text:
    The State of Ohio, ex rel. William Waddle, v. Henry M. Pinto, City Clerk of Chillicothe.
    The sixth section of the “act to amend the act entitled an act to provide for the organization of cities and incorporated villages” (Swan’s Rev. Stat. 979), authorizes any city in which water-works are or may be situated, or in progress of construction, to establish a board of trustees of water-works.
    Where a city has no water-works situate therein, and has done no more than to authorize the borrowing of money for the purpose of constructing waterworks, an ordinance establishing a board of trustees of water-works is premature and unwarranted, and such board may be legally abolished by the repeal of such ordinance.
    Motion for a peremptory mandamus.
    On the 9th of May, 1857, on the application of the relator, an alternative writ of mandamus was issued out of this court to the defendant, reciting, among other things, that under the authority of the provisions of an act of the general assembly, “ to amend the-act entitled an act to provide for the organization of cities and incorporated villages,” passed March 11,1853, the city ^council of Chillicothe, on the 23d day of July, 1853, adopted an ordinance-“for borrowing money for the erection of water-works,” and that, in pursuance of said ordinance the electors of the city, by a vote-on that question duly submitted to them, did approve of a loan of' $70,000 being made by the city, for the erection of water-works, and of the bonds of the city being issued therefor. That on the-13th day of October, 185.3, said city council adopted another ordinance “providing for the trustees of water-works,” in pursuance-of which three trustees were, on the second Tuesday of November,. 1853, duly chosen by the electors of the city; one for the term of one year, one for two years, and one for three years. That said-trustees, in pursuance of an ordinance of March 9, 1854, “ establishing a board of trustees of water-works, and defining the duties-thereof,” did severally enter into bond with sureties, to the acceptance of the city council, conditioned for the honest and faithful-performance of his duties as such trustee.. That in pursuance of certain resolutions adopted by the city council, April 28,1855, the-president of the council caused the bonds of the city to be duly executed for $70,000, under the seal of the city, to be applied to. the-raising of said sum of money for the use and purpose of erecting-water-works in said city, and that said bonds were delivered by the-mayor to the trustees then in office. That said board of trustees-has been perpetuated by annual elections in said city, and that on the first Monday of Ajxril, 1857, at the election held to choose officers for the city, the relator, William Waddle, was duly elected a-trustee of water-works for the term of three years; but that the-defendant, Henry M. Pinto, city clerk of Chillicothe, has refused, and still refuses, to give to said Waddle a certificate of his election to said office of trustee. , . „
    The alternative writ therefore commands said city clerk, immediately upon the receipt of the writ, to make and deliver to said Waddle a certificate in due form of law of his election to said office of trustee for the term of three years from the first Monday of April, a. d. 1857, or that he make answer to the court on the 14th. of May, 1857, why he has refused and still refuses so to do.
    *The defendant, still refusing to issue the certificate to Waddle, returned the alternative 'writ with his answer, in which he says : “ That he admits the several matters and things stated in the petition filed herein to be true in manner as therein stated; but says that on the 31st day of March, 1857, there being then and there no water-works situate in said city, or in progress of construction therein, the said city council of the city of Chillicothe 'passed an ordinance entitled < an ordinance abolishing the board of trustees of water-works,’ whereby it is enacted that the ordinance entitled ‘ an ordinance establishing a board of trustees of water-works, and defining their duties,’ passed March 9, 1854, be and the same is hereby repealed; which said ordinance took effect from and after the day of its passage; a copy of which ordinance is hereunto annexed.”
    The relator demurs to this answer, on the ground that it does not state facts constituting a defense to the writ.

      John L. Green and A. G. Thurman, for the relator.

      Miller & Blacker, and W. BT. Safford, for defendant.
   Brinkerhoff, J.

The sixth section of “the act to amend the •act entitled ‘ an act to provide for the organization of cities and incorporated villages,’ ” passed March 11, 1853 (Swan’s Rev. Stat. '979), provides, that “the city council of any city in which waterworks are, or may be situated, or in progress of construction, shall establish a board of three trustees, to be known as the trustees of wat§r-works, who shall be elected by the qualified electors of the •city, and hold their offices for the term of three years,” etc.

On the part of the relator, it is contended that, by the facts •stated in the alternative writ and admitted in the answer, the city • of Chillicothe is brought within the category of cities which, by the terms of the section above quoted, of the act of March 11, 1853, are authorized to establish a board of trustees of waterworks, and that a board thus provided for, in obedience to express •statute, can not be abolished by mere ordinance of the city council.

*On the other hand, the defendant contends that, upon the facts stated in the pleadings, the city of Chillicothe is not within the conditions prescribed in said section, and that, therefore, the ordinance establishing a board of trustees of water-works was premature and unauthorized, and that the board thus prematurely and unwarrantably established, was legally liable to be abolished by a ¿repeal of the ordinance establishing it.

Now, if the city of Chillicothe had water-works situate therein, or had them in progress of construction, then the basis of the relator’s argument is made out, and the conclusion, perhaps, for which he contends, legitimately follows. But, how are the facts? It is not alleged or pretended that Chillicothe ever had waterworks actually situate within her ; nor is it alleged that any money has ever been borrowed, or levied, or raised by taxation, for the construction of water-works, or that any contract has ever been made for that purpose, or that a shovelful of earth has ever been excavated, or 'one stone placed upon another. Taking everything alleged in the alternative writ as true, it does not appear that anything more has been done than to authorize the borrowing of money for the purpose of constructing water-works. Does this bring her within the terms of the statute, as having water-works iñ progress of construction ? We think not. It does not appear that one of her bonds has ever been negotiated, or that a dollar has ever found its way into the city treasury by any moans whatsoever, for the construction of water-works. How far the municipal authorities must go, and what precise acts will be sufficient to bring them within the condition of having water-works in “progress of construction,” it is not necessary for us to attempt to determine. It is enough that we are satisfied that a mere expression, by ordinance or otherwise, of the will and purpose of the municipality to engage in raising the means for the construction -of such works, does not bring them within the terms or the meaning of the statute.

For aught that appears in this case, the city may have been unable to negotiate its bonds on any reasonable terms; it may be unwilling to raise the necessary iunds by taxation; or the taxpayers of the city may have become satisfied that the project was -^improvident and ill-advised, and ought to be abandoned. And in either case, as no contract rights appear to have become vested, it seems to us that the municipality is legally, and ought to be, entitled to a locus pcenitentice. On the other hand, if the project of constructing waterworks has been improvidently abandoned, or ought to be revived, it would seem that the citizens have a plain and adequate remedy at the ballot-box.

Demurrer overruled, and peremptory writ denied.

