author: Davis, J.

text:
    State of Ohio ex rel. Trauger v. Nash, Governor.

      Mandamus of the governor — To fill office of lieutenant governor —A private citizen may be the relator in such proceeding— Duty and power of appointment conferred by legislature— Art. 2, Sec. 21, Const. — Such function not executive but ministerial — Sec. 81, Rev. Stat. — Term of office of such appointee, Sec. 11, Rev. Stat.

      1. The attorney general not having become such, a private citizen may be the relator in a mandamus proceeding to enforce the performance of' a public duty affecting himself as a citizen ana the citizens of the state at large.
    2. In such case a writ of mandamus may issue against the governor commanding him to perform a purely ministerial act; but not to control his discretion in the performance thereof. State ex rel. "Whiteman et al. v. Salmon P. Chase, Governor, 5 Ohio St., 528, approved and followed.
    3. The duty and power of making appointment to fill a vacancy in the office of lieutenant governor is not specially conferred on the executive branch of the government by the constitution, and rests wherever the legislature may vest it. (Article 2, Section 27.) Such duty being imposed on the governor by statute, it is not an executive function but is a ministerial duty.
    4. There is no provision in the constitution for filling a vacancy in the office of lieutenant governor, except as authorized under section 27, article 2; and when such vacancy occurs it must in all cases be filled by appointment by the governor as provided in Revised Statutes, section 81.
    5. The term of office of such appointee shall be for the unexpired portion of the term and until his successor is elected and qualified as provided in Revised Statutes, section 11; and “the first proper election” is the first election at which a lieutenant governor would have been chosen had no such vacancy occurred.
    (Decided June 26, 1902.)
    In Mandamus.
    This action is on a petition in mandamus filed by leave of the court. The petition is as follows:
    The relator says that he is an elector, citizen and taxpayer of, and the owner, in fee simple, of real estate in, the city of Columbus, state of Ohio.
    That the defendant, George K. Nash, is the duly elected, qualified and acting governor of the state of Ohio.
    The relator further says that Carl L. Nippert was, on November 5, 1901, duly elected to the office of lieutenant governor of the said state of Ohio; that on January 13,1902, he duly qualified as such lieutenant governor and entered upon the discharge of the duties of said office and continued in the said office and in the discharge of said duties until May 2, 1902, Avhen he duly resigned from said office; that by reason of said resignation a vacancy arose in said office of lieutenant governor, which vacancy still continues; to exist.

      That it is the duty of the said defendant, George K. Nash, as such governor, enjoined upon him by .force of Secs. 11 and 81 of the Revised Statutes of 'Ohio, to appoint an elector of the state of Ohio to fill said vacancy in the office of lieutenant governor, to hold the same until his successor is elected and qualified.
    The said defendant, George K. Nash, governor as aforesaid, entertaining doubts with respect to his duty in the premises, neglects, declines and refuses to, and declares that he will not, fill said vacancy by appointing an elector to said office.
    The relator says that by the ordinary course of the law he has no adequate remedy against the said defendant for so refusing.
    Wherefore the relator prays that the defendant, George K. Nash, governor of the state of Ohio, may be compelled to appoint an elector of the state of Ohio to the office of lieutenant governor to hold the same until his successor is elected and qualified, by mandamus from this court;,that an alternative writ of mandamus may first issue requiring the defendant to show cause, by a day to be named therein, why he does not appoint the same, and that on final hearing a peremptory writ of mandamus may be awarded to compel the defendant to appoint an elector to said office of lieutenant governor ; and for such other and further relief as the nature of the case may require.
    The issuing and service of an alternative writ of mandamus was waived and appearance entered by the defendant who filed a demurrer to the petition for the reason that the same does not state facts sufficient to warrant the relief prayed for.

      Mr. George B. Obey and Mr. Otway J. Gosgrave, for the relator.

      Mr. J. M. Sheets, attorney general,' and Mr. J. E. Todd, assistant attorney general, for defendant.

      Mr. W. H. West, as amicus curiae, filed a brief.
   Davis, J.

It is to be regretted that the defendant did not see fit to answer, as has been sometimes done in like cases before, submitting the question of law to the court and expressing a willingness to abide by its decision. Such a course would have relieved us from some embarrassing considerations; but the case is before us on demurrer to the petition, and, in addition to the main question, it is urged by the attorney general, who appears as counsel for the defendant, first, that the relator has no such beneficial interest in the act which he seeks to have performed as entitled him to apply for a writ of mandamus, and second, that the court has no “power” to require the performance of an official act by the governor of the state.

Concerning the first proposition of the attorney general, it may be conceded that a majority of the courts which have pronounced opinions on the subject, have held that a private relator applying for a mandamus must show a special interest in himself*; but even in some of those jurisdictions it has been said that “the rule which rejects the intervention of private complainants against public grievances is one of discretion and not of law.” Ayres v. Board of State Auditors, 42 Mich., 422, 429. And in the same case, pages 429-430, the court made the following observations which are very pertinent here: “In the present case the officer whose duty it usually is to enforce the rights of the state, in this court, has, in the performanee of his official functions as adviser of the state officers, placed himself in an adverse position, and appears for the respondents on this application. Inasmuch, then, as the attorney general refuses to appear and seek the enforcement of the statutory provisions, does his refusal preclude its enforcement? And if not, is the relator authorized to bring the matter before this court? There may perhaps be others who have interests that would justify their appearance, but there is no one else whose duty it is to appear when the attorney general declines to do so. * * * There are serious objections against allowing mere interlopers to meddle with the affairs of the state, and it is not usually allowed unless under circumstances when the public injury by its refusal will be serious. * * * But we find no reason to consider the matter as one lying outside of judicial discretion, which is always involved in mandamus, cases concerning the relief as well as other questions.” In Railroad Co. v. Hall et al., 91 U. S., 343, the court say: “There is, we think, a decided preponderance of American authority in favor of the doctrine, that private persons may move for a mandamus to enforce a public duty, not due to the government as such, without the intervention of the government law officer.” The same ruling was made in Railroad Co. v. Suffern et al., 129 Ill., 274; and in State ex rel. Currie et al. v. Weld, Oounty Auditor, 39 Minn., 426; see High on Extraordinary Remedies, (3 ed.) Sec. 431. The right of a citizen to enforce a public right, without the intervention of the attorney general, has been established in this state in two cases, viz.: State v. Brown, 38 Ohio St., 344; State ex rel. v. Tanzey et al., 49 Ohio St., 656.

We now come to the attorney general’s second, contention, that is, thát “this court has no power to require the performance of an official act by the governor of the state.” If reference is here made to the physical power to enforce obedience to the writ, we will say that we are not concerned with that suggestion. 'We will assume that the governor is just as. ready to respect the law, and the mandates of the courts, as any other officer who has taken an oath to support the constitution and to faithfully perform the duties of his office. If this expression is intended as a denial of our jurisdiction or of our duty to issue a writ of mandamus against the governor in a proper case, we pause long enough to state our reasons for holding to the contrary view. First, the judges of this court, after argument by eminent coun-. sel on both sides, were unanimous in the conclusion that in regard to a ministerial act, which might have been devolved on any other officer of the state, the governor might be made amenable to the compulsory process of this court by mandamus, State ex rel. Whiteman et al. v. Chase, Governor, 5 Ohio St., 528; and on consideration now we see no sufficient reason for overruling that decision. While there is irreconcilable conflict in the opinions on this subject, we think that the better reasoning is found in those cases, which reach the conclusion that a writ of mandamus, may be directed to the governor, or any other officer,, to compel the performance of clear legal and mandatory duties. See cases collected in 6 Am. & Eng. Enc. Law, (2 ed.) 1013. See also, dissenting opinions in State ex rel. v. Board of Canvassers, 17 Fla., 9; People v. Morton et al., 156 N. Y., 136.

The legislative, executive and judicial departments; of the state government are not so absolutely distinct that an arbitrary exercise of power, or what is the same thing, an arbitrary refusal to exercise power, could not be checked or opposed by either of the other departments. Such a theory is opposed to the principle of checks and balances upon which the federal and state constitutions have been framed. Indeed, it does not seem clear to us, if the judicial department may annul an act of the legislature by declaring it unconstitutional, why it may not constitutionally exercise its functions in requiring the executive department to p'erform a clear legal duty which it neglects or refuses to perform. Neither are we ready to acknowledge that any office or officer is so high that the law cannot reach him.

And now it is necessary to define more distinctly what are ministerial duties and ministerial acts. Perhaps no better definition can be found than that given by the Supreme Court of Indiana in Flournoy v. Jeffersonville, 17 Ind., 169, which is as follows: “A ministerial act. may, perhaps, be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done.” Assuming for the present purpose that the duty of the governor to act when a vacancy occurs in the office of lieutenant governor, is found in Revised Statutes, Sec. 81, it is clear that the duty thus imposed is mandatory. The governor is allowed no discretion as to acting, however much discretion he must necessarily exercise in selecting the person whom he shall appoint. It is equally clear, we think, that this power is not essentially an executive function, but is derived wholly from the command of the statute, and that under the constitution, Art. 2, Sec. 27, the legislature might, just as lawfully, have imposed the duty on some other officer; for the appointment of all officers and the filling of all vacancies, not otherwise provided for in the constitution, shall be made in such manner as may be directed by law. The power to appoint officers does not inhere in the office of governor. When no such power is conferred on the governor by the constitution or by a valid enactment by the legislature, he cannot exercise such power. The power to appoint to fill a vacancy has been delegated by the people to the legislative branch of the government, and that branch has by law “directed” the governor to perform it. It becomes, therefore, a purely ministerial duty to appoint. Fox v. McDonald, 101 Ala., 51; Mayor, etc., v. State, 15 Md., 376; Hovey, Governor, v. State ex rel., 119 Ind., 395; People v. Freeman, 80 Cal., 233; State v. George, 22 Ore., 142.

The substance of this proceeding appears to us to be confined within a very limited compass. We are not disposed to speculate upon imaginary cases, nor to indulge in discussion concerning contingencies for which, possibly, sufficient provision may not have been made. We are content to dispose of the case presented to us, and to dispose of it according to the parts of the constitution, and of the statutes which are pertinent to it, without resolving ourselves into a legislature or a constitutional convention. We find no provision in the constitution specifically providing for filling a vacancy in the office of lieutenant governor. It is argued that the words “until the vacancy is filled” refer to a vacancy in the office of lieutenant governor. If that construction .is correct, and we are inclined to think that it is not, still it is not provided how or by whom the vacancy shall be filled. The only provision in the constitution controlling the case in hand is the one already adverted to, Art. 2, Sec. 27; and the legislature having, by a plain, unambiguous and mandatory enactment, directed the governor to fill the vacancy by appointment it is in our judgment his clear duty to do so.

