source: Caselaw Access Project

author: Dickman, J.

license: Public Domain

text:
    Anderson v. Brewster.

      Constitutional law — Intoxicating liquors — Lien—License—Act of May 14, 1886 — Dow law.

    1. Under the second section of the statute of May 14, 1886, known as the Dow law (83 Ohio L. 137), a valid lien is created upon the real property, when the tenant holds under a lease, written or parol, made after the passage of the statute.
    2. The assessment imposed by the first section of the statute is not in conflict with the second section of the twelfth article of the constitution.
    3. The statute, so far as it provides for an assessment or tax upon the business of trafficking in intoxicating liquors, is not, in effect, a license law, and not within the inhibition of the 18th section of the schedule to the constitution.
    Error to tbe Circuit Court of Hamilton county.
    The original action was brought on the 7th day of June, 1886, by Mary E. Anderson, plaintiff in error, against Joseph W. Brewster, auditor of Hamilton county, and Erank Ratterman, treasurer of that county, defendants in error. The petition sets forth that the plaintiff, Mary E. Anderson, is the owner of certain premises situated in the city of Cincinnati, Ohio, which are occupied by one Thomas Tully, as a tenant from month to month, who is engaged in the business of trafficking in spirituous, vinous, malt, and other intoxicating liquors. That said Tully has been engaged in said business in said premises for several months last past, and since January 1,1886, and is now engaged therein; but has no lease of said premises, and occupies the same as a monthly tenant as aforesaid.
    Tnat the said Joseph W. Brewster, as auditor of Hamilton county, has, according to the provisions of an act passed by the general assembly of the state of Ohio, May 14, 1886 (83 Ohio L. 157), entitled “ an act providing against the evils resulting from the traffic in intoxicating liquoi’S,” caused the business of said Tully to be assessed in the sum of $200, as provided by section oue of said act; and that said assessment so made is, by the provisions of section two of said act, made a lien upon the premises of the plaintiff, in which the business of said Tully is conducted, as of the fourth Monday of May, 1886; but that said assessment is not payable save and except as provided by said section two, one-half of the same on or before the 20th day of June, and one-half on or before the 20th day of December, 1886, and no part of said assessment has been paid.
    That said auditor has caused to be made a duplicate containing such assessment, in pursuance of sections five and six of said act, and is about to deliver the same to the said Frank Ratterman, treasurer of said Hamilton county, •for the purpose of eolleetiug the same, in pursuance of the terms of said act; and that said Frank Ratterman, treasurer as aforesaid, is about to proceed to collect said assessment, and to enforce the payment of the same, as provided in said act.
    That said pretended lien is illegal and void. That said assessment is illegal and void in this, to wit: That said act providing for said assessment and making the same a lien upon the premises of the plaintiff is unconstitutional, in that said act is a violation of article 12, section 2, and also of section 18 of the schedule to tbe constitution of Ohio.
    That the acts of said defendant, Joseph "W. Brewster, auditor as aforesaid, in making said duplicate, and of the said Frank Ratterman, treasurer as aforesaid, in collecting said assessment, are illegal, and to the damage of the plaintiff, and will produce great and irreparable injury to the plaintiff; and that said illegal assessment operating as a lien on the promises of plaintiff is a cloud on her title.
    The plaintiff asks in her petition that said auditor may be perpetually enjoined from placing said assessment on said duplicate against said premises; that said treasurer may be perpetually enjoined from collecting said assessment as a lien on said premises ; that said act may be declared null and void; and that said cloud and pretended lien on the property of the plaintiff may be removed.
    To this petition a demurrer was filed by the defendants, which the court of common pleas sustained, and dismissed the petition, and rendered judgment in favor of the defendants. An appeal was taken by the plaintiff to the circuit court, which also sustained the demurrer of the defendants, dismissed the petition, and rendered final judgment for the defendants. To reverse the judgment of the circuit court this proceeding is instituted.

      Willis M. Kemper, for plaintiff in error.

      Rufus B. Smith, Thomas McBougall, and G. B. Matthews, for defendants in error.
   Dickman, J.

The plaintiff in error is the owner of certain premises in the city of Cincinnati, which are occupied by a tenant engaged in the business of trafficking in intoxicating liquors. By virtue of section one of the act passed May 14,1886, “ providing against the evils resulting from the traffic in intoxicating liquors,” and known as the Dow law, the tenant’s business was assessed in the sum of two hundred dollars, and such assessment, under section two of the act, is made a lien upon the owner’s premises. The lieu thus created, it is alleged, has caused a cloud upon the owner’s title, to remove which the original action was instituted. The pleadings put in issue the validity of such lien, and give rise to the inquiry, as in State v. Frame, 39 Ohio St. 399, whether it contravenes section 19, article 1, of the constitution, which provides that “ private property shall ever be held inviolate, but subservient to the public welfare,” and also whether the assessment that is made a lien is in conflict with sectiou 2, article 12, of the constitution, and section 18 of the schedule to the constitution-of Ohio.

It is provided by the first and second sections of the act of May 14, as follows:

Section 1. That upon the business of trafficking in spirituous, vinous, malt, or any intoxicating liquors,' there shall be assessed, yearly, and shall be paid into the county treasury, as hereinafter provided, by every person, corporation or copartnership engaged therein, and for each place where such business is carried on by or for such person, corporation, or copartnership, the sum of two hundred dollars; provided, if such business continues through the year, to wit, from the fourth Monday of May, exclusively, in-the trafficking in malt or vinous liquors, or both, such assessment shall be but one hundred dollars.
Section 2. That said assessment, together with any increase thereof, as penalty thereon, shall attach and operate as a lien upon the real property on and in which such business is conducted, as of the fourth Monday of May each year, and shall be paid at the times provided for by law for the payment of taxes on real or personal property within this state, to wit, one-half on or before the twentieth day of June, and one-half on or before the twentieth day of December, of each year.”

It is presumed that the legislature, designed these sections to be prospective in their operation, so as not to impair existing rights. The settled rule is, that whenever an act of the legislature can be so construed and applied as to avoid conflict with the constitution, and give it the force of law, such construction will be adopted by the courts. Newland v. Marsh, 19 Ill. 384; Bigelow v. West Wisconsin R. Co., 27 Wis. 478. In determining whether the assessment in question would operate as a valid lien upon the owner’s premises, it is material to inquire as to the conditions under which the tenant is in possession. If the real property on or in which the business is conducted is held by the tenant under a lease for a term made prior to the passage of the 'statute, the provisions for a lien in the second section would not operate. It might well be considered an unauthorized interference with private property, and contrary to the legislative intent, to subject the freehold of a lessor for assessments against the business of a lessee, over which the lessor could exercise no control during the term granted under a pre-existing lease. State v. Frame, supra. But, in the case at bar, the occupant had no written lease, and occupied the premises only as a monthly tenant. After the passage of the statute, and before the commencement of the original action, his term had expired and he had become a tenant at sufferance. At common law, he had only a naked possession, and no estate which he could transfer or transmit, or which was capable of enlargement by release, nor was he entitled to notice to quit. He held by the laches of the landlord, who might enter and put an end to the tenancy when he pleased. 2 Black’s Com. 150; Co. Litt. 270b; Jackson v. Parkhurst, 5 John. 128; Jackson v. M’Leod, 12 John. 182. Holding over, as the tenant did, after the month of May, the plaintiff in error could have resorted, at her option, to the statutory remedy of forcible entry and detainer. She was not, therefore, in the position of a lessor, whose premises are placed beyond his control, by a lease executed before the passage of the statute, but she had it in her power to terminate the tenancy, and thus prevent the assessment from becoming a charge upon her property. If she elected to allow her tenant to hold over after his interest was determined, and to permit the relation of landlord and tenant to be renewed, and the premises were thereafter used by the tenant in the business of trafficking in intoxicating liquors, it would be presumed that she so acted in full view of the statutory lign that would thereby be fastened upon the premises.

