author: Nichols, C. J.

text:
    Lawson et al. v. Townley et al.

      Real property—Partition—Tenant in common purchases part of common property—Title of intestate tenant is by inheritance and by purchase, when.

    Where tenants in common of land devised to them make partition of same under the partition statutes of Ohio and one of the tenant» in common becomes a purchaser of a portion of the common property and after obtaining a deed therefor died intestate; Held: That the title to so much of the land as came to the decedent by devise, remained a title in her by inheritance, notwithstanding the proceeding in partition; but the remaining title acquired by such proceeding was a title by purchase.
    (No. 14018
    Decided March 3, 1914.)
    Error to the Circuit Court of Hamilton county.
    Joseph McDougal, at the time of his death in 1880 a resident of Hamilton county, left his certain last will and testament which was duly admitted to probate in said county.

      By the terms of his will certain real estate located in Hamilton county was devised as follows:
    One-half to W. H. Calvert in trust for the benefit of Laura Calvert; one-half to W. H. Calvert in trust for the benefit of DeWitt C. McDougal during the term of his natural life, and at his death to be divided among the representatives of Franklin H. Lawson and Isaac Bates.
    The property remained under the control of the trustee until the death of DeWitt C. McDougal in 1897.
    Within a year or two thereafter certain proceedings were had in the common pleas court of Hamilton county, Avherein the trust so created by said will in behalf of Laura Calvert was terminated and she was adjudged to be the owner in fee of the undivided half of such real estate. The several representatives of Franklin FI. Lawson and Isaac Bates were adjudged the owners in certain fixed proportions of the other half thereof, being the half in which DeWitt C. McDougal had held the life estate; and partition of the entire property was ordered.
    In pursuance to this decree, commissioners were appointed and directed to apart the real estate in accordance with the order of the court. The commissioners made their report, finding that the property could not be divided by metes and bounds, and thereupon appraised the several tracts, and their proceedings were confirmed by the court. No election to take at the appraisement being made by any of the interested parties, the court issued its prder of sale in partition to the sheriff of the county, who thereupon advertised and sold all the real estate of the late Joseph McDougal at public sale. Certain of the tracts of land were bid in by Laura Calvert, the sale thereof to her was confirmed by. the court and the sheriff ordered to convey to her the part so purchased, which he did.
    The amount of the purchase price for the property so bid in by Laura Calvert was $11,243. Her distributive share of the proceeds of the sale of the entire property was $9,362 and she settled with the sheriff by paying him $1,881 in cash and receipting for the sum of $9,362, her distributive share as aforesaid.
    Laura Calvert died intestate in September, 1902, leaving her husband, William H. Calvert, surviving her, but no children.
    She remained the owner of the property so purchased at sheriff’s sale until the time of her death.
    Early in 1910 William H. Calvert died intestate. In September, 1910, Annie R. Lawson, a sister of Laura Calvert, brought proceedings in partition in. the Hamilton county court of common pleas on behalf of herself and the other heirs at law of Laura Calvert, making the heirs at law of William H. Calvert parties defendant, claiming that as to the real estate so deeded to Laura Calvert by the sheriff of Llamilton county, she, with the other heirs of Laura Calvert, was entitled to all of the same and that the heirs of William H. Calvert were entitled to none.
    The court of common pleas held that the heirs of Laura Calvert were entitled to but one-half and' that the heirs of William H. Calvert were entitled tó the other half.
    On appeal the circuit court of Hamilton county-made the same finding.
    The heirs of Laura Calvert • prosecuted error to this court, where they still contend as they originally did in the court of common pleas.

      Mr. Charles W. Baker and Mr. Charles B. Wil~ by, for plaintiffs in error.

      Mr. James J. Muir and Mr. Walter C. Ong, for defendants in error.
   Nichols, C. J.