Another point which appears to be involved is the term of office of the appointee. Revised Statutes, Sec. 11, reads as follows: “When an elective office-becomes vacant, and is filled by appointment, such appointee shall hold the office till his successor is. elected and qualified, and such successor shall be elected at the first proper election that is held more than thirty days after the occurrence of the vacancy. * * The phrase “the first proper election” was. construed in State v. Barbee, 45 Ohio St., 347, to mean the first election appropriate to the office, that is, the-election at which such officers are regularly and properly elected. It seems, from a study of the constitution, Art. 3, Sec. 18, that the office of lieutenant, governor was omitted therefrom because, for obvious, reasons, it was desired to have the term of office of' the lieutenant governor begin and end at the same-time with the term of office of the governor, and that the last clause of that section of the constitution would defeat that purpose, if the office of lieutenant governor was named therein. From these considerations we are of the opinion that the appointee should be appointed for the unexpired portion of the term of Lieutenant Governor Nippert, and that he should, hold until his successor is elected and qualified as provided in Revised Statutes, Sec. 11; and that the first proper election for his successor is the first election at which a lieutenant governor would have been chosen had no such vacancy occurred. The dejnurrer to the petition is overruled and

Peremptory writ awarded.

Burket, Spear and Price, JJ., concur.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Slingluff et al. v. Weaver et al.

      ■Jurisdiction of Supreme Court in error — Act of May 12, 1902, to define same — Object of judicial investigation to ascertain intent of legislature — Method of consideration — Intent to be sought in the language employed — Meaning if plainly expressed to be enforced without reference to intention— Validity of Royer act — Interpretation of law.

    1. The object of judicial investigation in the construction oí a statute is to ascertain and, give effect to the intent of the law-making body which enacted it. And where its provisions are ambiguous, and its meaning doubtful, the history of legislation on the subject, and the consequences of a literal interpretation of the language may be considered; punctuation may be changed or disregarded; words transposed, or those necessary to a clear understanding and, as shown by the context manifestly intended, inserted.
    2. But the intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation. The question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact. That body should be held to mean what it has plainly expressed, and hence no room is left for construction.
    .3. The language of the act of May 12, 1902, entitled, “An act to amend section 6710 (as amended 93 O. L., 255) of the Revised Statutes,” is plain and free from doubt, and effect must be given to .its clear import without regard to the consequences which may result. Its effect is to deprive this court of jurisdiction, to review any case in error where the judgment of the lower court has been or may he rendered since the passage of the act, and not coming within its terms.
    4. This court is without jurisdiction to review a judgment of the. circuit court rendered June 6, 1902, in a cause in injunction, commenced in the court of common pleas June 2, 1902.
    (Decided June 26, 1902.)
    Error to the Circuit Court of Tuscarawas county.
    Motion to Dismiss.
    The action below was brought June 3, 1902, by plaintiffs in error, residents and taxpayers o,f the village of Dover, Tuscarawas' county, to enjoin the mayor and council of said village from granting a franchise to certain persons for the use -of an electric railway company, to build its track and operate' an electric railway upon and over a certain bridge across the Tuscarawas river and the Ohio canal in said village. A demurrer to the petition was sustained by the common pleas and the petition dismissed. The cause being appealed to the circuit court, that court, June 6, 1902, made a like holding and entered a like judgment. The proceeding in this court is to obtain a reversal. The motion now submitted by the defendants in error is to dismiss the cause and strike it from the docket upon the ground that the court has no jurisdiction to review the judgment of the circuit court.

      Mr. A.mos Ruff, Mr. Joseph H. Mitchell and Messrs.. Welty & Álbaugh, for the motion.

      Mr. George B. Okey, also filed a brief in support of the motion.

      Messrs. Wilkin & Wilkin, contra.

      Mr. A. T. Brewer and Mr. Samuel Hambleton were also heard in oral argument against the motion, and Mr. W. B. Sanders and Mr. O. T. Brooks each presented a brief in opposition.
   Spear, J.

The proposition of the counsel appearing for the motion is that, by force of the act of May 12, 1902, amending Sec. 6710 of the Revised Statutes, this court is without jurisdiction to entertain the cause and review the judgment of the circuit court. That act is as follows:

“An act to amend section 6710 (as amended 93 O. L., 255) of the Revised Statutes of Ohio.

“Be it enacted by the general assembly of the state of Ohio:

“Section 1. That section 6710 (as amended 93 O. L., 255) of the Revised Statutes, be amended so as to read as follows:

“Section 6710. A judgment rendered, or a final order made, by any circuit court, or a judge thereof, court of common pleas, or a judge thereof, probate court, insolvency court, or the superior court, or a judge thereof, may be reversed or modified by the supreme court, on petition in error, for errors appearing on the record, in any case in quo warranto, mandamus, habeas corpus, procedendo, or in which is involved the construction of the constitution of the United States, or the state of Ohio, or the jurisdiction of any court of this state, or the construction or validity of a treaty or statute of, or authority exercised under the United States, or in which the decision is contrary to that of any circuit court, and not in accord with a previous decision in the supreme court; but no petition in error in such cases, except as to'the judgment or final order of the circuit court, or a judge thereof, or of the general term of the superior court of Cincinnati, shall be filed without leave of the supreme court, or judge thereof, and the supreme court shall not in any civil cause or proceeding, except when its jurisdiction is original, be required to determine as to the weight of evidence; and on application of any party excepting to a ruling or decision of the circuit court during the trial, or on motion for a new trial, such court shall find from the evidence and state on the record the facts upon which the alleged error arises, or which may be material in determining whether error has intervened or not.

“Section 2. That section 6710 of the Revised Statutes of Ohio, as amended April 25, 1898, be and the same is hereby repealed.

“Section 3. This act shall take effect from and after its passage, and shall apply to all causes of action existing, and actions pending at that time in all courts inferior to the supreme court.

“Passed May 12, 1902.”

It is insisted on behalf of the motion that the act, by its terms clearly excludes jurisdiction, and is too plain to admit of construction; while opposite counsel maintain that it was not within the legislative intent to deprive this court of any jurisdiction which it had theretofore possessed, but in reality to enlarge its scope by simply removing the exclusion from that jurisdiction of causes in which is involved an amount under three hundred dollars.

The court has been favored, and much aided in the examination of the case, by the arguments of counsel, not only on the part of those of record, but of the others who appeared as amicus curiae.

One of the grounds urged against the literal interpretation of the act, perhaps the principal one, is that the jurisdiction sought now to be denied the court has been exercised by it ever since its organization, save as affected by the amendment of April 25, 1898, excluding causes wherein there was not involved over the sum of three hundred dollars, and from this history of the statute, and of the amendment referred to, it becomes at once manifest that it was not within the legislative intent to take from the jurisdiction of the court, but on the contrary to again confer upon it the full jurisdiction which it has at all times theretofore exercised; that this claim is aided by a consideration of the subject-matter and the general policy of the state with respect to that subject-matter. So that, though the precise letter be against this conclusion, yet if a slight reconstruction of a sentence, or a change in punctuation, or the adding of a conjunctive, will carry out what was the manifest intent of the act,- then such changes are demanded in the public interest, and the statute should be so read, and that this can be done by reading into the statute the word “and” after the word “case,” causing the first lines of the act to read: “A judgment rendered, or a final order made by any circuit court, or a judge thereof, court of common pleas, or a judge thereof, probate court, insolvency court, or-the superior court, or a judge thereof, may be reversed or modified by the supreme court on petition in error, for errors appearing upon the record in any case, and in quo warranto, mandamus, habeas corpus,” etc.

It is further urged that a slight change of punctuation will relieve the difficulty. By changing the comma after the word “record” where it'first appears to a semi-colon, and by inserting a comma before the word “but” in the place of the semi-colon, it will then be plain that the intent was to enlarge and not circumscribe the jurisdiction. A like result would follow, it is suggested, if a comma were inserted after the word “case” and before the words “in quo warranto,” and then the enumeration of classes thereafter following treated as surplusage. ,

Finally it is contended that, upon general principles, the court may well take notice of the information communicated by counsel that neither the author of the bill nor the judiciary committee under whose inspection it presumably passed, ñor the members of either house, had any purpose of curtailing the jurisdiction of this court, or indeed any suspicion until after their adjournment that that result had been brought about.

Undoubtedly the law is that the object of judicial investigation in the construction of a statute is to ascertain and give effect to the intent of the law-making body which enacted it, and that where the provisions of a given act are ambiguous, and its meaning doubtful, the history of legislation on the subject and the consequences of following a literal interpretation of the language may, and ought to be considered. Words may be transposed, or those necessary to a clear understanding and manifestly intended, as shown by the context, inserted. In the same way, and for a like purpose, punctuation may be changed or disregarded. This is allowable where doubt appears on the face of the act. But it is equally the law, we suppose, that the court does not possess, and should not attempt to exercise, the power of introducing doubt or ambiguity not apparent in the language, and then resort to verbal modifications to remove such doubt and conform .the act to the court’s supposition with respect to the intent of the legislature, for it seems well settled, as expressed by Story, J., in Gardner v. Collins, 2 Pet., 58: “What the legislative intent was can be derived only from the words they have used; we cannot speculate beyond the reasonable import of those words. The spirit of the act must be extracted from the words of the act, and not from conjectures aliundeThe principle is expressed in different form by Allen, J., in McClusky v. Cromwell, 11 N. Y., 593: “It is beyond question the duty of courts in construing statutes to give effect to the intent of the lawmaking power and seek for that intent in every legitimate way. But in the construction, both of statutes and contracts, the intent of the framers and parties is to be sought first of all in the words and language employed, and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced constructions for the purpose of either limiting or extending their operation. Courts cannot correct supposed errors, omissions or defects in legislation, or vary by construction the contracts of parties. The office of interpretation is to bring sense out of the words used and not bring a sense into them.” Citing Lieber’s Polit. and Le. Hermeneutics, 87; 2 Ruth, Inst., Ch. 7, sec. 2; Story’s Com. on Const., sec. 392; Purdy v. The People, 4 Hill, 384 ; Smith Statutes, etc., sec. 478; Waller v. Harris, 20 Wend., 561. And equally clear upon this point are the words of Ruggles, J., at page 604, in dissenting from the judgment. Decisions and opinions of text writers of like import are so abundant that one is at a loss which to select. We content ourselves with citing the following: Woodbury v. Berry, 18 Ohio St., 456; Alexander v. Worthington, 5 Md., 471; Newell v. The People, 7 N. Y., 9; Bishop on Written Laws, sec. 72; Endlich on In. of Statutes, secs. 7, 8; Hardcastle on Com. of Statutes, sec. 2; Sedgwick on S. & C. Con., 194; Smith on Com. Con., 504.

