author: Shaxjck, C. J.

text:
    The State of Ohio ex rel. Sheets, Attorney General, v. Cowles et al.

      Cleveland Park Commission — Invalidity of Act of April 6, 1900— 94 0. L., 511 — Act of April 16, 1900 — 94 O. L„ 610 — Sections 1 of Article IS and Section 86 of Article 8 of constitution-constitutional law.

    The act of April 6, 1900, entitled “An act to provide a hoard of park commissioners and to provide for the acquisition of grounds for parks, etc., in cities of the second grade of the first class” (94 O. L., 517); and the act of April 16, 1900, supplementary thereto (94 O. L., 670), are void because repugnant to Section 1 of Article 13 of the constitution and to Section 26 of Article 2 of the constitution.
    (Decided February 5, 1901.)
    In Quo Warranto :
    The defendants admit that they assume, and are about to exercise, the official powers attempted to be conferred upon them as the board of park commissioners in and for the city of Cleveland by the legislative acts following, by issuing bonds in the sum of five hundred thousand ($500,000), dollars, levying taxes for their payment and for the payment of taxes on the bonds of said city previously issued and of exercising said powers generally. The Attorney General denies the constitutional validity of said acts; and his petition prays that the defendants be ousted from said office and from the exercise of all said powers. The legislation referred to consists of “an act to provide a board of park commissioners and to provide for the acquisition of ground for parks, * * * etc., in cities of the second grade of the first class,” passed April 6, 1900 (94 O, L., 517), and the act supplementary thereto passed April 16, 1900 (94 O. L., 670). The material parts of said legislation are the following:
    The act of April 6, 1900, is as follows:
    “AN ACT
    “To provide a board of park commissioners, and to provide for the acquisition of grounds for parks, park entrances, park driveways and boulevards, and for the improvement, management and control of parks, park entrances, park driveways and boulevards, in cities of the second grade of the first class.
    “(CLEVELAND.)

      “Be it enacted by the General Assembly of the State of Ohio:

    “Section 1. In cities of the second grade of the first class, there shall be a board of park commissioners composed of five persons who shall be electors of ■the county in which are situated such cities. Said Iboard of park commissioners shall be appointed by the judge [s] of the circuit court of the judicial circuit in which said counties and cities are situated, or any two of them, together with the probate judge of said counties. Said board of park commissioners shall be appointed one member for a term of one year, one member for a term of two years, one member for a term of three years, one member for a term of four years, and one member for a term of five years, and they shall hold their office until their successors are duly chosen or elected as hereinafter specified. In case of any vacancy caused by death or otherwise, of any of said members so appointed, said vacancy shall be filled for the unexpired term by the same appointive power. Commencing with the first Monday of April, 1901, one member of said board of park commissioners shall be chosen by the electors of such cities for a period of five years, and one member shall be chosen for a period of five years upon the first Monday of April of each succeeding year to fill the vacancy caused by the expiration of the term of the member whose term then expires * * * .
    “Section 2. Such board of commissioners shall have exclusive charge, supervision and control of the parks, park entrances, park driveways and boulevards * * * in such cities or in the counties in which such cities are situated. Such board of park commissioners shall have power to acquire and hold property in the name of the city, by purchase or condemnation, for public parks, for the enlargement of public parks, park entrances, park driveways or boulevards, to receive gifts, donations and devises of lands or other property for public parks, park entrances, park driveways and boulevards, on behalf of such cities, and in the name of such cities; to lay out, construct ind improve with walks, drives, roads and bridges, shelter houses and other improvements, the public parks, park entrances, park driveways and boulevards, held by it or under its control; to enter into contracts for the construction, enlargement and improvement of such parks, park entrances, park driveways and boulevards; to adopt rules and regulations, regulating the use of the same and the travel and traffic thereon, and to prevent disorder and improper conduct within the precinct of any park, park entrance, park driveway or boulevard. All rules and regulations which such board shall at any time pass, shall, immediately after its passage and before taking effect, be published at least ten days in two daily newspapers of opposite politics, and of general circulation, printed in such city. Such board of park commissioners shall also have power to agree with the owner or owners of any street railway occupying any part of any park entrance, driveway or boulevard, or any public road, street or avenue, which may be placed under the charge of such board of park commissioners, as provided in section 8 of this act, for the removal of any such street railway therefrom, which, in the opinion of such board of park commissioners, may interfere with the use of any park, park entrance, park driveway or boulevard, road or street, for park purposes, and upon the terms of such removal and the amount of compensation agreed upon to be paid to such owner or owners, and the same shall be paid out of the park funds hereinafter provided to be raised by special assessment. Provided, however, that no such agreement for removal shall be made until there shall be filed with the board of park commissioners a written application therefor, signed by the persons owning a majority of the frontage upon any street, avenue, or part of street or avenue, from which such street railway is to be removed.
    “Section 4. It shall be unlawful for any person to cut, injure or deface any tree, building or fence, or other erection in the park; to turn domestic animals or poultry of any description upon the parks, or to permit them to wander therein; to carry firearms within, or to frighten, hurt or kill animals or birds belonging to the parks; to hinder or interfere with men employed upon the parks. All persons found violating the provisions of this section, or any of the rules, regulations or ordinances adopted by any such board or the city council shall be guilty of a misdemeanor, and shall be punished upon conviction before the police court of said city, upon complaint and proceedings as now had and provided by law in cases of misdemeanor and violations of city ordinances, by a fine not exceeding fifty dollars, and in default of payment be imprisoned not exceeding thirty days, and the jurisdiction of the police court of such cities is hereby expressly extended to include all parks, park entrances, park driveways and boulevards, belonging to such cities and under the control of such board, whether within or without the corporate limits of such cities. Such board of park commissioners and their officers and employes, shall have power to make arrests for misdemeanors committed within the precincts of any park, park entrance, park driveway or boulevard, under their management and control, whether within or without the limits of such cities, or for the violation of any rules, regulations or ordinances established by such board or city council, for the government of such parks. Such board of park commissioners shall have power to seize and impound, any cattle, horses, mules, donkeys, goats, swine, sheep or other animals, or any poultry of any description found running at large upon such parks, park entrances, [park] driveways, or boulevards, to impose a penalty not to exceed five dollars, with reasonable expenses upon each animal or the poultry so seized, and to enforce payment thereof in such manner as the rules and regulations may provide.
    “Section 5. Any person violating any of the rules, regulations of [or] ordinances of any such board or park commissioners, or city council, or violating any statute of Ohio relating to parks or boulevards or ordinances of any municipal corporation relating to parks or boulevards, in which there is any such board of park commissioners shall be liable to a civil action for damages to be brought by such board of park commissioners in the name of any such city; and the amount recovered shall be paid into the park expense fund of such corporation herein provided for.”
    Section 6 confers power to employ a secretary, superintendent, landscape gardener, laborers, care-takers and other employes.
    “Section 7. Such board of park commissioners shall have power to appropriate, enter upon and condemn for public use, and hold and possess on behalf of and in the name of such cities, any property for enlarging any park, parks or public ground, now owned by any such city; and for establishing such public park or parks, park entrances, park driveways and boulevards, as in the opinion of such board of park commissioners it may be necessary from time to time to establish, either within or without the limits of such cities; * * * .
    “Section 9. Such board of park commissioners shall also have power by a four-fifths vote, to take charge of, control and improve any public road, street, avenue, alleyway, * * * or grounds of any kind or any part thereof, within or without any such cities, for the purpose of a park entrance, park driveway or boulevard, with the consent of the proper municipal authorities, or of the other corporations or public officers or authorities owning or having charge thereof.
    “Section 11. For the purpose of carrying out the provisions of this act, and also for the purpose of assisting to pay for constructing, enlarging or improving, or extending any park, park entrance, park driveways or boulevard, such board of park commissioners is hereby authorized and empowered to make special assessments upon all property benefited by any such constructing, enlarging, improving or extending any park, park entrance, park driveway or boulevard, to the extent such board shall decide; and in proportion to the benefit which may result therefrom, whether such property so benefited shall be within any such city or within the county * * * .
    “Section 12. Such board of park commissioners shall also have power to vacate or close up, within the limits of any park or parks any and all public roads and highways, excepting railroads which may pass through, divide or separate any land selected or appropriated by it for parks, upon payment of damages, if any, caused by such vacation, to the owners of private property injured thereby, to be ascertained in the manner now provided by law, and such damages, if any, shall be paid out of the park funds, and no such road or highway, and no railroad, whether street or steam, shall be laid out through any park or parks, except with the consent of such board of park commissioners and city council; but the proper municipal ¡authorities of such cities may grant the right to cross the park driveways or boulevards with steam or street railroads.
    “Section 14. It shall be the duty of such board of park commissioners, or its successors, annually, to levy on the real and personal property of any such city a tax sufficient to pay the interest of all bonds issued under the provisions of an act entitled ‘An act to provide a board of park commissioners and to provide for the acquisition of grounds for parks, park entrances and. park driveways, for the improvement, management and control of parks, park entrances and park driveways in cities of the second grade of the first class,’ passed April 5, 1893; and also to pay all interest upon all bonds issued under the provisions of an act entitled ‘An act supplementary to an act to provide a board of park commissioners, and to provide for the acquisition of grounds for parks, park entrances, and park driveways, and for the improvement, management and control of parks, park entrances, and park driveways, in cities of the second grade of the first class, passed April 5, 1893,’ passed April 27, 1896. Also to pay all interest of all bonds issued under the provisions of an act entitled, ‘An act supplementary to an act to provide a board of park commissioners, and to provide for the acquisition of grounds for parks, park entrances and park driveways and the improvement, management and control of parks, park entrances and park driveways in cities of the second grade of the first class, passed April 5, 1893, and also an act passed April 27, 1896,’ passed April 26, 1898.”
    The act of April 16 is in form and matter supplementary to the act whose provisions are abstracted; and it provides, among other things, for the borrowing by said park board of the sum of one million dollars in addition to all funds heretofore authorized to be borrowed for park purposes and to issue bonds therefor and the levying of taxes for their payment.