The facts in this case are wholly undisputed and the only question for the determination of this court is the nature and character of the title of Laura Calvert in the real estate in question at the time of her death in 1902, that is, whether her title was one by inheritance or by pur- . chase. If her title is one by purchase, then under the statutes of Ohio one-half of this property would descend to the heirs of Laura Calvert and the other half would descend to the heirs of her husband, William H. Calvert.

It is the law of this state, however, as determined by this court many years ago in the case of Freeman et al. v. Allen et al., 17 Ohio St., 527, thát in a situation similar to the one under consideration the title held by Laura Calvert at the time of her death in so much of the property as came to her by devise would remain a title by descent notwithstanding the proceedings in partition heretofore referred to, but that the remaining title acquired by such proceedings was a title by purchase, unless the fact that the sheriff’s deed in Freeman v. Allen, supra, made in response to an election to take (wherein it is to be distinguished from the case at bar), makes some essential difference. This proposition is conceded by counsel of all interested parties.

It is quite clear that had Laura Calvert and her cotenants in this property quitclaimed to one another for their respective interests in the property of Joseph McDougal, and she (Laura Calvert) then acquired the same part she afterwards acquired in the partition proceedings, her title to that part (one-half) which came to her by devise would have remained a title by descent.

It is equally clear that if the commissioners in partition had found that the property of Joseph McDougal, deceased, could, without manifest injury to the value of the same, have been divided by métes and bounds among the several parties in part and portion as they were severally found entitled in the former partition proceedings, and had then and there set off to Laura Calvert the one-half part thereof, such part thereof, to-wit, the one-half that came to her by devise, would have remained an estate by descent.

This proposition was definitely settled in our state by two cases, one being Tabler v. Wiseman et al., 2 Ohio St., 208, where Ranney, J., says: “It [the partition proceeding] operates upon the possession, dissolves the unity’before existing, and enables each of the owners to know, possess, and enjoy, his own share of the common estate in severalty. * * * It is well settled that such a proceeding does not decide title, or create any new title. It barely dissolves the tenancy in common, and leaves the title as it was, except to locate such rights as the parties may have, respectively in distinct parts of the premises, and to extinguish it in all others.”

The second case is that of McBain v. McBain et al., 15 Ohio St., 337, a part of the third proposition of the syllabus reading: “Parties to proceedings in partition acquire no new title thereby.”

• There are-four principal ways in which cotenants in land in Ohio can dissolve or sever the common estate:

First. By amicable partition or division through the medium of quitclaim deeds.

Second. By actual division, by metes and bounds, to be made by commissioners in partition.

Third. By appraisement and subsequent election to take by a party to the proceeding.

Fourth. By judicial sale conducted by the sheriff acting under order of the court.

. In the first, second and third methods we ascerain by well-settled adjudications that the nature and extent of the title is unchanged, the estate of the former cotenant remaining an estate of inheritance.

' Our sole, inquiry here is: Does the estate of the cotenant change if in such a proceeding she becomes a successful bidder for a portion of the real estate in all of which she owned the undivided one-half ?

It is true that the property for which she bids and which sale is approved by the court is conveyed to her by the sheriff, and it is vigorously contended by counsel for* defendants in error that this is the one over-shadowing and controlling fact, it being urged that the deed constitutes an entirely new title in all of the real estate so conveyed, and that the former conditions are but title history so to speak.

It is equally true in the case of an election to take, that the property is conveyed to the successful bidder by the sheriff, the only difference being that in the last-named event the decree recites that the purchaser has settled with the parties direct, although this is really a fiction, for the usual practice is to pay to the sheriff the full amount due for his distribution to the other interested parties. ■

In the case under consideration Laura Calvert, owning one-half of certain property, purchased at the sale a little more than one-half thereof. She made no payment to the sheriff except for the excess over her distributive share, receipting to him for the balance covering her distributive share.

She could not be said to have purchased her own property. The one-half of it still remained an estate of inheritance. Her title to the part she did not buy was extinguished by the partition proceedings.