Coming to the act itself it must be apparent to every intelligent reader that, with respect to the question we are considering, there is no. ambiguity or doubt as to the natural meaning of the words used. Taking it just as it comes to us from the hand of the lawmaking body, the import of the act is clear and explicit. To endeavor to make this plainer would be like an effort to reason upon a sum in simple addition. Plainly then we are asked to import into the act a doubt as to its meaning and then resort to a change of phraseology, or punctuation, or to an addition of words, or to a rejection of classes of cases enumerated, in order to remove the doubt that we have thus created, a doubt based upon considerations and conjectures aliunde. This the court may not do. The province of construction is to arrive at the true sense of the language of the act, not to supply language to help out a conjectured intent not to be gathered from the words used. The question is not so much what did the legislature intend to enact, as what did it mean by what it did enact. The words asked to be incorporated would be the words of the expounders and not of the law-makers. Respecting punctuation it may be said as in Trustees v. White, 48 Ohio St., 581: “In construing a statute, punctuation may be changed or disregarded. It will not, ordinarily, control unless other means fail. At the same time it is more or less to be relied upon in ascertaining the meaning intended. The presence of a comma, in one place or another, would not be allowed to subvert the obvious meaning of a sentence. On the other hand, it would not without reason appearing for it, be disregarded. If that which appears to have been the general purpose of the legislature is as well effectuated by reading the statute exactly as it has been caused to be printed, as it would be by changing it, even as to punctuation, no adequate motive is present moving to the change.”

Attention is called to a number of reported decisions of this court involving construction where words have been added) the position of others altered or punctuation changed or disregarded. A marked one is that of Sawyer v. State, 45 Ohio St., 343. It was in mandamus to compel the sheriff of Cuyahoga county to issue proclamation for an election of a circuit judge. The act construed was one to amend an act relating to the organization and jurisdiction of the circuit court and other courts.' It purported to provide for the election of three judges of that court, one for the eighth and two for the sixth circuit, “on the first Tuesday of November next,” which that year (1887) would be one week prior to the day of the general fall election. No machinery had been provided in the act for, nor the slightest allusion made to, the manner of conducting the election, or of making and certifying the returns and ascertaining the result. Resort to the provisions of the acts to which this was an amendment, therefore, became necessary in, order to ascertain the method and obtain authority for the conduct of the proposed election. An inspection of those acts showed that full provision had been made for the election machinery and that that provision contemplated the conduct of an election to be held, as specified in the acts, on the first Tuesday after the first Monday. The court was of the opinion that the later act could not be enforced without resort to the authority given by the statute to which it was an amendment, and that, construing the acts as a whole, the legislative intent was to have but one election, and that one to be held at the time fixed by the earlier acts. The court was further of opinion that if the later act was to be treated as special, and as intending to provide for a special election, it was “a vain and idle form by reason of its failure to provide any means of ascertaining and declaring the result, and must fall of its own inherent infirmity.” To prevent this result and save the act, the court held that the real purpose was not to fix the day for holding an election, but to create a new judicial circuit and three new judgeships. The judgment of the circuit court ordering a writ of mandamus was, therefore, affirmed. It would be poor use of space to devote it to explaining the differences between this case and the one at bar. They are apparent at a glance. And it will be found upon an inspection of all the cases where the court has added to or changed the language or punctuation of the law as enacted that there was some doubt as to its meaning apparent on the face of the act.

It is urged that, under the rule that statutes are to be construed in connection with all laws in pari materia, resort should be had to section 440 of the Revised Statutes, which section provides for the advancement of certain cases and the hearing of the same out of their order on the docket, among others those where damages are asked for personal injury or death by negligence, which class of cases is entirely excepted by the terms of the act under review, and, it is insisted, it would be fair to say that had the legislature intended to exclude damage cases some reference would have been made to section 440, so that the two statutes might have been made consistent. At first blush this claim seems reasonable. But its force fades away when it is reflected that section 440 is in no sense a statute giving jurisdiction, but is simply a provision for the order in which causes as to which the court has jurisdiction, may be heard and disposed of. It is to be further observed that section 440 may still have application to causes of which this court had taken jurisdiction before the passage of the act of May 12. And it may be added that a similar inconsistency, if it be such, alike in kind though less in degree, exists between section 440 and section 6710, as it stood prior to the late amendment. The later act affects damage cases generally, while the other affected such as did not involve more than three hundred dollars. Yet it has not been doubted that the three hundred dollar provision is effective, although in that amendment to section 6710 no reference is made to section 440. We are of opinion that a consideration of section 440 hardly aids the contention.

In conclusion we are impressed that if the court may properly assume to place upon this law a construction in conformity with the claim of the counsel who oppose the motion, by the incorporation of additional words, or by the changing of the punctuation so as to give a meaning to the act inconsistent with its terms, no good reason would remain why the court could not as to any piece of legislation, alter it so as to make it conform to the court’s idea of what the act should have been, and thus substitute for the will and judgment of the body whom the people have chosen to make the laws, the will and judgment of those whom the people have selected to expound them.

It is suggested that the record shows that the case is one involving the jurisdiction of the lower court, and for that reason this court has jurisdiction. It is true that one ground of demurrer to the petition was that the court has not jurisdiction of the subject-matter of the action. But an examination of the pleading shows that this could only mean that the court had no jurisdiction to control the official legislative acts of the village council. The point is not well taken.

For the reasons stated the motion will be sustained and the cause dismissed.

Dismissed.

Burket, Davis, Shauck and Price, JJ., concur.


text:
    No. 7139.
    Lingafelter v. Trust Company et al.
    (Decided February 18, 1902.)
    Error to the Circuit Court of Licking county.

      Mr. J. M. Swartz and Messrs. Flory & Flory, for plaintiff in error.

      Messrs. Eibler & Eibler, for defendants in error.
   Judgment affirmed upon the sole ground that the plaintiff in error has failed to comply with section 6711 of the Revised Statutes, the pleadings not being printed.

Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7784.
    City of Cincinnati et al. v. Willen.
    (Decided February 18, 1902.)
    Error to the Superior Court of Cincinnati.

      Mr. Charles J. Hunt and Mr. Wade H. Ellis, corporation counsel, for plaintiffs in error.

      Messrs. Eorstman ct Eorstman and Mr. George E. Kattenhorn, for defendant in error. * ,
   Judgment affirmed.

Williams, C. J., Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7171.
    Columbus & Hocking Valley Mining Co. v. Reinhard & Company.
    (Decided February 25, 1902.)
    Error to the Circuit Court of Franklin county.

      Messrs. Huggins, Sowers & Watson and Mr. William T. McClure, for plaintiff in error.

      Mr. G. J. Marriott; Mr. George A. Fairbanks; Messrs. Pugh & Pugh; Mr. T. E. Steele and Messrs. Rankin é Rector, for defendants in error.
   Judgment affirmed.

Williams, C. J., Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7394.
    Sweeter, Pembroke & Company v. Plantz et al.
    (Decided February 25, 1902.)
    Error to the Circuit Court of Meigs county.

      Mr. J. TF. Moore, for plaintiff in error.

      Mr. M. S. Webster, for defendants in error.
   Judgment modified as per journal entry.

Williams, C. J., Burket, Spear, Davis, Shauck and Price, JJ., .concur.


text:
    No. 7749.
    Holcomb v. Mt. Vernon Bridge Company.
    (Decided February 25, 1902.)
    Error to the Circuit Court of Knox county.

      Mr. F. V. Owen, for plaintiff in error.

      Mr. J. B. Waight and Messrs. Cooper & Moore, for defendant in error.
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 6700.
    Price, Admx., v. Railroad Company.
    (Decided March 4, 1902.)
    Error to tbe Superior Court of Cincinnati.

      Mr. John Marshall Smedes, for plaintiff in error.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 6701.
    Hoffrichter et al. v. Savings & Loan Company et al.
    (Decided March 4, 1902.)
    Error to the Circuit Court of Allen county.

      Mr. P. R. Kerr and Mr. M. J. Sanford, for plaintiffs in error.

      Mr. Horace A. Reeve, for defendants in error.
   Judgment affirmed.

Williams, C. J., Spear and Shatjck, JJ., concur.


text:
    No. 6735.
    Palmer v. Brickell.
    (Decided March 4, 1902.)
    Error to the Circuit Court of Franklin county.

      Mr. Tyndale Palmer and Mr. R. W. McGoy, for plaintiff in error.

      Mr. J. T. Holmes and Mr. J. E. Safer, for defendant in error.
   Judgment affirmed.

Burkex, Davis and-PRiCE, JJ., concur.


text:
    No. 6740.
    Heidingsfeld v. Bauer et al.
    (Decided March 4, 1902.)
    Error to the Circuit Court of Hamilton county.

      Mr. Ben L. Heidingsfeld and Mr. Henry P. Kauffman, for plaintiff in error.

      Mr. Oscar M. Gottsehall; Mr. Adolph L. Broton; Mr. Harry Hoffheimer; Mr. Victor Abraham and Messrs. Gottsehall, Crawford .é Limbert, for defendants in error.
   Judgment affirmed.

B.urket, Davis and Price, JJ., concur.


text:
    No. 6761.
    Jones v. Veitor et al.
    (Decided March 4, 1902.)
    Error to the Circuit Court of Mahoning county.

      Mr. George F. Arrel, for plaintiff in error.

      Mr. M. G. McNab and Mr. R. B. Murray, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 6907.
    Friedman v. Solomon.
    (Decided March 4, 1902.)
    Error to the Circuit Court of Clermont county.

      Mr. H. B. Whiteman and Messrs. Huliek é Bishop, for plaintiff in error.

      Messrs. Frazier é Hicks and Mr. E. K. Parrott, for defendant in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 6943.
    Aeh v. Blomyer, Admr.
    (Decided March. 4, 1902.)
    Error to the Circuit Court of Scioto county.

      Mr. N. W. Evans and Mr. Duncan Livingstone, for plaintiff in error.

      Mr. T. G. Anderson and Mr. John R. Hughes; for defendant in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7207.
    Ritchie v. Ely.
    (Decided March 4, 1902.)
    Error to the Circuit Court of Williams county.

      Messrs. Boioersox & Starr, for plaintiff in error.

      Mr. John M. KilUts, for defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7353.
    Johnson et al. v. Carpenter, Receiver, et al.
    (Decided March 4, 1902.)
    Error to the Circuit Court of Lucas county.

      Messrs. Squire, Sanders d Dempsey and Messrs. Swayne, Hayes d Tyler, for plaintiffs in error.

      Mr. Charles A. Thatcher and Messrs. Hurd, Brumbach d Thatcher, for defendants in error
   Judgment affirmed.

Burket, Shauck and Price, JJ., concur.


text:
    No. 7398.
    Grant v. Grant et al.
    (Decided March 4, 1902.)
    Error to the Circuit Court of Stark county.