      John M. Sheets, Attorney General, and Solders & Tilden, for plaintiff.
    We claim that both of these acts are unconstitutional for the following reasons:
    First. The powers attempted to be exercised by the legislature by these two acts, over cities of the second grade of the first class, are administrative, and not legislative, and in conflict with Secs. 1, 19 and 20, Art. 1, of the constitution of Ohio, and in conflict with the fourteenth amendment of the constitution of the United States in that they attempt to deprive persons of property without due process of law. State ex rel. v. Commissioners, 54 Ohio St., 33, (Paddock Road case.)
    In the case of the State ex rel. v. Covington, 29 Ohio St., 102, the court sustained a law appointing a board of police commissioners, in cities of the first grade of the first class, but it will be noted that this board simply had control over the police force of the city, with power of appointment to the force and removal therefrom, 73 O. L., 70.
    In the case of the State ex rel. Hibbs v. Commissioners, 35 Ohio St., 458, the court sustained an act of the legislature authorizing and directing the commissioners of Franklin county to levy a special tax for the purpose of improving a road from the city of Columbus, along Greenlawn avenue to its terminus in the old Chillicothe road, 74 O. L., 472.
    This case is overruled by the Paddock Road case, State ex rel. v. Commissioners, 54 Ohio St., 333, above referred to and by the Montgomery road case referred to below".
    In the case of the State ex rel. Herron v. Smith, 44 Ohio St., 348, the court sustains an act of the legislature establishing a board of public affairs in cities of the first grade, first class. 83 O. L., 173.
    The case of the Commissioners v. State ex rel., 50 Ohio St., 653, is the case commonly knowm as the Montgomery Road case. This act (90 L. L., 205) authorizes and directs the commissioners of Hamilton county to proceed to improve Montgomery Turnpike by widening and extending the same in a manner provided in the act.
    These, briefly stated, are the holdings in Ohio relating to the question of local self-government. As W"e have stated, the case of State ex rel. v. Covington, 29 Ohio St., 102, did not raise the question of the power of the legislature to appoint a board wdth power of local taxation. The State ex rel. Hibbs v. Commissioners case, 35 Ohio St., 458, did raise the question of the power of the legislature to impose directly burdens by taxation and special assessment upon the people of a county for local improvements, and the power w7as sustained, but this case is directly overruled by,the Montgomery Road case, 50 Ohio St., 653, from which w7e have quoted the opinion of Judge Minshall, concurred in by Judge Burket; and is also overruled by the Paddock Road case, 54 Ohio St., 333.
    The case in State ex rel. v. Smith, 44 Ohio St., 348, is expressly distinguished by the court from a case where the power to impose burdens by taxation is involved, as will appear from the quotation w7e have made from the case. So that we have 50 Ohio St., 653, and 54 Ohio St., 333, squarely holding that the legislature has not the power to pass a law imposing burdens by taxation and assessment upon the people of a given county or township without the initiative being given to the people of the county or township in this matter. In the one case, (50 Ohio St., 653,) it is said to be the taking of property without due process of law; and in the other case, (54 Ohio St., 333,) it is said to be the exercise of an administrative not a legislative power, and the denial of the right of local self-government, which is inherent in our institutions.
    Should the principles of local self-government be extended to cities?
    The organization of townships and counties is provided for by Art. 10 of the constitution. The organization of qities is also provided for by Sec. 6 of Art. 13 of the constitution.
    The language of Sec. 6, Art. 13, is that the legislature shall restrict their power of taxation and assessment, etc. By implication this delegates the power of taxation and assessment for local purposes to the municipal corporation whose organization is to be provided for, and the power reserved to the legislature is merely restrictive. Hill v. Higdon, 5 Ohio St., 243; Maloy v. City of Marietta, 11 Ohio St., 636.
    Before the adoption of the present constitution, cities and villages were created by special laws, and to remedy this it was provided by Sec. 6 of Art. 13 that they must be organized by general laws.
    Clearly, the legislative power is not enlarged by Sec. 6, Art. 13, and the power to pass the acts of April 6 and April 16, 1900, must be found, if it is to be found at all, under Sec. 1 of Art. 2.
    Under the general grant of power by Sec. 1 of Art. 2 of our constitution, what power and control has the legislature over municipal corporations therein? This question has not been adjudicated in Ohio. It has, however, been decided in other states, and to these decisions and the principles thereof, we invite the court’s attention. Dillon on Municipal Corporations, Sec. 66; Dartmouth College v. Woodward, 17 U. S. (4 Wheat.), 694; Benson v. New York, 10 Barb., 223.
    The distinction between the public side of a municipal corporation, where it represents the state as its agent, and the private side of such corporation where it represents the property interests of its citizens as their agent, is clearly recognized in Ohio. In the one case it is acting in a governmental capacity and is not liable for the acts of its agents and servants, and in the other case (acting in a private capacity), it is liable for the acts of its agents and servants the same as a private corporation or individual. College of Medicine v. Cleveland, 12 Ohio St., 375; Wheeler v. Cincinnati, 19 Ohio St., 19; Toledo v. Commissioners, 41 Ohio St., 149; Robinson v. Greenville, 42 Ohio St., 625; Frederick, Admr., v. Columbus, 58 Ohio St., 538; People v. Hurlbut, 24 Mich., 44; Park Commissioners v. Detroit, 28 Mich., 228; People ex rel. v. Batchelor, 53 N. Y., 128; 3 Hills Iiep., 531; 31 Penn. St., 175.
    The legislature cannot compel a city to incur a debt or obligation without its consent. Dillon on Municipal Cor., Sec. 71 to Sec. 74 inclusive; 31 Vt., 226; People v. Mayor of Chicago, 51 Ill., 17.
    The acts of April 6 and April 16, 1900, are special acts conferring corporate powers, and are therefore in conflict with Sec. 1 of Art. 13 of the constitution. The act of April 6 (1900), so far as it provides for an elective park board, confers on the people of Cleveland the power, to elect this board, with the right in it, the said board, to exercise the powers conferred. This confers corporate powers on the city of Cleveland.
    The act of April 16, 1900, confers power on this board to issue one million dollars of bonds in the name of the city and for and on behalf of the city; and the city council is authorized and empowered to levy a tax to pay the principal of these bonds. That these two acts attempt to confer corporate power we think will not be disputed. State ex rel. v. Smith, 48 Ohio St., 211; State v. Pugh, 43 Ohio St., 98.

      T. FI. Hogsett and John G. White, for defendants.
    The first objection to said acts of April 6 and 16, 1900, is that the powers attempted to be exercised by the legislature were administrative and not legislative. This objection necessarily prompts the inquiry: What powers has the legislature attempted to exercise by the passage of these acts?
    It attempted—
    First, to create the office of park commissioner.
    Second, to provide for filling such office.
    Third, to define the powers and prescribe the duties of the board of park commissioners when constituted.
    The power of the legislature to provide for the creation of a board of park commissioners in cities of the second grade of the first class, must, in view of the adjudications by this court, be conceded as settled. State ex rel. v. Hawkins, 44 Ohio St., 98; Smith v. Lynch, 29 Ohio St., 261; State ex rel. Herron v. Smith, 44 Ohio St., 348.
    In the above case, as in the case at bar, it was argued by counsel that the legislature could not take from the people of a municipality the right to choose directly or indirectly, 'their officers of local administration and confer such right upon the governor of the state. People v. Hurlbut, 24 Mich., 44; Park Commissioners v. Detroit, 28 Mich., 228; Western College v. Cleveland, 12 Ohio St., 375; People v. Mayor, 51 Ill., 31.
    But the court did not seem to be of opinion that, that doctrine was applicable to such case in Ohio. In the case of Smith v. Lynch, Treas., supra, a board of health was constituted pursuant to an act of the general assembly.
    That the general assembly of the state has power to provide for the filling of such office in the manner pointed out by this law, seems so firmly settled it appears almost to be a work of supererogation to submit to the court argument or authorities in support of such power. Section 27, Art. 2, of the constitution of Ohio; State ex rel. v. Kennon, 7 Ohio St., 547; Ohio ex rel. v. Covington, 29 Ohio St., 102; State ex rel. v. Constantine, 42 Ohio St., 437.
    It seems clear, therefore, that the legislature has not exceeded its constitutional authority in providing for the appointment of a board of park commissioners, as designated in the act of April 6,. 1900. The legislature did not undertake to make the appointment, but designated the persons, viz.: “The judges of the circuit court of the judicial circuit in which said counties and cities are situated, or any two of them, together with the probate judge of said county” to make the same.
    We come now to a discussion of the question whether the acts of April 6, 1900, 94 O. L., 517, creating a board of park commissioners, and the act of April 16, 1900, 94 O. L., 670, empowering the board of park commissioners to issue a million dollars of bonds, are unconstitutional because in violation of Art. 13, Sec. 1 of the constitution: “The general assembly shall pass no special act conferring corporate powers.”
    And Art. 13, Sec. 6: “The general assembly shall provide for the organization of cities, and incorporated villages, by general laws.”
    Before proceeding to the consideration of the principal question, we shall only stop to express a doubt whether, if these are local laws applying to Cleveland alone, conferring incidentally corporate powers, they are for that reason necessarily void. The constitutionality of the former Cleveland park board act is not assailed. Under that statute many hundreds of acres of park land have been acquired; many hundred thousand dollars spent, and the city now finds itself with a system of parks incomplete, some finished, some unfinished, some requiring for their fitting and adequate use according to the plans intended by the former park board, the acquisition and improvement of further lands. This would make a local temporary necessity which this court seems to us to have held might be met by appropriate legislation. Merrill v. Toledo, 3 C. D., 524, 6 C. C., 430. Affirmed, 29 Bull., 220; Kumler v. Silsbee, 38 Ohio St., 445.
    Assuming, then, without discussion, that the act creating the board of park commissioners does confer corporate powers, is it true that it is a special act? We insist that it is not, but a general law.
    The general rule determining the question of whether a law applying to a municipality is a general or a special law, a legitimate or illegitimate exercise of the right given by the constitution to classify the municipalities, is well settled, and in any given case doubt can only be as to the application of the rule.