The estate which she in reality purchased was the one undivided half owned by the other devisees of Joseph McDougal. As to this half her title there-, after became an estate by purchase.

It is claimed by the plaintiff in error that since all but the excess of $1,890 represented her distributive share in the whole of the property, that thereby the title which she had after the sheriff’s deed to her was all an estate of inheritance, as it in reality represented just what she in fact took by the will of Joseph McDougal.

We cannot agree to this view, any more than we can to the contention of the defendants in error that the whole estate of inheritance was extinguished by the sale and her title became one by purchase as to all the land, notwithstanding the fact that the very decree of the court under which the sale of the very land she bought was had, avers and decrees that “she [Laura Calvert] is the owner of the undivided half of the same by devise.” We think it to be an illogical and unsound rule of law which would hold that the nature of the title would be altered in the one-half which' she already owned by the mere form of acquiring- by sale in partition proceedings the other half which her cotenants owned.

Had Laura Calvert acquired the title of her co-tenants in all the real estate of which Joseph Mc-Dougal died seized by the proceedings in partition, or by any other method, it would have only extended her ownership of the one-half to an ownership of the entire estate, and in such an event her title in the whole would necessarily have been one-half by inheritance and the other half by purchase. Since she purchased less than all and a little more than half of the whole, we can find no valid reason for holding otherwise than we would hold if she had purchased the whole.

It is the finding of this court that Laura Calvert died the owner of an estate by inheritance in the property described in the petition filed in the 'common pleas court to the extent of one-half thereof and of an estate by purchase to the extent of one-half thereof, and that the heirs of Laura Calvert are entitled to all of that part of the same which is defined to be title by inheritance and one-half of the remainder, in all a three-fourths part thereof.

We do further find that the heirs of William H. Calvert are entitled to the other half of the one-half part, i. e., a one-fourth part thereof.

The judgment of the circuit court is therefore modified to conform to the finding of this court and the cause is remanded to the common pleas court of Hamilton county for such further proceedings as may be required by law.

Judgment modified and cause remanded.

Shauck, Johnson, Donahue, Wanamaker and Wieicin, JJ, concur.


source: Caselaw Access Project

author: Wilkin, J. ■ Donahue, J.,

license: Public Domain

text:
    The State, ex rel. Lyne, v. Kennedy et al.

      Office and officers~S'alary law—County recorder not entitled to additional compensation, when—Sections 2977 to 3004, General Code —County recorder and sureties jointly liable—To suit on bond for money so received, when.

    1. The salary law, Sections 1296-11 to 1298, Revised Statutes (now Sections 2977 to 3004, General Code), which commands that the county recorder shall receive as public money for the sole use of the county, and pay into the county treasury quarterly, all fees, costs, percentages, penalties, allowances and perquisites of whatever kind collected by his office as compensation for services, and that such officer shall receive out of the general county fund, a designated annual salary, which shall be instead of all such fees, etc., and all other perquisites which such officer may collect, forbids the recorder to retain for his own use and benefit any compensation awarded him by the county commissioners for making general indexes under favor of Sections 1154 and 1158, Revised Statutes (modified in Sections 2766 and 2780, General Code).
    2. A county recorder who fails to pay over to the county treasurer, and appropriates to his own use, any money so collected and received by him, is liable jointly with his official sureties, to a suit upon his bond for the recovery of the money so retained, with interest from the end of the quarter in which such funds were collected.
    (No. 13811
    Decided March 17, 1914.)
    Error to the Circuit Court of Morgan county.
    The relator, as prosecuting attorney of Morgan county, prosecutes this action for the use and on behalf of the county, under favor of Section 2921, General Code. He alleges that on the 7th of November, 1905, the defendant Kennedy was duly elected county recorder for the term of three years, beginning on the first Monday of September, 1906; that he duly qualified by giving bond “for the faithful discharge of his duties as such officer during the term aforesaid,” with his codefendants as sureties. The recital in the bond is that, “Whereas the said C. W. Kennedy was [on the date first named] duly elected to the office of county recorder of Morgan county, Ohio, to hold his office for three years, beginning on the first Monday in September next after his said election, and until his successor is chosen and qualified.” He continued to act as such recorder till September 5, 1909. The relate/’ further alleges that Kennedy as recorder drew out of the funds in the county treasury on November 7, 1908, upon a bill theretofore allowed by the county commissioners, $100 for the quarter ending December 21, 1908, for services rendered as county recorder in making a general index of mortgages, in books provided for that purpose by the county commission-ers; that he failed to pay and still refuses- to pay into the county treasury, according to law, the said $100, whereby the condition of his bond has been broken and he and the other defendants have become and are indebted to the state for' the use and the benefit of the county, in the sum of $100 with interest from December 31, 1908. A second cause of action is set forth in the same language, for $100 drawn for the quarter ending June 30, 1909, and a third cause of action for $102.60, drawn for the quarter ending September 30, 1909. The defendants demurred to all three causes of action.
    The court of common pleas sustained the demurrer and dismissed the petition, and the circuit court affirmed the judgment. Error is prosecuted here to reverse the judgment.