      Mr. TP. 0. Werntz, for plaintiff in error.

      Mr. B. S. Ambler; Messrs. McCarty, Craine d McDowell; Mr. C. T. Meyer; Mr. TP. H. Smith; Mr. John C.'Welty; Mr. James J. Grant; Messrs. Harter d Krichbaum and Messrs. Lynch, Day d Day, for defendants in error.
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7773.
    Railroad Company v. Cincinnati.
    (Decided March 4, 1902.)
    Error to the Circuit Court of Hamilton county.

      Mr. C. B. Mattheios; Mr. John C. Healy and Mr. Powell Crosley, for plaintiff in error.
    ilfr. Charles J. Hunt, corporation counsel, and Mr. H. R. Probasco, for defendant in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 6949.
    Clink et al. v. Peters et al.
    (Decided March 11, 1902.)
    Error to the Circuit Court of Sandusky county.

      Messrs. Meek, Duclrow & Worst and Messrs. Beard é Beard, for plaintiffs in error.

      Mr. James 0. Troup; Messrs. Finnefrock & Garver and Air. Byron A. Fouehe, for defendants in error
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7381.
    Shriver et al. v. Beall, Assignee.
    (Decided March 11, 1902.)
    Error to the Circuit Court of Crawford county.

      Messrs. Beer & Monnette, for plaintiffs in error.

      Messrs. Kinney & Newton and Air. Dórsey L. Beall, for defendants in error.
   Judgment- of the circuit court vacated and cause remanded to consider the question presented by bill of exceptions.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7532.
    Browne, Assignee, v. Wallace, Assignee, et al.
    (Decided March 11, 1902.)
    Error to the Circuit Court of Hamilton county.

      Mr. F. W. Browne, for plaintiff in error.

      Mr. Charles B. Wilby and Mr. Custavus H. Wald, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7677.
    Railway Company v. McClain, Admx.
    (Decided March 11, 1902.)
    Error to the Circuit Court of Coshocton county.

      Messrs. Dunbar & Sweeney and Mr. W. R. Pomerene, for plaintiff in error.

      Mr. E. W. James, for defendant in error.
   Judgment affirmed..

Burket, Davis and Price, JJ., concur.


text:
    No. 6883.
    Rosenbaum v. Pendleton, Trustee.
    (Decided March 18, 1902.)
    Error to the Superior Court of Cincinnati.

      'Mr. Charles B. Wilby and Mr. Custavus H. Wald, for plaintiff in error.

      Mr. R. B. Bowler and Mr. Harlan Cleveland, for defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 6884.
    Hicksville v. Harker.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Defiance county.

      Messrs. Griffin & Simmons and Messrs. Harris, Gameron & Shaw, for plaintiff in error.

      Mr. J. O. Ryan; Mr. B. F. Enos; Mr. W. D. Hill; Mr. H. G-. Baker and Messrs. Sutphen & Sutphen, for defendant in error.
   Judgment affirmed.

Williams, C. J., Burket and Davis, JJ., concur.


text:
    No. 7004.
    Snyder et al. v. Ream et al.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Clark county.

      Mr. George Arthur, for plaintiffs in error.

      Mr. John L. Zimmerman and Mr. Webb W. Witmeyer, for defendants in error.
   Judgment affirmed.

Williams, O. J., Spear and Siiauck, JJ., concur.


text:
    No. 7164.
    Rowley v. Briggs.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Dickey, Brewer & McGowan, for plaintiff in error.

      Messrs. Wilcox & Friend and Air. W. 0. Ong, for defendant in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., .concur.


text:
    No. 7291.
    Bonham v. Hamilton.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Hamilton county.

      Air. Drausin Wulsin; Messrs. Simrall & Galvm and Mr. Scott Bonham, for plaintiff in error.

      Mr. Province Ai. Pogue and Messrs. Pogue & Pogue, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Williams, O. J., Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7391.
    Harper v. Marckel.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Defiance county.

      Messrs. Winn & Hay and Air. K. V. Haymaker, for plaintiff in error.

      Messrs. Harris, Cameron & Shaw, for defendant in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7397.
    Grant v. McCarty, Admr., et al.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Stark county.

      Mr. W. 0. Werntz, for plaintiff in error.

      Mr. R. 8. Ambler; Messrs. McCarty, Craine & McDowell; Mr. James J. Grant and Messrs. Lynch, Day d Day, for defendants in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7402.
    John A. Logan Council No. 6 v. Bomberger.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Stark county.

      Messrs. Sterling & Braucher, for plaintiff in error.

      Messrs. Bow d Bowman, for defendant in error-..
   Judgment reversed and judgment for plaintiff in error on the authority of Myers et al. v. Jenkins, 63 Ohio St., 101.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7418.
    Bigler v. Freiberg et al.
    (Decided March 18, 1902.)
    Error t,o the Circuit Court of Warren county.

      Mr. W. F. Eltzroth and Mr. W. C. Maple, for plaintiff in error.

      Messrs. Runyan & Stanley and Messrs. Brandon & Burr, for defendants in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 6913.
    Shrader, Admr., v. Bline, Admx., et al.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Licking county.

      Mr. Charles Follett and Mr. C. H. Follett, for plaintiff in error.

      Mr. S. M. Hunter and Mr. J. N. Swartz, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 6953.
    Confarr et al. v. Confarr et al.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Greene county.

      Messrs. Little & Spencer, for plaintiffs in error.

      Mr. W. F. Trader, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 6959.
    Sharp, Executor, et al. v. Broad Street Presbyterian Church.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Franklin county.

      Messrs. Page & Page, for plaintiffs in error.

      Messrs. Huggins; Sowers <£ Watson and Mr. T. J. Duncan, for defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 6967.
    Gallaher v. Bertchey, Admx
    (Decided March 25, 1902.)
    Error to the Circuit Court of Belmont county.

      Mr. J. A. Gallaher, for plaintiff in error.

      Messrs. Talhnan & Armstrong, for defendant in error.
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 6987.
    Sharp et al., Trustees, v. Wilson et al., Trustees.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Shelby county.

      Mr. D. Oldham; Mr. W. D. Davies and Messrs. Pugh & Pugh, for plaintiffs in error.

      Mr. 8. L. Wico/f and Mr. John F. Wilson, for defendants in error.
   Judgment affirmed. Constitutional question not entertained.

Burket, Davis and Price, JJ., concur.


text:
    No. 7018.
    Kloeb, Auditor, v. State ex rel. Snyder.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Mercer county.

      Messrs. Marsh & Loree, for plaintiff in error.

      Mr. Charles 8. Younger and Mr. P. Johnson, for defendant in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ.. concur.


text:
    No. 7019.
    Kloeb, Auditor, v. State ex rel. Gilberg & Chapman.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Mercer county.

      Yfessrs. Marsh & Loree, for plaintiff in error.

      Mr. Charles 8. Younger, for defendants in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7024.
    Doppes et al. v. Railway Company et al.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Hamilton county.

      Mr. G. W. Baker, for plaintiffs in error.

      Messrs. Harmon, Colston, Goldsmith & Hoadly; Mr. Drausin Wulsin and Ellis G. Kinkead, corporation counsel, for defendants in error.
   Judgment affirmed on grounds stated by circuit court.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7058.
    Meadow Run Coal & Iron Co. et al. v. Willard, Trustee, et al.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Jackson county.

      Mr. J. P. Bradbury; Mr. John T. Moore and Messrs. Poioell & Eubanks, for plaintiffs in error.

      Mr. J. M. McGillivray and Mr. T. A. Jones, for defendants in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7059.
    Meadow Run Coal & Iron Co. v. Jones et al.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Jackson county.

      Mr. John T. Moore and Messrs. Powell & Eubanks, for plaintiff in error.

      Mr. J. M. McCillivray and Mr. T. A. Jones, for defendants in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7423.
    Pennsylvania Company et al. v. Madden et al.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Stark county.

      Mr. J. B. Carey and Mr. F. J. Mullins, for plaintiffs in error.

      Messrs. Day, Lynch & Day, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7244.
    Pennsylvania Company et al. v. Welch et al.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Stark county.

      Mr. J. B. Carey and Mr. F. J. Mullins, for plaintiffs in error.

      Messrs. Day, Lynch & Day, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7245.
    Pennsylvania Company et al. v. Welch et al.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Stark county.

      Mr. J. R. Carey and Mr. F. J. Mullins, for plaintiffs in error.

      Messrs. Day, Lynch & Day, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7237.
    Jacobs v. Banking Company.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Montgomery county.

      Messrs. Dickson & Clark, for plaintiff in error.

      Messrs. Patterson cG Murphy, for defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7597.
    Buckeye Stave Company v. Smith.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Wood county.

      Messrs. Troup á Ramsey, for plaintiff in error.

      Messrs. Baldtoin & Harrington, for defendant in error.
   Judgment reversed and remanded for new trial for cause stated in journal entry.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7619.
    Street Railway Company v. Gard et al.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Franklin county.

      Messrs. Booth, Keating & Peters, for plaintiff in error.

      Mr. O. A. Macy; Messrs. Keifer & Keifer; Messrs. Byrne, Rubrecht & Wildermuth and Mr. James M. Butler, fpr defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7681.
    Electric Railway Company v. Wadsworth.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Kline, Carr, Tolies & Goff and Mr. A. T. Ingersoll, for plaintiff in error.

      Mr. J. W. Taylor and Mr. T. H. Garry, for defendant in error.
   Judgment affirmed.

Williams, C. J., Spear and Price, JJ., concur.

Burket and Davis, JJ., dissent.


text:
    No. 7784.
    Cincinnati et al. v. Willen.
    (Decided March 25, 1902.)
    Error to the Circuit Court of Hamilton county.

      Mr. Charles J. Hunt and Mr. Wade H. Ellis, corporation counsel, for plaintiffs in error.

      Messrs. Horstman & Horstman and Mr. George H. Kattenhorn, for defendant in error.
   Judgment affirmed.

Williams,' C. J., Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 6974.
    Lake Superior Consolidated Iron Mines v. Anderson.
    (Decided April 1, 1902.)
    Error to the Circuit Court of Ashtabula county:

      Messrs. Wilcox & Friend and Mr. Allen M. Cox, for plaintiff in error.

      Messrs. Perry S Roberts, for defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7035.
    Tribune Publishing Company et al. v. Blossom.
    (Decided April 1, 1902.)
    Error to the Circuit Court of Montgomery county.

      Mr. Thornton M. Hinkle and Messrs. Qottschall, Craioford é Limbert, for plaintiffs in error.

      Messrs. McMahon & McMahon and Messrs. Kevin, Kevin & Kalbfus, for defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7053.
    Ealand v. Myers et al.
    (Decided April 1, 1902.)
    Error to the Circuit Court of Richland county.