      State v. Pugh, 43 Ohio St., 98.

      The argument is that no other municipality than Cleveland could have come into the second grade oí the first class in time to hold the first election of park commissioners on the first Monday of April, 1901.
    It was not only possible when this law was passed, but it is possible today for Cleveland to pass out of this grade before April, 1901, and for other municipalities of the state to come into the second grade and first class and to liold the first election of park commissioners in the charter election of 1901. Section 1547, Rev. Stat.
    This official report is a report of the secretary of the state of Ohio. Hayes v. Cleveland, 55 Ohio St., 117.
    This is the report of the secretary of state, provided for by Sec. 1617, Rev. Stat., and must be made on or before November 20th of each year. Section 62, Rev. Stat; State ex rel. v. Hudson, 44 Ohio St., 137.
    From this it appears that it is not sufficient to make a law a special law that only one municipality can hold the first election at the time indicated in the statute. It must also be true that no other municipality can at any time thereafter on coming into the proper class appoint the officers and fill their place by election as provided by this statute. Marmet v. State, 45 Ohio St., 63; State ex rel. v. Wall, 47 Ohio St., 499; State ex rel. v. Toledo, 48 Ohio St., 112; State ex rel. v. Smith, 48 Ohio St., 211; State ex rel. v. Baker, 55 Ohio St., 1; State ex rel. v. Ratterman, 58 Ohio St., 731.
    The much cited name of State v. Pugh, 43 Ohio St., 98, and previous cases hold that such a grant as this made to an unincorporated municipal board is not a statute conferring corporate powers. State v. Cov

      ington, 29 Ohio St., 102; State v. Baughman, 38 Ohio St., 455.
    Further than this, we do not think the question as to the constitutionality of a law empowering a constitutional board to borrow money and issue bonds can be raised by quo warranto.

   Shaxjck, C. J.

The view presented by the relator is that this legislation confers corporate power, that it is special because it applies to the city of Cleveland alone, and that it is therefore repugnant to section 1 of article 13 of the constitution which ordains that: “The general assembly shall pass no special act conferring corporate powers.” Counsel for the defendants, of course, admit that it confers corporate power and that in its present operation it confers it upon the city of Cleveland and upon no other municipality. They say, however, that the operation of the act is restricted to the city of Cleveland, not by naming that city, but by describing it by a grade and class in which that city stands alone. The proposition necessary to give importance to that distinction is that the validity of legislative acts is to be determined, not by their present actual operation, but by their possible future operation. No reason is offered in support of that proposition. Indeed the proposition is uniformly suppressed.

The inevitable reliance of counsel for the support of this legislation is upon the decisions of this court sustaining the validity of legislation, dividing the cities of the state into classes qnd grades so that said cities are isolated, for the purpose of receiving grants of corporate power not conferred upon any other, city. Such legislation was originally sustained upon the theory that the classification would remain uh-changed, and that in the progress of the state’s development other cities would enter the classes existing. It was a judicial prophesy that an act whose practical operation was special when it was passed and considered would,- in time, operate generally. How this prophesy failed of, fulfillment appears from the fact that for a quarter of a century the five largest cities of the state, have, in important respects, been subject to acts conferring corporate power and operating in each of them separately. With but little modification the same observation might be made of many other municipalities. It has resulted that to a majority of the urban population of the state the provisions of this article of the constitution have become chiefly known as sources of hope which have never been realized. It is quite true that many appeals for relief from such legislation have been made to this court based on the claim that these beneficent provisions of the constitution should be put into practical operation. It is equally true that the doctrine of classification, or such isolation under the form of classification, has been adhered to. The reports show that a majority of the members of the court have regarded themselves as bound to pursue a course upon which our predecessors inadvertently started. A careful examination of the cases seems to warrant the observation that since the practical effect of the doctrine has been demonstrated, the cases upon the subject have been followed without approval except in the separate opinion of Minshall, J., in State ex rel. the Attorney General v. Ratterman et al.. 58 Ohio St., 731. These observations are made here only to show that a doctrine so completely discredited should not be extended. The present case is to be decided in deference to that doctrine and to the decisions upon which it rests. Some members of the court seem willing to have it understood that they really entertain such deference. Others of us are willing to assume it for the purposes of this case, as it will permit us to reach wiiat we conceive to be the correct conclusion with respect to this legislation.

We are not now7 to test these acts by our knowledge of their actual operation, but w7e are to imagine that the classification is to remain unchanged indefinitely so that without limit of time other municipalities may enter the same grade and class with Cleveland and so become subject to all legislation which is valid as to that city, and then inquire wiiether all of the cities which may enter said grade and class will become subject to the acts now7 under consideration. In the first section of the act of April 6 it is provided that the first election to the board of park commissioners shall be held on the first Monday of April, 1901; and of course it can operate only in cities wiiich on that day are in the second grade of the first class. In the brief of counsel for the defendant this point is met with the suggestion that under existing statutes the cities of Toledo and Columbus, having the population required to advance them to the second grade of the first class, might by their voluntary action effect such advancement so that they might be, or at least they might have been, advanced before the first Monday of April, 1901, and there w7ould be three cities subject to the operation of this legislation. In the view we are now7 taking of the subject this suggestion of the imagination is legitimate; but it is manifestly inadequate. It assumes that the doctrine of classification will be satisfied if the legislation applies to a plurality of the cities belonging to the grade and class. The doctrine is not quite so bad as that. It is of its essence that every municipality in the state now below the first class may be advanced to the second grade of the first class upon its attaining the requisite population and taking appropriate action for that purpose, and that everyone of them, when so advanced, without limit as to their numbers or the time of their advancement shall become subject to-every legislative act which is now valid as to that grade and class. It is, therefore, quite evident that at this point the imagination of the framer of these acts wearied in its flight, and failed. That the city of Cleveland alone was in contemplation in this act is quite evident from others of its provisions which are set out in the statement of the case.

Because the doctrine of classification of cities is not to be extended this legislation is void in view of others of its provisions. According to that doctrine such classification has been recognized as effective to prevent the present actual operation of the constitutional provision quoted, prohibiting conferring of corporate power by special acts; and acts conferring such power have been held valid although they actually conferred it upon but one city. But when that classification has been resorted to for the purpose of evading the requirement of section 26 of article 2 of the constitution that: “all laws of a general nature shall have a uniform operation throughout the state,” its efficacy for that purpose has been denied. Commissioners v. Rosche Brothers, 50 Ohio St., 103; City of Cincinnati v. Steinkamp, Trustee, 54 Ohio St., 284. By repeated and explicit provisions these acts are to operate in Cuyahoga county outside of the city of Cleveland, and in no other' county of the state. Among the subjects of a general nature to be controlled by the act of such.limited operation is that of roads. • For the act assumes to authorize the commissioners to vacate existing roads and to establish others at their discretion. It cannot be necessary to repeat the reasons which have led this court to the conclusion that roads are a subject of general legislation within the meaning of this provision of the constitution.

The fourth section attempts to. create misdemeanors by provisions peculiar to Cuyahoga county. And the provision that “all persons found violating the provisions of this section or any of the rules or regulations or ordinances adopted by any such board or the city council shall be punished on conviction,” etc., can hardly be construed otherwise than as an attempt to delegate to the board authority to define misdemeanors. Perhaps no laws are more commonly regarded as general than those which define and punish crimes and misdemeanors. But added exposition of the subject cannot be necessary in view of the former decisions. Ex parte VanHagan, 25 Ohio St., 426; Ex parte Falk, 42 Ohio St., 638; The State v. Winch, 45 Ohio St., 663.

In Ex parte Falk it was held that an act which provided for the punishment of any person found in any city of the first grade of the first class or within four miles thereof having burglars’ tools in his possession, and extending jurisdiction of the police court of the city over such offenses to said limit of four miles .beyond said city, was void for repugnancy to this section. Enactments which prohibit acts at or near places whose character makes such acts peculiarly hurtful are not exceptions to this rule, for their operation is as wide as their subject.

The present case does not call in question the power of the general assembly to prohibit and punish depredations in public parks, if the power is exercised by a law operating wherever its subject is found. Consideration of other provisions of the act 4s omitted because unnecessary to a conclusion in the case.

Judgment of ouster.

Burket and Dávis, JJ., concur.


source: Caselaw Access Project

author: Shauok, J.

license: Public Domain

text:
    The Cincinnati, Hamilton & Dayton Railroad Co. v. Aller.

      Railroad station platform — Liability and duty of railway company incident tp guarding and lighting platform.