But it is contended that if it should be granted that the assessment upon the tenant’s business is not inhibited by the constitution, the lien created for the pupose of enforcing its payment is in violation of the constitution, and an unwarrantable invasion of private property, inasmuch as it is in effect subjecting the property of one man to discharge the obligations of another. Section 19, article 1, of the constitution is designed to guard the inviolability of private property subservieut to the public welfare. But, as said by Thurman, J., in Cass v. Dillon, 2 Ohio St. 624, that section has no reference to the taxing power; its object is rather to prescribe modes for and limitations upon the exercise of the power of eminent domain. It does not, therefore, embrace within its operation sections one and two of the statute under consideration, which may be referred to that branch of the sovereign power of the state denominated the taxing power. This power, it has been said, in its nature acknowledges no bouudary. It is inherent in sovereignty, and is coextensive with that of which it is an essential property. It is necessary to the existence of government, and being granted for the benefit of the whole people, none have any right to complain, if the power is fairly exercised, and the proceeds properly applied to discharge the obligations for which the taxes are imposed. Cooley on Taxation, 3; North Missouri R. Co. v. Maguire, 20 Wall. 46, 60. The principle is stated with great force by Chief Justice Marshall, in M’Culloch v. Maryland, 4 Wheat. 428: “The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. The people of a state, therefore, give to their government the right of taxing themselves . . . and as the exigencies of government can not be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influeuee of the constituents over their representative to guard them against its abuse.” The power of taxation, however, included in the legislative power vested in the general assembly by article 2, section 1, of the constitution, is indeed wisely regulated and limited by that instrument; but, we may well ask, what avails the power of taxation, if there is no commensurate power to collect taxes and assessments when imposed. It is not, therefore, we think, beyond the scope of the legislative authority of the state to enact that the payment of a tax on the business of the liquor traffic shall be secured by a lien on the premises upon which the business is carried on, if the owner of the premises after the passage of the law, leases and identifies them with the business, and makes them participant therein, and for the time being necessary to its continuance.

A statute of the state of Michigan provides that if any person shall neglect to pay the tax imposed upon him, the treasurer shall levy the same by distress and sale of any goods and chattels in the possession of such person, and no claim of property made thereto, by any other person, shall be available to prevent a sale. And when any property shall be legally distrained and sold for the tax of any person, and such property shall be owned by another person, such owner is authorized to recover of the person for whose tax the same was sold the value of such property in an action of assumpsit. In Sears v. Cottrell, 5 Mich. 251, it was insisted that this statute was on several grounds in violation of the constitution, and especially on the ground that the owner was deprived of his property “without due process of law.” Nut the words, “ due process of law,” it was said, meant the law of the land; and by “ the law of the land,” under the right of taxation, was to be understood laws that are general in their operation, and that affect the rights of all alike. The law in question was declared to be constitutional; and it was held to be of general operation, and not a special act of the legislature passed to affect the rights of an individual in a way in which the same rights of other persons were not affected. If it should he said that the law might prove unnecessarily severe, and might' sometimes do injustice, without fault in the sufferer, it might well be replied, said the court, that such considerations might very properly be addressed to the legislature, but not to the judiciary; they go to the expediency of the law, and not to its constitutionality. Mr. Justice Christiancy, in a concurring opinion, considered at length the specific objection that the law was unconstitutional, in that it authorized the taking of one man’s property for the debt of another. But that particular provision of the law was pronounced to be not a new one as applied to the collection of taxes, and to be much older than the constitution. It has prevailed for a long period in the state of New York, and its constitutionality seems never to have been questioned in that state. See Sheldon v. Van Buskirk,, 2 N. Y. 473. The same principle holds in the state of Vermont, and where a constable has failed to make return, and pay over taxes, the sheriff, on an extent, if unable to fiud property of the constable, “ may ■levy and collect the same of any inhabitant of the township,” who is to have his action against the township for the amount.

But the general assembly, under section 18 of the schedule to the constitution, as one of the means of providing against the evils resulting from the traffic in intoxicating liquors,' has deemed it proper to assess the business of those engaged in such traffic, and to provide that the assessment shall operate as a lien upon the real property on and in which such business is conducted. Invoking the aid of the taxing power, if we regard these provisions of the statute as also an exercise of the police power of the state, there was, in our judgment, ample authority to create a lien on' the premises of the plaintiff’ in error for the payment of the assessment on the tenant’s business. If a tenant engages in a business which, by causing intemperance, pauperism, and crime, becomes a proper subject for the exertion of the police power of the state, the legislature may with propriety include the premises of the lessor, which sustain and derive profit and advantage from the subject-matter upon which such power is exerted. “It is a settled principle,” says Chief Justice Shaw, “ growing out of the nature of well ordered’civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall not be injurious to the- . . . rights of the community.” Commonwealth v. Alger, 7 Cush. 84. Eor over thirty years it has been the settled policy of this state to hold any building or premises, rented or leased to another, to be used or occupied, for the sale of intoxicating liquors, contrary to law, liable for all damages assessed against the lessee thereof, for violations of the laws regulating such traffic. S. & C. 1434. Such liability is continued in section 4364 of the Revised Statutes, and the premises may be sold to pay all fines, costs, and damages assessed against any person occupying the same. This, species of legislation, involving in liability both lessor and lessee for damages resulting from the business of the latter to third persons, has frequently come under judicial, examination, without its constitutionality being seriously called into question, and may find cumulative sanction in the well recognized police power granted to the general assembly in th e schorl ule to the constitution. Zink v. Grant, 25 Ohio St. 352; Justice v. Lowe, 26 Ohio St. 372; Bowers v. Pomeroy, 21 Ohio St. 184; Schultz v. The State, 32 Ohio St. 276.

The existence of the lien under consideration need not work to the detriment of the owner of real property. If he leases property adapted to the business contemplated in lie statute, he may stipulate with his lessee for an indemnity against any loss accruing to him from the statutory lien. He is presumed to take cognizance of the general laws of the state that are in force. And if, with eyes open, he provides a building or premises for another to conduct a business marked by the constitution and laws as a source of evil, and opposed to public policy, he should not be permitted to evade the operation of the statute. If the alienation of the real estate becomes less feasible on account of the statutory lien, the owner who has executed a lease after the passage of the statute has himself invited the lien.

The able and learned opinion pronounced by Minshall, J., in Adler v. Whitbeck, ante, p. 539, renders it unnecessary to consider at any length fhe direct bearing of section 2, article 12, of the constitution, on the assessment upon the business of trafficking in intoxicating liquors, which is made to operate as a lien upon the real property. It is well understood that this section is not a grant of power, but a regulation or limitation rather, of the taxing power comprised in the general legislative power of the state vested in the general assembly. While, however, it furnishes the governing principle for taxes for general revenue, by providing that 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 mouey, it does not cover the whole domain of taxation. In the taxation of property for general revenue, equality and uniformity must constitute the guiding rule, but it was not intended to so impair the ability of the legislature to promote the public good as to preclude it from all modes of raising money by taxation or assessment, not in strict conformity with the second section of the twelfth article. In raising general revenue to meet the necessities of government, certain designated kinds of property are required to be taxed by a certain rule; but, subject to the limitations contained in the constitution, the power to impose taxes readies to trade-* or occupations,in any of the modes known and practiced prior to the constitution of 1851. Cooley on Constitutional Limitations, * 479; Western Union Telegraph Co. v. Mayer, 28 Ohio St. 521.