Bartley, C. J., and Swan, Soott, and Sutliee, JJ„ concurred.


source: Caselaw Access Project

author: Scott, J.

license: Public Domain

text:
    William Bagaley & Co. v. Asa B. Waters and others.
    A. W., in contemplation of insolvency, and with the design to prefer a portion of his creditors to the exclusion of others, by written agreement sold and transferred to I. W. a stock of goods, together with notes and book-accounts, and also conveyed by deed certain real estate, amounting in the aggregate to about $30,000 in value, being the principal portion of the property owned by A. W.; in 'consideration whereof the said I. W. agreed to assume and pay off a number of debts owing by A. W. to sundry creditors, and upon which I. W. stood bound as surety for A. W., amounting in the aggregate to over $20,000, and also to assume and pay in full the specified claims of certain other creditors. Upon petition of the other creditors not provided for by the arrangement, seeking to charge I. W. as a trustee for the. benefit of all the creditors of A. W., under the act of March 14, 1853: Meld, that there being no allegation of any secret trust in the case, such absolute sale does not, per se, come within the operation of the statute.
    Demurrer to petition.
    Reserved from Washington county.
    On the 18th of March, 1854, Asa B. Waters„and Israel R. Waters-entered into a written contract, of which the material provisions are as follows:
    “That in consideration of the promise and undertaking of said Israel R. Waters, hereinafter stated, the said Asa B. Waters hereby sells to said Israel R. Waters the following-described ^personal property and claims, to wit.” Then follows a description of the property and claims, consisting of a large amount of cooper-stuff, a. store of goods, horses, wagons, harness, book-accounts, notes, railroad stock, etc., etc.
    “And the said Asa B. Waters, for said consideration, hereby sells, and agrees by a proper deed to convoy to said Israel R. Waters, city lot No. 705, in Marietta, Ohio, and all thereto appertaining.”
    The property thus transferred was worth about thirty thousand dollars, and was the principal portion of the property owned by Asa B. Waters.
    “ And the said Israel R. Waters, in consideration of said sale of the"’ above-mentioned property to him, hereby agrees to assume and pay, and does hereby assume the payment of the following debts, for the payment of which said Asa is now liable, to wit.” Then follows a specific description of the liabilities referred to, being certain debts of said Asa, amounting to over twenty thousand dollars, for which, said Israel and other persons were then liable as sureties of said Asa; and also certain other debts of said Asa, for which Israel was not liable.
    “And the said Asa B. Waters agrees that payment for said property, hereby sold as above stated to said Israel R. Waters, shall be made by said Israel as above stated, viz., by his hereby assuming the payment of the debts and liabilities above stated.”
    William Bagaley & Co., creditors of Asa B. Waters, but not among those whom Israel was to pay, on behalf of themselves and other creditors of said Asa, likewise unprovided for, filed a petition,against said Asa, Israel, and the preferred creditors, setting out said contract, and alleging, among other things, that said transfer of property to Israel was made by Asa in contemplation of insolvency, and with a design to prefer a portion of his creditors to the exclusion of others, and seeking to charge Israel as a trustee for the benefit of .all of Asa’s creditors, under the act of March 14, 1853, “ declaring the effect of assignments to trustees in contemplation of insolvency.”
    There is no trust expressed in the contract between Asa and Israel. The petition does not aver any secret trust.
    *The defendant creditors demurred to the petition. And the question thereby raised, to wit, whether said contract is an assignment to a trustee” under said act of' March 14, 1853, was reserved in the district court for decision here.

      Arius Nye and S. F. Vinton, for defendants.

      A. G. Thurman, for Israel R. Waters,
    presented the following points:
    I. The statute does not prohibit, or interfere with, an absolute sale of property by an insolvent debtor. Hull v. Jeffrey, 8 Ohio, 390, 391; Wilcox v. Kellogg, 11 Ohio, 394, 398, 399 ; Atkinson v. Tomlinson, 1 Ohio St. 237, 242, 243 ; Harkrader v. Leiby, 4 Ohio St. 609 ; Dickson v. Rawson, 5 Ohio St. 222. .
    II. It is no objection to such a sale, that the consideration thereof is an undertaking by the vendee to pay debts of the vendor.
    III. The statute does not prohibit the preferring of creditors, unless the preference be by an assignment in trust. A debtor may lawfully prefer: 1, by payment; 2, by confession of judgment; 3, by mortgage or pledge; 4, by an absolute sale upon the consideration that the vendee pay certain debts. See cases, supra.

      IY. The conveyance in question is an absolute sale, and not an assignment in trust.
    1. It purports to be an absolute sale, and no trust is expressed in it.
    2. No interest, legal or equitable, in the property, is created in any person but the vendee.
    3. The vendee became the debtor of the persons whose claims he agreed to pay, for the full amount of their claims, irrespective of the value of the property or the amount of its proceeds. See cases-next cited.
    4. Those creditors became entitled to actions at law, in their own names, respectively, against the vendee, for the full amount of their respective claims. Crumbaugh v. Kugler, 3 Ohio St. 549; *Thompson v. Thompson, 4 Ohio St. 353; Cumberland v. Codrington,3 Johns. Ch. 254; Starkie v. Starkie, Styles, 296; Green v. Horn, Cumb. 219; Dutton v. Poole, 2 Levinz. 210; 1 Vent. 318; T. Raymond, 302; T. Jones, 102; Martin v. Hind, 2 Cowp. 443; Douglas, 146; Whorewood v. Shaw, Yelv. 25; Shaw v. Sherwood, Cro. Eliz. 729; Feltmaker v. Davis, 1 Bos. & Pul. 102; Schemerhorn v. Vanderheyden, 1 Johns. 139; 1 Chitty’s Pl. 4-6.
    5. But the trusts contemplated by the statute are such as are-cognizable by a court of equity alone.

    But here, the creditors could sue at law; and, indeed, could sue in no other forum. Hence, the case is not within the statute.
    (a.) The statute is identical in purpose with that of 1838 (Swan's Stat., old ed. 717). Indeed, it is identical in language, except so far as the phraseology is changed in order to make judicial proceedings under it conform to the code.
    But the act of 1838 spoke in express terms of the trusts being under the “ control of chancery.”

    The existing act means the same thing by the expression “ control of the courts.”
    For the code does not abolish the difference between law and equity, but only the forms of procedure. See Code Commissioners’ Report, 7, 8; Nash Pr. 3.
    (b.) The authorities support this view. Harkrader v. Leiby, 4 Ohio St. 613. See also Hill on Trustees (2 Am. ed.), Introductory chap. 49; 2 Fonblanque’s Eq. 1, note A; Cooper’s Eq. 27, title Jurisdiction; Story’s Eq., see. 29; Ib., sec. 534; Dickson v. Rawson, 5 Ohio St. 222.