    A railway- company having constructed its station and a platform incident thereto does not, by permitting persons to use such platform for purposes of their own not connected with the transaction of business at such station, become charged with a duty to reconstruct guard or light such platform' so as to render it safe for the permitted use. (P., P. W. & C. R. Co. et al. v. Bingham, 29 Ohio St., 364, approved, and followed; Harriman v. Ry. Co., 45 Ohio St., 11, distinguished.)
    (Decided March 12, 1901.)
    Error to the Circuit Court of Lucas county. (On rehearing.) .
    Aller brought suit in the common pleas against the plaintiff in error and the New York, Chicago & St. Louis Railroad Company to recover for personal injuries by him sustained in stepping from the platform, which was maintained by the plaintiff in error at a suburb in the village of Leipsic, at a'station jointly constructed and used by said company and the New York, Chicago & St. Louis Railroad Company (called the Nickel Plate) at the crossing of their roads. He1 charged that the plaintiff in error was negligent because it kept no lights about its station and because it did not raise the earth or provide steps at the end of the platform where he received his injury, or place upon the platform at that point a balustrade to keep footmen from stepping off. The answer denied the allegations of negligence against the company and averred that whatever injury Aller sustained was the result of his own negligence. The plaintiff replied denying the allegation of negligence against him.
    Upon the trial much evidence was introduced, the larger portion of it relating to the extent and nature of Aller’s injuries. We are concerned only with that portion! of the evidence which relates to his right to recover. In that portion of the evidence there is no material conflict. At a point on the line of the company’s road about half a mile north of the village of Leipsic the other railroad crosses it approximately at right angles. At the southwest angle of the intersection the companies maintain a joint building consisting of ticket and telegraph offices and waiting room. Upon the north side of the building, and occupying the space between it and its track, the Nickel Plate maintains a platform for use in connection with its trains, and on the east side of the building the C. H. & D. Company maintains a like platform for its similar use, the platform being twelve feet in width and extending southwardly from the junction a distance of 289 feet. On the morning of his injury, at about five o’clock, while it was yet dark, Aller reached the junction by a train of the Nickel Plate road, intending to take a train of the C. H. & D. Company for Ottawa. The train for Ottawa was, according to its schedule time, to arrive at the junction something more than three hours later and it was scheduled to stop at the junction to discharge and receive passengers. Whether by one light or more the room at the junction station was lighted, and employes of the company were there attending to their appropriate duties. Provisions were made for the sale at the junction office of tickets for the train to Ottawa. Whether acting upon information which he had received a year before that the train for Ottawa did not at that time stop at the junction, or for some other purpose not connected with his trip, Aller after alighting from the train which had brought him to the junction carrying out a previously formed intention passed eastwardly to the corner of the building, thence southwardly on the platform of the plaintiff in error past the ticket office and waiting room, intending to go to the village and take the train for Ottawa at another station which this company maintained there. Footmen had been accustomed to go from the junction to the village by passing southwardly along the platform of the defendant to a point near its south end, thence from the east side of the platform to the track which they then followed to the village. This was done by so many persons and for so long a time that the company’s employes in charge of its premises would be presumed to have knowledge of the custom. Aller had himself pursued this course a year before. On this occasion, however, he did not pass from the side of the platform to the track, but continued, southwardly along the west side of the platform to its end which was in the common and not connected with any lighted or used street. Knowing that he had reached the end of the platform, being unable to see what was before him, and assuming that from the platform to the ground was an ordinary step, he stepped off at a venture at a point where it was approximately five feet from the surface of the platform to the ground below, and thus received the injuries for which he brought the action. The platform was constructed in 1886 or 1887 and maintained without change from that time until Aller received his injuries in November, 1893.
    Upon this evidence and with respect to the right to recover the court charged the jury as follows:
    “As against the C., H. & D. Railroad Company the jury will consider all the evidence and determine whether the C., H. &.D. Company allowed and invited passengers who arrived at the junction station to pass along its platform to the southerly end thereof, and thence along its tracks leading to the Leipsic town station. If it did invite such use and with knowledge thereof acquiesced in the use for a long period of time, it will be held to the exercise of care accordingly,; having due regard to such use and proportioned tc the probable danger to passengers arriving at the junction who might go that way.
    “If the jury find that the defendant, the C., H. & D. Company, did so invite the use of its platform and adjoining tracks, it was bound to exercise reasonable and ordinary care in having them safe, for such use, and if the jury find that it failed and neglected to exercise such reasonable and ordinary care, so that the plaintiff in going that way fell from thé platform of the C., H. & D. Company, without negligence on his part, at a place where the said company had failed in the exercise of ordinary care to have a safe and proper approach to the platform, then your verdict will be for the plaintiff.”
    With respect to the contributory negligence of the defendant the court charged as follows:

      “Dr. Aller was obliged to use ordinary care and prudence in taking his way from the platform where he alighted from the Nickel Plate train. If, considering all the circumstances of the situation, there would not have appeared to a reasonably prudent person any danger in going along the place and in the manner that he did, then he cannot be said to have been guilty of contributory negligence, though in fact injury followed what he did. In determining the question of whether the plaintiff himself was negligent or not, the jury will take intq consideration the time of night, and what, if any, light there was to guide his footsteps, together with the information and knowledge he had as to where he should go to take the C., H. & D. train.”
    The following instructions requested by the company were refused by the court:
    “If you find from the evidence that the train of the defendant, The Cincinnati, Hamilton & Dayton Railroad Company, which the plaintiff intended to take, was not due to arrive at said junction station until' 8:26 A. M., or thereabouts, and if you further find from the evidence that the plaintiff arrived at said station on a train of the New York, Chicago & St. Louis Railroad Company at 5 A. M., or thereabouts, and if you further find from the evidence that the plaintiff did not intend to take a train of the Cincinnati, Hamilton & Dayton Railroad Company at said junction station, but did intend to take a train of said defendant at its station about one-half mile distant, then the defendant did not owe the plaintiff the duty of lighting its platform or of guarding the end of the said platform.
    “It was the duty pf the plaintiff, while walking along said platform, to exercise such care as an ordinary prudent person would exercise under like circumstances, and the fact it was dark, and that he was unacquainted with the character or condition of said platform, made it incumbent upon him, before stepping off the end of said platform, to ascertain, so far as he reasonably could, whether it would be safe so to do; and if you find.from the evidence that the plaintiff stepped off the end of said platform without making any attempt before so doing to ascertain whether it would be safe so to do, then your verdict must be for the defendants.”
    A verdict was returned in favor of Aller and against the plaintiff in error. Its motion for a new trial was overruled and a judgment was rendered on the verdict. A bill of exceptions was taken setting out all the evidence and presented to the circuit court with a petition in error. The judgment of the common pleas was there affirmed.

      Swayne, Hayes c& Tyler, for plaintiff in error,
    cited the following authorities:

      Gillis v. Railroad Co., 59 Pa. St., 129; Harriman v. Railway Co., 45 Ohio St., 11; Railway Co. v. Hummell, 44 Pa. St., 375; Railway Co. v. Norton, 12 Harris, 465; Mason v. Railway Co., 6 Am. & Eng. R. R. Cas., 5; Railway Co. v. Maryland, 19 Am. & Eng. R. R. Cas., 88; Railroad Co. v. Bingham, 29 Ohio St., 369; Railroad Co. v. Brown, 18 S. W. Rep., 670; Railroad Co. v. Godfrey, 71 Ill., 500; Railroad Co. v. Brinsom, 10 Ga., 207; Railway Co. v. Tartt, 64 Fed. Rep., 826; Railroad Co. v. Huffman, 28 Ind., 287; Railroad Co. v. Graham, 95 Ind., 286; Ivens v. Railway Co., 103 Ind., 27; Railway Co. v. Schmidt, 106 Ind., 73; Railway Co. v. Bryan, 107 Ind., 51; Beach Contrib. Neg., 67-68; Palmer v. Railway Co., 112 Ind., 250; Carlton
      v. Steel Co., 99 Mass., 216; Railroad Co. v. Griffin, 100 Ind., 221; Green v. Linton, 27 N. Y. Sup., 891; Cusick v. Adams, 115 N. Y., 55; Gillespie v. McGowan, 100 Pa. St., 144; Sweeney v. Railroad Co., 10 Allen, 368; 2 Wood on Railroads, Minor’s Ed., p. 1462; Railroad v. Schwindling, 8 Am. & Eng. R. R. Cas., 544; Woodwine, Admr., v. Railroad Co., 50 Am. & Eng. R. R. Cas., 37; Pierce on Railroads, 275; Railway Co. v. Treadwell, — N. E. Rep., 807; Eggeman v. Railroad Co., 47 Ill. App., 507; Blanchard v. Railway Co., 126 Ill., 416; Railroad Co. v. Hetherington, 83 Ill., 510; Railroad Co. v. Houston, 95 U. S., 697; Roden v. Railroad Co., 133 Ill. App., 72; Dillon v. Railway Co., 154 Mass., 478; Railway Co. v. Moseley, 57 Fed. Rep., 921; Kirtley v. Railway Co., 65 Fed. Rep., 386; Railroad Co. v. Noble, 142 Ill., 578; Abend v. Railroad Co., 111 Ill., 902; Barstow, Admr., v. Railroad Co., 143 Mass., 535; Greenleaf on Ev., 15th ed., Sec. 114; Hutchinson on Carriers, 2nd ed., Sec. 562; Heinlein v. Railroad Co., 16 N. E., 698; Akers v. Railway Co., 60 N. W. Rep., 669; DeBlois v. Railroad Co., 73 N. W. Rep., 637; Elevator Co. v. Lippert, 63 Fed. Rep., 942; Troy v. Railroad Co., 99 N. C., 296; Bennett v. Railroad Co., 102 U. S., 577; Coal Co. v. Estievenard, 53 Ohio St., 43; Railway Co. v. Lowell, 151 U. S., 209; Keefe v. Railroad Co., 142 Mass., 251; Railroad Co. v. Lucas, 21 N. E., 968; Railway Co. v. Hurley, 84 Fed. Rep., 269; Forsyth v. Railroad Co., 103 Mass., 510; Reed v. Railroad Co., 4 S. E. Rep., 587; Railway Co. v. Hodges, 24 S. W., 563; Felton v. Aubrey, 74 Fed. Rep., 350; Heaven v. Pender, 11 Q. B. D., 503.