Accordingly, the general assembly, while observing the required rule of uniformity in taxing the kinds of property designated, has frequently, by virtue of the general legislative power granted it by the constitution, exercised a supervisory power over various branches of business, and imposed upon them assessments for exceptional and special purposes. Among other examples of this which might be adduced is the assessment upon the business of gas companies and manufacturers of mineral or petroleum oil. In The Cincinnati Gas L. & C. Co. v. The State, 18 Ohio St. 237, it was held that a pro rata assessment, according to valuation, on the property of the gas companies of the state, to pay the salary of the state inspector and other expenses of his office, was not in violation of the constitutional provision for taxing property according to a uniform rule. Acting upon this principle, the legislature has authorized the state inspector of oils to demand and receive from the owner or party for whom he performs the inspection a certain sum for every package or cask, and all fees so accruing are made a lien on the oil inspected. Indeed, a denial to the general assembly of the right to impose an assessment as prescribed in the Dow law would be inconsistent with the raising of moneys from licenses of any kind, inspection charges, or other kindred methods.

But, not only had the general assembly authority to make this assessment upon the liquor traffic, as being invested with all the legislative powers of the state, but by the schedule to the constitution it is permitted and in duty bound, we think, to use any or all of these powers, not expressly or by necessary implication prohibited, in providing against the evils resulting from such traffic. And if, in the exercise of its judgment and discretion, the legislature sees fit to impose a burden on the traffic in the shape of a tax, for the purpose of diminishing those evils, it does not come within the province of this court to review its action in selecting such means.

There is another branch of this case which seems so free from doubt, that there would be no call for its consideration were it'not that it finds a place among the issues set forth in the record. We refer to the contention, that the lien is illegal, because the assessment on the business of the liquor traffic is in violation of section 18 of the schedule to the constitution, which provides that “ no license to traffic in intoxicating liquors shall hereafter be granted m .this state.” The act of April 5, 1882, known as the Pond law, was declared by a majority of the court, in State v. Hipp, 88 Ohio St. 199, to be, in its operation and effect, a license within the inhibition of the constitution, so far as it required every person engaged in the traffic in intoxicating liquors to pay a specified sum of money annually, and execute a bond, with the further requirement that the person who engaged in such traffic without having executed the bond, or after his bond was adjudged forfeited, should be deemed guilty of a misdemeanor. And the act of April 17, 1883, commonly called the Scott law, was also held by a majority of the court, in Butzman v. Whitbeck, 42 Ohio St. 223, to be in effect a license law, so far as 'it enacted that whoever should engage or continue in such traffic upon land or premises not owned by him, without the written consent of the owner thereof, should be held guilty of a misdemeanor, and liable to be punished by fine or imprisonment or both, at the discretion of the court. Neither of these characteristic features of the two preceding statutes is embodied in the Dow law, and, so far as yet discovered, it went from the legislature with none of the objectionable features of a license.

A license in law may be simply and well defined as a permission, but it is a permission given by some competent authority to do an act which, without the permission, would not be legal. Bouvier’s Law Dict.; Youngblood v. Sexton, 32 Mich. 406. The Dow law.does not hold out permission to engage in the traffic in intoxicating liquors, nor stamp it with illegality, nor prescribe a condition precedent upon which one may have the right to carry on such business. It repeals that portion of section 6941 of the Revised Statutes which forbids the sale of intoxicating liquors to be drank in or upon the- building or premises where sold; and if one chooses to engage in the traffic, he must do so subject to the burden which is afterward imposed upon his business. If he fails to pay the assessment thereon, his business does not thereby become illegal, and although his goods and chattels may by his default become liable to be levied on and sold, the property of dealers in other commodities is also liable to be seized and sold for non-payment of personal taxes. He enters upon the traffic in intoxicating liquors, without a license, and when found in the business the law suffers it to continue, but charged with the burden of a tax.

The distinction is clearly recognized, between a license granted or required as a condition precedent before a certain thing can be done, and a tax assessed on a business which one is authorized to engage in. The Home Insurance Co. v. Augusta, 50 Ga. 530. A license being of the nature of a privilege, it would be a strange incongruity to grant to one the privilege of bearing the burden of a tax. A tax which maybe resorted to for the purpose of restraining what is opposed to the public interests, would hardly be called a license to do that which is sought to be restrained. The two things are entirely distinct in their characteristics. The license may exist without the imposition of a tax, and the tax may be imposed without the granting of a license.

In the constitution of Michigan, it is provided by section 47, article 4 — almost identically as in our own — that “ the legislature shall not pass any act authorizing the grant of license for the sale of ardent spirits or other intoxicating liquors.” How far a tax on the business might be regarded as a license, and so an infringement of this provision of the constitution, came under the examination of that eminent jurist, Mr.Justice Cooley, in Youngblood v. Sexton, supra. The whole field of legal thought and investigation on the subject was covered by that leading case^ and its reasonings and conclusions commend themselves, to the enlightened judgment of every court. The language approvingly cited in The State v. Hipp, supra, we here adopt. “The object of a license,” says Mr. Justice Mam ning, .“is to confer aright that does not exist without a license. Chilvers v. People, 11 Mich. 43, 49. Within this definition, a mere tax upon the traffic can not be a license of the traffic, unless the tax confers some right to carry on the traffic which otherwise would not have existed. ¥e do not understand that such is the case here. The very act which imposed this tax repealed the previous law, which forbade the traffic and declared it illegal. The trade then became lawful, whether taxed or not; and this law, in imposing the tax, did not declare the trade illegal in case the tax was not paid. So far as we can perceive, a failure to pay the tax no more renders the trade illegal than would a like failure of a farmer to pay the tax on his farm render its cultivation illegal. The state has imposed the tax in each case, and made such provision as has been deemed needful to insure its payment; but it has not seen fit to make the failure to pay a forfeiture of the right to pursue the calling. If the tax is paid, the traffic is lawful; but if not paid, the traffic is equally lawful. There is consequently nothing in the case that appears to be in the nature of a license. The state has provided for the taxation of a business which was fouud in existence, and the carry-' ing on of which it no longer prohibits; and that is all.” "We can add nothing to these words, and we deem it unnecessary to offer any further considerations upon this branch of the case before us. The judgment of the circuit court, we are of opinion, should be affirmed.

Judgment accordingly.

Owen, C. J., and Eollett, J., dissent.


author: Owen, C. «J.

text:
    The State ex rel. Attorney-General v. Brewster.

      Office and officer — Extension of term, by legislature — Sections 8, 1017, Revised Statutes.