      V. No ease decides that an instrument like that under consideration is an assignment in trust.
    The cases in which transfers have been held to fall within the-statute are the following: Mitchell v. Gazzam, 12 Ohio, 315; Doremus v. O’Harra, 1 Ohio St. 45; Bloom v. Noggle, 4 Ohio St. 45; Harkrader v. Leiby, Ib. 602; Dickson v. Rawson, 5 Ohio St. 218.
    VI. The statute ought not to be extended by construction beyond the fair import of its words; and this case can not be ♦brought within such fair import. Doremus v. O’Harra, 1 Ohio St. 49, 50; Atkinson v. Tomlinson, Ib. 240-242.

      G. B. Goddard, for plaintiff:
    The form of the instrument will not definitely determine its-character. Blank v. Germun, 5 Watts & Serg. 36; Brown v. Webb, 20 Ohio, 389. The cases are common in which absolute deeds have-been treated as mortgages.
    I claim that any of the creditors enumerated in the agreement between Asa and Israel Waters might immediately havo proceeded in equity against them and the fund, had a receiver appointed, or security given by Israel that he would apply the proceeds of the sale to the payment of the debts.
    The very nature of the transaction clothes him with a trust — a resulting trust; and the creditors had instantly a right to invoke the aid of a court of equity to take care of the property placed in the hands of the trustee as a means of enabling him to pay their debts.
    A court of equity would restrain the sale of the property on the application of any of the enumerated creditors upon an allegation of contemplated fraud and mismanagement by the trustee.
    The petition brings the case within the statute. It is not necessary that the petition should aver the conveyance to be a trust. The name is of little consequence if the thing is there. Courts construe an absolute deed to be a mortgage. It is still an absolute-deed, and is so called,-but its legal effect is that of a mortgage. So-courts deal with conditional sales — strip off the artificial covering, with which a loan of money is sought to be disguised, and create mortgages and trusts not intended by the parties.
   Scott, J.

The question reserved in this case is thus stated in the order of reservation: “ Whether the contract entered into bv Asa B. Waters, as set forth in the petition, is an assignment of property, within the meaning of the act of assembly, declaring the effeet of assignments to trustees in contemplation of *insolvency ?” This question necessarily arises upon the demurrer of the defendant creditors.

The statute of 1853, referred to in the order, is in these words:

“ That all assignments of property in trust which shall be made by debtors to trustees, in contemplation of insolvency, with the design to prefer one or more creditors, to the exclusion of others, shall be held to inure to the benefit of all the creditors, in proportion to their respective demands; and such trusts shall be subject to the control of the courts, which may require security of the trustees for the faithful execution of the trusts, or remove them and appoint others, as justice may require.”

The allegations of the petition being admitted by the demurrer, we must regard the transfer of property made by Asa B. Waters to I. R. Waters, as having been made by a debtor, in contemplation of insolvency, with the design to prefer a portion of his creditors to the exclusion of others. But this is not enough to bring the case within the operation of the statute.

It is true that equality is generally the rule of equity. But, however equitable it may seem, that the assets of a failing debtor should be distributed pro rata among his creditors, it would be impracticable to enforce such a distribution in all cases, without taking away the necessary security, and so destroying confidence in the business transactions of every department of trade. At all events, the statute contemplates no such purpose. So far as it operates, it places all the creditors upon an equal footing. But it does not seek to prevent a debtor from applying his property to the payment in full of the bona fide claims of one or more creditors, though nothing be left for the satisfaction of other claims equally meritorious. One creditor may be amply secured 'by a mortgage, though the debtor have no means from which to pay or secure others. But there is one mode, in which a debtor is not permitted, in contemplation of insolvency, to exercise this conceded right of preference.

The sole object of the statute is to prevent his effecting this purpose by an assignment in trust. And this it does, not by making such assignments void, but by declaring that they “ shall *be held to inure to the benefit of all the creditors, in proportion to their respective demands.”

In the case before us, it is not charged that the contract of sale set out in the petition, was merely colorable; no. secret trust is claimed to exist, nor any agreement touching the subject-matter, to have been made between the parties, other than the written contract. The question, then, is upon the proper construction and legal effect of this contract. Is it, though purporting on its face to be an absolute sale and conveyance of property, to be regarded, under the circumstances, as an assignment in trust, within the meaning of the statute ?

In Dickson et al. v. Rawson et al., 5 Ohio St. 218, it was well said by Chief Justice Eannoy: “ To bring the case within the operation of the statute, the conveyance must be in trust, and the person receiving the property thereby constituted a trustee for some one or more of the creditors of the debtor, to the exclusion of others. Whether it is so in trust, and the assignee or grantee such trustee, depends upon the question whether, by the terms of the instrument, or by necessary implication, ho is liable to account to the preferred creditor for the property in his hands, and for the manner in which he disposes of it. If a court of chancery, at the instance of the creditor, would compel him thus to account, the character of the transfer, and his own position, are thereby determined; and the statute then steps in and enlarges the trust, and makes it inure to the benefit of all the creditors, and distributes the fund to all, in proportion to their respective demands.”

The statute of 1853, now under consideration, is copied from the third section of the act of 1838 (1 Curwen, 424), and there is no good reason why the same construction should not be given in each of these acts, to the terms “ assignments of property in trust.” The act last referred to expressly declared the trusts therein spoken of, to be “subject to the control of chancery, as in other cases.” This provision is properly varied in the act of 1853, because the distinction between the forms of proceeding in chancery and at law was then abolished. But this does not change the character of the trusts referred to, which is expressed *in the same terms in both acts. They are trusts of which the jurisdiction and cognizance properly belong to courts of chancery.

Does, then, the written contract of the parties create a liability on the part of Israel E. Waters, to account to the preferred creditors,or either of them, for the property conveyed to him by Asa B. Waters, and for the manner in which he disposes of it? Would a court of chancery, at the instance of any or all of the preferred creditors, compel him thus to account?

The agreement purports, on its face, to be an absolute and unconditional sale of property, for which I. R. Waters, the vendee, agrees to pay to certain creditors of the vendor, the specified amounts in full, of their respective claims, forming in the aggregate a fixed and specified sum.

Now, in such a case, what remedy could a court of chancery afford to these prefei'red creditors, which they could not obtain at law ? An account could only become necessary for the purpose of ascertaining and fixing the extent of the vendee’s liability to them. But by the terms of the contract this liability is commensurate with their claims, which he has personally stipulated to pay in full. And that they could severally enforce this personal liability by actions at law, admits, we think, of no doubt. On this subject, the law is thus stated in 1 Chitty’s Pleadings, 5 : When a contract not under seal is made with. A to pay B a sum of money, B may maintain an action in his own name; but if the promise had been to pay A for the use of B, A is a trustee, and B, having no legal interest, can not sue.” In Starkie v. Starkie, Styles, 296, the case was this : “ The father gave goods to his son in consideration that, the son would pay the plaintiff twenty pounds.” Roll said : “ There is a promise in law made to the plaintiff, though there be not a promise in fact; there is a debt here, and assumpsit is good.”

