 20; Sayles v. Smith, 12 Wend. 57; Gwynne on Sheriffs, 93; Stapleton v. Reynolds, 5 Leg. Rec. 242.

4. Chiefly with a view to remedy the defects existing at common law, the statute 29 Car. II. c. 7 (1 Stats, at Large, rev. ed. 779), was enacted. That statute, which remains in force except as modified by 7 and 8 Geo. IV. c. 75, provides, among other things, as follows: § 1. “ No tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, business, or work of their ordinary callings upon the Lord’s day or any part thereof (works of necessity and charity only excepted), and that every person being of the age of fourteen years or upwards, offending in the premises, shall for every such offense forfeit the sum of five shillings.” Section 6. No person or persons upon the Lord’s day, shall serve or execute, or cause to be served or executed, any writ, process, warrant, order, judgment or decree (except in cases of treason, felony or breach of the peace), but that the service of every such writ, process, warrant, order, judgment or decree shall be void to all intents and purposes whatsoever.”

5. During part of our territorial period and a portion of time under the state government;, but not since 1806, English' statutes not inapplicable to our circumstances and condition, enacted prior to 4 James I., were in force in Ohio, but statute 29 Car. II. was not among the English statutes which have been in force with us at any time. Crawford v. Chapman, 17 Ohio, 449; Drake v. Rogers, 13 Ohio St. 21; Knapp v. Thomas, 39 Ohio St. 385. Hence there has never been in this state any other limitations on the power of a ministerial officer to serve or execute process of any sort, on one day more than another, than those made by statute of this state.

6. Comparison of our statutes with respect to arrests and labor with the statute 29 Car. II. shows that our legislators wrere perfectly familiar with the latter act, and deliberately adopted in'a modified form some of its features and rejected others. Keeping in mind that we must find in these statutes of our own state the only limitations on the power of a ministerial officer to serve or execute process on Sunday, we will examine those acts. And first the act of 1799, 1 Chase, 257. That act provided in section 1, that members of the legislative council and house of representatives and their officers, during sessions, and electors while attending elections, should be privileged from arrest; and in sections 2 and 3, that judges, sheriffs, clerks, attorneys, witnesses and suitors should be privileged frotn arrest while attending court. Section 4 provided : That no person shall bo arrested while doing military duty, under the order of his commanding officer, or while going to, or returning from the place of duty or parade ; nor shall any person be arrested on the first day of the week, commonly called Sunday ; or in any places of public worship, during the performance of divine worship ; or in the chamber of the legislative council or house of representatives, during their sitting, or in any court of justice, during the sitting of the court; or on the .fourth day of the month of July, the anniversary of American independence.” Section 5 provided : “ That nothing herein contained shall be construed to extend to eases of treason, felony or breach of the peace.” And section 6 provided: “That nothing herein contained shall be construed to privilege any person herein named from being served, at any time, with a summons or notice to appear.” And this statute, although repealed and re-enacted a number of times, and so enlarged as to exempt certain other persons, remains to this day substantially as enacted in 1799. 1 Chase, 494; 3 Chase, 1841, 3 Curwen, 2519; 1 S. & C. 83; S. & S. 18; 75 Ohio L. 697, 698; Rev. Stats. §§ 5457-5459. As without this statute an arrest on Sunday would be perfectly lawful, no rule of construction would authorize us to regard the provision denying the power to arrest on Sunday as a prohibition of the service of a summons on that day. To leave no doubt about the matter, however, it is, as will be seen, in effect, provided, by the former as well as present statute, that a summons may be served “ at any time.”