    1. Where the term of an office is fixed and limited by the constitution, there is no power in the general assembly to extend the term or tenure of such office beyond the time so limited.
    2. At the October election of 1883 Brewster was elected auditor of Hamilton county for the term of three years, commencing on the second Monday of November next after his election. At the November election of'1886, Raine was elected auditor (pursuant to an amended provision of the constitution and section of the statute changing the time of elections) for a term of three years, beginning on the second Monday of September next after the election. The constitution provided, both before and after such amendment, that county officers should be elected for such term, not exceeding three years, as may be provided by law. Held, 1. At the expiration of Brewster’s term of office, to wit, on the second Monday of November, 1886, there was a vacancy in such office. 2. Section 8, Revised Statutes, which provides that “ any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the constitution or laws,” did not have the effect to continue Brewster in office beyond his term of three years. 3. Section 1017, Revised Statutes, which provides that “ when a vacancy happens in the office on county auditor from any cause, the commissioners of the county shall appoint some suitable person, resident of the county, to fill the vacancy," authorized the commissioners to fill the vacancy so created, and their appointee, having duly qualified, is entitled to fill such office until the commencement of Raine’s term of office — on the second Monday of September 1887; and the fact that Raine is such appointee does not constitute such appointment an- extension of his term of office beyond three years. 4. The approval of the board of control of Hamilton connty was not necessary to give vitality to such appointment.
    QUO WARRANTO.
    J. A. Kohler, attorney-general, Rufus B. Smith and Wm. H. Taft, county solicitors, and J.M. Me Gfillivray, for plaintiff.

      M. F. Wilson, for defendant.
   Owen, C. «J.

I. The defendant was elected auditor of Hamilton county on the second Tuesday of October, 1883, for tbe term of three years, beginning on the second Monday of November, 1883, and to expire on the second Monday of November, 1886.

The election was held under article 10, section 2 of the con-, stitution, which ordained that county officers shall be elected on the second Tuesday of October, until otherwise directed by law, by the qualified electors of each county, in such manner and for such terms, not exceeding three years, as may be provided by law,” and section 1013 of the Revised Statutes, which provided that “ a county auditor shall be elected triennially, in each county, at the fail election, who shall hold his office for three years from the second Monday of November next after his election.”

At the October election of 1885, the above provision of the constitution was so amended as to read: “ County officers shall be elected on tha first Tuesday after the first Monday in November by the electors of each county in such manner and for such term, not exceeding three years, as may be provided by law.”

On May 18, 1886, section 1013, Revised Statutes, was so amended as to read : “ The county auditor shall be chosen triennially in each county, who shall hold his office for three years, commencing on the second Monday in September next after his election.”

Under these provisions, as amended, Ered Raine was, at the November election of 1886, elected auditor of Hamilton county for a term of three years, to begin on the second Monday of September, 1887, thus leaving a period of ten months between the expiration of Brewster’s term and the commencement of Raine’s.

On the 10th day of November, 1886, the commissioners of Hamilton county, acting under the supposed authority of section 1017 of the Revised Statutes, which provides that “ when a vacancy happens in the office of county auditor, from any cause, the commissioners of the county shall appoint some suitable person, resident of the county, to fill such vacancy,” appointed Raine county auditor to fill such vacancy. He has qualified, given bond, and claims the right to hold the office.

Brewster claims the right to hold the office until the beginning of Raine’s term — second Monday of September, 1887 — under section 8 of the Revised Statutes, which provides that “any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the constitution' or laws.”

The present proceeding is prosecuted to oust Brewster from, and. induct Raine into, the auditorship of Hamilton county.

The counsel for the parties to this controversy are in full accord upon three propositions : 1. That the term of office of Brewster was limited by the constitution to three years. 2. That it was not competent for the general assembly to extend his term beyond that limit. 3. That upon the ex-juration of his term — second Monday of November, 1886— there was a vacancy in the office. When we shall have determined how this vacancy may lawfully be filled, the controversy before us will be solved.

Article 2, section 27, of the constitution ordains that “ the election and appointment of all officers, and the filling of all vacancies not otherwise provided for by this' constitution, or the constitution of the United States, shall be made in such manner as may be directed by law.”

To effectuate this provision, so far as it relates to auditors, the general assembly, as we have seen, has enacted (section 1017, supra) that the commissioners of the county shall appoint some suitable person, resident of the county, to fill a vacancy in the office of auditor.

.Raine asserts his claim to the office held by Brewster by virtue of the appointment made in pursuance of this provision. Brewster’s claim is based upon the assumption that section 8. of the Revised Statutes, cited supra, was enacted to provide for filling such vacancies as existed in the case before us; and that if there is any conflict between this and section 1017, supra, the latter must yield to the former, which works a repeal by implication of section 8, being a later enactment.

The assumption of counsel, that there is no power in the general assembly to extend the term of an office which is limited by the constitution, is abundantly warranted by the case of State v. Howe, 25 Ohio St. 588, where it is said by Mcllvaine, C. J.: “After a careful examination of the question, in the light of both principle and authority, we are ie.d to the conclusion that the general assembly may provide against the occurrence of vacancies by authorizing incumbents to hold over their terms in eases where the duration of their tenures is not fixed and limited by the constitution.” Also, “ in cases where the duration of the tenure of office is limited by the constitution, of course its duration can not be extended by statute.”

If the provision of section 8, that any person holding an office shall continue therein until his successor is elected or appointed and qualified, is to be given the effect contended for, it is not easy to see why this is not an extension of the duration of the office by statute beyond the limitation prescribed by the constitution.

Section 8 is as much a general law as that providing for the election of auditors for three years, and if the two, construed together, are to be held to authorize a holding over after the expiration of the term of three years, what stands in the way of enacting them in one section instead of two ? And what would be said of an enactment which, in the face of this plain constitutional limitation of three years, should provide that “ county auditors shall hold their offices for three years, and until their successors shall be elected and qualified?” Would anybody seriously 'contend that such legislation would be constitutionally valid?

It is certainly by a confused process of reasoning that it is contended that the same provision (section 8), which authorizes a holding over beyond the term and thus extends the duration of the office, is also a provision for filling a vacancy. If we give it the effect contended for, there is no “ vacancy ” to fill. The incumbent is rightfully in office and destined to remain there of right until the beginning of the term of his successor by election.

“ That the framers of the constitution, in providing for filling vacancies in office, did not regard an office as vacant, when an incumbent might lawfully hold over his definite term until a successor was elected or appointed and qualified, is manifest from other provisions in the instrument.” State v. Howe, 25 Ohio St. 596, per Mellvaine, C. J.

Then it should be borne in mind that the provision of section 8 that an officer shall continue in his office until his successor is elected or appointed and qualified is subject to the qualification “ unless it is otherwise provided in the constitution or laws.” We find it “ otherwise provided” in the constitutional limitation of the term of this office to three years; and “ otherwise provided ” by the law which authorizes the county commissioners to fill the vacancy in the auditor’s office by appointment. Section 1017.

' We cau not not, without violence to its language, hold this latter provision to have been repealed by any rational implication from section 8, and the legislative intention that the former section (1017) should point out the mode of • filling such vacancy as existed in the present case seems too clear for serious controversy.

II. It is further maintained that the approval of the board of control of Hamilton county was necessary to give vitality to the order of appointment of the commissioners. We are unanimously of the opinion that this position is untenable.

The views above expressed lead us to the conclusion that:

1. The term of office of Brewster having been fixed and limited by the constitution, there is no power in the general assembly to exteud his term or tenure of office beyond the time so limited. ■

2. Section 8, Revised Statutes, does not have the effect to continue Brewster in office beyond his term of three years.

3. Section 1017, Revised Statutes, authorized the county commissioners to fill the vacancy so created, and their appointee, having duly qualified, is entitled to fill the office until the commencement of Raiue’s term of office — the second Monday of September, 1887.