The cases of Green v. Horn, Cumb. 219; Dutton v. Poole, 1 Vent. 318; Martin v. Hind, 2 Cowp. 443; and Whorewood v. Shaw, Yelv. 25; all affirm the same doctrine. So in Schemerhorn v. Vanderheyden, 1 Johns. 139, the court said: “ Where one person-makes a promise to another for *the benefit of a third person, that third person may maintain an action on such promise.”' And such is the settled law in this state. In Krumbaugh v. Kugler, 3 Ohio St. 549, the court say: “ If for a valuable consideration A promise B to pay C a sum of money, C may recover it, in an action of assumpsit against A.” And so in Thompson v. Thompson, 4 Ohio St. 353.

By the agreement in this case, then, the absolute legal relation of debtor and creditor was created between Israel R. Waters and each of the creditors whose claims he promised to pay; and upon his. failure to make payment, they might severally recover their judgments at law against him, and might, by execution, subject to the-satisfaction of those judgments, not only the property which passed to him by the contract, but all his other property not exempt from execution. This they could not do in chancery if he were a mero trustee. In that case, their equitable rights would be limited to 'the-property which passed to him by the assignment, or its proceeds.

The remedy of the creditors being thus full and perfect at law, to what end could they invoke the aid of a court of chancery?' If the contract were assailed on the ground of fraud, for gross inadequacy of consideration ; for a secret trust; for the insolvent or-irresponsible character of the vendee, or for a combination to prevent the bona fide application of the debtor’s property in payment of his debts ; and were it sought to set the sale aside on the ground of such fraud, there can be no doubt that, for such a purpose, a court of chancery would take jurisdiction. But this petition presents no such case; nor does the statute of which the plaintiffs here-claim the benefit, contemplate the setting aside of conveyances as fraudulent and void. Under its provisions, the transfer in this case, if found to be an assignment in trust, must be declared valid, but held to inure to the benefit of all the creditors; and such is the relief asked by the plaintiffs.

There are no stipulations in the contract which give to any of the creditors of the vendor, or reserve for himself any interest in the property transferred to the vendee. It purports to be an absolute sale, and it is not claimed to have been otherwise intended by *the parties. The amount and payment of the purchase money arc subjected to no conditions. The agreement applies the whole of it to the payment of the bona fide debts of the vendor; and that such payment has been accordingly made, in good faith, by the vendee, is not denied, but is, at least partially, admitted by the petition, and is fully set up in the answer of Israel R. Waters.

Does this sale become an assignment in trust, merely because of the preference given to creditors in the appropriation of the purchase money ? Had the price of the property been paid to the vendor, no one can doubt his legal right to have made such preference in its distribution. We do not see how the fact that the purchase money was paid, not directly to Asa B. Waters, but to his bona fide' creditors, at his instance, can convert that which would otherwise-have been an absolute sale into an assignment in trust.

Israel R. Waters was surety for his brother, Asa B., to the preferred creditors, in about nine-tenths of the whole price of the property sold. We think his right to secure himself by the purchase of property from his brother, by assuming the payment of those ■debts for which he thus stood bound as surety, can scarcely be questioned. 'The situation of the parties shows a reasonable motive for the transaction, consistent at least with legal honesty, and repels the suspicion'of fraud which might otherwise attach ; and the preference given by Asa B. Waters to creditors, in the distribution of the balance of the purchase money, being but a legal l’ight which he might exercise in any other mode than by an assignment in trust, will not authorize us to regard a tona fide sale as coming within the ■operation of the statute.

Without undertaking to review, in derail, the cases which have been held by our predecessors to fall within the statute, it may be safely said that none of them are similar to' the present case. In ■each of them that has not been overruled, the instrument which was held to be an assignment in trust gave to other creditors beside the assignees, or reversed for the assignor, an interest in the property transferred, or in its proceeds, and thus laid the foundation for chancery jurisdiction to compel an account. None of *themwas a case of absolute sale, in which the sum to be paid by the assignee was definitely fixed, without reference to the amount which he might realize from the property.

In each of them it will be found that the assignee held the property as mortgagee, or otherwise, in part at least, merely to secure •other creditors beside himself, or was to account for a residuum to the assignor. Such instruments might well be declared assignments in trust. But, in a case like the present, however much we •might desire to enforce equality of rights among creditors, we are ■not at liberty to accomplish this object by giving a construction to the statute which is wholly unwarranted by its terms.

The question reserved must, therefore, be answered in the negative.

Bartley, C. J., and .Swan, Brinkerhoee, and Sutliee, JJ., concurred.


author: J. R. Swan, J.

text:
    The Methodist Episcopal Church of Dayton v. John Rench's Administrator.
    Bench agreed to build a store-house for Brown that would bear the weight of six hundred tons of iron, etc. Bench, after partly finishing the building, of materials, etc., that would not bear that weight, died. Brown afterward put in the store-house less than six hundred tons, and the walls fell and injured1 the plaintiff’s building, for which this action was brought against Bench’s-administrator. Held, that as no cause of action accrued in the premises, to the plaintiff, against Bench in his lifetime, there was no cause of action; to survive against his administrator, under section 398 of the code.
    This is a petition in error to reverse the judgment of the court, of common pleas of Montgomery county.
    The case is as follows:
    John Rench partly completed a building in Dayton for Samuel *B. Brown. After Rench’s death the building fell to the ground and injured the plaintiff’s church edifice, on the adjoining lot.
    The plaintiff brought an action against Rench’s administrators, for damages for the inj ury. The cause was tried at th e March term, 1856, of the court of common pleas of Montgomery county; and a bill of exceptions was then taken, from which it appears that “ The plaintiff, to maintain the issue on his part, offered evidence tending to prove that the building mentioned in the petition, as-erected by John Rench, in his lifetime and under his supervision and direction, adjoining the church building of the plaintiff, was in fact so erected by John Rench, and under his supervision and direction, up to the 30th day of August, 1853, on which day he died; that said Rench had agreed and bound himself to build said building for Samuel B. Brown, in a manner, and of strength sufficient and suitable for an iron and groceiy-store, and capable of containing and holding six hundred tons of iron and groceries; that said Brown, about two months after Bench’s death, and in pursuance of his contract with Rench, began to put iron and groceries, and had, on January 5, 1854, in said building four hundred, and seventy-six tons, properly arranged and distributed through the building, in the manner such iron and groceries were usually .distributed and arranged in iron and grocery-stores; that the build--

      ‘ing, so far as completed in Reach’s lifetime, was erected and constructed in pursuance of his contract with Brown, but was defective and insufficient through his default, negligence, and unskillfulness in erecting and constructing it; that by reason of defects and insufficiencies in the material and construction thereof, which insufficiencies and defects were in the building prior and at the time ¡of John Rench’s death, and which were caused by his unskillfulness, neglect, and default aforesaid in his lifetime, it fell down on the 5th day of January, 1854, about four months after John Rench’s •death, under the weight and pressure of said iron and groceries, through the defects aforesaid, and while said Brown was in the ■occupancy of the same as aforesaid, and, in falling, occasioned the •damage to the church building to the extent and amount set forth in the petition. And the plaintiff, not proposing to offer any testimony tending to show that the building *was so defectively, insufficiently, and negligently constructed that it would have fallen ■of its own weight, nor claiming that there was any testimony in the case tending to show that it did fall, or would have fallen, from its own weight, or that there was danger of its falling of itself, the •court being of opinion that upon such state of facts, although established by the evidence, the plaintiff would have disclosed no ■cause of action, and would not be entitled to recover, the court overruled said testimony, and arrested the same from the jury, .and the plaintiff offering no further or other testimony, the court therefore directed a judgment of nonsuit to be entered. To which •opinions and several overruling of the court the plaintiff excepted.”
    It is claimed that the court erred : 1. In overruling said testimony and excluding it from the jury; 2. In entering the judgment •of nonsuit.

