author: Nichols, C. J. Donahue, J.,

text:
    Pagano, Admr., v. Cerri, Italian Consular Agent.

      Administration of estates — Aliens dying intestate in Ohio — Foreign consuls eligible to appointment — Section 10617, General Code —Article 14, treaty of ign with Sweden — But not entitled to prior, paramount right, when — Article 17, treaty with Italy— Most-favored-nation clause.

    1. Where a subject of the Kingdom of Italy died intestate in this state, leaving a widow and two minor children, residents and subjects of the Kingdom of Italy, the Italian consul is not entitled to the prior, paramount and exclusive right of administration, but is eligible to such appointment under the fourth subdivision of Section 10617, General Code, subject to the exercise of the discretion of the probate court of such county.
    2. Article 14 of the treaty of 1911 between the United States of America and the Kingdom of Sweden provides: “In the event of any citizens of either of the two contracting parties dying without will or testament, in the territory of the' other contracting party, the consul-general, consul, vice-consul-general, or vice-consul of the nation to which the deceased may belong, or, in his absence, the representative of such consul-general, consul, vice-consul-general, or vice-consul, shall, so far as the laws of each country will permit and pending the appointment of an administrator and until letters of administration have been granted, take charge of the property left by the deceased for the benefit of his lawful heirs and creditors, and, moreover, have the right to be appointed as administrator of such estate.”
    Article 17 of the treaty between the United States and Italy provides: “The respective consuls general, consuls, vice-consuls and consular agents, as likewise the consular chancellors, secretaries, clerks or attaches, shall enjoy in both countries, all the rights, prerogatives, immunities and privileges which are or may hereafter be granted to the officers of the same grade, of the most favoured nation.” Held:

    (a) These provisions are to be construed as investing the consuls of the Kingdom of Italy with the same rights, privileges and prerogatives as those of the Kingdom of Sweden, and thereby they are made eligible to act as administrators when no competent person having rights under subdivisions 1, 2 and 3 of Section 10617, General Code, applies.
    (b) The provisions under consideration are not to be construed as conferring prior and paramount rights to such consuls as to permanent administration upon the estates of their fellow countrymen dying intestate in Ohio, and thereby superseding and supplanting the provisions of Section 10617, General Code of Ohio.
    (No. 14897
    Decided January 25, 1916.)
    Error to the Court of Appeals of Trumbull county.
    The facts are stated in the opinion.

      Mr,.Dominic F. Rendinell and Mr. F. R. Hahn, for plaintiff in error.

      Mr. Harry F. Payer and Mr. John Ruffalo, for defendant in error.
   Nichols, C. J.

Vincenzo Basile, an Italian subject, born in the province of Messina, died intestate November 9, 1913, in Trumbull county, Ohio.

He left no heirs in the United States, but did leave surviving him, as his only heirs at law and next of kin, a widow and two minor children, all of whom were at the time of the death of Basile residents of the Kingdom of Italy and subjects of that nation.

The estate of decedent consisted solely of an unliquidated claim for damages for his wrongful death.'

Dr. Nicola Cerri is now and has been continuously since 1900 the duly qualified, recognized and acting consular officer for the Kingdom of Italy in and for Northern Ohio, his jurisdiction as such extending to and including Trumbull county. Dr. Cerri, although likewise an Italian subject, is and has been since 1900 a resident of Cleveland, Ohio,

On November 26, 1913, Giovanni Pagano was appointed administrator of the estate of the decedent by the probate court of Trumbull county. Shortly thereafter Dr. Cerri, such consular agent, filed a motion in the Trumbull county probate court seeking the removal of the administrator so appointed, on the ground that the appointment had been made in contravention of the general law of nations, and particularly of Articles 9, 16 and 17 of the consular convention of 1878 between the United States of America and the Kingdom of Italy, and of the rights, privileges and immunities accruing to the said consular agent thereunder by virtue of Article 10 of the treaty of 1859 between the United States of America and Paraguay and Article 14 of the treaty of 1911 between the United States of America and the Kingdom of Sweden.

In January, 1914, said probate court overruled the motion. Appeal was taken to the court of common pleas by the consular agent. Decision was again had in favor of the administrator so appointed and against Dr. Cerri, the consular agent.

Error was thereupon prosecuted to the court of appeals, which court reversed both the probate and common pleas courts, and its mandate was issued to the probate court of Trumbull county directing it to sustain the motion to revoke the letters of administration to Pagano and to appoint Dr. Cerri, such consular agent, as administrator of decedent Basile.

The administrator so deposed filed his motion in the supreme court asking that the court of appeals of such county be directed to certify its record to this court, on the ground that the case was one of great general interest. The motion was granted and the record was accordingly certified.

This case relates wholly to the administration of the estates of aliens dying intestate in Ohio. It is asserted by Dr. Cerri that by virtue of his office as consular agent for the Kingdom of Italy he is invested with the sole, exclusive and paramount right to be appointed as administrator of the estates of all subjects of Italy dying in northern Ohio who may die intestate. His claim is that the probate court is without discretion in the premises, and amounts in effect to supplanting the provisions of Section 10617, General Code of Ohio, wherein preference is given, first, to the husband or widow, second, to the next of kin, third, to creditors, and fourth, to such persons as the court deems fit, in the discretion of the probate court having jurisdiction.

The claim thus asserted would seem by the mere statement of it to be a most extraordinary one, yet it is not without some substantial basis for its support.

This basis is to be found in the provisions of Article 17 of the treaty between Italy and the United States and Article 14 of the treaty between Sweden and the United States.

Article 17, known as the most-favored-nation clause, appears in all modern treaties between the United States and the other great powers, and is as follows:

“Article XVII. The respective consuls general, consuls, vice-consuls and consular agents, as likewise the consular chancellors, secretaries, clerks or attaches, shall enjoy in both countries, all the rights, prerogatives, immunities and privileges which are or may hereafter be granted to the officers of the same grade, of the most favoured nation.”

Article 14 of the Swedish treaty provides:

“In the event of any citizens of either of the two contracting parties dying without will or testament, in the territory of the other contracting party, the consul-general, consul, vice-consul-general, or vice-consul of the nation to which the deceased may belong, or, in his absence, the representative of such consul-general, consul, vice-consul-general, or vice-consul, shall, so far as the laws of each country will permit and pending the appointment of an administrator and until letters of administration have been granted, take charge of the property left by the deceased for the benefit of his lawful heirs and creditors, and, moreover, have the right to be appointed as administrator of such estate.”

While the provisions of Article 14 of the Swedish treaty were not incorporated in the Italian treaty of 1878, yet it is vigorously claimed that by the terms of Article 17 of the Italian treaty the consuls of that country are entitled to the same rights, privileges and prerogatives granted the Swedish consuls, just as fully indeed as if Article 14 had been inserted in the Italian treaty.

This proposition is not free from doubt. In fact, the supreme court of the United States, in the case of Rocca v. Thompson, 223 U. S., 317, raises a question as to the soundness of the claim, the ninth proposition of the syllabus reading: “Quaere: Whether the most favored nation clause included in the treaty with Italy of 1878 carries the provisions of the Argentine Treaty of 1853 in regard to the administration by consuls of the estates of deceased nationals.”

This court, however, in its consideration of the instant case will assume that the consuls of Italy, by reason of the “most favored nation” rule, are like beneficiaries with the Swedish consuls of all the rights and privileges conferred by Article 14 of the Swedish treaty.

Covenants and agreements among the civilized nations of the earth, commonly called treaties, are the most sacred engagements of which we can conceive. Not only are honor and good faith of the nation put to the test, but any deliberate infraction of treaty obligations leads inevitably to the arbitrament of arms. The courts of the land, therefore, by every rule of reason, are chargeable with the duty of fairly and carefully considering questions arising under the treaty engagements entered into by the national government with foreign powers. Such engagements should be interpreted in a broad and liberal spirit, for certainly here hairsplitting distinctions have no shadow of excuse for their existence.

However, at the very threshold of the case we are met with a distinct challenge as to the power of the national government, in the exercise of its treaty-making function, to invest the consul of any foreign nation with the sole, prior and paramount right to administer upon the estates of their deceased fellow countrymen, anything in the laws of the several states of the Union to the contrary notwithstanding.

There is no federal holding to the effect that the national government can constitutionally exercise any such sweeping power; indeed, within the last four years, the supreme court of the United States itself questions the right of the federal government to enter into any such engagement with a foreign power. See Rocca v. Thompson, supra.

While this is a question of power rather than policy, yet we feel that public policy, whether looked at from a national or a state standpoint, would forbid the exercise of such a power.