4. The concurrence of the board of control of Hamilton county was not necessary to give vitality to such appointment.

Judgment of ouster and induction.

Eollett, J., dissents.


author: By the Court.

text:
    Elias Clark et al v. Board of Education, Starr Township.
    ' School and school districts — Taxes—Validity of act of April 16, 1874.
    Error to the Circuit Court of Hocking county.

      S. IT. Bright, for plaintiffs in error.

      Weldy ‡ Brice, for defendant in error.
   By the Court.

' The suit below was brought by the plaintiffs in error, residents of Green township, Hocking county, to restrain the collection of a tax levied upon their property for school purposes in the joint subdistrict created by an act of the general assembly passed April 16, 1874 (71 Ohio L. 187.) The district is composed of a part of the territory of Green and a part of that of Starr township, in said county; the parts being contiguous to each other. The ■ relief is sought on the ground that the law is one of a general nature, and not uniform in its operation throughout the state. The State v. Powers, 38 Ohio St. 54, is relied on. The district was , organized under the law shortly after its enactment; and there is no showing that the plaintiffs have not been, and are not now, availing themselves of the benefits of the school by sending their children to it. Without deciding whether the law is, or is not, open to the constitutional objection urged, we think it is now too late to question its validity by a suit to restrain the collection of a tax levied for the maintenance of the school. People v. Maynard, 15 Mich. 463; Chestnut v. Shane, 16 Ohio 607.

Judgment affirmed.


author: Hickman, J.

text:
    Roberts v. Briscoe.

      Evidence of transactions with decedent.

    In an action by tbe indorsee of a promissory note against the maker, the executor of the maker may compel the payee and assignor of the note to testify to facts that occurred prior to the death of the testator.
    Error to the Circuit Court of Greene county.

      P. PL. Munger and John A. McMahon, for plaintiff in error.

      T. P. Scroggy and Little ‡ Shearer, for defendant in error.
   Hickman, J.

On the 3d day September, 1880, M. W. Roberts executed and delivered to one Jennie Mansfield his two promissory notes of that date, for the sum of $3,500 each, made pay'able to Jennie Mansfield or order, one in twelve and the other in eighteen months after date, with interest. Before the maturity of either of the notes, Jennie Mansfield indorsed and delivered the same to oue M. Mouch, who, on the 27th day of March, 1881, indorsed and delivered them to one Jerome Rowley, who, afteward, on the 23d day of July, 1881, indorsed and delivered them, without recourse, to John B. Briscoe, the defendant in error. Upon non-payment of the notes when due, Briscoe commenced an actiou thereon against M. W. Roberts, in the court of common pleas of Greene county. The defendant answered, and among other things, alleged in substance that if his signatures to the notes were genuine, they were procured by fraud, and were without any consideration, and that the notes were fraudulently written over his signatures without knowledge or consent on his part; that each of the indorsees had notice of such fraud and want of consideration before, and at the time, the indorsements and transfers were made to them respectively ; that the notes were not indorsed and delivered by Jennie Mansfield to Mouch, or by Mouch to Rowley, or by Rowley to Briscoe, nor were the- same received by Briscoe, or by any of the indorsees, in good faith or for valuable consideration, or with any intent or understanding on the part of any of them, or of Jennie Mansfield, that any ownership or interest therein should thereby be transferred ; but that the indorsements were only for the use and benefit of Jennie Mansfield, and for the purpose of enabling her to avoid any defense to an action upon the notes.

M. W. Roberts having died, the action was revived against Emraazetta Roberts, his executrix, and plaintiff in error. A reply was thereafter filed, and the case was tried to a jury. During the progress of the trial, Jennie Mansfield was called as a witness in behalf of the defendant, but her testimony was excluded, and a bill of exceptions was thereupon taken by the defendant. This bill of exceptions states that the plaintiff having offered testimony tending to prove that M. W. Roberts had signed and delivered the notes in suit, and the indorsements thereon, and having rested his case, the defendant offered as a witness Jennie Mansfield, and proposed to prove by her that she was the Jennie Mansfield to whom the notes were executed, and that the notes were without any consideration of any kind; that when M. W. Roberts signed the notes, he was not aware that he was signing promissory notes, and did not intend to sign a promissory note, and on signing the paper he believed he was signing a letter for her, nothing being then written above; that the defendant also expected to prove by her the date of the transfer to Mouch and to Rowley, the circumstances surrounding the same, and that neither Rowley nor Mouch were holders for value or in good faith; also to prove by her that neither Mouch nor Rowley had ever paid to her any consideration whatever; that defendant also offered her as a witness generally to all the issues of the case prior to the death of M. W. Roberts, who died July, 1883, as is agreed by counsel. Whereupon the plaintiff objected to Jennie Mansfield as a witness, in so far as any transaction or fact prior to the death of M. W. Roberts was concerned, which objection was sustained by the court, and Jennie Mansfield was excluded as a witness as to all facts and circumstances occuring prior to the death of M. W. Roberts; to all of which the defendant excepted.

During the trial, a second bill of exceptions was taken by the defendant, because of the court’s refusal to admit in evidence, when offered by the defendant, two certain letters from Jerome Rowley to Jennie Mansfield, dated respectively March 23, 1881 and March 28, 1881. A third bill of exceptions was also taken by the defendant, upon the'exclusion by the court, when offered in evidence by the defendant, of the entries on the appearance docket, in an injunction suit, M. W. Roberts v. Jennie Mansfield et al., in the court Of common pleas of Greene couuty. The jury returned a verdict for the plaintiff. A motion for a new trial was made by the defendant, and overruled. Judgment was entered on the verdict, and the circuit court affirmed the judgment. The plaintiff in error seeks a reversal of the judgments of the eoui’ts below.

Upon an examination of the record, we are satisfied there was no error in the action of the court in rejecting, when offered in evidence, the letters of Rowley to Jennie Mansfield, and the docket entries in the. injunction suit. The questions to which such action of the court gave rise have been properly determined, and we deem it unnecessary to consider them here; and were no other errors assigned save those predicated upon the second and third bills of exception, the judgments in favor of the defendant in error should be affirmed. But we think the court erred in rejecting the testimony of Jennie Mansfield. The question here presented is whether'the executrix, who is defendant in an action on a claim against her testator’s estate, may compel the assignor of the claim to testify as any other witness might be thus compelled, although the assignor would not, if a party, be permitted to testify. Jennie Mansfield, the payee and indorser of the notes executed by the testator, was called as a witness generally to all the issues of the ease prior to the testator’s death; and it is contended that, as the statute provides that among those who shall not testify is a person who assigns his claim concerning any matter in resp°ect to which he would not, if a party, be permitted to testify; and that, as she would not have been permitted to testify, if a party, in reference to the issues, because the adverse party was an executrix, she was therefore an incompetent witness, and was properly rejected. The parts of the Revised Statutes determining the competency of witnesses and evidence, which bear directly upon the question under consideration, are sections 5240, 5241, 5242, and 5243. Those sections provide as follows :

“ Sec. 5240. All persons are competent witnesses, except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.
“ Sec. 5241. The following persons shall not testify in certain respects: . . . fourth, a person who assigns his claim or interest, concerning any matter in respect to which he would not,.if a party, be permitted to testify.
“See. 5242. A party shall not testify where the adverse party ... is an executor or administrator, . . . except, first, to facts which occurred subsequent to the . . . time the decedent ... or testator died.
“ Sec. 5243. A party may compel the adverse party to testify orally, or by deposition, as any other witness may be thus compelled.”