      Messrs. Skiles & Skiles and Messrs. Brucker & Cum-, mins, for plaintiff in error.

      Messrs. Douglass é Mengert, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7062.
    Commissioners et al. v. State ex rel. Fanning.
    (Decided April 1, 1902.)
    Error to the Circuit Court of Cuyahoga county,

      Mr. P. H. Kaiser, county solicitor; Messrs. Hadden, Parks & Parks and Mr. Walter C. Ong, for plaintiffs in error.

      Messrs. White, Johnson, McCaslin & Cannon and Messrs. Garfield Garfield & Howe, for defendant in error.
   Judgment affirmed on authority of Findlay v. Pendleton, 62 Ohio St., 80; Buchanan Bridge Co. v. Campbell, 60 Ohio St., 219.

Burket, Davis and Price, JJ., concur.


text:
    No. 7068.
    McCoy v. McCoy et al.
    (Decided April 1, 1902.)
    Error to the Circuit Court of Wayne county.

      Mr. Lee Elliott and Mr. Frank Taggart, for plaintiff in error.

      Mr. A. D. Metz and Mr. J. B. Meech, for defendants, in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7076.
    Barbour, Assignee, v. Stoll et al.
    (Decided April 1, 1902.)
    Error to the Circuit Court of Erie county.

      Mr. H. L. Peeke and Mr. O. T. Johnson, for plaintiff in error.

      Messrs. King & Guerin, for defendants in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7094.
    Southern Granite Company v. National Bank.
    (Decided April 1, 1902.)
    Error to the Circuit Court of Hamilton county.

      Messrs. O’Hara & Jordan, for plaintiff in error.

      Mr. E. L. DeOamp and Mr. G. B. Matthews, for defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7148.
    Jones v. Jones et al.
    (Decided April 1, 1902.)
    Error to the Circuit Court of Butler county.

      Mr. E. W: Kittredge; Messrs. Morey, Andrews & Morey and Messrs. Shotts & Millilcin, for plaintiff in error.

      Mr. Israel Williams and Mr. Alex F. Hume, for defendants in error.
   Judgment vacated and cause remanded to the circuit court with instructions to pass upon the questions presented by bill of exceptions.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7228.
    Deschler v. Franklin, Exr.
    (Decided April 1, 1902.)
    Error to the Circuit Court of Ross county.

      Mr. W. E. Evans, for plaintiff in error.

      Messrs. Harrison, Olds & Henderson; Mr. William Allen Scott and Mr. John P. Phillips, for defendant in error.
   Judgment vacated and cause remanded to the circuit court with instructions to pass upon the petition in error in circuit court, on authority of Cramer v. Railway Co., 53 Ohio St., 436.

Williams, C. J., Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7247.
    Heck et al. v. State of Ohio.
    (Decided April 1, 1902.)
    Error to the Circuit Court of Tuscarawas county.

      Mr. A. W. Patrick and Messrs. Neely & Patrick, for plaintiffs in error.

      Mr. E. E. Porter and Mr. John A. Buchanan, for1 defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7263.
    Rienoehl v. Huonker, City Clerk, et al.
    (Decided April 1, 1902.)
    Error to the Circuit Court of Clark county.

      Mr. J. K. Mower and Mr. D. F. Beinoehl, for plaintiff in error.

      Mr. I). Z GdMner, city solicitor, for defendants in error.
   Judgment affirmed on the ground that the request should have been made of the solicitor in office,, and not of his predecessor; and on the further ground that injunction is not the proper remedy. The remedy is quo warranto.

Williams, C. J., Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7693.
    Archer et al., Trustees, et al., v. Frank et al.
    (Decided April 1, 1902.)
    Error to the Circuit Court of Hamilton county.1

      Mr. C. G. Archer; Mr. L. G. Black; Mr. Prescott Smith and Messrs. Kramer & Kramer, for plaintiffs iff error.

      Messrs. Strieker & Johnson and Mr. Henry P. Kaufman,■ for defendants in error.
   Judgment reversed for cause stated in journal entry.

Burket, Davis, Shauck and Price, JJ., concur


text:
    No. 7893.
    Cincinnati v. Ferguson et al.
    (Decided April 1, 1902.)
    Error to the Superior Court of Cincinnati.

      Mr. Charles J. Hunt, corporation counsel, for plaintiff in error.

      Mr. W. T. Porter; Mr. Fred Hinkle; Mr. E. W. Kittredge; Mr. Edward Golston; Mr. George E. Martin and Mr. W. M. Ampt, for defendants in error.
   Judgment affirmed on grounds stated in journal entry.

Williams, C. J., Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7026.
    Gibsonburg Banking Co. v. Wakeman Bank Co.
    (Decided April 4, 1902.)
    Error to the'Circuit Court of Sandusky county.

      Messrs. Hunt & DeRan and Mr. Lester Wilson, for plaintiff in error.

      Messrs. Andres Brothers, for defendant in error.
   Judgment affirmed.

Williams, C. J., Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7054.
    Giesin v. Berner et al.
    (Decided April 4, 1902.)
    Error to the Circuit Court of Sandusky county.

      Messrs. Love & Gulhert, for plaintiff 'in error.

      Mr. Byron A. Fouche; Messrs. Kinney, O’Farrell é Rim/merspaeh and Messrs. Finefroek & Garver, for defendants in error.
   Judgment reversed. Grounds stated in journal entry.

Williams, C. J., Burket, Davis and Price, JJ., concur.


text:
    No. 7169.
    Insurance Company v. Meier.
    (Decided April 4, 1902.)
    Error to the Circuit Court of Summit county.

      Messrs. Allen & Cobbs and Mr. H. F. Burket, for plaintiff in error.

      Mr. Andrew J. Wilhelm and Mr. Edioin F. Voris, for defendant in error.
   Judgment affirmed.

Williams; C.- J., Spear and Price, JJ., concur;


text:
    No. 7236.
    Schlosser v. State ex rel. McArthur Bros.
    (Decided April 4, 1902.)
    Error to the Circuit Court of Mercey county.

      Messrs. Loughridge & Taylor and Messrs. LeBlond & Landfair, for plaintiff in error.

      Mr. J. D. Johnson, for defendant in error.
   Judgment affirmed.

Williams, C. J., Burket, Spear, Davis and Sitauck, JJ., concur.


text:
    No. 7668.
    Turnpike Company v. Mt. Healthy.
    (Decided April 4, 1902.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Follett, Kelley cC- Follett,' for plaintiff in error.

      Mr. Owen N. Kinney and Mr. H. K. Rogers, for defendant in error.
   Judgment-reversed. Grounds stated in journal entry.

Williams, C. J., Burket, Spear, Davis, Shaijck and Price, JJ., concur.


text:
    No. 7395.
    State ex rel. Ferrell v. Ferneding et al.
    (Decided April 15, 1902.)
    Error to the Circuit Court of Montgomery county.

      Messrs. YanPelt, Dale é Ferneding, for plaintiff in error.

      Mr. 8. A. Dickson, for defendants in error.
   Judgment affirmed.

Bt-jrket, Spéar, Davis, Shauck and Price, JJ., concur.


text:
    No. 7411.
    Cloud v. Hull et al.
    (Decided April 15, 1902.)
    Error to the Circuit Court of Hancock county.

      Mr. W. H. Mc'Elwaine, for plaintiff in error.

      Messrs. Blackford & Blackford, for defendants in error.
   Judgment affirmed.

Burket, Spear, Davis and Shauck, JJ., concur.

Price, J., not sitting.


text:
    No. 7448.
    Currie v. Jaster, Sr.
    (Decided April 15, 1902.)
    Error to the Circuit Court of Trumbull county.

      Messrs. Gilbert cfi Chryst, for plaintiff in error.

      Mr. T. E. Gillmer, for defendant in error.
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 6861.
    Isaac v. Railway Company.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Littleford, Morris, & Ballard; Messrs. Ernst & Cassatt; Mr. William Littleford and Mr. Alfred C. Cassatt, for plaintiff in error.

      Mr. J. W. Warrington; Mr. E. W. Kittredge; Messrs. Paxton & Warrington and Messrs. Kittredge &■ Wilby, for defendant in error.
   Judgment affirmed.

Burket, Spear, Davis and Price, JJ., concur.


text:
    No. 6961.
    Bank v. Pump Company.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Butler county.

      Messrs. Harris & Cameron and Messrs. Morey, Andrews & Morey, for plaintiff in error.

      Mr. B. Harwits; Mr. Alex. Hume and Mr. C. W. Baker, for defendant in error.
   Judgment affirmed.

Williams, C. J., Burket, Spear, Davis and Price, JJ., concur. .


text:
    No. 7074.
    Lima v. Railroad Company et al.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Allen county.

      Mr. D. G. Henderson, for plaintiff in error.

      Mr. A. McL. Marshall; Mr. I. B. Longsworth and B. I). Marshall, for defendants in error.
   Judgment affirmed and cause remanded for new trial, it appearing that one of the grounds of reversal of the common pleas is that the verdict is against the weight of the evidence. Other questions not passed upon.

Williams, C. J., Burket, Spear, Davis and Shauck, JJ., concur.

Price, J., not- sitting.


text:
    No. 7137.
    Blue et al., Trustees, v. Entrekin, Admr., et al.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Ross county.

      Mr. H. W. Woodrotv, for plaintiffs in error.

      Mr. John G. Entrekin and Mr. John P. Phillips,.top defendants in error.
   Judgment affirmed.

Burket, Speak, Davis, Shauck and Price, JJ., concur.


text:
    No. 7183.
    Frank v. Archer et al.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Hamilton county.

      Mr. Sidney'G. Strieker and Mr. E. P. Kaufman, for plaintiff in error.

      Mr. L. G. Black; Mr. G. G. Archer; Mr. Prescott Smith; Mr. F. G. Roelker and Messrs. Kramer & Kramer, for defendants in error.
   Judgment reversed and judgment as per journal entry.

.Williams, C. J., Burket, Davis, Shauck and Price, JJ., concur.


text:
    No. 7385.
    State v. O'Brien.
    (Decided April 22, 1902.)
    Exceptions to the Court of Common Pleas of Darke county.

      Mr. Arthur L. Clark, prosecuting attorney, fur plaintiff.

      Mr. E. G. Wright, for defendant.
   Exceptions sustained.

Williams, C. J., Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7445.
    Insurance Company v. Anderson et al.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Lucas county.

      Mr. Edmund R. Guiney, for plaintiff in error.

      Mr. Karl A. Flichinger, for defendants in error.
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 6875.
    National Surety Company v. Stager, Sheriff, et al.
    (Decided April 29, 1902.)
    Error to the Circuit Court of Lucas county.

      Mr. E. W. Tolerton, for plaintiff in error.