Shaw, J., of the supreme court of California, in the case of Estate of Ghio, 157 Cal., 552, 557, says: “It is also of grave importance because its solution in favor of the appellant necessarily ascribes to the federal government the intent, by means of its treaty-making power, to materially abridge the autonomy of the several states and to interfere with and direct the state tribunals in proceedings affecting private property within their jurisdictions. It is obvious that such intent is not to be lightly imputed to the federal government, and that it cannot be allowed to exist except where the language used in a treaty plainly expresses it, or necessarily implies it.”

The constitution of the United States does reserve to the exclusive domain of the executive and the United States senate the treaty-making power, yet this grant to the federal government and the denial to the several states has its limitations of power.

A treaty duly ratified has no more binding force than an act of congress generally, and as to its subject-matter clearly it cannot overstep the limitations of the federal constitution.

It would manifestly be beyond the power of the United States government to provide by treaty with Italy that subjects of Italy resident of Ohio should be entitled to exemption from execution for debts for an amount in excess of that granted citizens of Ohio, or to provide that such subjects should be entitled to obtain a divorce on the ground of desertion or wilful absence for one year, whereas to other citizens the right was limited to absence for three years.

The administration of the estates of the deceased inhabitants of a state is peculiarly a state and not a federal matter, and many of our most distinguished secretaries of state for the United States have always recognized it as a state affair.

It is clearly to be seen that in the making of the Swedish treaty full recognition was given to this fact, and the government at Washington limited the rights and prerogatives granted consuls of Sweden and of all other countries and bound itself to vouch for only such rights and privileges as the laws of each country would permit; the meaning of the word “country” being, so far as it applied to the United States, “thé states of such country.”

Substantially similar language is to be found in every treaty entered into between our own government and every foreign country, the form of the limitation varying, sometimes reading “So far as the laws of each country will permit;” at other times reading “Conformably with the laws of the country.” But in no instance can there be found a case where the government of the United States binds itself by treaty to confer any such exclusive right of administration independent of the state-law-conformity limitation. Such a uniform construction of its own limitation of power by the federal government, existing for so long a period of time, is certainly tantamount to a declaration that the several states have, under the tenth amendment to the federal constitution, the reserved right to regulate the matter of the administration of the estates of aliens dying intestate within their jurisdictions as a strictly domestic concern.

The second proposition of the syllabus in Rocca v. Thompson, supra, reads: “There is no Federal probate law, but right to administer property left by a foreigner within the jurisdiction of a State is primarily committed to state law.”

This does not hold, of course, that congress might not enact a probate law applicable to the administration of the estates of deceased aliens, but, taken with the “Quaere” which immediately follows the proposition just quoted, it suggests the existence of a substantial doubt in the minds of the judges of the Union’s highest tribunal, the court saying: “Quaere: Whether it is within the treaty-making power of the National Government to provide by treaty with foreign nations for administration of property of foreigners dying within a State, and to commit such administration to consuls of the nation to which deceased owed allegiance.”

This court, however, will not undertake to decide this phase of the case. It certainly would be much more appropriate for the supreme court of the United States to determine the limitation of the federal government as to its treaty-making power, and in view of the construction given the language of the Swedish treaty of 1911 by the court of appeals of the seventh district of Ohio, it would seem that it is imperative that the supreme court of the United States give to the courts of the several states the proper construction it feels should be given this language, and at the same time define the limitation of power on the part of the federal government, if any there be, in this respect.

This court, in the instant case, has reached a conclusion different from that of the court of appeals in construing the Swedish treaty. It feels that the federal government, in entering into this-engagement, has not sought to give to foreign consuls the sole,' prior and paramount right of administration, as asserted by the defendant in error.

We hold that the federal government has had due regard for the rights of the several states and has not accorded any privileges to foreign consuls in conflict with the laws of all or any of the several states of the Union. The claim that these superior and paramount rights have been accorded foreign consuls rests wholly on the last clause of Article 14 of the Swedish treaty, reading: "and, moreover, have the right to he appointed as administrator of such estate ”

If this clause stood as an independent paragraph of the treaty there woúld be available a good and valid argument to the effect that the federal government had assumed to ignore or set aside the laws of the several states on the subject of the administration of estates, and had granted to foreign consuls a prior and paramount right and privilege denied to any of our own citizens. But this clause, under no sensible rule of construction, can be isolated from the context of Article 14, but must be read with it, and its true meaning and intent thus ascertained. Taking the article as an entirety, it is readily to be ascertained that the right of a foreign consul to take charge of the property of the deceased pending the appointment of an administrator is subject to a positive limitation in the express language of the treaty. It can only be done “so far as the laws of each country [state] will permit.”

Now this is mere custodianship — preservation only — not administration. It cannot approach in importance to the matter of administration, settlement and distribution. It is temporary in its nature : implies the exercise of dominion only for the purpose of safe-keeping.

It is unthinkable that our national government would surround this limited privilege or grant of power to a foreign consul with the safeguard of conformity to state laws and in the same article and in the very next expression grant the far greater power of complete administration without restriction or limitation of any kind whatever.

We cannot in reason attribute any such course of conduct to the president and the senate of the United States. Whether the limitation in the firs' instance be induced by a sense of want of power, or be it merely a matter of policy, the same wisdom that would suggest the limitation laid down as to custodianship would operate to require the identical limitation as to permanent and final administration. Indeed, many more potent arguments could readily be advanced in support of the wisdom of imposing the limitation in the latter case than in the former.

But quite apart from such line of reasoning, it appears clear to us that a proper grammatical construction of Article 14 in its entirety will support the .position that the clause “And, moreover, have the right to be appointed as administrator of such estate” is to be modified by the qualifying phrase “So far as the laws of each country will permit.” The word “moreover” is defined as meaning “in addition thereto,” “also,” “furthermore,” “likewise.” It certainly will not constitute an act of grammatical violence to hold that the “moreover” clause is to be modified by the “so far as the laws will permit” clause.

The “consul-general, consul, vice-consul-general, or vice-consul” is the compound subject of the sentence and directly the subject of both “shall take” and “shall have.”

These officers, it is written, “shall take charge” of the decedent’s effects and “shall have the right to administer,” The punctuation of the article is such that the subject in each instance is expressed and is in no part of the article to be supplied or understood.

If it had been the clear intention to limit the “right to administer” in the same set terms as the “right to take charge,” as we think it was, it certainly would have been a grammatical solecism to have repeated after the word “moreover” the clause “so far as the laws of the country will permit,” and the failure so to do cannot therefore be urged as an argument in favor of another and different construction.

It is to be supposed that in the framing of a, treaty the high contracting parties bring to the task of its preparation their most eminent linguists and scholars, men who measure every phrase and scrutinize every word.

Much importance is attached by plaintiff in error to the employment of the word “moreover,” as if the choice of this term indicated an independent grant of power, entirely disassociated from all that had gone before. The contrary appears to us to be the more reasonable construction, and we are altogether convinced that the term was used in the sense of its meaning of “also” or “likewise.” With ■this meaning given the term “moreover,” its relative importance passes out and we have the treaty reading “and, likewise, have the right to be appointed as administrator of such estate.”

This construction is in harmony with the ofttime expressed views of our high officials whose duty it is to put into proper language the tentative draft of a contemplated treaty. It is in harmony with the proper respect that our federal officers have manifested for the reserved rights guaranteed to the several states by the national constitution. It is likewise in harmony with the uniform practice of the national government for the full period of its existence. Any other construction would work a departure from the established and well-settled policy of more than a century.

We therefore hold that the right of the Italian consul to administer on the estate of Vincenzo Basile, as vested in him by the treaty with Sweden, is not such as to supplant the administration statutes of Ohio.

This right is subject to the limitations and provisions of the Ohio statutes relating to the administration of estates.

The probate court is not divested of its discretion in the premises. It may select Dr. Cerri or it may reject him.

It may well be the proper thing — the wise thing in many, if not most, instances — to select the consular agent, especially where the range of selection is limited to the class mentioned in the fourth paragraph of Section 10617, General Code, but this must be left to the wisdom of the appointing power.

Counsel for defendant in error place great dependence on the observations of Justice Day in the Rocca case, supra, the claim being made that in the course of his opinion in that case the learned justice undertook to construe the language of the clause of the . Swedish treaty under consideration, and in so doing gave it the construction contended for by defendant in error.

In the course of his opinion in that case, at page 332, Justice Day said: “Had it been the intention to commit the administration of estates of citizens of one country, dying in another, exclusively to the consul of the foreign nation, it would have been very easy to have declared that purpose in unmistakable terms. For instance, where that was the purpose, as * * * In the convention between the United States and Sweden, proclaimed March 20, 1911, it is provided.” Then .follows Article 14 of the Swedish treaty.