      Mr. T. E. ■ McElhiney and Mr. John Q. Lyne, prosecuting attorneys; Mr. Timothy S. Hogan, attorney general, and Mr. N. J. Weis end, for plaintiff in error.

      Mr. M. E. Danford and Mr. Charles H. Fouls, for defendants in error.
   Wilkin, J.

The question raised by the demurrer is whether, by the chapter of the General Code entitled “Salaries of County Officers,” the recorder is denied extra compensation above his annual salary for making the general index described in the petition. The petition recites that “Said recorder entered in said general index to mortgages, under the appropriate heads, the names of the parties to said mortgages, alphabetically arranged, both as to surnames and given names, the number and page of the volume where the mortgage is recorded, the number of acres conveyed, the range, township, section and subdivision where the property conveyed is located, the consideration of such conveyance and the date of cancellation.” The defendants contend that this describes an index to the mortgage records only, and not a general index to the records of all the real estate in the county, as defined by Section 2766, General Code. Instead of that section, they should have referred us to Section 1154, Revised Statutes, which was the law in force at the time of the transaction, as follows:

“In any county where, in the opinion of the county commissioners, the same is needed, and they so direct, the recorder shall, in addition to the alphabetical indexes, make, in books prepared for that purpose, general indexes to the records of all the real estate in the county, by placing under the heads of the original surveyed sections or surveys, or parts of a section or survey, squares, subdivisions, or lots; on the left page of such index book, first, the name of the grantor or grantors; second, next to the right, the name of the grantee or grantees; third, the number and page of the record where the instrument is found recorded; fourth, the character of the instrument, to be followed by a pertinent description of the property conveyed by the deed, lease, or assignment of lease; and on the opposite page, in like manner, all the mortgages, liens, or other incumbrances affecting said real estate; and for his services in making such description and noting incumbrances, he shall receive for each tract described five cents, in addition to his other fees.”

The defendants say that the legislature understood that some counties might not want the extensive and costly index thus provided for, and therefore by Section 2767, General Code, provided for other indexes, and by Section 2780 authorized the county commissioners to fix the recorder’s compensation for making the same at five cents for each complete entry; and they say this work was done under said sections.

They argue that this was not the ordinary work of the office covered by the salary, that the recorder might have refused to do it and that the commissioners could not have compelled him to do it for nothing. And so they conclude that the recorder was entitled to draw from the county treasury and retain the several installments of pay which were allowed him by the county commissioners for this extra work.

Now let us examine the so-called “salary law.” It declares:

Section 2977, General Code, “All the fees, costs, percentages, penalties, allowances and other perquisites collected or received by law as compensation for services by a county auditor, county treasurer, probate judge, sheriff, clerk of courts, or recorder, shall be so received and collected for the sole use of the treasury of the county in which they are elected and shall be held as public moneys belonging to such county and accounted for and paid over as such as hereinafter provided.”