When we consider the enlightened progress made through the code in relaxing the rigid rules as to the competency of witnesses, we can not but be impressed with its liberal spirit, and inclined, in order that justice may not fail, to apply to it such canons of interpretation as will, when not plainly violating the legislative intent, favor the admission rather than the exclusion of testimony. The sections of the Revised Statutes above cited, when examined in their component divisions, will be found to contain no incongruities which may not be reconciled with the general iutent of the whole, to wit: that -while certain persons shall be incompetent to testify in certain respects, the opposite parties to an action shall be placed as far"as practicable upon a basis of equality as to the admissibility or exclusion of evidence. The sections under consideration are in pari materia. They are sections of a revised code upon one subject, and are to be construed as a single statute ; ami treated as a single statute, it is to be so construed that all its provisions may be harmonized if possible. Mobile and Ohio R. Co, v. Malone, 46 Ala. 391; Commonwealth v. Conyngham, 66 Pa. St. 99; Davey v. The Burlington, etc., R. R., 31 Iowa 553; Scott v. The State, 22 Ark. 369.

As said by Okey,. J., in Cochran v. Almack, 39 Ohio St. 318: “Nobody is excluded as a witness under either section 5241 or section 5242 of the Revised Statutes; but under those sections various limitations and restrictions are placed on testimonju” Under section 5241, certain persons “shall not testify ira certain respects; ” and under section 5242, “ a party shall not testify . . . except,” etc. An attorney, under section 5241, shall not testify concerning a communication made to him by his client in that relation; bat the client may give his express consent, and the attorney may then testify. Husband and wife, under the same section, as against public policy, though not expressed in the statute, shall not testify concerning any communication made by one to the other duriug coverture; but the prohibition is not absolute, without qualification, for either may testify if the communication is made in the known presence or hearing of a "third person competent to. be a witness. So the provision under the same section, that “ a person shall not testify who assigns his claim or interest concerning any matter in respect to which he would not, if a piai’ty, be permitted to testify,” is not a prohibition without qualification. Although the assignor of the clainq might not, if a party, be permitted or be competent to testify in his own behalf, for the reason that the adverse party is an executor, yet his exclusion is, we think, qualifed by section 5248, which would authorize the executor to compel him to testify, as any other witness might be thus com-, pelled. This section is not to be regarded as isolated— having no connection with the three preceding sections of the Revised Statutes, but must be construed according to the rule of statutory interpretation, that general words at the end of a statute refer to and qualify the whole. Coxson v. Doland, 2 Daly, 66; Sedgwick on Stat. and Const. Law, (2d ed.) 226, n. The language of the section is comprehensive, with no words to indicate that it is limited by any antecedent part of the statute.

The statute having forbidden a party to testify, where the adverse party is an executor, as to facts that occurred prior to the death of the testator, it is justly provided that he shall not remove this disqualification by assigning his claim and constituting another a party to an action in his stead. But while he can not render himself competent as a witness by thus assigning his claim, he should not, by such an assignment, be permitted to deprive the executor of his right, as a party, to compel him to testify as he might any other witness.

The purpose and policy of the law in preventing a party from testifying, where the adverse party is an executor or administrator, is to guard the estatés of decedents against the setting up of fraudulent defenses, and the establishment against them of fraudulent claims, or unfounded causes of action. Dudley v. Stecle, 71 Ala. 426. Besides, when one of the parties to a contract can not give his version of it, the other party thereto should not be admitted to testify in his own favor. Wheré there is no mutuality there should not be admissibility; and when the lips of one party to a contract are closed by death the other party should not be heard as a witness. Wharton on Ev., § 466. But what is intended for the benefit and protection of the estate should not be permitted to operate as a source of injury. The interest of an estate may urgently require that an executor or administrator should -waive what belongs to him as a privilege, and call the opposite party as a witness. The facts upon which he founds his defense, or upon which he bases his claim, may be locked up in the breast of the adverse party, and without his testimony a failure of justice may ensue. The legislature could not have designed to place the estates of deceased persons at such disadvantage by depriving them of evidence, within reach, necessary to their protection against imposition and fraud. The adverse and surviving party, when compelled to testify by the executor or administrator, can not reasonably complain; for, though a party, he can then be examined fully in his own behalf on the subject of his examination in chief. Niccolls v. Esterly, 16 Kan. 32; Wharton on Ev., § 475a.

That it is not the design of the statute to place an absolute and insuperable barrier to a party’s testifying as to facts occuring before decedent’s death, when the adverse party is an executor or administrator; and that the exclusion of the evidence is a privilege which the executor or administrator may waive,' derives force from an examination of the third exception to section 5242. In Rankin v. Hannan, 38 Ohio St. 438, it was held, that where an administrator, in his own behalf, testifies to a certain conversation and an agreement between his intestate and the opposite party, which was material to the issue, the other party may testify as to the same transaction and conversation under the third exception to section 5242 of the Revised Statutes. It is obvious that the interest of the testator’s estate should be the paramount idea of the executor, and the law contemplates that if he has knowledge that can be made to inure to the benefit of the estate, he will be ready to bear witness, though in so doing he must waive the privilege of excluding the opposite party from testifying, and open the door to his admission.

The policy of our law in rendering available evidence in the possession of the adverse party is illustrated not only in compelling him to testify after a cause is at issue, but in requiring him to furnish evidence of which he is sole possessoi-, before the defendant has filed his answer. By section 5293 of the Revised Statutes it is provided that when a person claiming to have a defense to an action against him is unable, without a discovery of the fact from the adverse party, to file his answer, such person may bring his action for discovery, setting forth in his petition the necessity of such discovery and the grounds thereof, and such interrogatories relating to the subject-matter of the discovery as may be necessary to procure the discovery sought, which, if not demurred to, shall be fully and directly answered by the defendant. Upon the institution of legal proceedings and the death of the defendant, it would hardly be contended that his executor or administrator would not have the benefit of the discovery for which provision is made by the section. And yet, if an executor is to be precluded from calling as a witness the adverse party, he might, by parity of reasoning, be deprived of his right of discovery by means of interrogatories, and the estate of the decedent be thereby subjected to irreparable damage.

In some of the states, where there are statutes similar to our own, which make a party an incompetent witness where the opposite party is an executor or administrator, the executor or administrator may yet compel the surviving party to be a witness, although the authority to compel him is given only by implication. Thus the code of Alabama, which enacts that “ neither party shall be allowed to testify against each other, as to any transaction with or statement by any deceased person whose estate is interested in the result,” etc., has been construed to allow the representative of the decedent to compel the opposite party to testify for the decedent’s estate. Dudley v. Steele, supra.

So, too, the code of civil procedure of California positively excludes as witnesses “ parties to an action or proceeding against an executor or administrator upon a claim or demand against the estate of the deceased.” But in Chase v. Evoy, 51 Cal. 618, the court, in construing that portion of the code, say: “ In view of the evil to be remedied, the legislature could hardly have intended to prohibit the executor or administrator from calling a party to the action to testify in behalf of the estate. On the opposite theory, the defendant, representing the estate, would not be permitted to call the plaintiff himself to prove that the demand was fraudulent or had been fully paid. Such a construction of the statute is wholly inadmissible, and wo’uld be at variance with its manifest intent.” Decisions of a like tenor in other states might be adduced.