This construction, however, cannot be employed as binding authority of the courts of the several states, for the very good reason that the eminent jurist made use of the Swedish treaty merely as an illustration. It was not in the case then under consideration, for the still better reason that the rights of the respective parties accrued in 1908, whereas the Swedish treaty was not ratified until 1911.

The views that' this court here express are supported by the recent decision of the supreme court of Minnesota in the case of Austro-Hungarian Consul v. Westphal, 120 Minn., 122, and by decision of the court of appeals of New York, In re Estate of D’Adamo, 212 N. Y., 214, the first-cited case having been decided December 27, 1912, and the latter July 14, 1914 — both after the decision of the supreme court of the United States in the Rocca case, supra, which bore date of Febrüary 19, 1912.

The judgment of the court of appeals of Trumbull county is therefore reversed and that of the probate court of same county is affirmed.

Judgment reversed.

Johnson, Wanamaker, Jones and Matthias, JJ., concur.

Newman, J., dissents.

Donahue, J.,

dissenting. I concur in the holding of the majority of this court that the consul general, consuls, vice-consul general and vice-consuls of the Kingdom of Italy are entitled to the benefit and provisions of Article 14 of the convention between the United States and the Kingdom of Sweden of the date of March 20, 1911, and that by the provisions of this article such consuls have the right to administer the estates of citizens of Italy dying intestate within the state of Ohio, in so far as the laws of this state will permit; but I do not concur in the holding of the majority of this court that this right to be appointed as such administrator is subject to the discretion of the probate court.

This provision of our convention with Sweden does not provide that the consul is merely eligible to appointment, or that he may be appointed at the discretion of the probate court, but it does provide in express terms that he shall have the right to be appointed as administrator of such estates, and this right to appointment is modified and qualified only by the further provision in the treaty that the rights granted therein shall obtain to the extent that “the laws of each country will permit.”

Paragraphs 1, 2 and 3 of Section 10617, General Code, grant to the husband or widow of the deceased, the next of kin, or the principal creditor, if there be any competent and willing to undertake the trust, a prior right, in the order named, to be appointed administrator of the estate of an intestate resident of the state of Ohio at the time of his death. To this extent only the laws of Ohio do not permit the operation of the provision of the treaty with Sweden granting to consuls the right to be appointed as administrator of such estate.

Where there is no husband or widow of the deceased, or next of kin, or principal creditor, or other person entitled by the laws of this state to such administration, then the provisions of the treaty obtain, and the right of the consul to administer upon such estates becomes absolute, paramount and prior to that of all other persons who may be appointed by the probate court, in its discretion, under the provisions of paragraph 4 of Section 10617, General Code.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The Second National Bank of Cincinnati v. American Bonding Company of Baltimore et al.

      Statute of limitations — Six years — Implied promise — Unauthorised sale of bonds by trustee — Succeeding trustee sues bank purchasing bonds — Surety of original trustee reimburses trust estate — Subrogation and substitution of surety as plaintiffs Sections 11222, 11241 and 11261, General .Code.

    (No. 14907
    Decided January 25, 1916.)
    Error to the Court of Appeals of Hamilton county.
    This proceeding was brought in the superior court of Cincinnati ■ March 29, 1901, by John C. Healy, trustee for James Robinson, against The Second National Bank of Cincinnati.
    An amended petition was filed March 24, 1902, in which' it was alleged, that a trust fund was created by the will of John Robinson for his grandchild James; that the original trustees having resigned, one Charles A. Santmeyer was appointed by the probate court of the county as their successor and received from them, on the order of the court, the sum of $15,000, belonging to said trust, on or about the 13th of April, 1890; that on or about July 1, 1890, said Santmeyer, under the direction of the court, invested $14,550 of said fund in $12,000, face value, four per cent, bonds of the United States, which were duly registered on the books and in the office of the treasurer of the United States in the name of Charles A. Santmeyer, trustee; that about the 2d of October, 1899, without warrant or authority of law, without any order or authority of said probate court, in violation of his duty as such trustee and without the knowledge of the court, Santmeyer sold and delivered $2,000, face value, of said registered bonds to the defendant, The Second National Bank of Cincinnati; that the bank had due notice that Santmeyer held said bonds as trustee; that when he sold said bonds to the defendant he intended to commit a breach of trust; that with such knowledge the bank at the time placed the proceeds to the individual credit of Santmeyer on its books and thereafter allowed him to draw out the same for his individual purposes; that on February 5, 1901, Santmeyer was removed by order of the court and plaintiff appointed in his stead; that the court ordered said Santmeyer, trustee, to transfer to the plaintiff all the property and assets in his hands belonging to said trust, including the $2,000, face value, of the registered bonds aforesaid, and that said Santmeyer has failed to perform the order of the court or deliver to the plaintiff the bonds or any part thereof.
    Plaintiff further alleges that in October, 1899, the defendant sold the $2,000 of bonds for an amount which he has been unable to ascertain, but on information and belief alleges that it was not less than $2,340, which was the market- value thereof, and prays judgment for the value thereof.
    By its answer, filed on May 3, 1904, the defendant admits the creation of the trust by the will of John Robinson and the appointment of Santmeyer as successor to the original trustees; alleges that it has no knowledge of the investment of the trust funds in the United States bonds referred to; denies that Santmeyer filed any accounts in the probate court showing that he had invested the sum of $14,550 in registered bonds of the United States; denies that he held such bonds as trustee until October, 1899, and denies that he sold and delivered $2,000 of said bonds to the defendant.
    It further denied that it had any notice that Santmeyer held the bonds as trustee; denied acknowledge of any attempt on the part of Santmeyer to commit a breach of trust, and denied that with such knowledge it placed the proceeds of the sale of any bonds held by Santmeyer as trustee to his credit on its books, or permitted him to draw out moneys held as trustee for his individual purposes. It denies that Santmeyer, as trustee, sold to the defendant said $2,000 of United States bonds, or that he failed to deliver to the plaintiff the $2,000 registered bonds, or any part thereof. It further denies that it has sold or transferred any bonds bought by it from Santmeyer, as trustee, to any person, and denies that it ever purchased any bonds of any kind from said Santmeyer, as such trustee, or that it had any knowledge of any sale of bonds by said Santmeyer as trustee.
    For a second defense the defendant alleged that the plaintiff had no interest whatever, as trustee or otherwise, in the above cause of action, and no right to bring the action.
    It further alleges that the plaintiff, or the cestui que trust, had suffered no loss by reason of the alleged acts of Santmeyer, and that The American Bonding & Trust Company, as bondsmen of said Santmeyer, has fully repaid and recompensed said trust estate for any and all loss suffered by reason of the alleged acts of said Santmeyer.
    No further pleading was filed in the case until February, 1908, when a reply was filed, in which the defendant denied each and every allegation of new matter contained in the answer.
    On October 19, 1908, The American Bonding & Trust Company filed its application to be substituted as the plaintiff on the ground that on August 6, 1901, it had paid to the plaintiff trustee the sum of $15,860.83, being the full amount then due to the said plaintiff as such trustee, said Santmeyer, for whom it became security, having absconded and having failed to pay the plaintiff the fund or investments thereof in his hands, or any part thereof, and that on the payment by this company-to the plaintiff, the plaintiff, in accordance with the terms of the agreement between him and this company, delivered to it a receipt for the sum named, which provided that The American Bonding & Trust Company “is hereby subrogated, by reason of said payment and settlement, to all the rights and claims which the .undersigned, as said trustee, may have against any person whomsoever, growing out of the misappropriation by the said Charles A. Santmeyer of the proceeds of certain bonds, explained in full in entry of the probate court in said proceeding on February 5th, 1901.”.
    On February 13, 1909, the motion of the bonding and trust company was sustained, and it was ordered to be substituted as plaintiff in the place of Healy, trustee.
    On February 23, 1909, the defendant bank filed an amended answer, in the second defense of which it is alleged that the original plaintiff, Healy,. trustee, had no interest whatever, as trustee or otherwise, in the cause of action from the 6th day of August, 1901, and had no right or authority to maintain the action since that date, and that neither the plaintiff nor his beneficiary suffered any loss by reason of the acts of Santmeyer; that the bonding company had fully repaid and recompensed said trust estate for all loss-suffered by the acts of Santmeyer, said payment having been made on the 6th of August, 1901; that the substituted plaintiff had full knowledge of the commencement of the action and the pendency thereof at the time it made said payment to the original plaintiff; that said plaintiff was at the time acting as the attorney of said bonding company, with full knowledge of all the facts herein alleged, and that said bonding company took no steps of any kind and made no application in this cause to be substituted as a party plaintiff until the 19th of October, 1908, and that by reason thereof the cause of action was barred by the statute of limitations at the time of the filing of its application to be made a plaintiff.
    As a third defense the defendant averred that the original plaintiff had no interest in the cause of action subsequent to August 6, 1901; that on April 30, 1902, Healy, trustee, had paid over to his beneficiary, James Robinson, all moneys due the latter and had received an acquittance from him, that said trustee’s duties had thereby become fully completed and ended and that by reason thereof this cause of action had abated on August 6, 1901, and the plaintiff’s duties and powers as trustee ceased on April 30, 1902; that the bonding com-, pany, with knowledge of these facts, had taken no steps to revive said cause of action prior to October 19, 1908.
    As a fourth defense defendant alleged that the bonding company was guilty of laches, and therefore should not be permitted to maintain its claim against the defendant.
    The bonding company, on May 3, 1909, filed its reply to the defendant’s amended answer, in which ' ’ it set up the execution of the bond and the payment. of the amount to the original plaintiff, trustee, on August 6, 1901, but that on said date, in consideration of said payment and by written agreement, there was assigned to the bonding company by Healy, trustee, said claim, and it had become subrogated to all the rights and claims which the trustee had or might have against the defendant herein.
    On the trial in the superior court judgment was entered upon the issues in favor of the defendant. In a proceeding in error in the court of appeals this judgment was reversed and final judgment entered in favor of the bonding company for the sum of $2,208 with interest. This proceeding is brought to reverse the judgment of the court of appeals.