■ “Section 2989. Each county officer herein named shall receive out of the general county fund the annual salary hereinafter provided, payable monthly upon warrant of the county auditor.”

■ “Section 2995. Each recorder shall receive sixty dollars for each full one thousand of the first fifteen thousand of the population of the county, as shown by the last federal census next preceding his election ; fifty dollars per thousand for each * * * second fifteen'thousand of such population; forty dollars per thousand for each * * * third fifteen thousand of such population,” etc.

• “Section 2996. Such salaries shall be instead of all fee«, costs, penalties, percentages, allowances and all other perquisites of whatever kind which any of such officials may collect and receive.

“Section 2983. On the first business day of April, July, October and January, and at the end of his term of office, each such officer shall pay into the county treasury * * * all fees, costs, penalties, percentages, allowances and perquisites of whatever kind collected by his office during the preceding quarter or part thereof for official services, which money shall be kept in separate funds and credited to the office from which received.”

•• “Section 2987. The deputies, assistants, clerks, bookkeepers and other employes of such offices shall be paid upon the warrant of the county auditor, from the fees, costs, percentages, penalties, allowances, or 'other perquisites or. sums of whatever kind collected and paid into the county treasury and credited by the treasurer to the fee fund of such offices.”

The failure to pay over to the county treasury the quarterly installments mentioned in the petition, the prosecuting attorney alleges to be a violation of the recorder’s official duty and a breach of his bond. The defendants, however, seek shelter under the language of Section 2978: “Each probate judge, auditor, treasurer, clerk of courts, sheriff and recorder, shall charge and collect the fees, costs, percentages, allowances and compensation allowed by .law, and shall give to the person making payment thereof an official receipt * *

They would have us note the phraseology of the two sections, Sections 2977 and 2978, General Code. The former is, “all the fees, costs, percentages, penalties, allowances and other perquisites collected or received by law” and the latter is, “allowances and compensation allowed by law;” and in this connection they refer to Section 3000: “No such county officer shall make any reduction, abatement, or remission of any fees, costs, percentages, penalties, allowances or perquisites of any kind required by law to be charged and collected by him.” They say the legislature had in mind fixed charges , or . fees prescribed by law when it enacted Sections 2977 and 3000, and not the contract price provided in Section 2780, which was at the time Section .1158, Revised.Statutes, thus; “The recorder for services directed to be performed by the commissioners * * * shall receive such compensation as the commissioners determine * * * and for making the general indexes provided for herein, such sum as is fixed by the commissioners.” The duties prescribed in Sections 2757, 2758, 2759, 2764, 2765, 2766 and 2767, so far as they relate to keeping up indexes, he shall do in the usual and regular work of the office, but the making of other indexes, they say, is extra work, which he- is not required to do for nothing, and for which the commissioners are authorized to alloiv him extra compensation; and that this is by contract rather than by law.

But they cut the ground from under their argument when they concede, on the next page of their brief: “It is true that for the mortgage indexes authorized to be made by the county commissioners, and the compensation for which is fixed solely by the county commissioners ?nd recorder can be said to be an allowance received by law.” ■ Then it does fall under the very language of the statute, “other perquisites received by law” and “compensation allowed by law”—which he is required to pay into the county treasury.

The defendants have based their argument upon the law as it stands in the General Code, whereas the case is governed by the law as it stood in the Revised Statutes; and they have fallen into error. For instance, they declare that it is not the official duty of the recorder to make the general index mentioned in Sections 2766 and 2780; therefore he may decline to do the work, and make Section 2766 a dead letter. The statute in vogue when the work was done, however, was couched in language quite different than that in Section 2766, General Code. Section 1154, Revised Statutes, reads: If the commissioners so direct, “the recorder shall, in addition to the alphabetical indexes, make, in books prepared for that purpose, general indexes to the records of all the real estate.” Certainly this enjoins upon him a duty. Having performed it, he can not now say it was nonofficial service not covered by his salary; nor can his sureties plead that it was not a mandatory duty guaranteed by his bond.