      G. L. Vallandigham and John Howard, for plaintiff.
    P. Odlin, Gonover & Craighead, and E. W. Davies, for defendant.
   J. R. Swan, J.

The plaintiff claims to recover under section 398 ■of the code, which is as follows:

“ In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of the person •entitled or liable to the same.”

The bill of exceptions shows that John Rench died on the 30th of August, 1853. At the time of his decease he had in part completed the building'for Brown. But defects in the materials and construction existed when he died; so that the building, about four months afterward, by reason of the weight of iron put into it by Brown, fell, and injured the plaintiff’s building. Rench was liable to an action by Brown for the insufficiency of the materials and unskillful construction; but Bench’s default in this respect did not, nor did anything which transpired before his ^decease, furnish the plaintiff a right of action against him in his lifetime. And as the facts which existed between these parties when Rench died constituted no cause of action against him — no specific wrong having been suffered by the plaintiff from Rench or his acts in his lifetime — there was no cause of action to survive the decease of Bench. The fall of the building did not necessarily result from defective materials or defective construction; it was as safe as any other building up to the time of Bench’s decease; the injury was occasioned by, and resulted from, its use afterward; and the plaintiff had no present interest in the execution of the contract in Bench’s lifetime as to the weight which the building would be able to bear.

We are therefore of the opinion that, under the facts stated, no cause of action accrued in the lifetime of John Rench.

These views are sustained by the cases of Kearny v. The Boston & Worcester Railroad Company, 9 Cush. 108; Hollenback v. Berkshire Railroad Company, 9 Cush. 478; Roberts v. Read et al., 16 East, 216.

Judgment below affirmed.

Bartley, C. J., and Brinkerhoee, Scott, and Sutliee, JJ., concurred.


author: Brinkerhoff, J.

text:
    The State of Ohio, on relation of Jonathan Maffett, v. Salmon P. Chase, Governor of Ohio.
    The county of Wyandot, on account of a tie vote, failed to elect a probate judge on the second Tuesday of October, 1851, as prescribed by the fourth section of the schedule to the constitution. At the fall election of 1852, K. was elected to that office, and was commissioned for the term of three years. At the fall election of 1855, he was re-elected, and commissioned for a like term. On the second Tuesday of October, 1857, and while K. still remained judge defacto, another election was held for the office, and M. received the highest number of votes. Held, that K. was, on each of his said elections, legally commissioned for the term of three years, and that the relator is not, therefore, entitled to a commission to take effect from the 9th day of February, 1858.
    ^Motion for a peremptory mandamus.

      Mott & McKelley, for the relator.
   Brinkerhoff, J.

An alternative writ of mandamus having issued in this ease, and been returned, a motion is now made for a peremptory writ, the object of which is to compel the defendant, as governor, to issue to the relator a commission as probate judge of the county of Wyandot, to which he claims to have been entitled from the 9th of February, 1858.

The facts of the case appear in the answer of the defendant, where they are stated as follows:

“At the general election on the second Tuesday of October, 1851, in the said county of Wyandot, Joseph Kinney and Robert McKelley received an equal number of votes for the office of judge of probate. There being no election, but a tie, lots were cast to decide the result, which proved favorable to Joseph Kinney, who thereupon received a certificate to that effect.
“Remonstrances having been filed against issuing a commission tó Kinney, the then attorney-general of the State of Ohio, Joseph McCormick, called the attention thereto of the then governor, Reuben Wood, and intimated a decided opinion that the determination by lot was void; and thereupon, on the 12th February, 1852, Robert McKelley was appointed by the said governor, judge of probate for the county of Wyandot, until the second Tuesday of October, 1852, and a commission in due form was issued to him accordingly, under which the said McKelley held the said office until the 30th day of October, 1852, as hereinafter stated.
“At the general election on the second Tuesday of October, 1852, Joseph Kinney and Robert McKelley were again candidates for the office of probate judge, and Joseph Kinney having received the highest number of votes, was declared duly elected, and received the proper certificate. He was accordingly, on the 30th of October, 1852, commissioned as probate judge of the county of Wyandot, by-Reuben Wood, then governor, for the term of three years, and under that commission and election the *said Kinney held said office until his re-election and commission, as hereinafter stated.
“At the general election held on the said second Tuesday of October, 1855, Joseph Kinney and Jonathan Maffett were candidates for the said office, and Joseph Kinney having received the-highest number of votes was declared duly elected, and received the proper certificate. He was accordingly commissioned by this defendant, as the governor of the State of Ohio, for a second term of three years, on the 9th of February, 1856, and under that election, hath since continued to and doth still hold the said office.
“Two years afterward, at the general election on the second-. Tuesday of October, 1857, before the expiration of the second term-for which Joseph Kinney had been already commissioned, votes-were cast for William A. Knibloe and Jonathan Maffett as candidates for the said office of probate judge, of which Jonathan Maffettreceived the highest number and was declared duly elected, and received a certificate accordingly from the clerk of the county.
“Application being made to this defendant as governor of the-State of Ohio, to issue a commission to the said Jonathan Maffett, he declined to do so, having already issued a commission for the same office, on the 9th of February, 1856, to Joseph Kinney, for a. term of three years, which term had not then expired.”

From this statement of the facts, it is apparent that this case-turns entirely on the single question, whether the first regularly elected incumbent of the office of probate judge of Wyandot county,, under the election of 1852, was legally commissioned for the term, of three years? If he was, then the commission subsequently issued for the like term under the election of 1855, was regular and legal; the term of office of the judge then commissioned has not yet expired; and the election of 1857, under which the relator claims, was. premature and void, unless we admit the proposition, that an election for the office might be legally held more than a year in advance of any accruing vacancy; an idea which, it seems to me, in the absence of any express statute to warrant it, is wholly inadmissible.