      Messrs. Jelke, Clark & Forchheimer, for plain-, tiff in error.

      Messrs. Healy, Ferris & McAvoy, for defendants in error.
   By the Court.

In our view the decisive question in the case is whether the action by the bonding company was barred by the statute of limitations.

It will be observed from the statement that the suit was commenced by Healy, trustee, March 29, 1901. The undisputed facts show that the bonding company on August 6, 1901, paid to Healy, trustee, the full amount due to the trust estate; that on April 30, 1902, he paid over to his beneficiary all money due him and filed his voucher for it in the probate court. The powers and duties of the trustee thereby became fully completed and ended.

The amended petition was filed March 24, 1902, and included no reference to the bonding company or any payment by it. The answer of defendant was filed May 3, 1904, in the second defense of which it is averred that the bonding company, as surety of Santmeyer, had fully repaid and recompensed the trust estate for all loss on account of Santmeyer, that therefore no loss had been suffered by the trust and that plaintiff had no interest, as trustee or otherwise, in the alleged cause of action. The reply to this answer was a general denial.

Then, on October 19, 1908, the bonding company made its first appearance in the case by its application to be substituted as the plaintiff, in which application a copy of the receipt of Healy, trustee, delivered to it August 6, 1901, is set out, and in which it is stated that said bonding company “is hereby subrogated” by reason of said payment and settlement to all rights which the trustee may have against any person whomsoever on account of the wrongful acts of Santmeyer.

This application was sustained and the defendant bank thereafter filed its amended answer, in which it avers that at the time of the filing of the application by the bonding company its cause of action was barred by the statute of limitations.

Section 11241, General Code, requires that an action must be prosecuted in the name of the real party in interest, except as provided in the next three succeeding sections, which do not apply here.

Defendant in error contends that Section 11261, General Code, authorizes the action taken in this case. The pertinent portion of this section is as follows: “Upon the disability of a party, the court may allow the action to continue by or against his representative, or successor in interest. On any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him.”

It is insisted that these provisions warranted the substitution of the bonding company at the time it was done and that the statute of limitations did not bar its right of action.

The sections referred to should, of course, be construed together and effect given to both, if this can be done.

When the suit was brought Healy, trustee, was the real party in interest. But the trust fund was fully paid to the beneficiary on April 30, 1902, and the estate finally settled and terminated. So that after April 30, 1902, the original plaintiff trustee could not “prosecute” or “continue” the suit because there was no such trustee. Legally the plaintiff trustee was dead. This was the situation on the record from April 30, 1902, till October 19, 1908, more than six years. And, moreover, it must be noted that the reply in the case denied the allegation in the answer of the bank that the trust estate had been fully recompensed and paid all loss it had sustained.

On the issue thus made, and as it stood October 19, 1908, a trial would necessarily have resulted in favor of defendant bank after the disclosure of the exact situation.

Surely the bonding company would not contend that during this term it was prosecuting or would have prosecuted the cause in the name of the original plaintiff when the record disclosed that the same plaintiff was denying in effect that it had any right or interest in the case.

In Insurance Co. v. Carnahan, 63 Ohio St., 258, suits were brought by a partnership to recover on policies of insurance the amount of loss by fire. The suit was brought in the partnership name and it was held that “If in such case one of the partners dies, the plaintiff firm is under a disability within the meaning of Revised Statutes, Section 5012, and the action is in abeyance and cannot proceed without revivor by substitution of the representative or successor in interest, in place of the partnership.”

So in this case, the legal existence of the trustee having completely terminated, there was a disability of the original plaintiff.

In Insurance Co. v. Carnahan, supra, there was no substitution, and this was held to be fatal because “the actions were not begun or 'prosecuted’ in the name of the real party in interest.”

In this case there was a substitution, more than six years after the disability of the original plaintiff and more than six years after the cause of action of the bonding company accrued. Did the substitution at that time prevent the application of the statute of limitations ?

It is well settled that where a substitution by amendment makes no change in the cause of action the amendment relates back to the commencement of the suit and stops the running of the statute of limitations at that point. If the substituted plaintiff introduces a new cause of action the defense of the statute is available.

In this case the legal liability of the bank to the original plaintiff trustee arose from the averments in the amended petition that it had purchased the trust property with knowledge of the facts. It was liable because of its fraud in assisting in the breach of the trust relationship between the trustee, Santmeyer, and his beneficiary. It took the bonds impressed with the trust and as a constructive co-trustee was liable for the wrongful act of conversion.

Now, the. bonding company’s claim arose substantially on the proposition that as the bank was a constructive cotrustee for the beneficiary, it should have paid the value of the bonds into the trust estate; and as the bonding company paid the money which the bank should have paid, an implied promise arose in law that it would indemnify the company. The cause of action of the bonding company was a new and different one -from that of the original trustee. The receipt executed by Healy, trustee, is not and does not purport to be an assignment of the claim. The bonding company simply paid what it was obligated by its bond to pay.

In Poe v. Dixon, 60 Ohio St., 124, the court declare : “The authorities are quite numerous in holding that a-surety who has paid a debt for his principal may maintain an action on the implied promise of indemnity. The security having paid a debt which the principal ought to have paid, the law raises (or implies) a promise on the part of the principal to reimburse the surety, and the latter may maintain an action on the implied promise as for money paid for the use of the principal.”

It was further said in that case that “The rule that the period of limitation fixed for beginning an action of this kind is the same that applies generally to other actions upon implied and unwritten contracts, is also generally recognized. * * * This rule prevails in this state, and the period as fixed by statute above cited is six years.”

Many authorities are cited by the court in support of these propositions.

We think the plea of the statute of limitations set up in the answer of the bank should have been sustained.

For these reasons the judgment of the court below will be reversed and the cause remanded with instructions to enter judgment in favor of the plaintiff in error.

Judgment reversed.

Johnson, Newman, Jones and Matthias, JJ., concur.

Nichols, C. J., and Donahue, J., not participating.


text:
    The State, ex rel. Krauss, v. The Lucas County Liquor Licensing Board et al. The State, ex rel. Keene, v. The Lucas County Liquor Licensing Board et al. The State, ex rel. Foley et al., v. The Lucas County Liquor Licensing Board et al. The State, ex rel. Sullivan, v. The Lucas County Liquor Licensing Board et al. The State, ex rel. Tierney, v. The Lucas County Liquor Licensing Board et al.

      Liquor licenses — Applications for renewal — Rejected by county board — Appeal to state board — Mandamus—Section 1261-31 et seq., General Code (103 O. L., 221).

    (Nos. 15127 to 15131
    Decided February 1, 1916.)
    In Mandamus.

      Messrs. Smith, Baker, Effler & Allen; Messrs. Graves & Stahl and Mr. Joseph Eppstein, for relators.

      Mr. Edward C. Turner, attorney general, and Mr. A. O. Dickey, for defendants.
   By the Court.

These are proceedings in mandamus filed in this court. The petitions in the several cases are substantially the same.