It is true that in State, ex rel., v. Wickham, 77 Ohio St., 1, Judge Davis states that “These ‘general indexes’ are to be made only when in the opinion of the county commissioners they are needed * * *; but the power to direct and the obligation to pay are reciprocal; for, while the recorder shall make the indexes when directed by the commissioners, the statute is just as imperative that he shall receive compensation.” This was true in 1907 when it was pronounced; and it is true that this recorder, Kennedy, has received the allowed compensation. But the salary law has been enacted since Wickham’s case arose in 1905, and the question before us is, May Kennedy keep the allowance or must he pay it into the county treasury, for he was under the salary law when he received it?

In view of the decision in Thorniley et al. v. State, ex rel., 81 Ohio St., 108, he can not now retain for himself the perquisites and allowances which he could claim prior to the enactment of the salary law. As is said in that case, the former law, being incompatible with the later legislation, must yield to it because of the impracticability of harmonizing the earlier and later legislation so that they may be enforced together.

But the defendants quote from Sections 2977 and 3000, and argue that these sections prescribe determinate charges required by law to be collected as fees from patrons of the office in the regular and ordinary course of business, which properly go to the accumulated “fee fund” turned into the treasury, whereas the making of general indexes is extra work, and the compensation thereof is not determined by law, but is a variable perquisite allowed by the commissioners which the statute authorizes him to draw out of the treasury for his personal benefit. And they contend that it is absurd to say that the one statute allows him to draw the money out and the other requires him immediately to pay it back into the treasury. The simple answer to this contention is that the later statute commands that all the fees, allowances and other perquisites of the office granted by the former statute as the recompense of service in that office shall be collected by the officer as formerly, without remission or diminution, and by him paid into the treasury, and in lieu thereof he shall receive an annual salary. This accumulation of fees, allowances, perquisites, etc., in the treasury, becomes a fund for the payment for such assistants in his office as may be needful to the proper discharge of its duties.

This rational scheme was adopted as a convenient method of transition from the fee system to the salary system, without disturbing or diminishing the revenues of the office, which now go to the public treasury. The criticism which the defendants make upon the new system is essentially an animadversion upon the legislative policy of these statutes and nothing more. We have naught to do with that policy but to declare and enforce it. We can not modify and cripple it, under the guise of interpretation, to appease the defendants’ notions of its unreason or unfairness, however wise or otherwise the defendants may be in such matters. Statutes may be cut and shuffled and rearranged so as to appear incongruous. But this is not the proper method of legal construction. We must read them as they are phrased and arranged by the legislature. Some of the statutes brought under review in this case are found under the chapter entitled “County Recorder,” defining the term, revenue and duties of the office; others have been placed in the chapter entitled “Salaries of County Officers.” The same arrangement is pursued in the General Code. The statute defining the salary system is later than the statute prescribing the schedule of fees. If there is any intrinsic conflict the later enactment would prevail, and the provisions regarding fees, compensation and allowance would give way to expressions of legislative intent in the statute prescribing salaries. But a comprehensive view of the two chapters reveals a harmonious and consistent legislative plan which calls for no textual criticism or legal construction. The language needs no interpretation, because it is simple and positive and its meaning is plain—namely, that county officers shall derive no other emolument from their offices than the definite salary prescribed by law.

The reductio ad absurdum to the argument- of the defendants is that if their reasoning should prevail the very purpose of the salary law would be defeated. According to the plain, compact words of the statute, the Morgan county recorder’s compensation for extra services is covered by his salary. We do not imply that his claim is not honest; we find merely that the law does not recognize it.