*The seventh section of the fourth article of the constitution is as follows :

“ There shall be established in each county a probate court,, which shall be a court of record, open at all times, and holden by one judge, elected by the voters of the county, who shall hold his •office for the term of three years, and shall receive such compensation, payable out of the county treasury, or by fees, or both, as shall be provided by law.”

This is the primary provision of the constitution in respect to the office of probate judge. The regular and normal condition of the office is, that it shall be held for the term of three years.

Now, what are the exceptions to this rule? and do they apply to the case of the present incumbent here sought to be ousted ?

The thirteenth section of the same article of the constitution is as follows :

“ In case the office of any judge shall become vacant, before the expiration of the regular term for which he was elected, the vacancy shall be filled by appointment by the governor until a successor is elected and qualified; and such successor shall be elected for the unexpired term, at the first annual election that occurs more than thirty days after the vacancy shall have happened.”

Here is an exception undoubtedly. Does it apply to this case? “ Such successor shall be elected for the unexpired term.” In the ease before us there was no “unexpired term.” There never had been any election. The attempt to elect had resulted in a tie vote and failed. There never had been in that county a regular term begun, which could either expire or remain unexpired.”

Moreover, the “vacancy” mentioned in the first clause of this •section is not a vacancy which results from a previous failure to •elect, but a vacancy which arises “ before the expiration of the regular term of which he (a prior incumbent of the office) was elected.” Such “vacancy shall be filled by appointment by the governor until a successor is elected and qualified ; and such sue-. ■cessor shall be elected for the unexpired term.”

It is evident that the case specifically provided for in this section *of the constitution is not the case before us. That section has, in terms, no application to the present question.

Again, the fourth.section of the schedule to the constitution provides as follows :

“ The first election for judges of the Supreme Court, courts of common pleas, and probate courts, and clerks of the courts of common pleas, shall be held on the. .second Tuesday of October, one thousand eight hundred and fifty-one; and the official term of said judges and clerks, so elected, shall commence on the second Mon* day of tebruary, one thousand eight hundred and fifty-two

The language of this clause of the schedule is very clear and explicit. It provides that the first election of judges shall be held on the second Tuesday of October, 1851, and the official term of judges, “so elected,” shall commence on the second Monday of February following. It does not, in terms, apply to cases where there is a failure to elect on the second Tuesday of October, 1851, nor to cases which may arise from the Creation of new counties at such times as to throw the official terms of their probate judges out ■of line with those of the probate judges in the other counties of the state.

The constitution having provided for the formation of new counties, and omitted any provision by which the regular terms of office of probate judges of such counties should be made always to commence and end contemporaneously with those of the like officers in the old counties generally, it is not to be presumed that uniformity in this respect was deemed by its framers of such importance as to justify us in attempting to extend, by construction, the literal purport of the explicit language which they have employed. Nor, so far as we perceive, is there any great public convenience, or object of state policy, to be attained by securing such a result.

We conclude, therefore, that the commission, under the election of 1852, to the first probate judge elected in Wyandot county, was properly issued for the full term of three years ; and so likewise on his re-election in 1855 ; and that consequently there *was no accruing vacancy to be filled by election in the fall of 1857.

In our conclusions in this respect, it will be perceived, we are in harmony with the uniform practice of the executive department' of the government under the present constitution, and with the construction which that department has given to those sections of the constitution which have a bearing on the question. It was the duty of that executive to pass upon the question in the first instance, and we are gratified that our investigations have resulted in a coincidence of opinion.

Motion overruled.

Bartley, C. J., and Swan, Soott, and Sutlxee, JJ., concurred.


author: Sutliff, J.

text:
    The Schooner Muskegan v. Samuel Moss.
    Under the “ act to provide for the collection of claims against steamboats,” etc,, an action can not be maintained against the -water-craft by name for the non-performance of an executory contract made by the master, for the purchasing of materials for the use and equipment of the water-craft, upon his refusal to pay for the same when ready for delivery — the same not having been delivered to, or received by, the master or water-craft.
    The indebtedness for which an action lies in such case, against the watercraft, under the statute, only arises upon the materials so furnished being received by the water-craft, or by its agent.
    In error to the court of common pleas of Erie county.
    Reserved in the district court.
    The suit was originally commenced by Moss, against the schooner Muskegan, before a justice of the peace, under the “act to provide for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name” (Swan’» Rev. Stat. 185), and taken to the court of common pleas on appeal.
    Upon the trial of the case in the common pleas, as appears from the bill of exceptions, Moss, the plaintiff below, to sustain the *issue upon his part, was sworn as a witness, and testified that in June, 1854, one Ebenezer G-. Allen, claiming at that time to be master of the said schooner Muskegan, came to the plaintiff’s machine-shop and foundry, in Sandusky City, and wanted to procure a windlass for said schooner. That said plaintiff had then on hand a windlass that had been previously made for another vessel, but not used, some parts of which had been taken and used for other purposes; that he exhibited this windlass to said Allen, who agreed with him, the plaintiff, that if he would replace the parts that had been removed, and fix it up, he would take the windlass for said vessel. That plaintiff agreed with said Allen to do so, and in pursuance of said agreement did repair and fix said windlass in accordance with said Allen’s directions, as he understood them, and had it ready at his shop to be delivered to said Allen or said vessel' whenever it should be called for. That he (plaintiff) did not agree to deliver it on board of the vessel, or at any particular place; and said it was his custom, when no agreement was made to the contrary, to have those for whom he manufactured machinery take it at the shop, and tliis was the general custom so far as he knew; that said windlass was worth the amount he had charged in his bill of particulars, to wit, the sum of twenty-two dollars; that he
    made said agreement on the credit of said vessel.
    On cross-examination, he testified “ that said windlass had not, to his knowledge, ever been received or taken away by said Allen, the vessel, or anybody else; that the last he knew of it, it was still at( the shop. It was there at the commencement of this suit; and had ■never, to his knowledge, been put on board of said vessel, or removed from the shop.”
    The plaintiff below also proved on the trial that the schoo'ner was a water-craft navigating the waters within and bordering upon this state, and that said Allen was the master at the time he agreed with said plaintiff for the windlass. The plaintiff introduced no further proof, and thereupon rested his case. , And the defendant below, by -counsel, moved the court to direct a nonsuit in the case; which motion, on hearing, the court overruled.
    On the part of the defense, the testimony of said Allen, the ^master of the vessel, and others, was offered, tending to show a refusal to purchase said windlass, for the reason that it was not such a windlass as ordered, nor such as would answer the purpose; and that only a very trifling expense was incurred by the plaintiff in fitting up the windlass.
    The counsel for the schooner thereupon requested the court to charge the jury: 1. That if they should find the windlass was not delivered, but was refused to be received by the master of the vessel, said schooner would not be liable in this action; 2. That the plaintiff could not recover against said defendant for said windlass which had previously been made for another vessel; and for only the value of such parts of it as were added in pursuance of the ■direction of, or the understanding with, said Allen.
    But the court refused to charge the jury in either respect as requested ; but charged them that if they should find that said windlass was fitted up by the plaintiff, in all respects according to i the directions of the master of the defendant, and in accordance with the agreement made with him, and was ready to be delivered when called for, it was immaterial whether the defendant or its master or owners had received it or not, or had refused to receive it; and if they should find the plaintiff had done all that he was requested to do under the agreement, he could recover against the vessel; and, 2. That his recovery could not be limited to the value of the materials and labor bestowed and put upon the windlass-after the making of the contract; that if the windlass were already-made, and Allen, as master of the defendant, agreed to buy it, and the plaintiff in pursuance of the agreement had it ready to be delivered, the vessel was liable, notwithstanding its refusal subsequently to accept it.
    To all which, counsel for the schooner excepted.
    The verdict being against the schooner, a motion was made on its behalf for a new trial. The motion was overruled, and judgment entered on the verdict.
    To reverse this judgment, a petition in error was filed on behalf of the schooner in the district court, and reserved for decision here.
    *It is claimed that the common pleas .erred:
    1. In refusing to order a nonsuit.
    2. In refusing to instruct the jury as requested, and in the instructions given.
    3. In overruling the motion for a new trial, and entering judgment on the verdict.