      Messrs. Chittenden & Chittenden, for defendants in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 6963.
    (Decided April 29, 1902.)
    Spaulding et al. v. Allen et al.
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Burke & Ingersolls, for plaintiffs in error.

      Messrs. Burton & Drake and Mr. George L. Phillips, for defendants in error.
   Judgment affirmed.

Williams, C. J., Burket, Spear, Davis and Shauck, JJ., concur.


text:
    No. 7211.
    Nelson v. Hebron.
    (Decided April 29, 1902.)
    Error to the Circuit Court of Licking county.

      Messrs. Kibler & Kibler, for plaintiff in error.

      Mr. 8. M. Hunter, for defendant in error.
   Judgment ,affirmed on the ground that plaintiff proved no negligence on part of defendant.

Burket, Davis and Price, JJ., concur.


text:
    No. 7216.
    Corrigan et al. v. Machine Company.
    (Decided April 29, 1902.)
    Error to the Circuit Court of Summit county.

      Mr. Orestes G. Pinney, for plaintiffs in error. .

      Mr. Edwin F. Voris, for defendant in error.
   Judgment affirmed.

Burket, Davis and Psr^E. JJ., concur.


text:
    No. 7229.
    Wehrle v. Graefe, Trustee.
    (Decided April 29, 1902.)
    Error to the Circuit Court of Ottawa county,

      Mr. W. H. A. Read, for plaintiff in error.

      Mr. Theodore Alvord and Mr. Arthur Phinney, for defendant in error.
   Judgment affirmed.

Burket, Dayis and Price, JJ., concur


text:
    No. 7255.
    Nichols v. Gardner et al.
    (Decided April 29, 1902.)
    Error to the Circuit Court of Sandusky county.

      Messrs. Richards & Heffner, for plaintiff in error.

      Mr. Jesse Vickery, for defendants in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7261.
    Bank v. Lakeside Co. et al.
    (Decided April 29, 1902.)
    Error to the Circuit Court of Cuyahoga county.

      Mr. H. L. Peeke and Mr. George E. Reiter, for plaintiff in error.

      Messrs. Carpenter & Young, for defendants in error.
   Judgment affirmed.

Williams. C. J., Spear and Shauck, JJ., concur.


text:
    No. 7265.
    Weaver, Admr., et al. v. Huntington et al., Exrs.
    (Decided April 29, 1902.)
    Error to the Circuit Court of Clark county.

      Mr. George Arthur, for plaintiffs in error.

      Messrs. Hagan & Kunkle, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7275.
    Nelson v. Berea.
    (Decided April 29, 1902.)
    Error to the Circuit Court of Cuyahoga county.

      Mr. Edmund Hitchins, for plaintiff in error.

      Mr. W. B. Wheeler, for defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7289.
    Davidson et al. v. Kimmell et al.
    (Decided April 29, 1902.)
    Error to the Circuit Court of Harrison county.

      Mr. A. 0. Barnes and Mr. John 0. Dickerson, for plaintiffs in error.

      Messrs. Pearce A Lemmon and Mr. D. A. Hollingsworth, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7623.
    Knoechel v. Railway Company
    (Decided April 29, 1902.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Horstman A Horstman, for plaintiff in error.

      Messrs. Paxton A Warrington, for defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7799.
    Cincinnati et al. v. Alter.
    (Decided April 29, 1902.)
    Error to the Superior Court of Cincinnati.

      Mr. Charles J. Hunt and Mr. Wade H. Ellis, corporation counsel, for plaintiffs in error.

      Messrs. Sorstman & Horstman and Mr. George S. Kattenhorn, for defendant in error.
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7876.
    Street Railway Company v. Snell.
    (Decided April 29, 1902.)
    Error to the Circuit Court of Clermont county.

      Mr. E. W. Kittredge and Mr. J. W. Warrington, for plaintiff in error.
    Mr. John W. Wolfe and Mr. Thomas L. Michie, for defendant in error.
   Judgment affirmed.

Williams, C. J., Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7025.
    Telephone Company v. Piper.
    (Decided May 6, 1902.)
    Error to the Circuit Court of Erie county.

      Messrs. Touvelle, Masters £ Adams and Mr. George E. Reiter, for plaintiff in error.

      Messrs. Kelley £ Merrill, for defendant in error.
   Judgment affirmed.

Williams, C. J., Spear and Price, JJ., concur.


text:
    No. 7131.
    Pfarr v. Commissioners et al.
    (Decided May 6, 1902.)
    Error to the Circuit Court of Union county.

      Mr. J. M. Kennedy and Mr. N. F. Overturf, far plaintiff in error.

      Mr. W. T, Hoopes and Mr. James E. Robinson, for defendants in error.
   Judgment affirmed.

Williams, C. J., Spear and Shauck, JJ., concur.


text:
    No. 7156.
    Railroad Company et al. v. Smith et al.
    (Decided May 6, 1902.)
    Error to the Circuit Court of Licking county.

      Mr. J. H. Collins and Messrs. Kibler & Kibler, for plaintiffs in error.

      Mr. Carl Norpell; Mr. John David Jones and Mr. J. Buckingham, for defendants in error.
   Judgment affirmed.

Btjrket, Davis and Price, JJ., concur.


text:
    No. 7192.
    Robrahn v. Hamilton et al.
    (Decided May 6, 1902.)
    Error to the Circuit Court of Erie county.

      Mr. H. L. Peeke and Mr. George E. Reiter, for plaintiff in error.

      Messrs. Kelley & Merrill, for defendants in error.
   Judgment affirmed on authority of Mitchell v. Ryan, 3 Ohio St., 377.

Williams, C. J., Spear and Shauck, JJ., concur,


text:
    No. 7196.
    Railroad Company v. Glenn.
    (Decided May 6, 1902.)
    Error to the Circuit Court of Licking county.

      Mr. J. H. Collins and Messrs. Kibler & Kibler, for plaintiff in error.

      Mr. B. G. Smythe and Mr. 8. M. Hunter, for defendant in error.
   Judgment affirmed.

Burket, Dayis and Price, JJ., concur.


text:
    No. 7406.
    Conner, Admr., et al. v. Bank & Trust Co., Admr., et al.
    (Decided May 6, 1902.)
    Error to the Circuit Court of Hamiltop county.

      Mr. John 8. Conner and Mr, A, J. Freiberg, for plaintiffs in error.

      Messrs. Paxton & Warrington; Messrs. Swing, Gushing & Morse and Mr. F. Sanford Brown, for defendants in error.
   Judgment affirmed.

Bukket, Davis and Price, JJ., concur.


text:
    No. 7166.
    Surety Company et al. v. Starr.
    (Decided May 13, 1902.)
    Error to the Circuit Court of Montgomery county,

      Messrs. Dale d Ferneding; Mr. G. S. Botoman and Messrs. Kohn d\ JSforthup, for plaintiffs in error.

      Messrs. Dickson d Clark, for defendant in error.
   Judgment affirmed.

Burnet, Davis and Price, JJ., concur.


text:
    No. 7184.
    Railway Company v. Burd, Admr.
    (Decided May 13, 1902.)
    Error to tbe Circuit Court of Medina county.

      Mr. F. Q. Johnson; Mr. J. M. Lessick and Mr. Frank Death, for plaintiff in error.

      Messrs. Webber d Turner and Mr. Frank Spellman, for defendant in error.
   Judgment reversed as per journal entry.

Burnet, Spear, Davis, Shaucn and Price, JJ., concur.


text:
    No. 7266.
    Spears v. Ebner et al.
    (Decided May 13, 1902.)
    Error to tbe Circuit Court of Clark county.

      Mr. D. F. Reinoehl and Messrs. Keifer ct- Keifer, for plaintiff in error.

      Mr. Walter L. Weaver; Messrs. Stafford & Arthur and Mr. John L. Plummer, for defendants in error.
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7267.
    Sprinkler Company v. Milling Company.
    (Decided May 13, 1902.)
    Error to tbe Circuit Court of Clinton county.

      Messrs. Ernst & Cassatt and Mr J. M. Kirie, for plaintiff in error.

      Mr. C. W. Swain and Mr. Mills Gardner, toy defendant in error.
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7419.
    Hard, Treas., v. Insurance Company.
    (Decided May 13, 1902.)
    Error to tbe Circuit Court of Medina county.

      Mr. J. B. Jones and Mr. Frank Spellman, for plaintiff in error.

      Mr. W. W. Boynton and Mr. Lee Elliott, for defendant in error.
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7452.
    Gilpin v. Chalfant et al.
    (Decided May 13, 1902.)
    Error to the Circuit Court of Guernsey county.

      Mr. J. W. Campbell; Mr. W. S. Dougherty and Mr. Fred L. Rosemond, for plaintiff in error.

      Messrs. Locke á. Turnbaugh and Mr. R. T. Scott, for defendants in error.
   Judgment reversed as per journal entry.

Burket, Spear, Davis and Shauck, JJ., concur.


text:
    No. 7204.
    Life Association v. Troy.
    (Decided May 20, 1902.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Ciauque & McClure and Messrs. Cleveland & Bolder, for plaintiff in error.

      Messrs Shay é Cogan and Mr. Robert 0. Pugh, for defendant in error.
   Judgment affirmed.

Burket, Spear, Dayis, Shauck and Price, JJ., concur.


text:
    No. 7208.
    Whitman & Barnes Mfg. Co. v. Yerrick.
    (Decided May 20, 1902.)
    EriTor to the Circuit Court of Summit county.

      Mr. Charles C Benner; Mr. Charles Baird and Mr. Edtvin P. Voris, for plaintiff in error.

      Mr. Samuel C. Rogers and Mr. Newell D. Tibbals, for defendant in error.
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7280.
    Winnemann, Admr., v. Brewing Company.
    (Decided May 20, 1902.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Preusser & Winnemann, for plaintiff in error.

      Messrs. Hoyt, Dustin & Kelley and Messrs. Henderson & Quail, for defendant in error.
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7308.
    Methodist Protestant Church et al. v. Laws et al.
    (Decided May 20, 1902.)
    Error to the Circuit Court of Hamilton county.
    . Mr. C. B. Matthews; Mr. Charles T. Greve; Mr. Ben. B. Dale; Mr. Graham P. Hunt and Mr. Gustamos H. Wald, for plaintiffs in error.

      Messrs. Maxioell & Ramsey, for defendants in error.
   Judgment reversed and defendant in error enjoined from maintaining an obstruction across said right of way other than a gate made of*pickets.

Bitrket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7311.
    Wingert, Admr., v. Eberhart.
    (Decided May 20, 1902.)
    Error to the Circuit Court of Crawford county.

      Messrs. Beer, Bennett & Monnette and Messrs. Harris & Sears, for plaintiff in error.

      Messrs. Finley & Gallmger, for defendant in error.
   Judgment reversed on authority of Bricker v. Elliott, 55 Ohio St., 577.