The very statute which he cites as the foundation of his right to retain the money which the commissioners allowed him contains the express refutation of it. Section 2780, General Code. It is scarcely a culpable oversight that he and his bondsmen have entirely omitted this significant clause from their brief: “All compensation provided for in this section shall be paid out of the county treasury upon the allowance of the county commissioners and the warrant of the county auditor, and shall be paid into the county treasury to the credit of the recorder’s fee fund.” They proceed in their brief as if this were not in the statute, but were only the prosecuting attorney’s absurd deduction from other language of the statutes; and they charge him with “traveling in a circle.” They mistake; the circle is not in the prosecutor’s logic, it is in the law; whether wisely or unwisely .there, they can not evade it.

Finally, the defendants declaim with vigor that the interpretation of the salary law which the prosecuting attorney contends for, repeals by implication the former statute providing a recompense to the county recorder for extra work which the county commissioners hired him to do. This is true in part at least. Nevertheless we adhere to the principle involved in the first branch of the syllabus of a former parallel case, Thorniley et al. v. State, ex rel., supra, namely: “Although repeals by implication are not favored, earlier legislation must give way when it is necessary to carry out the later expression of the legislative will; and that part of Section 4903, Revised Statutes, which provides for compensation to county commissioners for services rendered as directors of'highways must be regarded as abrogated by the later act * * * giving to the county commissioners a salary and limiting their compensation to the salary designated.”

On the grounds of reason and authority, the decisions of the courts below must be reversed and the cause remanded with instructions to the court of common pleas to overrule the demurrers.

Judgment reversed.

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

■ Donahue, J.,

dissenting. The mere statement of the question presented in this .record would seem to indicate the only possible and just solution of it. I,am, entirely in accord with my associates in their hostility to the vicious fee system for compensation of public officers, but I do not agree with the majority of the court that in order to sustain the salary law it is necessary to deprive any county official of that which he is entitled to receive by every fair rule of right and reason, The act of the general assembly of Ohio fixing á salary for county officers was necessarily very comprehensive in its terms. It was, undoubtedly, the legislative intent to abolish the fee system entirely, and at this time it appears that that has been accomplished, but in the very nature of things it was impossible to foresee all the exigencies that might arise in making such change, so that justice would require the payment of fees for extraordinary services; therefore, this comprehensive salary law could not have been intended to cover any services except the regular, uniform service of each county officer, common to that office in each county of the state alike. It certainly was not intended that in some counties the board of commissioners, by its order, could require the recorder to perform important, expensive and laborious public service without compensation therefor, or that that official must, upon the order of the county commissioners, perform all this extraordinary service, wholly beyond the duties common to this office in all the other counties of the state, and, notwithstanding such extraordinary service, receive the same salary only that a like official in another county of like population receives for the regular and ordinary duties of his office where no such order had been made by the county commissioners. If such were the legislative intent, then the salary law would not only be unfair and unjust, but it would not be uniform throughout the state.

In this particular case this county recorder was elected at the November election, 1905, and entered upon the discharge of his duties in the following year. The salary law did not go into effect until January 1, 1907. The petition does not aver when the county commissioners ordered these indexes to be made, nor does it aver when the services were performed. It does aver the date that the money was drawn from the treasury, but it furiher avers that this money was drawn upon bills for this service “theretofore allowed by the county commissioners.” When this recorder went into office no question could arise as to his right to receive compensation for this service under the statutes then in force in this state. The county commissioners at that time unquestionably had full power to order the indexes made and to allow compensation therefor. In brief of counsel for defendant in error it is said that this order was made in July; 1906. Of course we cannot consider that statement in disposing of this demurrer, but the rule obtains that a pleading shall be construed most strongly against the pleader, and "if the pleader has failed to negative a possible condition of affairs under which these fees could lawfully be paid out of the county treasury without any legal obligation to return the same, then the petition is vulnerable to a demurrer. This, however, is only a technical disposition of this case. The real question is whether, under the provisions of Sections 1154, 1155 and 1158, Revised Statutes, construed in connection with the salary law, this recorder was required to pay back into the county treasury to the credit of the fee fund the fees allowed him by the county commissioners for making these indexes upon the order of that board to make the same. That this construction is not possible under these statutes as they then existed is evident from the reading of the statutes themselves. Subsequent legislation upon the same subject-matter leaves no room for controversy.