7. Reference has also been made to the statute which, among other things, prohibits common labor on Sunday. That act was adopted by the judges in 1788 (1 Chase, 97-101, § 22), and it has been repeatedly re-enacted by the legislature, with slight modifications. In 1805, 1 Chase, 503, c. 93, § 1; in 1810, 1 Chase, 643, c. 204, § 1; in 1815, 2 Chase, 867, c. 339, § 1 ; in 1816, 2 Chase, 912, c. 359, § 1 ; in 1824, 2 Chase, 1349, c. 600, § 1; in 1831, 3 Chase, c. 834, § 1, 3 Curwen, 2384, 1 S. & C. 447 ; in 1864, 61 Ohio L. 104, S. & S. 289 ; in 1877, 74 Ohio L. 281, and in 1880, Rev. Stats. §§ 7032, 7033. But the words “ common labor ” cannot extend to the acts of a public officer in the performance of official duty for several very satisfactory reasons. First. Such duty is not within the ordinary meaning of the words. Secondly. In Bloom v. Richards, supra, Thurman, J., in speaking of those words and the statute in which they occur, took occasion to say: “ The law in question is a penal statute, and is therefore to be construed strictly. Such statutes are not to be extended by implication.” And see Moore v. State, 12 Ohio St. 387; Fuller v. State, Ib. 433. Thirdly. An examination of the English statute, above mentioned, prohibiting labor, etc. on Sunday, shows the prohibition had no relation whatever to official duties. Indeed, so strict is the construction it receives in that country that it is held not to extend to the sale of a horse by one not a dealer in horses (Drury v. Defontaine, 1 Taunt. 131), contract of hiring by a farmer or work by a farmer (R. v. Whitnash, 7 B. & C. 596; Scarfe v. Morgan, 4 M. & W. 270), or a stage-coachmaij driving his coach (Sandiman v. Breach, 7 B. & C. 96), and when it was insisted that “ the calling of an attorney certainly comes within the spirit of the act,” Parke, B., replied that “ the spirit of the act can only be collected through the ordinary rules of construction,” and every judge expressing an opinion on the subject, held that the business of an attorney was not within the act. Peate v. Dicken, 1 C. M. R. 422, 428. In the English statute the prohibition against official acts on Sunday is found in section 6 ; in ours, in the provision against arrest on Sunday.

8. Other statutes make provision with respect to Sunday. Thus sporting, hunting, fishing and shooting on that day are prohibited. Eev. Stats. § 7032. So are shows. Eev. Stats. § 7032 a. So is convict labor. Eev. Stats. § 7427. So is the sale of liquors, with certain exceptions. 81 Ohio L. 204. And there are provisions as to days of grace, computing time, and the like (Eev. Stats. §§ 3176, 3177, 4951), all of which provisions show the regard entertained for Sunday, but they do not militate against anything I have stated.

9. It follows from the foregoing, irresistibly and necessarily, that a summons or notice served by a sheriff, coroner or constable on Sunday, is in Ohio lawfully served. In saying so we do not intend to intimate that such officer ought, ordinarily, to make such service on Sunday, or that he would be guilty of any breach of duty whatever by declining to make such service on that day. Nor are we to determine whether the law is right or wrong. "We have simply to inquire, what is the law ? and having ascertained that, declare the result.

10. When the citizen. receives a newspaper containing a ■legal notice, and reads such notice, the object which the legislature had in view is to that extent accomplished, and such publication is quite analogous to service of a summons. If the newspaper is mailed, the citizen commits no offense whatever by receiving it at the post-office on Sunday, and reading it ; nor does he commit any ofíense by buying it on that day of the publisher, or a carrier, or newsboy, and reading it, however it may be with respect to an offense by the publisher, or carrier or newsboy. A Sunday newspaper is not an unlawful publication, and the fact that persons engaged upon it may have violated the statute against common labor, in preparing and circulating it, no more affects the legality of the notice, than the fact that the sheriff may have committed some offense at the time he served, a summons, would affect the legality of the service. In one case as well as the other, the service is, in fact, effectual in giving actual notice, and we see nothing in the common law or our statutes which would warrant us in holding that, such publication is illegal or invalid.' In so holding we express no opinion concerning the wisdom or propriety of permitting such publications on Sunday. That is a field which this court properly leaves to others. What we do determine is that the publications here in question are legal.

11. Counsel for the lot owners cite a number of cases, and we have added others, to the proposition that such publication in a Sunday newspaper is ineffectual. Chesapeake & O. Canal v. Bradly, 4 Cranch C. C. 193; Field v. Park, 20 John. 140; Scammen v. Chicago, 40 Ill. 146; Thomas v. Hindale, 78 Ill. 259; Smith v. Wilcox, 24 N. Y. 358; Ormsby v. Louisville, 20 Am. L. Reg. N. S. 269; Show v. Williams, 87 Ind. 158; Sterm’s Appeal, 64 Pa. St. 447. An expression here and there with which we do not agree, may be found in some of these cases ; but when the statutes upon which these decisions are based are carefully examined, it will be found that every case cited is in harmony with the conclusion we have reached.