      Hurd, Brumback & Thatcher, for defendant in error,
    cited the following authorities:

      Harriman v. Railway Co., 45 Ohio St., 11; Heaven v. Pender, 11 Q. B. D., 503; Corby v. Hill, 4 C. B. (N. S.) 556; Sweeny v. Railroad Co., 92 Mass., 372; Kay v. Railroad Co., 65 Pa. St., 269; Railway Co. v. Sue, 25 Neb., 772; Railroad Co. v. Watson, 94 Ala., 634; Garner v. Trumbull, 94 Fed. Rep., 321; Thompson v. Railway Co., 93 Fed. Rep., 384; Troy v. Railroad Co., 99 N. C., 298; Railroad Co. v. White, 84 Vt., 498; Davis v. Railroad Co., 58 Wis., 646; Delaney v. Railroad Co., 33 Wis., 67; Griffiths v. Railroad Co., 14 L. T., 797; Cooley on Torts, 605; Railroad Co. v. Griffin, 100 Ind., 221; Cusick v. Adams, 115 N. Y., 55; Barry v. Railroad Co., 92 N. Y., 289; Byrne v. Railroad Co., 104 N. Y., 362; Railroad Co. v. Bingham, 29 Ohio St., 364; Pennsylvania Railroad v. Snyder, 55 Ohio St., 342; Transfer Co. v. Field, 97 Fed. Rep., 881; Beard v. Railroad Co., 48 Vt., 101; Railroad Co. v. Trautwein, 52 N. J. L., 169; Railroad Co. v. Long, 81 Tex., 253; McDonald v. Railroad Co., 26 Iowa, 124; Bueneman v. Railroad Co., 32 Minn., 390; Patten v. Railway Co., 32 Wis., 524; Railroad Co. v. Hammer, 72 Ill., 347; Hydraulic Works v. Orr, 83 Pa. St., 332; Schilling v. Abernethey, 112 Pa. St., 437; Railway Co. v. Crosnoe, 72 Tex., 79; Kinchlow v. Elevator Co., 57 Kans., 374; Purnell v. Railroad Co., 122 N. C., 832; McKone v. Railroad Co., 51 Mich., 601; Bennett v. Railroad Co., 102 U. S., 577; Railway Co. v. Lowell, 151 U. S., 209; Keefe v. Railroad Co., 142 Mass., 251; Lucas v. Penn. Co., 120 Ind., 205; White v. Railway Co., 89 Ky., 478; Watson v. Land Co., 92 Ala., 320; Patterson Ry. Acc. Law, 222; 2 Wood on Railways, sec. 1389; 2 Shear. & Red. on Neg., 410; Wharton on Neg., sec. 376; Clark v. Howard, 88 Fed. Rep., 199; Davenport v. Ruckman, 37 N. E., 568; Ohliger v. Toledo, 10 Circ. Dec., 762; 20 C. C. R., 142; Chicago v. Babcock, 143 Ill., 358; 2 Thompson on Neg., 1197; Beach on Contrib. Neg., sec. 246; Low v. Railway Co., 72 Me., 313; Bronson v. Oakes, 22 C. C. A., 520; Railway v. Wright, 54 Ohio St., 181; Railway Co. v. Murphy, 50 Ohio St., 135; Railway Co. v. Howard, 40 Ohio St., 6; Brisbane v. Martin, 19 App. Cas., 252; Railroad Co. v. Buck, 96 Ind., 346; Lapleine v. Railroad Co., 40 La. An., 661; Stewart v. Ripon, 38 Wis., 584; Railway Co. v. Kemp, 21 Md., 74; Ehrgott v. Mayor, 96 N. Y., 265; Scott v. Shepard, 3 Mil., 403.
   Shauok, J.

The station house with its appropriate rooms and the platforms were obviously adapted to the use of the two roads in the interchange of traffic. They were so used. Passengers desiring to transfer from one road to the other were, therefore, invited to use them for that purpose. And this invitation implied an undertaking that the platforms were reasonably safe for that purpose. It follows that if the plaintiff had received his injuries while making his way with reasonable care to the ticket office or waiting room his right to recover would be entirely clear.

But he entered upon the platform with an intention previously formed not to use it for that purpose. Pursuing that intention he set out to use the platform and the track of the company as a way to reach the village a half mile distant, and having knowingly passed the ticket office and waiting rooms where employes would have provided him with a ticket and with information of the movement of trains, if he was not already informed, he had reached a point somewhat more than two hundred feet from the office when he received his injuries. The duties which the company owed him were such only as arose out of the relation to it which he had thus voluntarily assumed. ,It is said that the frequency with which the platform and track were used by footmen as a way to pass from the vicinity of the junction to the village, and the long continuance of that use, raise a presumption that those who represented the company in charge of its ground had knowledge of the use, and that from acquiescence with knowledge, permission may be inferred. If this is conceded it will serve no further purpose than to place the plaintiff in the position of one so using the platform and grounds of the company by permission. But there is no ground for the contention that the company had invited the plaintiff and others to use the platform and track for the purpose which he had in view. It is quite true that the invitation to go upon the platform of a railway company is usually implied from the community of interest, that is, the interest of the traveler in being transported and of the carrier in transporting him. Here, however, was no community of interest. It is conceivable that the condition of the ways and commons gave to footmen an interest in so using the platform and track, but that the company was interested in having them so used is inconceivable. It is the subject of frequent observation that footmen use the bridges of railways for their convenience in the crossing of streams, but has it ever been heard that in consequence of such use railway companies become bound to cover the openings between the ties so as to make their bridges safe for the passage of footmen? No such obligation arises, for it is the settled rule upon the subject that one who enters upon the premises of another by mere sufferance and permission assumes the risks which arise from concomitant conditions. This proposition is established by the case of P., F. W. & C. R. R. Co. et al. v. Bingham, Admx., 29 Ohio St., 364, where Boynton, J., has carefully analyzed numerous cases relating to the subject. Further discussion of it cannot be necessary.

But it is urged that in the circuit court it was thought, and rightly, that the judgment under review was required by the later case of Harriman v. Railway Co., 45 Ohio St., 11. Attention to the facts presented in the cases will show that in the legal view they are materially different. In the present case there has been a recovery because the end of the platform as it had been constructed six years before the accident and maintained without change, was not constructed or guarded so as to make it a safe way for footmen passing from the junction to the village, although such use was not within any invitation which the company extended to the public. While in Harriman v. Railway Co., the recovery was by one who was upon the grounds of the company by permission only, the injury was not occasioned by any real or alleged defect in the construction of the road. The injury there resulted from the operation of the road. The doctrine’ of the ease is that when the company became aware that persons were using the road for purposes of their own it became its duty, not to alter the construction of its road, but to operate it consistently with the facts thus known to it. It was held to be a violation of that duty to add new and further peril to such permitted use without taking precaution against injuries which would naturally result therefrom. Not only does such added peril from the operation of the road appear as a fact in the case, but in the syllabus it is stated as a ground of recovery; and in the opinion the question for decision is stated as follows: “An owner may, without protest or objection, permit his premises to be used by the public so long, in the same condition, that his acquiescence in the continuation of such use, until some warning or notice on his' part, might reasonably be expected; and if under such circumstances and with knowledge of the same, he should place or leave some new, dangerous structure or instrument in the way so used, and from which he might reasonably apprehend danger of injury to those accustomed to such use, can he claim exoneration from liability in case such injury shall occur, on the ground that the law imposed no duty on him to keep his premises in a safe and suitable condition for trespassers and licensees who enter by permission only?” The case therefore recognizes the doctrine of the former case, which we follow here with approval. It follows that there was no evidence tending to show a default of the company in any duty which it owed to Aller, that the instruction given with respect to its duty was not applicable to the case, and the requested instruction upon that subject should have been given. If we had reached a different conclusion upon this question, very serious consideration would be due to the evidence in support of the company’s allegation that the injury to the plaintiff below was due to his own negligence, and to the instructions given and requested with respect to the subject of contributory negligence. But that subject need not be considered in view of our conclusion upon the first question. For the reasons stated we adhere to the judgment heretofore entered and announced reversing the judgments of the circuit and common pleas courts.

Burkbt, Spear and Davis, JJ., concur.


author: Davis, J.

text:
    Crooks & Co. v. The Eldridge & Higgins Co.

      Breach of contract — Petition to¡ recover purchase price paid for goods — Must show goods of no value — Or reasonable rescission of contract, when — Claim of misrepresentation of goods by sample — Plaintiff’s petition must allege, what — -Instructions to jury — Measure of amount plaintiff may recover.

    1. A petition to recover the whole purchase price paid for goods, must show either that the goods were of no value, or that the plaintiff, within a reasonable time rescinded the contract and restored or offered to restore to the defendant all of the goods purchased, so that the defendant may be put in statu guo.

    2. A petition in which the plaintiff alleges that' he paid to the defendant a certain sum for goods, and also a certain other sum for freight and other expenses connected with the sale and delivery of the goods; and that the goods when delivered to the plaintiff were not as represented and did not correspond to the sample by which the plaintiff was induced to purchase, and also that the goods were unmerchantable, unmarketable and unfit for use, and praying for the recovery of the entire consideration paid and also the money paid in connection with the sale and delivery of the goods, does not state facts sufficient to constitute a cause of action for damages for breach of contract of sale with warranty; and an instruction to the jury that if they were satisfied, by a preponderance of the evidence, of the truth of the facts set forth in the petition, the amount of the plaintiff’s recovery should be such amount as the evidence shows the pJaintiff paid the defendant for the goods, and the expense incurred in connection therewith, not to exceed the amount claimed in the petition, less the value, if any, of the goods in the plaintiff’s possession, is erroneous.
    (Decided March 12, 1901.)
    Error to the Circuit Court of Franklin county.
    The facts are sufficiently stated in the opinion.