There are other considerations which occur to us, but in view of the aforegoing, we are of opinion that the judgment, of the court of common pleas and of the circuit court should be reversed for rejecting the testimony of Jennie Mansfield; and that the cause should be remanded for further proceedings.


author: Follett, J.

text:
    Newburg Petroleum Co. v. Weare.

      Covenant running with land — Sale—hease.
    On August 20, 1866, Weare owned certain oil-producing lands subject only to the unexpired terms of leases theretofore given by his grantors. The Newburg Petroleum Company, by assignment, owned such leases, and on that day released and quitclaimed to W. all its right, title, ar.d interest in such lands without any reservation, and it put him into possession. In part consideration for this conveyance, W. covenanted and agreed for himself with the company to pay and deliver to the company, its successors and assigns, upon the leased premises, the one-sixth part of all the oil and other mineral substances produced or pumped thereon or therefrom, daily as produced during the remainder of the terms granted in the leases. On September 3, 1866, such conveyance and agreement were duly recorded, and on that day W. sold and conveyed to sundry parties all his interest in the different parts of such lands, and He put each grantee into possession of the part so conveyed. Thereafter and during the terms of the leases W.’s grantees produced large quantities of oil from the respective parts, but W. and his grantees failed and refused to account to the N. P. Co. for such production, or to pay and deliver the one-sixth part thereof, as W. agreed to do. The N. P. Co. brought its action against W. and his grantees on W.’s agreement with the N. P. Co., and it sought to hold these grantees liable for the covenant of W. To the petition alleging such facts these grantees demurred. Held, such agreement is personal to Weare, and did not run with the land so as to bind the grantees of Weare for his failure to perform such agreement.
    Error to the District Court of Washington county.
    On August SO, 1866, John H. Weare was the grantee of certain oil-producing lands in Washington county, upon which his grantors had given certain unexpired leases, under which the oil was then being obtained, and which .leases were then owned, and work thereunder was being done, by the Newberg Petroleum Company.
    On that day this company entered into a written contract with Weare, by which the Newburg Petroleum Company agreed to convey to Weare all the company’s interest in these lands; and, as part of the consideration for such release, Weare agreed “to pay and deliver to the company, their successors and assigns, upon the premises so released, the one full equal sixth part of all the coal, carbon, or rock oil, salt, or other mineral substance excavated, produced, or pumped thereon, and therefrom daily as produced during the rest and residue now remaining of the terms granted in said above mentioned leases respectively.”
    The company, in fulfillment of this agreement, conveyed to Weare all its interest in these premises without any reservation whatever, and they put Weare into possession of the premises.
    This conveyance was duly recorded on September 3, 1866; and on that day Weare conveyed, by different deeds, all his interest in the various parts of these same premises, to his several co-defendants; and he put such parties into possession of the several parts of the premises so conveyed.
    During the terms of these leases these several parties procured large quantities of carbon or rock oil from these same premises; but neither Weare nor any'of these several co-defendants paid or delivered fro the Newburg Petroleum Company, or any one for them, the one-sixth part, or any part, of such carbon, or rock oil, as by his written contract Weare agreed to do; but, on demand, each party refused so to do, and each refused to account for any part of the same.
    Thereupon the Newburg Petroleum Company brought suit against Weare and his several grantees to enforce such accounting, payment, and delivery, and to recover in kind or the value of the one-sixth part of such production. Plaintiff propounded certain interrogatories as to the amount and time of such production.'
    Certain questions in the case were disposed of in Newburg Petroleum Company v. Weare et al., 27 Ohio St., 343, and the case was remanded to the court of common pleas for further proceedings.
    By leave of court, on April 29,1878, the plaintiff filed its second amended petition, in which it set forth the alleged facts and matters of complaint. On May 6,1879, a demurrer to the second amended petition was filed by the Exchange Oil Company, one of these co-defendants of Weare. Other pleadings were filed at different times, but they need not be noticed here.
    At the January term, 1880, this demurrer was sustained ; and, at plaintiff’s request, leave was given to amend the second amended petition.

      At the ensuing May term no amendment had been made, but further leave to amend the same was given. At the October (15th) term, 1880, as no further amendment had been made, leave to file an amendment to the same was limited to sixty days. After the expiration of the sixty days, .and without further leave of court, an amendment was filed, setting up the full performance of its agreement with Weare on the part of the plaintiff; and it also alleged “ that when the said John II. Weare sold and conveyed the said demised premises to the said defendant, the Exchange Oil Company, of Cincinnati, Ohio, it, the said Exchange Oil Company, of Cincinnati, Ohio, had actual notice and full knowledge of the plaintiff's right under the said de-' mises and the agreement with the said John H. Weare, and that the plaintiff was entitled thereunder, as a part of the purchase price of said transfer, to enter daily upon the demised premises during the remainder of the said terms, and to receive one-sixth of the production of the said petroleum oil in kind.
    “ And that it, said Exchange Oil Company, of Cincinnati, Ohio, agreed to and with the said John H. Weare to take, and did take, the said demised premises, subject to the plaintiff's right to one-sixth of the production in kind, and to enter upon the premises daily, and receive the same. And it, the said Exchange Oil Company, of Cincinnati, Ohio, agreed to and with said John Ii. Weare to satisfy the plaintiff's rights and claims by virtue of said demises and agreements, and agreed to take, and did take, the bond and obligation of the said John H. Weare to repay to it any sum that it would have to pay to the plaintiff'.”
    On motion of the Exchange Oil Company, at the January term, 1882, this amendment was stricken from the files, “ on the ground that it was irregularly filed without leave of court.”
    And thereupon the plaintiff moved the court for leave to file the said amendment to its second amended petition, and so ordered to be stricken out for reason of irregularity in filing; and the court overruled and denied the motion,finding there had been no laches to preclude the filing, but de nying the motion solely for the reason that all of said amendment, except that portion relating to the agreement of the Exchange Oil Company with John H. Weare, presented no material substantial allegation in addition to the plaintiff’s second amended petition ; and for the reason that the part setting out the agreement of the Exchango Oil Company, of Cincinnati, Ohio, with John H. Weare, sets out a new and entirely different cause of action not affecting all the defendants; and the court refused leave to file the amendment in whole or with the allegation of the agreement between the Exchange Oil Company, of Cincinnati, Ohio, stricken out, to which ruling and decision the plaintiff excepted.
    Thereupon the court sustained the demurrers to the second amended petition, filed on behalf of all the other defendants, except Weare, and gave them judgment against plaintiff for their costs ; but/the court rendered no judgment for or against Weare, though plaintiff moved for a judgment against him for failing to answer the interrogatories, to which refusal the plaintiff excepted.
    On appeal, the district court held substantially the same as the court of common pleas had held; and it refused leave to file the amendment, and it sustained the demurrers of all the defendants, except Weare, and rendered judgment for their costs ; to which plaintiff' excepted, and now seeks a reversal of those judgments.

      JR. K. Shaw, for plaintiff in error.

      W. B. Loomis and JE. A. Guthrie, for defendants in error.
   Follett, J.

The original action was upon plaintiff’s contract with Weare. Weare did not perform his contract to pay and deliver to plaintiff the one-sixth part of all the oil produced or pumped from the premises, and he failed to account for the same ; and he refused to do so.