Burket, Spear, Davis and Shauck, JJ., concur.

Price, J., not sitting;


text:
    No. 7327.
    Insurance Company v. Purcell.
    (Decided May 20, 1902.)
    Error to the Circuit Court of Clermont county.

      Mr. J. Hartioell Cabell, for plaintiff in error.

      Messrs. Davis & Woodlief; Mr. Frank Á. Roberts and Messrs. Swing & Morse, for defendant in error.
   Judgment affirmed.

Burket, Shauck and Price, JJ., concur.


text:
    No. 7364.
    Toledo v. Converse et al.
    (Decided May 20, 1902.)
    Error to the Circuit Court of Lucas county.

      Mr. Moses R. Brailey; Mr. Charles K. Friedman and Charles S. Northrup, for plaintiff in error.

      Mr. Ralph 8. Holbrook and Messrs. Hamilton & Kirby, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7113.
    Young v. Neff et al.
    (Decided June 3, 1902.)
    Error to the Circuit Court of Franklin county.

      Mr. George B. Obey; Mr. James A. Allen and Mr. G. D. Saviers, for plaintiff in error.

      Messrs. Kinbeail, Menvine dc Schumacher and Mr. J. S. Friesner, for defendants in -error.
   Judgment affirmed.

Spear, Davis, Shauck and Price, JJ., concur.

Burket, J., not sitting.


text:
    No. 7190.
    Cambridge v. Carlisle.
    (Decided June 3, 1902.)
    Error to the Circuit Court of Guernsey county.

      Mr. W. G. Collins, for plaintiff in error.

      Messrs. Bosemond & Face, for defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7193.
    Ranker, Admx., v. St. John.
    (Decided June 3, 1902.)
    Error to the Circuit Court of Seneca. CGunty.

      Mr. A. Slcransetoflcy and Mr. E. E. Williams, for plaintiff in error.

      Messrs. McCauley & Weller, for defendants in error.'
   Judgment affirmed.

Burket, Davis and Shauck, JJ., concur.

Price, J., not participating.


text:
    No. 7201.
    Cobb v. Scofield et al.
    (Decided June 3, 1902.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Goulder, Holding cG Hasten, for plaintiff in error.

      Messrs. Henderson & Quail, for defendants in error.
   Judgment reversed on authority of Younglove v. Lime Co., 49 Ohio St., 633, and Bronson v. Schneider, 49 Ohio St., 438.

Burket, Spear, Davis, Shaucic and. Price, JJ, concur.


text:
    No. 7380.
    Steiner v. Amstutz et al.
    (Decided June 3, 1902.)
    Error to the Circuit Court of Wayne county.

      Messrs. Allen &_Cobbs and Mr. John McSweemy,. for plaintiff in error.

      Mr. James B. Taylor, for defendants in error.
   Judgment affirmed. Cause remanded to the circuit, court to make allowance of fees to attorneys.

Buricet, Spear, Davis, Shaucic and Price, JJ., concur.


text:
    No. 7403.
    Gross et al. v. Commissioners et al.
    (Decided June 3, 1902.)
    Error to the Circuit Court of Shelby county.

      Messrs. West á West, for plaintiffs in error.

      Mr. J. D. Barnes and Messrs. Goeke & Hoskins, for defendants in error.
   Judgment vacated and cause remanded to the circuit court with instructions to proceed and hear the petition in error on its merits.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7410.
    Lebensburger v. Price.
    (Decided June 3, 1902.)
    Error to the Circuit Court of Erie county.

      Mr. George E. Reiter and Mr. H. L. Peeke, for plaintiff in error.

      Messrs. G. P. & L. W. Wickham, for defendant in error.
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7414.
    West et al. v. Houston.
    (Decided June 3, 1902.)
    Error to the Circuit Court of Fayette county.

      Messrs. Vandeman & Chaffin and Messrs. Gregg, Patton d Gregg, for plaintiffs in error.

      Mr. Humphrey Jones, for defendant in error.
   Judgment affirmed.

Burket, Spear, Davis and Price, JJ., concur.


text:
    No. 7416.
    Railway Company v. Boucsein.
    (Decided June 3, 1902.)
    Error to the Circuit Court of Mahoning county.

      Messrs. Arrcl, MdVey d Robinson, for plaintiff in error.

      Mr. W. 8. Anderson and Air. A. J. Woolf, for defendant in error.
   Judgment affirnled.

Burket, Davis and Price, JJ., concur.


text:
    No. 7429.
    Robinson et al. v. Bank.
    (Decided June 3, 1902.)
    Error to the Circuit Court of Fayette county.

      Messrs. Harper d\ Harper, for plaintiffs in error.

      Mr. Humphrey Jones, for defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7432.
    Eells v. Shea.
    (Decided June 3, 1902.)
    Error to the Circuit Court of Cuyahoga county.

      Mess7's. Hoyt, Dustin & Kelley, for plaintiff in error.

      Mr. E. Sowers, for defendant in error.
   Judgment affirmed.

Btjrket, Spear and Price, JJ., concur.


text:
    No. 7209.
    Larwill v. Burke et al.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Hancock county.

      Mr. J. D. Oritchfieldj Messrs. Kibler & Kibler and Messrs. Henderson del Quail, for plaintiff in error.

      Mr. Stevenson, Burke; Mr. H. H. Poppleton; Messrs. Phillips & Phillips; Messrs. Follett & Follett; Mr. F. M. Black; Mr. J. B. Jo7%es; Mr. A. A. Steaims and Mr. John W. Arnold, for defendants in error.
   Judgment affirmed.

Burket, Davis, Shauck and Price, JJ., concur.


text:
    No. 7277.
    Brenner v. Abbott et al.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Hancock county.

      Mr. A. G. Fuller and Mr. Jason Blackford, for plaintiff in error.

      Messrs. J. A. & E. V. Bope; Mr. T. H. McGonica; Mr. Franklin Franks and Messrs. Seney & Johnson, for defendants in error.
   Judgment affirmed.

Burket, Davis and Shauck, JJ., concur.

Price, J., not participating.


text:
    No. 7299.
    Peters v. Peters.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Marion county.

      Messrs. Mouser & Quigley and Messrs. Finley & Gallinger, for plaintiff in error.

      Messrs. Scofield, Durfee & Scofield, for defendant in error.
   Judgment affirmed.

Burket, Davis and Shauck, JJ., concur.

Price, J., not sitting.


text:
    No. 7315.
    Ferguson & Co. v. Strang, Jr., et al.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Defiance county.

      Messrs. Harris, Cameron & Shaw; Mr. W. H. Eajdowski and W. R. Crawford, for pla-intiff in error.

      Mr. W. D. Hill; Mr. H. C. Baker and Mr. Walter B. Ritchie, for defendant in error.
   Judgment affirmed.

Burket, Davis, Shauck and Price, JJ., concur.


text:
    No. 7393.
    Cowen et al., Receivers, v. Kramer et al.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Franklin county.

      Mr. J. H. Collins, for plaintiffs in error.

      Mr. Frank P. Jackson, for defendants in error.
   Judgment vacated and remanded to the circuit court for hearing on the merits of petition in error.

Burket, Davis and Price, JJ., concur.


text:
    No. 7417.
    Loy, Admx., v. Railway Company.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Shelby county.

      Messrs. Wicoff & Emmons and Mr. Wymond J. Beckett, for plaintiff in error.

      Mr. S. 0. Bayless; Mr. J ohn F. Wilson and Mr. J ohn T. Dye, for defendant in error.
   Judgment affirmed.

Burket, Davis, Shauck and Price, JJ., concur.


text:
    No. 7421.
    Sutton et al., Commissioners, v. State ex rel. Railway Company.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Clermont county.

      Mr. Cl. B. Nichols and Messrs. Davis & Woodlief,. for plaintiffs in error.

      Messrs. Maxwell A Ramsey, for defendant in error.
   Judgment affirmed.

Btjrket, Davis, Shauck and Price, JJ., concur.


text:
    No. 7641.
    Andrews Brothers Company v. Burns.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Mahoning county.

      Mr. Thomas W. Sanderson and Messrs. Johnston & Calmn, for plaintiff in error.

      Mr. A.. J. Woolf and Mr. W. S. Anderson, for defendant in error;
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ.,. concur.


text:
    No. 7058.
    Coal & Iron Company v. Willard, Trustee et al.
    (Decided June 17, 1902.)
    Error to the Circuit Court of Jackson county.

      Mr, J. P. Bradbury; Mr. John T. Moore and Messrs. Powell & Eubanks, for plaintiff in error.

      Mr. J. M. McGillmray and Mr. T. A. Jones, for defendants in error.
   Former judgment adhered to.

Williams, C. J., Burket, Shauck and Price, JJ., concur.


text:
    No. 7117.
    Hosea, Trustee, et al. v. Cincinnati.
    (Decided June 17, 1902.)
    Error to the Circuit Court of Hamilton county.

      Mr. Charles B. Wilby; Mr. William G. Hosea and Mr. Gustavus H. Wald, for plaintiffs in error.

      Mr. Charles J. Hunt; Mr. Wade H. Ellis and Mr. Albert H. Morrill, corporation counsel, for defendant in error.
   Judgment affirmed.

Burket, Spear, Davis, .Shauck and Price, JJ., concur.


text:
    No. 7167.
    Winous Point Shooting Club v. Caspersen et al.
    (Decided June 17, 1902.)
    Error to the Circuit Court of Ottawa county.

      Messrs. Goulder, Holding & Hasten; Messrs. Love d\ Wierman and 'Messrs. Bartlett d Wilson, for plaintiff in error.

      Mr. George A. True, for defendants in error.
   Judgment affirmed on authority of Bodi v. Winous Point Shooting Club, 57 Ohio St., 226.

Burkbt, Spear, Shauck and Price, JJ., concur.


text:
    No. 7321.
    Muhkhauser et al. v. Cleveland Hospital for Women and Children.
    (Decided June 17, 1902.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Hessenmueller d Bemis, for plaintiffs in error.

      Mr. Edward Bushnell, for defendant in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7213.
    Garlick v. Railway Company et al.
    (Decided June 24, 1902.)
    Error to the Circuit Court of Mahoning county.

      Messrs. Arrel, McVey d Robinson and Messrs. Hine d Kennedy, for plaintiff in error.

      Messrs. Jnnes <£- Anderson and Mr. J. R. Carey, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.

Williams, -O. J., and Shauck, J., absent.


text:
    No. 7214.
    Garlick v. Railway Company et al.
    (Decided June 24, 1902.)
    • Error to the Circuit Court of Mahoning county.-

      Messrs. Arrel, McVey & Robinson and Messrs. Sine & Kennedy, for plaintiff in error.

      Messrs. Jones <6 Anderson and Mr. J. R. Carey, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.