      Harrison, Olds & Henderson, for plaintiff in error.
    The plaintiff below was entitled to recover in this action only, if at all, upon the cause of action set forth in the petition. Durbin v. Fisk, 16 Ohio St., 533. Ashbrook v. Hite, 9 Ohio St., 357.
    The action is an action for money had and received, where the special circumstances which are supposed to create the liability, or to raise the promise, to pay back the money sued for, are set forth. American National Bank v. Wheelock, 45 N. Y. Sup. Ct., 205.
    The use of the common count for money had and received is not good pleading in Ohio. McNutt v. Kaufman, 26 Ohio St., 127; Middleport Mills v. Titus, 35 Ohio St., 253; Sparrow v. Hosack, 40 Ohio St., 253.
    The law of Ohio is not deficient, but on the other hand it has provided what the remedies of the seller are and what the remedies of the buyer are. The remedies of the buyer, and all of his remedies, are stated in Swan’s Treatise (10 ed.), 783-4. Stated in analytic form, but in the exact words of that author, the buyer’s remedies are as follows:
    1. (a) When the buyer of property is deceived in respect to its quality, and (b) there has been an express or implied warranty which covers the defect, he may sue on the contract of warranty.

    2. (a) If the seller has intentionally and actually deceived the buyer, as to the quality of the goods, either by concealment or misrepresentation; {%) it is a fraud for which the seller is liable, whether there was a warranty or not; (y) and the buyer may, if he choose, sue (1) on the contract of warranty, or (2) for such fraud; if there was both a warranty and a fraud.

    3. (a) When there has been a special contract as to quality and price of the goods, (b) if the goods delivered do not correspond with the contract, (1) the vendee may repudiate the goods and return them; or
      (2) lie may give notice to the vendor to take them back, after he has given them,a reasonable trial; etc.
    4. (a) If the goods supplied do not correspond with the contract, (6) and the vendee retain them, he may, without having given any notice of their defect, set up their inferiority as a defense to an action on the contract; etc.
    The action in the case at bar does not fall within the first, second, third or fourth of these stated remedies. Dayton v. Hooglund, 39 Ohio St., 671. But the buyer cannot, while still retaining the goods, or any. part of them, bring an action to recover the contract price, or any part thereof, by reason of the total or partial failure of consideration growing out of any inferiority in the goods. The r.eason of this is, that, if he has paid for the goods he must return them to the seller and thus put him in the position he was before the contract of sale was entered into. Keener on Quasi-Contracts, p. 129; Steele v. Sanchez, 80 Iowa, 507; Coolidge v. Brigham, 1 Met., 547; Moyer v. Shoemaker, 5 Barb., 319; Lawton v. Howe, 14 Wis., 241.

      A party who would rescind a contract must restore to the other what has been received from him. Insurance Company v. Hull, 51 Ohio St., 270. Although there are exceptions to that rule, as stated in the last cited case, yet the case at bar does not fall within either the terms, reason or spirit of either that case or the case of Bebout v. Bodle, 38 Ohio St., 500, both of which are recognized exceptions to that general rule. This rule is also recognized as prevailing in this state by the case of Beresford v. McCune, 1 C. S. C. R., 50. Nor is the case at bar within the decision in Creighton v. Comstock, 27 Ohio St., 548.
    That money paid on a contract by a vendee cannot be recovered back by him unless there is a rescission
      of the contract, was, in effect, held in Ashbrook v. Hite, 9 Ohio St., 357; Reed v. McGrew, 5 Ohio, 375; Taylor v. Browder, 1 Ohio St., 225; Railroad Co. v. Steinfeld, 42 Ohio St., 449.
    There was no pretense of any return of the sugar, either to the seller or Kiser & Co., as the seller’s agents. The only pretense, if it amounts to such, is of an offer to return, which, whatever it was, was made to Kiser & Co., as the resident agents of the seller. The rule, or, at least, the better rule appears to be that when the parties reside in the same locality, an actual return, and not simply an offer to return, must be made; but Avhere the buyer and seller reside in different localities and they are dealing directly with each other, an offer to return is sufficient. Kauffman Milling Co. v. Stuckey, 37 S. C., 7.
    The rule is the same even if the goods Avere bought by sample and did not correspond thereto, or, if bought with a collateral contract of Avarranty which Avas not fulfilled. Fewell v. Deane (S. Car.), 22 S. E.; 43 S. Car., 257; Hoffman v. Hampton (1895), 65 N. W., 322; 96 Iowa, 319; Bank v. Skinner (Idaho), 43 Pac. Rep., 679; Lynch v. Curfman (Minn. 1896), 68 N. W. Rep., 5.
    Such offer must be definitely an offer to return, and unconditionally such. Leslie v. Evans, Van Epps & Co., 1 Clev., 273 (1878).
    The right to return goods sold by sample, as not being equal to the sample, is a right to return all or none. Telford v. Albro, 60 Ill. App., 359.
    The vendee under a contract of sale which is executory and entire cannot repudiate it in respect to a part of the goods and at the same time enforce it in respect to the remainder. Crane Co. v. Columbus

      Const. Co. (C. C. A.), 73 Fed., 984; Harzfeld v. Converse, 105 Ill., 534.
    A party cannot affirm a contract in part, and rescind it as to the residue. Wolf v. Dietzsch, 75 Ill., 205.
    He who has been induced to part with his property, by fraudulent representations or false pretenses on the part of the purchaser, may avoid the contract, and claim the return of his property. But the seller must act promptly; upon discovering the fraud, and he must return, or offer to return, whatever he has received upon it. Swan’s Treatise (10th ed.), 773; Frost v. Lowry, 15 Ohio, 200.
    Even if the pretended offer to return a part of the goods existed in point of fact, as we insist it did not, and was good as an offer to return, as we insist it was not, then we insist that the plaintiff completely waived any warranty there may have been in the sale of the sugar and all rights which it may have had by reason of such warranty. Byers v. Chapin, 28 Ohio St., 300; 10 Am. & Eng. Encyc., p. 108; Thompson v. Libby, 35 Minn., 443; Dounce v. Dow, 64 N. Y., 411; Morehouse v. Comstock, 42 Wis., 626; Locke v. Williamson, 40 Wis., 377; Prickett v. McFadden, 8 Ill. App., 197; Barton v. Kane, 17 Wis., 38; Cream City Glass Co. v. Friedlander, 84 Wis., 53; Benjamin on Sales (6th ed.), Sec. 703; Muller v. Eno, 3 Duer (N. Y.), 421; Reed v. Randall, 29 N. Y., 358; Pierson v. Crooks, 115 N. Y., 539.
    There is no averment in the petition that the plaintiff had not inspected the sugar at the time it was received and paid for, and so the testimony of Higgins tending to show that the plaintiff had not so inspected the sugar and did not know its kind or quality and that it did not correspond to the quality of sugar bought, was entirely incompetent. The plaintiff was not entitled to make proof of those matters except it had been alleged as part of the plaintiff’s cause of action. It was not so alleged. Ogden v. Beatty, 137 Pa. St., 197.

      T. E. Powell, for defendant in error.
    The facts stated in the petition justified a recovery by the plaintiff below from the defendant upon the following grounds:
    1. There was a special contract as to the quality of the goods sold.
    2. The goods delivered did not correspond with the sample or comply with the terms of the contract.
    3. There was an implied contract that the sugar was a merchantable and marketable article.
    4. The rule is that where goods are sold by sample, and on the faith of that sample a purchase is made, there is an implied warranty that the sample upon which the contract is made is a fair specimen of the goods.
    5. Upon the facts stated in the petition it is substantially averred that there was a warranty as to the quality of the sugar sold. No particular form of words is necessary to make a warranty, though the word warrant is generally used. Swan’s Treatise, 18th ed., p. 830; Parmlee v. Adolph, 28 Ohio St., 10; 19 Johns., 290.
    The evidence in the case fully justified the verdict. It was established beyond controversy that the sugar could not be used for any ordinary purpose, and as an article of commerce had no merit or value whatever. The sugar contained a large quantity of Prussian Blue, and whenever the sugar was used this coloring matter would instantly appear and discolor anything in which the sugar had been placed.

      It is expressly averred in this petition that there was no consideration for the money paid to the defendant below. That the sugar delivered for which the money was paid was worthless, unmarketable, unmerchantable, unfit for use, and did not correspond to the sample upon which it was sold. King v. Hutchins, 28 N. H., 561; Condon v. Perry, 13 Gray, 5; Leach v. Tilton, 40 N. H., 473; Fulton v. Insurance Co., 23 N. Y. S., 598.
   Davis, J.

The Eldridge & Higgins Company filed its petition in the court of common pleas, complaining, after formal averments, of Robert Crooks & Company, as follows:

“That the said defendant is indebted to the plaintiff in the sum of $1,012.56, which indebtedness was created and arose in the following manner, to-wit:
“On the 20th day of March, 1896, the'said plaintiff paid to the said, defendant the sum of $912.56 for 187 bags of granulated sugar containing 100 pounds each, and also $100.00 for freight and other expenses connected with the sale and delivery of said sugar.
‘“The said plaintiff further says, that the said 187 bags of sugar, when delivered to the plaintiff, was not as represented and did not correspond to the sample by which the plaintiff was induced to purchase the said sugar, and from which the said sale was made. The said sugar was also unmerchantable and unmarketable and unfit for use, and did not correspond to the sample exhibited to the plaintiff at the time of the purchase of the same.
“Wherefore, the plaintiff says, that there was no consideration for the payment of the said sum of $1,012.56, and the said plaintiff is entitled to recover the said sum of $1,012.56 from the said defendant.
“Wherefore, the plaintiff prays judgment against the said defendant for the said sum of $1,012.56, and its costs herein expended.”

The answer was a general denial.