      E. B. Sadler, for plaintiff in error,
    insisted that there was but an executory contract at best; that the vessel-could not be made liable until the windlass was delivered and furnished to the vessel: Canalboat Montgomery v. Kent et al., 20 Ohio, 54; 3 Ohio St. 325.

      Homer Goodwin, for defendant in error,
    insisted that the contract had been fully executed so far as Moss was concerned ; that under the statute, a water-craft “is liable for debts;” that when Moss got the work done, there was a “ debt contracted on account of the boat by the master.” Or, that it may be considered that Moss sold this windlass as “materials for repairing,” or that he performed “ work and labor ’1 in manufacturing and fitting up the windlass. Steamboat Monarch v. Finley, 10 Ohio, 387; Canalboat Huron v. Simmons, 11 Ib. 458; Lewis v. Schooner Cleveland, 12 Ib. 344; Steamboat Waverly v. Clements, 14 Ib. 37; Canalboat Etna v. Treat, 15 Ib. 589; Webster v. Brig Andes, 18 Ib. 187; Thompson v. Steamboat Morton, 2 Ohio St. 31. It is not necessary that the materials should be placed on board.
   Sutliff, J.

This case depends upon the legal construction of the first section of the statute under which the action was instituted.

That section provides: “ That steamboats and other water-crafts navigating the waters within, or bordering upon this state, shall be liable for debts contracted on account thereof by the master, owner, steward, consignee, or other agent, for materials, supplies, or labor, in the building, repairing, furnishing, or equipping the same, or due for wharfage; and also for any damages ^arising out of any contract for the transportation of goods or persons, or for injuries done to persons or property by such craft; or for any damage or injury done by the captain, mate, or other officer thereof, or by any person under the order or sanction of either of them, to any person who may be a passenger or hand on such steamboat or other water-craft at the time of the infliction of such damage or injury.”

It thus appears, from the language of the statute, that the watercraft is made liable for: 1. Debts contracted on account thereof, for materials, supplies, or labor in building, repairing, furnishing, or equipping the same, or due for wharfage. 2. For damages arising out of any contract for transportation of goods or persons, or for injuries done to persons or property by such craft; and, 3. For any injury done by the captain, mate, or other officer thereof, or by any person under the order or sanction of either of them to any one at the time a passenger on the craft.

The claim under consideration, as stated by the plaintiff below, was for the non-performance of a parol contract entered into by Ebenezer Gr. Allen, the master of the schooner, for the purchase of' a certain windlass, as furniture or equipment for the vessel, from the plaintiff. It is not stated that the windlass was delivered, or even that it was adapted or fit for the use of the vessel, so that it could be used by the craft as an equipment. The plaintiff says-that he shewed the master a windlass that he had on hand, and the master promised if he would repair it, that he, the master, would buy it of him for said vessel; and that he, the plaintiff, agreed to de so, and did repair the windlass according to the master’s instructions, as he understood them, and had it ready at his shop to be delivered to said Allen, or to said vessel whenever it should be called for; that the windlass still remains at his shop, and is worth $22.26, the amount charged to the schooner for the same.

The plaintiff does not prefer a claim for work done for the-schooner. The claim preferred is in no sense, as stated, a debt, in-the common acceptation of that term. Indeed, an action of debt could not at common law be maintained upon the facts constitoting the canse of action against Allen, if the credit had been *given to him. The plaintiff still retains the property; and even if there were the necessary averments in the petition, that the windlass was ready for delivery according to the terms of the contract, and the defendant Allen notified thereof, the ¡plaintiff’s right of action would only be for damages for the non-performance of the contract by said Allen.

It is obvious, from reading the statute under consideration, that its object was only to give a right of action against the water-craft, in the particular cases mentioned therein.

It is only where the craft has been in receipt of the consideration out of which the indebtedness arises, as for work done upon or for the craft, or materials, provisions, or wharfage furnished to and received by the craft or its operatives in operating the same, that the action of debt arises against the craft by force of the statute. It is true the statute also provides that the water-craft may be sued by name for the recovery of damages in certain cases; but this case is not one included by the statute. The only cases mentioned in the statute for the recovery of damages against the watercraft by name, except for the malfeasance of the craft, or its officers, agents, and operatives, are for damages arising from the nonfeasance or misfeasance of duties actually assumed and undertaken by the water-craft, such as duties in respect of freight or passengers received to be carried. Any damages arising from the nonfeasance or misfeasance of such duties so assumed and undertaken, as well as damages arising from the malfeasance of the water-craft, or some of the officers ’or hands thereof in their respective relations, may, by the provisions of the statute, be recovered in an action against the craft by name.

In the case of Canal-boat Montgomery v. Kent et al., 20 Ohio, 54, it was held that an executory contract made with the master of a water-craft to carry flour, and a refusal on his part to carry the same, is not such a contract that a suit can be maintained against the water-craft by name, for a refusal on the part of the master to convey. An application of the same doctrine would exonerate the water-craft in this action from liability, even if the contract had been well stated in the petition.

*But it is sufficient in this case to say that the cause of action stated in the petition is not included in the causes of action enumerated in the statute for which an action can be brought against the water-craft by name. The only right of action, as stated, is one against the master or his principal, for the non-performance of the contract, and not against the water-craft.

The judgment of the court of common pleas must therefore be reversed.