Williams, C. J., and Shauck, J., absent.


text:
    No. 7215.
    Garlick v. Railway Company et al.
    (Decided June 24, 1902.)
    Error to the Circuit Court of Mahoning county.

      Messrs. Arrel, McVey & Robinson and Messrs. Hine & Kennedy, for plaintiff in error.

      Messrs. Jones & Anderson and Mr. J. R. Carey, for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.

Williams,'C. J., and Shauck, J., absent.


text:
    No. 7338.
    Deposit Bank Co. v. Martz et al.
    (Decided June 24, 1902.)
    Error to the Circuit Court of Darke county.

      Mr. A.. I. Voris and Messrs. Allread & Teegarden, for plaintiff in error.

      Mr. J. T. Marts and Messrs. Trainer & Hoffman^ for defendants in error.
   Judgment affirmed.

Burket, Davis and Price, JJ., concur.


text:
    No. 7489.
    Roberts, Auditor, v. Middleport.
    (Decided June 24, 1902.)
    Error to the Circuit Court of Meigs county.

      Mr. E. C. Fish, prosecuting attorney, and Mr. J. P. Bradbury, for plaintiff in error.

      Messrs. Russell & Russell, for defendant in error.
   Judgment affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 8046.
    Kerch et al. v. Weaver et al.
    (Decided June 26, 1902.)
    Error to the Circuit Court of Tuscarawas county.

      Messrs. Wilkin & Wilkin and Mr. J. D. F. Bold, for plaintiffs in error.

      Messrs. Welty & Albaugh; Air. Jasper H. Mitchell and Mr. Amos V. Buff, for defendants in error. N
   Dismissed for want of jurisdiction on authority of Slingluff et al. v. Weaver et al., 66 Ohio St., 621.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7737.
    City of Bucyrus ex rel. Holmes v. City of Bucyrus et al.
    (Decided June 27, 1902.)
    Error to the Circuit Court of Crawford county.

      Mr. Henry IF. Seney and Messrs. Beer & Atonnettc, for plaintiff in error.

      Alessrs. Finley & Gallinger and Air. Horace Holbrook, for defendants in error.

      Messrs. Schaffer & Peck, for defendant Hanna.
   Judgment reversed and cause remanded to the circuit court as per entry.

Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 8041.
    Guckenberger v. Henderson, Clerk.
    (Decided June 27, 1902.)
    Error to the Circuit Court of Hamilton county.

      Mr. Ellis C. Kinlcead and Mr. Theodore Horstman, for plaintiff in error.

      Mr. Charles J. Hunt and Mr. Wade H. Ellis, for defendant in error.
   Judgment affirmed, the act entitled “An act to amend Secs. 2835, 2836 and 2837, and to repeal Sec. 2837ft, of the Revised Statutes authorizing the issue of bonds by cities, villages, hamlets and townships,” being constitutional.

Btjrket, Spear, Davis, Shauck and Price, JJ., concur.


author: Crew, J.

text:
    The State of Ohio ex rel. Glass et al. v. Chapman.

      Clerk of court of common pleas — Duties are ministerial and nonjudicial — Mandamus to compel change of venue — Clerk cannot set up want of jurisdiction, when — Court procedure.

    The duties of a clerk of the court of common pleas are ministerial and non-judicial, and in a proceeding in mandamus to compel him to obey an order of the court of which he is clerk, allowing. a change of venue in a cause pending in said court, and directing him to transmit the papers and pleadings in said cause to the court of common pleas of the county to which the place of trial of said cause has been changed, such clerk cannot set up as a defense, and have adjudicated in such mandamus proceeding — the invalidity of such order or the want of jurisdiction in the court to make it.
    (Decided October 14, 1902.)

      In Mandamus.
    This is an application by relator for a writ of mandamus, commanding that respondent, Charles C. Chapman, as clerk of the court of common pleas of Ashland county, Ohio, enter upon the journal of said court an order made by said court in a certain cause therein pending, of Wade Armentr'out against William W. Gurley et al., directing that the place of' trial of said cause be changed from said county of Ashland to the adjoining county of Wayne. As ground of their application the relators, in their petition allege that at the May term of the court of common pleas of Ashland county, Ohio, on motion of these relators, who were defendants in said cause of Wade Armentrout against William W. Gurley et al., said court made and entered upon its docket an order directing that the place of trial of said cause be changed from said county of Ashland to the adjoining county of Wayne, and that the papers and pleadings in said cause, together with a certified copy of said order for removal, be transmitted by the clerk of court of Ash-land county to the clerk of court of said Wayne county, which order and direction of the court, relators aver, the defendant refuses to obey.
    An alternative writ of mandamus was allowed to issue in this case and was made returnable on September 25, 1902. On said day the respondent, Charles-C. Chapman filed his answer to said alternative writ, and from that answer the following facts affirmatively appear:
    That in the third subdivision of the sixth judicial district of Ohio, composed of the counties of Ashland,. Morrow and Richland, there were and are but two resident judges of the court of common pleas, to-wit, Judges Darius Dirlam and R. M. Campbell, both of whom were disqualified to sit in the cause of Wade Armentrout against W. W. Gurley et al., pending in said court of common pleas of said Ashland county. The cause or manner of their disqualification is not stated, and respondent alleges that he had no notice of the disqualification of either of them.
    That on or about the eighth day of July, 1902, the respondent, as clerk of the court of common pleas of said Ashland county, was notified by Hon. S. B. Eason, supervising judge of the sixth judicial district,, that Judge George Coyner, of Delaware county, one of the counties of said sixth judicial district, had, by him, said S. B. Eason, as such supervising judge, been designated and assigned to try said cause.
    That on the eighth day of August, 1902, and prior to the time of the hearing by Judge Coyner of a motion pending in said cause for change of venue, the plaintiff in said cause, Wade Armentrout, filed with this respondent, as clerk of court of Ashland county, the following affidavit:
    ' “Wade Armentrout, plaintiff, v. William W. Gurley et al., defendants.
    “Affidavit.
    “The State of Ohio, Ashland County, ss.
    “Wade Armentrout being first duly sworn according to law, says that he is the plaintiff in the above-named action; that the Hon. George Coyner, one of •the judges of the sixth judicial district (the resident judges being disqualified), and duly assigned to hear the motion or motions now on file in said cause, and to try the said cause, has bias for the defendants and prejudice against this plaintiff herein, in the above-entitled cause, and by reason of said bias and prejudice, is disqualified to hear and determine said motion or motions, or to try said cause; and further affiant saith not.
    “(Signed) Wade Armentrout.
    “Sworn to and subscribed before me this eighth day of August, A. D. 1902.
    “Upton Andress, Notary Public.”
    Respondent, in his answer, further alleges “that on said eighth day of August, 1902, he officially notified said Judge George Coyner of the filing of said affidavit of bias and prejudice, as above set forth, and that said Judge Coyner had full knowledge of the filing of, and the contents of said affidavit before the hearing of the motion, as set forth in the petition. No objection was made to said affidavit as to its form or sufficiency, but said affidavit was entirely disregarded by said Judge Coyner.” While the answer of respondent contains other and further averments, the above sufficiently show the nature and character of the defense relied upon.

      Messrs. Kerr & LaDow and Messrs. Cummings, McBride & Wolfe, for relators.

      Messrs. McCray & McCray and Mr. F. N. Patterson, for respondent.
   Crew, J.

It appears from the statements of defendant’s answer that he refuses to obey the order of said court, and to certify said cause to the court of common pleas of Wayne county, on the ground that the Hon. George Coyner, the judge who made said order and allowed said change of venue in the case of Wade Armentrout against William W. Gurley et al., was, at the time of making said order and granting said change, disqualified to sit as a judge in said cause, and was disqualified to make said order, by reason of the fact tliat an affidavit of disqualification, as provided by Section 550, Bevised Statutes, bad theretofore been filed against him by said Wade Armentrout, plaintiff in said cause.

To the answer of respondent herein the relator demurs, and the question here for determination is, Are the facts set up in defendant’s answer a sufficient justification to him for his refusal to obey the order so made and entered by Judge Coyner? We are unanimous in the opinion that they are not.

It affirmatively appearing from the undisputed facts in this case that Judges Dirlam and Campbell were both disqualified to sit in said cause of Armentrout against Gurley et al., and that they were the only judges of the court of common pleas residing within the third subdivision of the sixth judicial district, it became and was the duty of Judge Eason, as supervising judge of said district, having notice of these facts, to designate and assign a judge from another subdivision of said district, to hear the motion pending in said cause for change of venue. Such supervising judge assigned to this duty Judge George, Coyner, of Delaware county, who heard and sustained said motion, and made the following entry in said cause: “The court, on consideration of said motion for change of venue sustains the same, and it is ordered that the place of trial be, and the same hereby is changed to the county of Wayne. It is therefore directed that the clerk of this court transmit to the clerk of the court- of common pleas of Wayne county the pleadings and papers in this case, with a certified copy of this order.” This entry the clerk refused to journalize and refused, as directed in said entry,- to transmit to .the clerk of the court of common pleas of Wayne county the papers and pleadings in said cause.

Section 4965, Revised Statutes, provides: “The clerk of each of the courts shall exercise the powers conferred and perform the duties enjoined upon him by statute and by the common law; and in the performance of his duties he shall be under the direction of his court.”

Section 5831, Revised Statutes, provides, in part, that “All judgments and orders must be entered-on the journal of the court, * * * .”

Section 4962, Revised Statutes, is as follows: “The ■clerk shall keep the journals, records, books, and papers appertaining to the court, and record its proceedings.”

The order made by Judge Coyner, and compliance with which is here sought to be enforced, was an order made by a judge duly assigned to hear said cause, was such an order of the court as is authorized by Section 5029, Revised Statutes, and it does not lie with respondent in this proceeding to challenge either the validity of such order, or the authority and jurisdiction •of the court that made it. The duties of the clerk of the court of common pleas are ministerial and non-judicial. If the jurisdiction to hear and determine the motion for change of venue in said cause was wrongfully assumed by Judge Coyner, the plaintiff in that case, Wade Armentrout, has an appropriate remedy in error, but no right of this respondent is so affected by such order, nor has he any such interest in the order, or the cause in which it was made, as that he may, in this proceeding, question its regularity or the authority of the court to make it.

By section 4962, supra, it is made the imperative duty of the clerk to record thejproceedings of the court. When he refuses to do this, and performance of such duty is sought to be enforced by a proceeding in mandamus, such clerk cannot set up as a defense, and have tried in such proceeding, the invalidity of the order or judgment he refuses to record, or the want of jurisdiction of the court to make such order, or to enter such judgment.

Peremptory writ of mandamus allowed.

Burket, C. J., Spear, Davis, Shauck and Price, JJ., concur.