The relief sought in this petition was not the recovery of damages, and the petition does not state facts sufficient to constitute a cause of action for damages. The contract between the parties is not set out, nor is the precise nature of the representations or warranty by the defendants, if any, alleged, nor the breach thereof. Professedly the action is for the recovery of the purchase money paid for 187 bags of granulated sugar, and the basis of the plaintiff’s claim is that the sugar was “unfit for use,” that is, of no value, and “that there was no consideration” for the payment of the money sought to be recovered. To sustain a recovery for the plaintiff under this petition, the plaintiff must show that the sugar was entirely worthless. If the sugar was proven to have any value whatever, the plaintiff could not recover the price paid for it without rescinding and averring and proving that it made, or offered to make, restitution of the entire lot of sugar purchased, within a reasonable time. 19 Encyclopaedia PI. and Prac., 71. There was no such allegation in this petition, and the proof was that the lot of sugar purchased was 250 bags, instead of 187 bags, and if any offer to return was ever made it was for no more than 187 bags. As there was no amendment or suggestion of amendment before or after verdict, .by far the largest part of the evidence embodied in the record was incompetent, under the issues. The trial court seems to have, in part, comprehended this, when the jury were instructed that “the plaintiff can only recover, if at all, upon proof of the special matters alleged in the petition. He cannot recover in this action upon any matters which are outside of the special matters alleged in the petition.” And yet the court, not only did permit testimony to be given upon matters outside of the special matters alleged in the petition, but, without ordering an. amendment of the petition, still further instructed the jury that if satisfied, of the truth of the facts set forth by the plaintiff in its petition by a preponderance of evidence, “the amount of its recovery should be such amount as the evidence shows plaintiff paid the defendant for said 187 bags of sugar, and the expense incurred in connection therewith, not to exceed the sum of $1,012,56, less the value, if the evidence shows there is any value, of the 187 bags of sugar, now in plaintiff’s possession.” This charge is distinctly broader than the claim set forth in the petition. Under the petition the plaintiff could only recover the price paid for the sugar* if the sugar was proved to be worth nothing; but under the charge, the plaintiff might recover the difference between the contract price for the sugar and expense incurred in connection therewith, and its actual value, not to exceed $1,012.56, that is, general damages, being the difference between the contract price and the actual value of the sugar, and special damages, being the expense incurred in connection with the sugar. This charge was not applicable to the case made in the pleadings. It is evident that the jury made up their verdict upon the measure of damages thus given to them by the court; for if they had found that the sugar was of no value at all their verdict must have been for the plaintiff for the full amount paid for the sugar, which it was not. But having found that the sugar had some value the jury must necessarily have: found for the defendant under the issues as made up and not amended. The court, however, required the jury to return a verdict for damages which were not claimed in the petition. In fact the common pleas court seems to have tried this case on the theory that it was a case for damages, although the jury were emphatically instructed that the plaintiff could recover only upon the special matters alleged in the petition. In this we think there was substantial and prejudicial error.

It may be added that this instruction did not give to the" jury the true rule of damages. If the jury should have been instructed to compute damages at all, under the pleadings in this case, the measure of damages would be the difference between the value as represented and the actual value of the sugar, together with any special damages which might be alleged and proven. The measure of damages given by the court was the difference between the contract price and the actual value of the sugar, not to exceed the entire purchase price, and freight paid, which freight was claimed in the petition, but not distinctly and properly alleged as special damages.

The judgment of the court of common pleas and the judgment of the circuit court affirming it are

Reversed.

Shauck, Spear and Burkbt, JJ., concur. Min shall, C. J., being absent, did not sit in the case.


author: Sfeae, J.

text:
    Cheney v. The Maumee Cycle Company et al.

      Receiver for insolvent corporation — “For all the property and assets,” etc. — Order of appointment embraces real estate,,when —Mortgage of realty not delivered to recorder before receiver appointed not a lien against receiver, when — Assets of such realty go to general creditors.

    1. An order appointing a receiver for an insolvent corporation which in terms makes him “receiver for all the property and assets of the company, of every kind and description, wherever located,” -is sufficiently broad to embrace the real estate of the corporation, and is not invalid as respects such real estate because of the fact that the petition and motion in the case in which the order is made do not in terms refer to real estate, but, allegations otherwise being sufficient, prays “that the court will appoint a receiver to take charge of all the property and assets of the company.”
    2. A mortgage of real property which has not been delivered to the recorder of the proper county for record before the appointment of a receiver for the property of the mortgagor, is not a valid lien upon the property as against the receiver, and the receiver, for and in the interest of general creditors, is entitled to the proceeds of sale of such mortgaged premises in preference to the mortgagee.
    (Decided March 12, 1901.)
    Error to the Circuit Court of Lucas county.
    Plaintiff’s action was brought in the common pleas of Lucas to foreclose a mortgage given to him by the Maumee Cyele Company, January 14, 1896, to secure the payment of a note for $6,266.00 due in two years with interest. The mortgage covered lands in Toledo on which was situate the factory building of the defendant Company, and was filed for record in the recorder’s office July 30,1898. Titus B. Terry,.receiver, and the First National Bank of Toledo, were made defendants. Terry filed answer and cross-petition.

      By the record in this case and in No. 6795, between the same parties, it appears that on June 15, 1898, the defendant bank recovered a judgment against the Company for $3,309.62 and that an execution that day-issued was levied by the sheriff upon the personal property of the Company, consisting, of all the machinery, manufactured and unmanufactured stock, being substantially all the tangible personal property of the corporation and necessary in the transaction of its business, and the sheriff took possession of the same. The Cycle Company Avas at the time insolvent. Afterwards, but upon the same day, the bank filed a petition for the appointment of a receiver, setting up its judgment and execution, the levy thereof; that the Company is indebted to the bank and other creditors to the sum of $27,000.00 and upwards; that it is unable to meet its obligations as they mature and is insolvent; that if its business can be temporarily continued and its property kept together, to the end that it may be sold as a going concern more can be realized therefrom than in any other way, and if the property is alloAved to remain in the hands of the sheriff and be sold on execution the same Avill be sold at a great sacrifice and the good will of the business as a going concern destroyed, to the damage of all the creditors of the corporation, and praying that a receiver be appointed to take charge of all the property and assets of the Company and to carry on the business until such time as the same can be sold for the benefit of the creditors, and that the property, assets and good will may be ordered sold, etc., etc. Thereupon, on due notice to the defendant Company and by its consent, a receiver was appointed and ordered to take charge of all the property and assets of the Company of every kind and description, wherever located, to collect outstanding debts, etc., to carry on, conduct and manage the business of the Company, etc., subject to further order. The sheriff was ordered to turn over to the receiver all the property levied on by him, which was done, and all the property of the Company, including the said factory building, machinery and real estate, passed into the possession of the receiver and so remained until sold as hereinafter stated.
    On November 22, following, the plaintiff, Cheney, having become a party, filed a motion to vacate and set aside the order of appointment, and the discharge of the receiver, on the ground that the petition was not sufficient to authorize the appointment of a receiver and that the court had no jurisdiction to appoint the receiver. Cheney was, at the time the receiver was appointed, .and continued to be, a director of the Company and its president, owning one share of stock and was a creditor by reason of his note and mortgage. The motion was overruled to which proper exception was preserved.
    Under the order of the common pleas a sale of the premises was made and the proceeds brought into court for distribution. Trial was afterwards had in the common pleas and from its judgment an appeal was taken to the circuit court whose judgment is brought by the plaintiff to this court for review.

      Seney & Johnson, for plaintiff in error.
    If “all the property and assets of every kind and description wherever located” should be construed to include the real estate, the order thus made by the court would be void for want of jurisdiction, in so far as it embraced the real estate, for the reason the subject matter, viz., real estate, was not brought before the court by any statement or claim of the parties. Spoors v. Coen, 44 Ohio St., 497; 20 Am. and Eng. Enc. of Law, pages 83, 100, 327; Beach on Receivers, Sec. 508; Crow v. Wood, 13 Beavan’s Reports, 273.
    Hence we insist that the receiver in this case was never appointed over the real estate upon which the mortgage was given, and hence the mortgage is the first best lien upon the premises, notwithstanding it was not filed for record until after the appointment of the receiver.
    For it again must be borne in mind that a receiver with such limited powers is solely and alone a representative of the corporation, and no one else. This unrecorded mortgage thus being clothed by being recorded before the receiver had any additional powers, viz., to represent creditors upon the order being obtained to sell the property for their benefit, it thus became by being recorded a legal lien upon the property, not only valid against the corporation but against every one else. Smith on Receivership, Sec. 62, page 145; lb. Sec. 38, pp. 112, 113; Matthews v. Cooper, 49 N. Y. S. R., 792; Van Rown v. San Francisco, Sup. Ct. 58 Cal., 358; Davis v. Bonney, 89 Va., 755; Smith on Receivership, part —, Sec. 44, page 126; Bank v. Bank, 106 U. S., 236; Smith on Receivership, Sec. 59, page .142; Sec. 67, page 149; Gill v. Finney’s Admr., 12 Ohio St., 38; Montgomery v. Merrill, 18 Mich., 338.
    It was urged in the court below and it appeared to have considerable force in that court that the receiver was entitled to this fund as against the mortgage of the plaintiff, for the reason that the mortgage was not left with the recorder for record before the receiver was appointed, and this by virtue of Section 4133 of the Revised Statutes.

      If what we have attempted heretofore to impress upon the court as the reason why the decree of the circuit court should be reversed should avail nothing, we still maintain that this section of the statute has no application to the case at bar, and that the decree of the circuit court should be reversed on well-known equitable principles. Beach on Receivers, Sec. 324; Stansell v. Roberts, 13 Ohio, 148, 155; White v. Denman et al., 1 Ohio St., 110; Fosdick v. Barr, 3 Ohio St., 471; Bloom v. Noggle, 4 Ohio St., 49; Betz v. Snyder, 48 Ohio St., 492; Wright v. Bank, 59 Ohio St., 80.