Plaintiff claimed that this contract “run with the land,” and that Weare and his assigns were bound by the contract; and to enforce this claim the Newburg Petroleum Company brought an action against Weare and his assigns, and the company demanded an account of the oil produced, and a delivery of the one-sixth part thereof, or the value of this one-sixth part.

Weare’s assigns, his co-defendants, claimed that this contract was only a personal agreement of Weare, that it was not a covenant that run with the land, and that it did not bind any one but Weare.

The questions presented to us by the record here are the only ones that we can review, and these questions arise upon the second amended petition and the .demurrers thereto of the co-defendants of Weare.

Before considering what is thus presented, we may see if other matters require our examination. There was a contest as to the filing of certain amendments to the second amended petition.

It seems that the court of common pleas was liberal in granting leave to file such amendments, yet they were not filed within any leave the court granted.

We will not regard these amendments as first presented to the district court, as was the case in Brock v. Bateman, 25 Ohio St. 609, where the court refused leave to file such an amendment.

Here they were irregularly filed in the court of common pleas, without leave of court, and for this reason it was not error reviewable for th.e court to strike them from the files, especially as the court thereafter considered their merits as allegations in the petition before it refused to permit them to be properly filed. On full consideration the court refused leave to file this amendment, “ solely for the reason that all of said amendment, except that portion relating to the agreement of' the Exchange Oil Company with John H. Weare, presents no material substantial allegation in addition to the plaintiff’s second amended petition ; and for the reason that the part setting out the agreement of the Exchange Oil Company, of Cincinnati; Ohio, with John H. Weare, sets out a new and entirely different cause of action not affecting all the defendants.”

On such an agreement plaintiff could have had a separate action against the Exchange Oil Company. In thus holding, we think the court did not abuse its discretion, or deprive plaintiff of any right. “ Motions for leave to amend are addressed to the sound discretion of the court, and their refusal will not be held to be erroneous, unless it is affirmatively shown that the discretion was abused.” Clark v. Clark, 20 Ohio St. 128.

As to plaintiff’s demand for a judgment against Weare, as on default for not answering the interrogatories more fully, and the court’s refusal to render such a judgment., section 5101 of the Revised Statutes provides : “Answers to interrogatories may be enforced by nonsuit, judgment by default, or by attachment, as the justice of the case may require.” '

From the record of this case, which presents to us the pleadings and the facts, we do not think there is manifest error in the court’s exercise of a sound discretion.

As to plaintiff’s action against Weare alone, the case has remained and still is in the court of common pleas, and it may be proceeded with there.

We will now inquire as to what questions are presented to us by the second amended petition and 'the demurrers thereto of the Exchange Oil Company and of the other co-defendants of Weare.

Among other things, plaintiff avers the making and assignment of certain oil leases on these lands, and that on August 30, 1.866, the plaintiff was seized of all the right, title, and interest of the lessees in and to the residue then unexpired of their terms in the premises.

“And that on the 30th day of August, a. d. 1866, the defendant, John H. Weare, held the title in fee of said premises subject to the rights of the plaintiff as assignee, as above mentioned, of the said unexpired terms. And the plaintiff says that after it, the said plaintiff, became seized of the said premises for the said unexpired terms as aforesaid, and while the plaintiff was in actual possession of the said demised premises, holding them under the said leases, and after the said John H. Weare, defendant, became the owner of the fee as aforesaid, subject to said demises, and while Weare was such owner, holding subject to said demises, to wit, on the 30th day of August, a. d. 1866, the plaintiff, by its duly authorized agent, entered into a contract and agreement, in writing, with the defendant, John H. Weare, which contract John H. Weare duly signed, sealed, and acknowledged before a notary public of Washington county, in the state of Ohio, in the presence of two witnesses, who signed their names thereto as witnesses.

“In which written agreement it was recited that the said leases heretofore mentioned were then owned by the said Newburg Petroleum Company, the plaintiff herein. And the plaintiff says that in the written agreement so made and executed by the plaintiff and John II. Weare, on the 30th day of August, 1866, the plaintiff agreed to and with John H. "Weare to remise and release and forever quitclaim, and did therein remise, release, and quitclaim unto John H. Weare all the right, title, and interest of the Newburg Petroleum Company, of, in and to the lands conveyed by and described in the leases.”

After such a conveyance no interest in these lands remained in the plaintiff, except the possession. But the plaintiff did not retain the possession.

“And the plaintiff says that after making and delivery of the said contract, the plaintiff put John H. Weare into possession of all the premises so as aforesaid remised, released, and quitclaimed under and in pursuance of the written agreement arid contract.”

This is plaintiff’s statement of the case, and the demurrers admit all this to be true.

And with other considerations “ the' plaintiff says that John H. Weare, in the written agreement, duly executed and delivered by him, under seal, did covenant and agree to and with the plaintiff, the Newburg Petroleum Company, to pay and deliver to the Newburg Petroleum Company, its successors and assigns, upon said leased premises, the one full equal sixth part of all the carbon or rock-oil, salt or other mineral substances produced or pumped thereon or therefrom daily, as produced during the rest and residue then remaining of the terms granted in said abov-e mentioned leases respectively.”

By the terms of this agreement as set forth Weare binds himself alone. And he does not grant to plaintiff any interest in the land itself; and he does not agree to produce any oil or mineral substance from the land; but if, during the terms of those leases, any oil or minei’al substance is “produced or pumped thereon or therefrom”— which will thus be separated from the realty and become personalty — Weare agrees to pay and deliver upon said leased premises, to the New burg Petroleum Company, its successors and assigns, the one full equal sixth part of such oil or mineral substance, daily, as produced.

Such seem to be the language and the meaning of the parties’ agreement, and that Weare alone is bound, and that his assigns are not bound. But it is claimed that the plaintiff may hold the assignees of Weare by virtue of the principle in the first rule given in Spencer’s Case, 1 Smith Lead. Cas. *69: “I. When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the coyenant is quodammodo, annexed and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee, although he be not bound by express words; but when the covenant extends to a thing which is not in being at the time of the demise made, it can not be appurtenant or annexed to the thing which hath no being.”

The plaintiff, as assignee of these leases, owned no part of these lands, and it had only a right, for a term of years, to produce or pump oil and other mineral substances on and from these lands. Subject to this right for such terms of years, Weare owned these lands and all that was appurtenant thereto; and when the plaintiff released and conveyed to Weare, without reservation, this right and all plaintiff’s interest in the lands, and put him into possession of the- same; and when it took Weare’s agreement to pay and deliver to plaintiff the one-sixth part of what should be produced or pumped thereon or therefrom; there was no' “ thing in esse, parcel of the demise,” that was “ annexed and appurtenant to the thing demised,” so as to bring this case withiu the first part of that rule in Spencer’s Case; and it seems to fall within the second part of that rule, and that the covenant binds “ the covenantor, his executors or administrators, and not the assignee.”

Weare did not attempt to bind his assigns in express terms, and he did not make the payment of the one-sixth part of the production a charge on the land; neither did the law make such payment or delivery a lieu upon the land, as it does in case of a tax on land.

We need but refer to the much learning” upon this general subject collected in connection with Spencer’s Case, in Smith Lead. Cas. *68 et seq.

There is no error apparent upon the record that requires a reversal of the judgments in this case, and the same are affirmed as to all the defendants, except Weare. This is done without any prejudice to the plaintiff’s action and rights against Weare in this case, which as to such rights is still pending in the court of common pleas of- Washington county.

Judgment affirmed.