After setting forth the official positions of the defendants the petitions aver that the relators were duly licensed under the laws of the state to engage in the business of trafficking in intoxicating liquors, in the city of Toledo, for the license year ending on the day preceding the fourth Monday of November, 1915; that between the 1st and 15th of September, 1915, the relators filed with the Lucas county licensing board, in due form, their applications for renewal of the licenses then held, deposited the filing fee required, and also aver that due notice was published.

They further allege that on' or about October 23, 1915, the board, without notice to them, announced that said applications were rejected, and on October 25, 1915, notified them of such rejection and set October 29, 1915, as the time for a hearing thereon; that no hearing was had on said date, but relators were required to appear on November 18, when testimony and evidence were heard; that the notice of rejection and hearing contained due and proper lists of complainants and copies of complaints and charges, which complaints and charges are untrue; that on November 23, in the absence of relators, a resolution was unanimously adopted by the board finally rejecting the applications of relators for renewal. It is alleged that no endorsement of the reasons for the rejection was made on the applications until on or after November 23, 1915, when the same were endorsed “Rejected for the reason that the applicant has not met the qualifications required by law.”

It is alleged that the action of the board is illegal, for the reasons that the endorsement of said applications was not in compliance with Section 1261-43, General Code (103 O. L., 226); that the notice of final rejection did not conform to the statute and that the proceedings set forth were not in compliance with the statute.

The petitions aver that appeal was taken by relators from the action of the county board to the state board, which affirmed the county board; that on or about November 18, 1915, relators made proper tender of the $100 fee, which was refused; that on or about November 23, 1915, the relators made demand upon the county board that licenses be issued to them pursuant t,o their applications and the same refused. They pray for a writ of mandamus to issue compelling the board to issue the licenses in due form. Demurrers have been interposed by the defendants.

Before the writ of mandamus can issue in these proceedings it must clearly appear that the relators are entitled to the relief prayed for.

It must appear that the relators were entitled, as matter of legal right, to have the specific official act performed by the defendants which they ask.

Mere errors of procedure cannot be corrected by mandamus. The failure to comply with directory provisions of the statute by the license board will not avail the relators in these proceedings. It must clearly appear that they were entitled to the renewal of the licenses applied for.

The important and decisive question in this case is, What are the duties of the license board and what are the rights of the holder of a license with reference to its renewal at the time of its expiration ?

Section 1261-31, General Code, confers upon county boards their general authority in the premises as follows: “It shall be the duty of the county liquor licensing boards of the respective counties of the “state, and they are hereby authorized to grant, issue, renew and transfer, as provided by law, all licenses to traffic in intoxicating liquors in the county wherein the board is situated; also to suspend or revoke, subject to the conditions and in the manner provided by law, all licenses granted or renewed in said .county; and to perform such other duties as may be required by law.”

By Section 32 of the license law (1261-47, General Code) it is provided: “On the expiration of each of said licenses (all of which shall expire on the fourth Monday in November of each year) the said license shall be renewed upon the application of the license[e], subject to the same conditions, qualifications and limitations applying to a new applicant for license, and upon payment of the registration fee of one hundred dollars as provided for original applicants; and' no applicant for a renewal of license shall be refused a license unless the said applicant has not met the qualifications required by law.”

It is the contention of the relators that, by the provisions of Section 32 just quoted, an applicant for a renewal has a preference which it is the duty of the board to regard and which, if the board disregards, the court will protect and enforce — that is to say, it is claimed that the language “and no applicant for a renewal of license shall be refused a license unless the said applicant has not met the qualifications required by law,” secures to the applicant for renewal the preference referred to provided he has met the qualifications. This is doubtless true, but how is that matter to be determined? The provisions of Section 32 must be read together and each part given its proper force and effect. The provisions are that on the expiration of the license it shall be renewed “upon the application of the license[e], subject to the same conditions, qualifications and limitations applying to a new applicant for license * * * and no applicant for a renewal of license shall be refused a license unless the said applicant has not met the qualifications required by law.” Taking these provisions together, it seems clear that the applications for renewal stand upon the same basis as original applications in so far as the qualifications themselves are concerned; that is, an application for renewal may be rejected for any reason which would be sufficient for the rejection of an original application, but in the case of an application for renewal, if the board does not find the same reasons for rejection which would have caused them to reject an original application, then the applicant is entitled to the preference referred to. Under the provisions of the statute it devolves upon the applicant, upon rejection of his application, to establish to the satisfaction of the board the things required by the statute to be stated in the application, which may be controverted, either by a complainant or by the board, and unless such facts are established by the applicant the rejection becomes final, if the decision is not subsequently recalled by the county board or reversed by the state board.

The petitions in these cases aver that appeals were taken to the state board, which affirmed the actions of the county board. . The only purpose of the appeals — the only object they could have — was to cure any irregularities in the proceedings of the county board and to have the state board make such order in the premises as was proper. In the absence of any showing to the contrary, the proceedings of the state board will be presumed to have been regular. The petitions in these cases do not attack the proceedings of the state board. The relators elected to submit their cases to the state board on appeal and they are bound by its order.

The demurrers will be sustained..

Demurrers sustained.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


author: DonAhue, J.

text:
    The State, ex rel. The Clemmer & Johnson Co., v. Turner, Attorney General.

      State armory — Execution of contract, delivery of deed for site and payment of money — State estopped to question constitutionality of law, when — Title of state to property cannot be questioned, when — Authority of state armory board — To adopt plans for building — Including auditorium in armory — Issue of abuse of discretion not raised, when — Pleading.
    1. Where the state has entered into a contract to build an armory building in a city, upon the conditions that a site be provided and that $50,000 in money be contributed by the citizens to the cost of construction, and the city, in pursuance of such contract, has executed and delivered a deed for such site to the state and the same has been accepted by the state armory board and placed of record, and the citizens have paid $50,000 in money to the credit of the adjutant general of the state, to be expended in the construction of an armory building as agreed upon, the state is estopped to question the constitutionality of the law authorizing the city to make such conveyance. (Tone v. Cohtmbus, 39 Ohio St., 281, approved and followed.)
    2. Where a taxpayer has not timely intervened to prevent a city from conveying title to property for an armory site to the state, and the deed has been actually executed and delivered by the city and accepted by the state, neither party to the transaction can question the title of the state to the property so conveyed. (Markley v. Village of Mineral City, 58 Ohio St., 430; paragraph 3 of syllabus approved and' followed.)
    3. The state armory board is authorized by the statutes of this state to adopt such plans for the construction of an armory building as will in its judgment meet the needs of the organized militia of the state in the locality in which such building is to be constructed. In the absence of fraud or abuse of discretion, the judgment of the state armory board is final upon this subject and cannot be reviewed by the courts.
    4. An averment in a pleading that the plans adopted by the state armory board for an armory building include an auditorium that will be available for civic purposes, does not tender any issue that the state armory board, in adopting such plans, abused its discretion or was guilty of any fraudulent conduct in reference thereto.
    (No. 15063
    Decided February 4, 1916.)
    In Mandamus.
    On the 20th day of November, 1915, the relator, The Clemmer & Johnson Company, a corporation, filed a petition in this court asking that a peremptory writ of mandamus issue to the defendant, Edward C. Turner, directing him to prepare a contract, to be entered into between the relator and' the state armory board, for the building of an armory at Akron, Ohio, and also a bond to be given by the relator, as contractor, for the faithful performance of its contract.
    The petition avers that the relator is a corporation duly organized and existing under the laws of Ohio; that the defendant is the duly elected, qualified and acting attorney general of Ohio, and that it is an official duty, enjoined upon the attorney general by Section 5259, General Code of Ohio, tq prepare this contract and bond.
    The petition further avers an arrangement between the city of Akron and the state armory board, by the terms of which that city was to procure and deed to the state a site for an armory and turn over to the state armory board $50,000 in money for use in constructing an armory thereon; that the city has fully performed its part of this agreement to the acceptance of the state, and that the general assembly of this state has appropriated $115,000 for the'erection of an armory upon the site deeded to the state by the city of Akron.