      Smith & Beckwith and R. S. Holbrook, for defendant in error, Titus B. Terry, receiver.
    The general rule relative to the form of orders appointing receivers is laid down in High on Receivers, Sec. 87; Beach on Receivers, Sec. 508.
    It is familar practice that orders appointing receivers for large manufacturing plants, railways and other similar properties, describe the property placed in the hands of the court in general terms, and that no particular nor definite description of the real estate over which said receivers are so appointed is ever made in such orders. The same is also true of the form of deeds of assignment. Bank v. Werk, 9 Dec.(Re.) 770 (17 B. 124); Barton v. Morris, 15 Ohio, 408.
    But there is another aspect of this case which also renders plaintiff’s position relative to the insufficiency of the order appointing the receiver wholly untenable. At the time of the appointment of such receiver, the Maumee Cycle Company was insolvent and had ceased to prosecute the objects for which it was created. Hence under the principles laid down so clearly and emphatically by this court in the case of Rouse v.
      Bank, 46 Ohio St., 493, “the rights of the creditors” of such company, thereupon, “became fixed instantly and equally.” Its property then became a trust fund for such creditors, a fund in which their equities were equal. Belmont Nail Co. v. Columbia Iron & Steel Co., 46 Fed. Rep., 8.
    In view of the foregoing, we submit—
    1. That the order of the court appointing the receiver herein was sufficient by its terms to include the real estate of the defendant company.

      2. That such order and the possession taken thereunder by the receiver of the real estate of the defendant, was clearly sufficient as against the plaintiff, a director and president of such defendant.
    3. That the insolvency of the company and its failure to perform its corporate functions' immediately impressed all its property with a trust for the equal benefit of its creditors and vested the court with complete jurisdiction over the same, to the exclusion of any creditor seeking to assert a preferential lien thereon.
    Cases involving the construction of statute as applied to unrecorded mortgages have been brought before this court in almost every conceivable form, and in all such cases a uniform line of decisions has been rendered, holding substantially that while unrecorded mortgages are good and effectual between the parties, they are “entirely nugatory as to third parties, both at law and in equity, until théy are recorded.” Fosdick v. Barr, 3 Ohio St., 471, and earlier cases cited; Bloom v. Noggle, 4 Ohio St., 45; Erwin v. Shuey, 8 Ohio St., 509; Betz v. Snyder, 48 Ohio St., 492.
    This brings us to a brief consideration of the character and functions of a receiver. Bank v. Bucking

      ham, 12 Ohio St., 419; Railway Co. v. Sloan, 31 Ohio St., 1; High on Receivers, Sec. 5.
    The receiver,' while representing the court appointing him, likewise represented the creditors of the company, substantially the same as an assignee.
    While it is true that there are no decisions in our own state covering this exact point, yet we are favored by recent decisions of the courts of other states, which clearly establish the principle for which we contend. They are briefly as follows, viz.: Hebberd v. Land & Cattle Co., 55 N. J. Eq., 18; Graham Button Co. v. Spielmann, 50 N. J. Eq., 120; Wilcox & Howe, In re, 70 Conn., 220; Bayne v. Brewer Pot. Co., 90 Fed., 754; Farmers Loan & Trust Co. v. Minneapolis, 35 Min., 543; High on Receivers, Sec. 454; Smith on Receivers, Sec. 231.
   Sfeae, J.

The case having been fully and adequately reported by the circuit court (20 O. C. C., 19), opinion bv Haynes, J., but little more is necessary here than to state the conclusions to which this court has arrived. .

The questions arising upon the record are: Did the order of the court that appointed the receiver include the real estate of the defendant Company? And if it did, is the receiver entitled, to the funds arising from the sale of the mortgaged property in preference to the mortgagee by reason of the fact that the mortgage, though executed before the appointment of the receiver, Ayas not delivered to the recorder for record until after such appointment?

1. Objection is made to the sufficiency of the order to embrace the real estate because neither the petition nor the motion on which the receiver was appointed describes .or refers to real estate. True it is that real estate is not specifically mentioned in either the petition or motion, but the petition,' having set forth adequate grounds for the appointment, including the allegation that if the personal property seized in execution, being all the personal property and assets, should remain in the hands of the sheriff and be sold under the writ, the good will of the business as á going concern would be destroyed (thus showing that it was.no longer able to carry on its. business), prays that the court will appoint a receiver to take charge of all the property and assets of the Company. Then follows the order making the appointment of a receiver for all the property and assets of the Company, of every kind and description, wherever located. He was thereupon authorized to collect debts, to conduct and manage the business heretofore carried on by the Company, etc., etc. The defendant Company, and all persons having any property belonging to it, were ordered to surrender the same to the receiver. Thereupon the receiver, having qualified, proceeded to take possession of all the property of the Company of every kind and description, including real estate, and to further carry out the order of the court. All this was done with the full knowledge and consent of the Company, and without any suspicion of fraud or improper practice. How could a creditor of the Company be heard afterward to object? Most of all, how couid the president of the Company be heard? We think he could not. The petition sufficiently describes, and the order sufficiently includes, the property sought to1 be subjected to the jurisdiction of the court, and satisfies the rule that the order should distinctly state over what property the receiver is appointed in order that persons dealing with him may know what property is in possession of the court by its officer. (High on Bee., sec. 87.) It is all the property. Nor is the validity of the order affected by the fact that the petition does not specifically refer to real estate. Even though it be defective for lack of fullness of statement, such defect would be cured by the appearance and consent of the Company. (High on Bee., sec. 86.) The order is as full and definite as is usual in orders appointing receivers for railways, large manufacturing concerns, and the like, and as full as many deeds of assignment and other conveyances which have been sustained by the courts. High on Bee., sec. 453; Barton v. Morris, 15 Ohio, 408; Bank v. Werk, 17 W. L. B., 174. Slight imperfections in the pleadings, or irregularities in the proceedings, if they exist, become unimportant in view of the well established general rule that the property of an insolvent corporation Avhich has ceased to do business, and to carry out the objects of its creation, constitutes a trust fund for the equal benefit of its creditors, and the conclusion which inevitably follows that, upon the filing of the petition and service on the corporation and its answer admitting the truth of the charges and consenting to the granting of the prayer, the court’s jurisdiction attached to all the property of the corporation, and its poAver to administer it for the benefit of all the creditors was complete. Rouse v. Bank, 46 Ohio St., 493; Belmont Nail Co. v. The C. I. & S. Co., 46 Fed. Rep., 8.

2. It is to be noted that the mortgage, though executed months prior to the commencement of the action, Avas not delivered to the recorder for record until July 30,1898, forty-five days after the appointment of the receiver. The distinct provision of section 4133, Bevised Statutes, being that “All mortgages * * * shall take effect from the time the same are delivered to -tlie recorder, of the proper county for record,” it would follow that this mortgage could not operate as a lien to affect the rights of creditors prior to the above, date, nor, as ■ against the receiver, provided the receiver represents the general creditors. That an assignee by virtue óf. a general assignment for the benefit of creditors so represents creditors, and that a mortgage of real property, not deposited with the recorder for record until after the taking effect of the assignment, creates no lien as against the assignee and the creditors, is distinctly held in Betz v. Snyder, 48 Ohio St., 492. The relation of an assignee and a receiver to the property of an insolvent debtor is in many respects similar. The one obtains title to and authority and power over the property by reason of the joint act of the debtor and the court; the other obtains a liké authority by the act of the court alone, not having the title, but standing as the ministerial officer of the court, his relation to the property being much like that of a sheriff or master in chancery. Bank v. Buckingham, 12 Ohio St., 419. His appointment is an equitable remedy, bearing the same relation to Courts of equity that proceedings in attachment bear to courts of law, the appointment being treated as an equitable execution. The purpose is to secure the means for satisfying the final order and judgment of the court in the action, and the effect of the seizure is to place the property seized in the custody of the court. Railroad Co. v. Sloan, 31 Ohio St., 1. By express provi - sion of section 5590, Revised Statutes, the receiver is given power, under the control of the court, to take and keep possession of the property, and generally to do such acts respecting the property as the court may authorize. This statutory provision establishes a legal Tight, and this legal right is not affected by the fact that it is conferred in an action in its nature equitable, nor by the fact that it is to be enforced against a claim which would have been good as between the claimant and the debtor. It follows from this that the effect of the appointment, and the seizure of the property by the receiver, was to fasten the claims of creditors upon it and to give that officer control over it for the benefit of creditors, and in this respect his relation to it was, for all practical purposes, the same as that which an assignee would have had. The property thus sequestered was held by the receiver as effectually as an assignee could have held it, .or as creditors could have held it by attachment or levy. In no other way than through him could the rights of creditors be worked out, and, in this aspect of the case, he represented the creditors rather, than the debtor. Graham Button Co. v. Spielmann, 50 N. J. Eq., 120, Hebberd v. S. L. & Cattle Co., 55 N. J. Eq., 18; In re W. & H. Co., 70 Conn., 220; Farmers’ L. & T. Co. v. M. E. & M. Works, 35 Minn., 543; Bayne v. Brewery Pottery Co., 90 Fed. Rep.; 754; High on Rec., Sec. 454; Smith on Rec., secs. 230, 231.

We think that, upon principle as well as upon the above authorities and.many others of like import which might be cited, the right of the receiver'to the property in dispute was a legal right to its possession with authority to manage it and dispose .of it for the benefit of creditors generally; that it antedated the taking'effect-of plaintiff’s mortgage, ■ and--that, therefore,, as1 between the plaintiff'and'the receiver, the proceeds of the sale belong to the ffitter. ’.

We find no error in the record in this case nor in case No. 6795, and both judgments will be

Affirmed.

Minshall, <3. .-J., and Williams,, Riie-plt, Davis and Shauck, JJ., concur.