Bartley, C. J., and Swan, Brinkerhoee, and Scott, JJ., concurred.


text:
    Steamboat Northern Indiana v. James Milliken.
    'The act of May 3, 1862, to provide for the organization of cities and incorporated villages,” conferring on mayors of cities of the second class “ all the jurisdiction and powers of a justice of the peace in all matters civil or criminal,” provided the same was passed by a vote of two-thirds of all the members elected to each house of the general assembly, is not in contra vention of the constitution of the state.
    In the absence of all showing in the record to the contrary, said act will, on error, be presumed to have been passed by such vote.
    In error to the court of common pleas of Lucas county.
    Reserved in the district court.
    On the 26th day ofScptember, 1853, James Milliken in stituted a proceeding before the mayor of the city of Toledo, against the steamboat Northern Indiana, by name, for the collection of a claim of less than one hundred dollars, against the boat, under the act of February 26,1840, “to provide for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name.” Swan’s Rev. Stat. 185.
    The trial before the mayor resulted in a judgment for Milliken. Thereupon an appeal was taken on behalf of the boat, to the court
    *of common pleas of Lucas county, and the trial there re-suited in a judgment against the boat.
    The case was then taken, on error, to the district court of the county, and was by that court reserved for decision here.
    The only question raised on error, relates to the jurisdiction of the mayor.
    The plaintiff in error insists that the mayor had no jurisdiction in the case, and on that ground seeks to reverse the judgment of the court of common pleas.
    The defendant in error insists that the mayor had jurisdiction; and to establish it, relies on section 7 of the water-craft law, under which the proceeding was instituted ; and on section 62 of the act of May 3, 1852, “ to provide for the organization of cities and incorporated villages.”
    The 7th section of the water-craft law (Swan’s Rev. Stat. 186), reads as follows:
    “ J ustices of the peace within their townships shall have jurisdiction under this act, when the amount claimed shall not exceed one hundred dollars, and shall jwoceed as near as may be according to the rules prescribed herein for the other courts.”
    Section 62 of said act of May 3, 1852 (Swan’s Rev. Stat. 971), reads as follows:
    “ The mayors of cities of the second class shall have, within the limits of the same, all the jurisdiction and powers of a justice of the peace, in all matters, civil or criminal, ai’ising under the laws of this state, to all intents and purposes whatever.”
    Toledo is a city of the second class.
    Ou behalf of the plaintiff in error, it is claimed that this grant of jurisdiction to mayors is not authorized by the constitution of the state.
    Morton, Lee & Haynes, for plaintiff in error, cited The State, ex rel. City of Rockford, v. Maynard, 14 111. 419.

      Hill & Pratt, for defendant in error.
   Brinkerhoff, J.

The provisions of the act of February *26, 1840, “ to provide for the collection of claims against steamboats and other water-crafts,” etc., conferring jurisdiction under that act on justices of the peace, “when the amount claimed shall not exceed one hundred dollars,” and of the subsequent act of May 3, 1852, “ to provide for the organization of cities and incorporated villages,” giving to mayors of cities of the second class “all the jurisdiction and powers of a justice of the peace, in all matters, civil or criminal, arising under the laws of this state, to all intents and purposes whatever,” are too plain and explicit to admit of question or argument. And the exception taken by the plaintiff in error to the jurisdiction of the court must, therefore, be overruled, unless the provisions above quoted from the. latter act, ar.e void by reason of repugnancy to the constitution of the state.

The following are the only provisions of the constitution which-seem to have a bearing on this question:

Art. IY. — Sec. 1. “ The judicial power, of the. state shall be-vested in a Supreme Court, in district courts, courts of common pleas, courts of probate, justices of the peace, and in such other courts, inferior to the Supreme Court, in one or more counties, as. the general assembly may, from time to time, .establish.”

Sec. 9. “A competent number of justices of the peace shall be-elected, by the electors, in each township in the several counties. Their term of office shall be three years, and their powers and duties shall be -regulated by law. . .

Seo. 10. “All judges, other than those provided for in this constitution, shall be elected by the electors of the judicial district for which they may be created, but not for a longer term of office than five years.”

Seo. 15. “ The general assembly may . . . establish other courts, whenever two-thirds of the members elected to each house shall concur therein,” etc.

It is very clear that the mayor of a city is not one of the functionaries expressly enumerated in section 1, artion 4. He is not a judge-either of the Supreme Court, district court, common pleas, or probate court; nor is he a justice of' the peace, for he is not elected for the term of office prescribed by the constitution for ^justices of the peace. He could not lawfully, therefore, be commissioned as a justice of the peace, and, under the authority of such commission merely, exercise the functions and jurisdiction of a justice of the peace. And to this effect only is the case of City of Rockford v. Maynard, 14 111. 419, and 16 Id. 484, Beesman v. City of Peoria, cited by counsel for plaintiff in error. We find no difficulty, however, in holding that mayors of cities are within the number of such “other courts, inferior to the Supreme Court, in one or more-counties, as the general assembly may from time to time establish.” They are courts established by the general assembly, by virtue of the fifty-first section of the act “to provide for the organization of cities,” etc, before referred to, which enacts that “ the corporate-authority of cities, organized or to be organized under this act, shall be vested in one principal officer, to be styled the mayor,”' -etc., taken in connection with the sixty-second section of the same •act, and above quoted, conferring on mayors “ all the jurisdiction .and powers of a justice of the peace,” etc. These acts of legislation do not designate mayors of cities as “courts,” nor specifically ■declare them to be “ established” as such, but they create the office, provide for the election of the officer, and confer on him judicial powers and functions; and if the act be passed in conformity with the provisions of the constitution authorizing the establishment of “ other courts,” it is enough.

But the language of the constitution is, “such other courts, inferior to the Supreme Court, in one or more counties,” etc.; and it •seems to be contended that “such other courts as the general assembly may from time to time establish,” must, in order to conform to,the constitution, have a jurisdiction co-extensive with at least a -county. The language of the constitution requires no such construction. The city of Toledo is “ in one or more counties.” The jurisdiction of the Superior Court of Cincinnati extends only over that pai't of Hamilton county embraced within the limits of the ■city of Cincinnati; and this court has recognized the jurisdiction .and constitutionality of that court, from the time of its organization until now, in the repeated affirmance of its judgments when ■under review before it on error.

*It is true, however, as contended by counsel for plaintiff in error, that in order to the validity of those portions of the act refered to, which establish and confer judicial powers on the mayors of cities, the act must have been passed by the concurring vote of two-thirds of all the members elected to each house of the general .assembly. This, however, in the absence of all showing in the reeod to the contrary, we will presume to have been done; and the .record is silent on the subject. It is not to be presumed that the .presiding officers of the two houses of the legislature would sign and •promulgate an act as duly passed into a law, unless it had received the vote which the constitution requires. Miller & Gibson v. The State, 3 Ohio St. 475.

The objection taken by the plaintiff in error on the ground of •multifariousness in the title of the act, is disposed of in Pim v. Nicholson, 6 Ohio St. 176.

Judgment affirmed.

Bartley, O. J., and Swan, Scott, and Sutliff, JJ., concurred. •