12. But there is another view with respect to these publications which leads to the same result. Assuming such publication not to be in conformity to the statute, in other words, not the publication which the statute contemplated ; still, it appears that the newspaper containing the publications was one of general circulation throughout the city, and no claim is made that the notice failed to reach any person who was interested in or affected.by the improvement. At most, then, such Sunday publication would be a mere irregularity, bringing the cases within the curative provisions of the municipal code of 1869, § 550; Rev. Stats. § 2289. Corner v. Jackson, 50 Alabama, 384.

II. In each of these assessments there were irregularities in the publication of ordinances in other than Sunday newspapers, and irregularities in other respects, which clearly and plainly bring the cases within section 550, above mentioned; but there is no such defect or want of power in either proceeding as to render the assessment wholly illegal and void; and the cost and expense of each improvement more than equaled the contract price.

III. At the time that the contract for the High street improvement was let, there was an old Nicholson pavement in the street, which by consent of the city, the contractors appropriated to their own use. The master finds its value to be $2,500. Regarding this as virtually a payment of $2,500 by the city to the contractors, the master properly deducted the amount from the sum for which the abutting owners are to be assessed in favor of the plaintiffs. What the rights of the city and the abutting owners inter se may be, we need not now determine. Moreover, the old pavement seems to have been used in making the new improvement. The same conclusion is reached with respect to the old Nicholson pavement in Town street.

IT. Objection is made that the master, in each case, deducted from the assessment the cost of a French drain, which those charged, on the part of the city, with the duty of superintending the work, found to be necessary, in order to make the improvement a good job. In deducting the amount of this expense from the assessment in the Town street case, the master erred, and he also erred in deducting the cost and expense of the'additional six inches in width to the Town street improvement, which was also found to be necessary to make a good job. The fact that the cost of these additions to the improvement exceeded $500, did not require any new advertising or letting. In the Iiigb. street case the cost of the French drain was properly deducted, as the city had paid such cost to the contractors.

V. Objection is made that each of these improvements required a species of pavement which was patented ; that the contractors, in each case, owned the patent; and hence that there was no competition, and defendants cannot be assessed. But in each case, before there was any letting, the city had acquired the right to secure, at a reasonable cost, the right of such patent, with respect to this improvement, for any successful bidder for the work, and the bidders were placed by the city, in this respect, substantially on equal terms. We think the objection untenable.

VI. So far as the lot owners are concerned, the contracts should be construed as requiring an improvement so perfectly done, in the High street case, that it would remain in good repair seven years, and in the Town street case five years. To this there is no valid objection. In the High street case, parts of the improvement were so imperfectly done, that extensive repairs have been necessary, and others, at the time the report was filed, were to be made. Very properly, under the circumstances, the master deducted from the assessment the amounts expended and necessary to be expended, in order to make the improvement such as the contract requires. Creamer v. Bates, 49 Mo. 523. The case of Corry v. Campbell, 25 Ohio St. 134, does not interfere. with the right or duty of making such deduction. The effect of a substantial defect in the construction of the improvement,” was not the same when these improvements were made that it is now. See Stone v. Viele, 38 Ohio St. 314.

VII. The demurrers on the ground that the plaintiffs have not legal capacity to sue, is not well taken. The city seems to be a proper party defendant, and hence the propriety of the present form of action, and the petition, though general, is not so defective that, in view of the record before us, we feel warranted in holding it to be insufficient.

Other exceptions are relied on by the parties, but we will not notice them in this report. There is no error in the record, except as already indicated.

In the High street case, all the exceptions to the master’s report are overruled and the report of the master is approved. In the Town street case the plaintiff’s exception to the master’s report with respect to French drain and the additional six inches in width in the improvement, are sustained, and all other exceptions to the report are overruled, and the report as thus modified is approved. And the causes are remanded to the district court for further proceedings.

JOHNSON, C. J., and Follett, J.. dissented as to the first proposition of the syllabus.