      It is further averred that it is agreed and understood, between the city of Akron and the state armory board, that an armory building would be constructed of such design as would be suitable for the drill and instruction of the police and firemen of the city of Akron, with an auditorium for civic purposes, available to the city of Akron for such purposes, and that such building will be a benefit to the city of Akron greatly in excess of the cost to it; that the plans for an armory building of this character were prepared and adopted, and the state armory board duly advertised for bids for the construction of an armory according to these plans on the site in the city of Akron provided by that city and deeded to the state; that the relator was the lowest bidder and the state armory board awarded to this relator the contract for the construction of this armory at the contract price of $142,194, on condition that said bidder file with said contract a good and sufficient bond in the sum of $72,000, in accordance with the law in such cases made and provided, subject to the approval of the attorney general of Ohio.
    The defendant waived the issue of an alternative writ and filed an answer to the relator’s petition, containing five separate defenses.
    The first defense attacks the constitutionality of Section 3631, General Code.
    The second defense avers that $75,000 of the money appropriated by the general assembly of Ohio is not available until the citizens of Akron shall have deeded to the state of Ohio a lot suitable for the site of such armory, with which condition the citizens of said city have not complied; but this defense admits that the city of Akron has deeded, or attempted to deed, to the state of Ohio a site worth $65,000, as pleaded in the relator’s petition.
    The third defense avers that the contract calls for the sum of $142,194, to be paid in part from the contribution of $50,000 to be made by the citizens of Akron, which said sum has not been contributed to the adjutant general of Ohio but only placed to his credit, and that therefore the contract cannot be prepared by the defendant which would call for the payment of said sum.
    The fourth defense avers that the premises described in the petition are part of the premises acquired in 1912 by the city of Akron by appropriation proceedings for the use of the corporation for public halls and offices, and were not acquired by said city for the purpose of donating same to the state of Ohio, and that the deed purporting to convey the same to the state of Ohio does not convey a fee simple title to said state.
    The fifth defense avers that the plans and specifications for the erection of this armory contain provisions for an auditorium suitable for civic purposes for the city of Akron; that said state armory board is without authority in law to erect any building other than one for the purpose of drill and the safe-keeping of arms, clothing, equipments and other military property issued to the organizations of organized militia to be housed therein, and rooms for the Grand Army of the Republic and United Spanish War Veterans, and any attempt on the part of the state armory board to provide in such building an auditorium for civic purposes is without authority of law.
    The relator filed a general demurrer to this answer and to each separate defense in said answer contained, and the cause was submitted to this court upon this demurrer.

      Mr. Freeman T. Eagle son; Mr. Francis Seiberling and Mr. W. E. Young, for relator.

      Mr. Edward C. Turner, attorney general; Mr. Henry S. Ballard and Mr. Charles Follett, for defendant.
   DonAhue, J.

The first defense contained in the answer of the defendant to the relator’s petition challenges the validity of the title of the state to the armory site conveyed to it by the city of Akron.

If this title is not a valid one then the attorney general properly refused to prepare a contract and bond under which money of the state will be expended in the construction of an armory building upon land not owned by it.

It is admitted that the city has procured and paid for a site, worth approximately $65,000, and deeded the same to the state for the purpose of building an armory thereon, and that the deed has been accepted by the state armory board and placed of record.

Section 5256, General Code, authorizes the state armory board to receive gifts of land, money or other property for the purpose of aiding in the purchase, building, furnishing or maintaining of an armory building. The board, therefore, had the right to accept on behalf of the state this deed of conveyance from the city of Akron, and, having accepted the same, neither the state nor the attorney general on behalf of the state is in position to question the validity of the transfer. (Tone v. Columbus, 39 Ohio St., 281; Markley v. Village of Mineral City, 58 Ohio St., 430.)

In the case of Markley v. Village of Mineral City, supra, it was held that —

“Where, for the purpose stated, a village has undertaken to purchase and acquire title to land and to convey it to a person on consideration that he will build and operate manufactories within the village, and afterwards brings its action against such person to set aside the conveyance and obtain a reconveyance of the property, with possession thereof, a court of equity will not lend its aid to either party, but will leave them where they have placed themselves.”

This would seem to be dispositive of the question presented by the demurrer to the first defense. The right of the city to make this conveyance to the state was not challenged by any taxpayer of Akron in time to prevent the execution and delivery of the deed to the state. It is now too late for either party to the transaction to question the validity of the title so conveyed, and therefore the demurrer to the first defense of the answer must be sustained.

It is averred in the second defense that the appropriation of $75,000 by the general assembly for the purpose of constructing this armory is not available until the citizens of Akron shall have deeded to the state of Ohio a lot suitable for a site for such armory. Certainly this condition in the law appropriating this money to construct an armory building in the city of Akron must be reasonably construed; otherwise the fund appropriated could never become available. All the citizens of Akron cannot possibly join in the execution of a deed. It is sufficient if some of the citizens .of Akron deed or cause to be deeded to the state of Ohio a lot suitable for a site for such armory.

' The tender of this deed by the city of Akron was a tender to the state of a compliance with this condition, and the state armory board, acting for the state, and having full authority so to do, accepted it. It is too late now to raise this objection. The demurrer to the second defense must be sustained.

The third defense is equally vulnerable to this demurrer. It is averred in that defense that the law appropriating this $75,000 to construct an armory building in the city of Akron further provides that it shall not be available until the citizens of Akron shall have contributed $50,000 towards the construction of such armory and that this sum of money has not been contributed to the adjutant general of Ohio, but only placed to his credit.

The fact that this sum has been placed to the credit of the adjutant general of the state is a substantial compliance with the condition imposed by the appropriating act. The citizens of Akron have parted with all authority and control over this fund, and the state armory board has the right and authority to expend the same for the purposes for which it was. donated.

It is averred in the fourth defense that the city of Akron acquired the real estate deeded by it to the state by appropriation proceedings, for the use of the corporation for public halls and offices and not for the purpose of donating the same to the state of Ohio. That the city did not intend to use the land appropriated for municipal purposes would have been a good defense by the owner in the appropriation proceedings, if sustained by the evidence, but it is no longer a question of importance. The city did not appropriate a mere easement in this property. It appropriated and paid for a fee simple estate therein. The former owner has no reversionary interest in the property (Section 3691, General Code). The city has the right to dispose of it by deed whenever it has no further municipal use therefor. It appears, however, by the fifth defense that the city is to have such use of the building to be erected upon this property as was contemplated in the appropriation proceedings. The demurrer to this defense must be sustained.

It is averred in the fifth defense, that —

“The plans and specifications prepared by the state armory board for an armory, for the erection of which the relator seeks to compel defendant to prepare a contract, contain provisions for an auditorium suitable for civic purposes by the city of Akron; that said state armory board is without authority in law to erect any building other than one for the purpose of drill and the safe-keeping of arms, clothing, .equipments, and other military property issued to the organizations of organized militia to be housed therein and rooms for the Grand Army of the Republic and the United Spanish War Veterans.”

It is also averred in the petition that an agreement was entered into between the city of Akron and the citizens of Akron on the one part and the-state of Ohio on the other, that the plans and specifications for this armory building should provide a place suitable for the drill and instruction of the police and firemen of the city of Akron, and for a suitable auditorium available to the city of Akron for all civic purposes.

Even if the defendant were in position to raise the question of the constitutionality of Section 3631, General Code, in this case, the agreement and arrangement between the city and the state would distinguish this case from the cases of Wasson et al. v. Commissioners, 49 Ohio St., 622, and Hubbard, Treas., v. Fitzsimmons, 57 Ohio St., 436.

In each of these cases the respective counties obtained no advantage or benefit except the benefit incident to the erection of a public building within their limits. In both of these cases it was held by this court that the expense incident to the performance of a duty of a general state character cannot be made the subject of a local imposition of taxes, and that the taxes by which such an expense must be met must be levied by uniform rule upon all the taxable property within the state.

With this doctrine we have no quarrel, but the case under consideration involves no such question. The city of Akron is to receive a direct benefit in the use of the building to be erected. It is to be constructed upon a plan that will provide rooms suitable for the drill and instruction of the police and firemen of the city of Akron, and an auditorium available to the city of Akron for all civic purposes not interfering with the proper use of the armory by the state militia.

The city of Akron has a right to build an auditorium for civic purposes. It has a right to provide for a room or rooms for the drill and instruction of its police and firemen, and for this purpose it is authorized to levy taxes upon all property within the corporate limits.

This fifth defense raises no question of the authority of the city to enter into this arrangement with the state armory board, under which arrangement it will secure valuable rights for municipal purposes that would authorize the levying of a local tax. On the contrary, the contention is that the state armory board is without authority of law to enter into any such arrangement or to permit an armory building to be used for any purposes other than those named in the statute.

Section 5255, General Code, is hardly subject to such limited construction. This section does confer upon the state armory board some discretion. The statute requires the state armory board to provide armories for the purpose of drill, and for the safe-keeping of arms, clothing, equipments and other military property issued to the several organizations of organized militia, and to this end it is authorized to purchase or build suitable buildings when, in its judgment, it is to the best interest of the state so to do. If the state armory board decides to build an armory building it must be such a building, and such a building only, as will meet the needs of the organized militia of the state; but that board is the sole judge of the character of the building required for- that purpose.

The averment in the fifth defense of the answer that this armory building is to contain an auditorium suitable for civic purposes, is not an averment, nor is it the equivalent of an averment, that the armory building proposed to be constructed is not such a building as will be required to meet the needs of the organized militia of the state in that locality. The fact that it may be available for other uses in nowise negatives the presumption that the state armory board has, in the exercise of its discretion, adopted only such plan of construction as will best meet the needs and the purposes for which it is authorized to build an armory.

On the other hand, it is perfectly proper for the citizens of Akron to withhold their contribution to the cost of construction until they know the kind of building to be erected. If, in the judgment of the state armory board, a trifling little building would be sufficient for the needs of the organized militia in that locality, the citizens of Akron would not be interested in such a structure; but if the state armory board determines that such needs require the construction of a substantial building, parts of which may be suitable and available for civic purposes, without interference in any way with the proper use of the building by the state militia, then they would naturally be interested in having such a building constructed in their city, and to that end would contribute to its cost.

That it is designated as an “auditorium-armory’’ in the relator’s petition cannot and does not change the character of the building nor make it other than an armory building. It signifies merely that it is to contain an auditorium, or at least a room of such dimensions that it can be utilized as an auditorium, but it does not mean that this room is not necessary to the needs of the organized militia of the state for drill and other purposes.

The provision that this room will be available to the city of Akron for civic purposes when the use will not interfere with the proper use by the state militia, certainly means that the state militia is to make use of this room or auditorium for its purposes at any and all times it may require it.

The state armory board is to have full control and management of this building, and the right to adopt and prescribe such rules and regulations as may be necessary and desirable for the management, government and guidance of the organizations occupying it, and that is all that the statute requires.

The demurrer to the answer of the respondent is sustained as to each defense contained therein, and the respondent not desiring to plead further it is ordered that, a peremptory writ issue as prayed for in the relator’s petition.

Peremptory writ allowed.

Nichols, C. J., Johnson, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    The State, ex rel. The K-W Ignition Co., v. Meals et al., Judges. The State, ex rel. Williams et al., v. Meals et al., Judges.

      Courts of appeals — Jurisdiction—•Appeal from order of common pleas court — Granting injunction, ordering accounting and appointing referee.

    (Nos. 15149 and 15150
    Decided February 8, 1916.)
    In Prohibition.

      Messrs. Gage, Day, Wilkin & Wachner, for relators.

      Messrs. Stearns, Chamberlain & Royon, for respondents.
   By the Court.

The grounds upon which the relators in these cases base their right to a writ of prohibition are identical. On the 25th day of August, 1913, The Unit Coil Company commenced an action in the court of common pleas of Cuyahoga county against the relator, The K-W Ignition Company, in which it set forth that on the 20th day of February, 1912, it entered into a written contract with The K-W Ignition Company by which it had granted to The K-W Ignition Company a licensé to manufacture and sell certain machines claimed to be covered by letters patent owned by it, The Unit Coil Company, and that by the terms of said contract The K-W Ignition Company was to pay for the privilege of manufacturing under said license a royalty of fifty cents for each machine so manufactured. It was claimed in said action that The K-W Ignition Company had manufactured a large number of machines, which were known as Master Vibrators, and had not paid the royalty due and payable under said contract. The Unit Coil Company prayed for an accounting of the machines so manufactured, a finding and judgment for the amount due under said contract, and for an injunction to restrain The K-W Ignition Company from manufacturing said machines unless said royalties were paid. Upon the hearing of the cause in the court of common pleas the court made and entered the following order:

“Sept. 18, 1913. To Court: This cause came on to be heard on the 15th day of September, A. D. 1913, upon the pleadings and the evidence; in consideration whereof the court finds that the allegations of the petition are true and that the plaintiff is entitled to the relief prayed for. Wherefore defendant is enjoined from the manufacture, use and sale of all apparatus, and especially Master Vibrators, covered by Letters Patent to Willard E. Dow No. 752,384, dated February 16, 1904, for electrical igniter for explosive engines and Letters Patent to Reuben Miller, Jr., No. 754,666, dated March 15, 1904, for induction coils, and from the use of the words 'Patented February 16, 1904, and March 15, 1905, ’ until defendant has paid plaintiff at the rate of fifty cents each for all vibrators manufactured by defendant since March 1st, 1912. An accounting is hereby granted plaintiff, and Clinton DeWitt is appointed referee and directed to take the testimony of witnesses in writing, to determine how many Master Vibrators defendant has manufacured since March 1st, 1912, and to report such testimony, with the amount found due plaintiff from defendant upon the number of Master Vibrators manufactured since March 1st, 1912, at fifty cents each, to the court, without unnecessary delay. Defendant’s appeal bond' is fixed at $10,000.00. Judgment for costs is rendered against defendant. Defendant gives notice of appeal. Journal 193, page 140.”

After this order was made the defendant in said cause, The K-W Ignition Company, filed an appeal bond in accordance with the order of the court of common pleas and the cause was docketed in the court of appeals of Cuyahoga county. In that court the cause was heard upon the pleadings and the evidence and it was ordered that the plaintiff in said cause, The Unit Coil Company, recover from The K-W Ignition Company the sum of $53,030.12, with interest from the 10th day of August, 1914, and that The K-W Ignition Company be enjoined from manufacturing, using and selling said Master Vibrators until said judgment shall be paid. Error was prosecuted to this court by The K-W Ignition Company and the judgment of the court of appeals was affirmed (ante, page 128), and a mandate was sent to the court of appeals to carry the said judgment into execution.

After this mandate was filed in the court of appeals the relators herein filed their applications respectively in the court of appeals to have the judgment theretofore entered by said court set aside and vacated, alleging that the same was entered without the court of appeals having acquired jurisdiction over the subject-matter by reason of the fact that there had been no final order or judgment in the court of common pleas from which an appeal could be taken, and because said cause had never been fully tried and determined in the court of common pleas. The court of appeals denied these applications and refused to grant any relief thereunder.

It is alleged in the petitions filed herein for a writ of prohibition that the respondents made and entered an order requiring the relators, The K-W Ignition Company and A. F. Williams and Conrad Albracht, who are officers, directors and stockholders of The K-W Ignition Company, to appear and show cause why they should not be punished for failure to comply with the judgment and decree of the court of appeals, that a writ of execution has been issued and placed in the hands of the sheriff commanding him to levy upon the goods, chattels and property of The K-W Ignition Company to satisfy said judgment, and that said company has a large amount of property, used in its business, which is subject to seizure upon said writ. It further appears that the relators, A. F. Williams and Conrad Albracht, filed their application to set aside and vacate said order requiring them to show cause why they should not be punished for failing and refusing as officers and directors of said company to comply with the judgment and decree of the court of appeals, for the alleged reason that said judgment of the court of appeals was void and of no effect, which motion was overruled .by said court. The relators are asking this court for an order directed to the respondents requiring them to show cause why a writ of prohibition should not be awarded against them, that on the final hearing a writ of prohibition be awarded prohibiting the respondents from proceeding further with the enforcement of the execution of said judgment and decree, and that all orders, decrees and the judgment of said court of appeals in said cause be vacated and held for naught.

The only question for determination is whether the order of the court of common pleas of the date September 18, 1913, was one from which an appeal could be taken to the court of appeals. If it was not, the court of appeals had no jurisdiction of the subject-matter and its judgment was a nullity. It is to be observed that in the order of the court of common pleas the allegations of the petition are found to be true and that plaintiff is entitled to the relief prayed for; an injunction is granted, an accounting is ordered and a referee appointed to determine the amount due. The general equities of the case were found in favor of the plaintiff, and while the further order of the court was necessary to carry into effect the right settled by the order, it was merely auxiliary to or in execution of the order of the court made on the merits of the case, and we are of the opinion that the court of appeals had jurisdiction of the subject-matter on appeal.

Writs denied.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


author: Matthias, J.

text:
    The Toledo Railways & Light Co. v. Paulin.

      Reversals — Weight of evidence — Power to modify or enter final judgment — Remittitur—Section 6, Article IV, Constitution, igi2 — Section 11364, General Code.

      A reviewing court, upon finding that the verdict of a jury assessing damages for personal injury is such in amount that it is not supported by the weight of the evidence, and therefore excessive, may remand the cause for a new trial, but is not authorized upon such ground to modify the judgment.
    (No. 14707
    Decided February 15, 1916.)
    Error to the Court of Appeals of Lucas county.
    Action was brought by George Paulin (defendant in error here) against The Toledo Railways & Light Company (plaintiff in error here) in the court of common pleas of Lucas county to recover damages for injuries alleged to have been sustained by him as a result of a collision of one of the cars of said company with a wagon in which Paulin was riding on Summit street in the city of Toledo, and which collision he claimed was caused by the negligent operation of said car.
    The trial in the common pleas court resulted in a verdict and judgment in favor of Paulin, which judgment was affirmed by the court of appeals.

      Messrs. Tracy, Chapman & Welles, for plaintiff in error.

      Messrs. Marshall & Fraser, for defendant in error.
   Matthias, J.

The question presented by the petition in error grows out of the entry of affirmanee by the court of appeals, the portion of which essential to be here stated is as follows:

“The court being fully advised in the premises, finds that there is no error upon the record or proceedings in said cause prejudicial to the plaintiff in error, but two judges of said court of appeals find that the verdict and judgment of the court of common pleas are excessive to the extent of $2,680.00, and one of said judges so finding, also finds that said judgment should be modified by being reduced to $10,000.00, and as so modified, should be affirmed. The other of said judges so finding the judgment and verdict to be excessive, further finds that the defendant in error should be given an opportunity to remit all of said judgment in excess of $10,000.00, and that if the defendant in error fails to do so, then said judgment should be reversed. Said two judges further find that such part of said judgment and verdict as is in excess of $10,000.00 is not sustained by sufficient evidence. The court further finds unanimously that no part of the damages allowed by the'jury as shown by their verdict, was the result of passion or prejudice on the part of the jury.

“The court, however, further finds unanimously that under the provisions of Section 6, Article 4, of the Constitution of Ohio, as amended September 3, 1912, the court has no power to reverse said judgment, in whole or in part, on the ground that said verdict and judgment are not sustained by sufficient evidence, or to require a remittitur of any part of said judgment, except by the concurrence of all the judges of said court; to which finding the plaintiff in error duly excepted.

“And the court further finds that by reason of the provisions of Section 11364 G. C. and Section 6, Article 4, of the Constitution of Ohio, said record shows upon its face that by the proceedings in the court below substantial justice has been rendered to both parties herein.”

By reason of this case involving the constitutional question indicated in the entry above quoted, the petition in error was filed in this court and a reversal of the judgment of the court of appeals sought.

Thereafter, on January 12, 1915, a supplement to the petition in error was filed in this court, together with a journal entry of the court of appeals showing a finding by said court and all of the judges thereof that the judgment upon which they agreed herein, “and which was entered herein at this term, to-wit, on the 6th day of July, 1914, in so far as it finds and adjudges that two judges of the court, without the concurrence of the other judge, did not have the power to modify the judgment of the court of common pleas as to amount on the weight of the evidence, or to reverse the same on the weight of the evidence, on the ground that the verdict was excessive in amount, in conflict with the judgment pronounced upon the same question by the court of appeals sitting in Hamilton county, Ohio, on March 21, 1914, in the case of John R. Sayler, executor, etc., et al., plaintiffs in error, vs. Lucy E. Sellers, defendant in error.

“And it is accordingly ordered by the court and by all the judges thereof that the record in this cause be, and it is hereby certified to the supreme court of Ohio for review and final determination of this question.”

The plaintiff in error would have the right to file this case in this court within the rule prescribed in Crawford et al. v. Weidemeyer et al., post, 461, and the case having previously been filed as one involving a constitutional question, it follows that it may also be presented upon such certificate of conflict by a supplemental petition in error.

This case, then, comes into this court because it involves a constitutional question and also because of conflict found to exist between the judgments of two courts of appeals. By both methods, however, the same question is presented, to-wit: May two judges of the court of appeals, upon finding that the judgment based upon the verdict of a jury, assessing damages for personal injury, is such in amount that it is not supported by the weight of the evidence, and therefore excessive, in the absence of consent of the parties, modify the judgment?

The plaintiff, in the trial court, claimed to have suffered not only serious but permanent injury, and evidence was adduced as to the permanency of such injuries, which tended to show that they were of such a nature as to permanently disable the plaintiff and disqualify him to do work and earn a livelihood. The evidence adduced upon the trial as to the nature and extent of the injuries suffered by the plaintiff was such as to require weighing to determine the amount of money necessary to fairly compensate him for the loss occasioned by reason of such injury, and a conclusion that the verdict is excessive was necessarily reached by first ascertaining what amount should have been allowed. From both of the entries of the court of appeals, above quoted, it clearly appears that such was the process which resulted-in the conclusion of the two judges that the verdict of the jury was excessive.

If the coUrt of appeals from an examination of the printed record may weigh the evidence, which involves also the determination of the credibility of the various witnesses, and therefrom reach a conclusion as to the nature and extent of the injuries suffered by plaintiff and fix the amount of money which, in its opinion, will reasonably compensate him for his loss, the court will have usurped the functions of the jury. Time and money will have been uselessly expended in trying the case to the jury if these controlling questions of fact are not to be there settled but are to be considered and determined by the reviewing court.

Under the provisions of the constitution cited in the entry of the court of appeals a judgment cannot be reversed upon the weight of the evidence except by the concurrence of all the judges, and in that event the case must be remanded for a new trial. Though all the judges concur in a finding that a verdict is against the weight of the evidence, the reviewing court is not authorized to render final judgment, nor is it authorized, from a consideration of the weight of the evidence, to enter a judgment different in amount from the judgment reviewed.

If the verdict is found to be excessive, appearing to have been induced by passion or prejudice, it is the duty of the reviewing court to reverse and remand for a new trial. The province of the jury is invaded if, instead of so doing, the judges of the reviewing court substitute their own verdict for the verdict of the jury. Surely there is manifested in the constitutional provision above cited no purpose to confer any power upon the reviewing court that would lead to such a result.

In this case the court of appeals expressly found “unanimously that no part of the damages allowed by the jury as shown by their verdict, was the result of passion or prejudice on the part of the jury,” and that “said record shows upon its face that by the proceedings in the court below substantial justice has been rendered to both parties herein.”

We do not question the power of the court of appeals or of two judges thereof to modify a judgment of the court of common pleas upon any ground which does not involve a consideration of the weight of the evidence. Such cases are of frequent occurrence. Indeed, the reported decision of the court of appeals of Hamilton county in the case with which this judgment was found to be in conflict appears to be one of the type suggested. The modification which the two judges found should be made in the judgment of the court of common pleas, the case having been submitted to the court without a jury, arose, not from a consideration of the weight of the evidence, but from a conclusion that as a matter of law a sum theretofore paid the plaintiff should have been credited and deducted from the claim sued upon.

From the considerations above stated it follows that the court of appeals was right, in the instant case, in refusing to enter a modification of the judgment of the court of common pleas.

Numerous errors were assigned in the trial of this case in the common pleas, the one chiefly urged, however, being that the trial court should have directed a verdict in favor of the defendant upon the ground that there was no evidence showing any negligence on the part of the motorman operating the street car. We deem an analysis of the evidence adduced upon the trial unnecessary. There was evidence tending to show inattention upon the part of the motorman and failure to give warning as well as failure to have his car under proper control; and there was evidence tending to show that at the time plaintiff drove upon the track the street car was then at sufficient distance that plaintiff could safely have crossed the track in front of the car, if it had been operated with due care. The evidence in the record discloses that the car caught the rear wheel of the wagon in which the plaintiff was riding. There was such evidence upon the issue of negligence of the defendant and contributory negligence of the plaintiff as required a submission of the case to the jury, under proper instructions by the court, and therefore the refusal to direct a verdict in favor of the defendant was not error. Nor was there error prejudicial to the plaintiff in error, either in the admission or rejection of evidence, or in the instructions given, or in the refusal of the trial court to give instructions requested. Complaint is made of the conduct of counsel for plaintiff in the trial court, and it is urged that the defendant was thereby deprived of its constitutional right to remedy by due course of law and that a new trial should be granted because of such conduct. The record does disclose several instances of manifestation of asperities of counsel rather indicative of an absence of that courtesy which ought to rule the conduct of counsel and of that decorum which should prevail in the trial of cases, but we cannot conclude that any statements or actions of counsel, so far as disclosed by the record, in anywise resulted prejudicially to the plaintiff in error.

The defendant in error filed an answer and cross-petition in error, bringing to the court’s attention the action of the court of common pleas granting a new trial in this case as the result of an independent proceeding there instituted subsequent to the disposition of the error proceeding by the court of appeals, and asks this court to pass upon the validity of that judgment; but obviously such proceeding cannot be brought directly to this court for review.

The judgment of the court of appeals is in all respects affirmed.

Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker and Newman, JJ., concur.