It is not important whether these indexes were authorized to be made under the provisions of Section 1154 or Section 1155, Revised Statutes. It was said by this court in the case of The State, ex rel., v. Wickham, 77 Ohio St., 1, that, under the authority of these statutes, “the. power to direct and the obligation to pay are reciprocal.” The several recorders in the s.everal counties of the state are required by statute to perform certain duties common to that office in each county, and in order that this salary law should have uniform operation throughout the state, and in order that its operation should be just and fair to every county-recorder, it must necessarily have been the intent of the general assembly to fix the salary of county recorders for the performance of the regular duties imposed by statute uniformly upon each and all of the recorders within the state. It would seem to be a reflection upon the honesty and intelligence of the general assembly to hold that it intended to include in this uniform salary of county recorders extraordinary duties equal to or greater in extent than all the other duties of a county recorder combined, and which might be imposed by county commissioners in some counties and not imposed in others. The duty of making these general indexes is not necessarily the duty of the recorder. True, Section 1154, Revised Statutes, imposed this duty upon him when the county commissioners made the order, but at that time Section 11535 provided that in all counties containing a city of the second grade of the first class the county commissioners should advertise and sell the work of preparing such indexes to the lowest bidder, and require him to give bond for the performance of the work. It is hardly necessary to say that if the duty of making these indexes devolved upon the county recorders of the several counties of the state, the legislature could not relieve the recorders in some counties from performing this duty and require them to perform it in others. Clearly such a law would not be of uniform operation throughout the state. In this connection I would call attention to the present law upon the same subject, which provides that in all the counties of the state the work of making these indexes shall now be advertised and let to the lowest'bidder, so that the legislature evidently did not consider this as one of the uniform duties of county recorders throughout the state or the duty of any county recorder, except in so far as it might be imposed by the order of the county commissioners in some counties, and, therefore, could not have intended to include it with the uniform duties to be compensated for by the general salary act. The general salary act did not in express terms repeal these sections, although these sections provided that the payment for the services required under these laws should be in addition to all other fees. It is said, however, that the language of the salary act is so broad and comprehensive in its terms that it repeals Sections 1154, 1155 and 1158, Revised Statutes, by implication. It is conceded that the policy of our law is against repeals by implication, and that it is only where there is positive, direct and irreconciláble conflict between the later and prior act that the prior act is repealed by implication. There is no such conflict between these acts. One necessarily and reasonably applies to the uniform duties of the county recorders of all the counties of the state. The other provides for compensation in addition thereto for extraordinary services that the county recorders of some counties may have to perform at the will and pleasure of the county commissioners. Certainly such legislation as this does not present an irreconcilable conflict requiring a court to hold that the prior act is repealed by implication. That the legislature did' not recognize any such conflict is evidenced by later acts. In 1910, when the Code was adopted, these statutes were rewritten practically in terms and reenacted into the statutory law of this state together with the salary act. This is in effect a declaration by the legislature that, notwithstanding the comprehensive terms of the.salary act, the compensation allowed to county recorders for making these indexes shall be in addition to other fees. It is insisted, however, that the only way to reconcile these statutes is to require the recorder, after drawing this money out of the treasury, to .pay it back into the fee fund of the county, but that that was not the intention of the legislature is also clearly evidenced by the later act in which it is specifically provided by amendment of Section 2780, General Code (Section 1158, Revised Statutes, 102 O. L., 227-290), that fees received for the services performed under that section must be paid into the county treasury to the credit of the recorder’s fee fund. If the proper construction of Section 2995, General Code, providing for uniform salary, theretofore required fees for services performed under the provisions of Sections 1154 and 1158, Revised Statutes, to be paid back into the county treasury to the credit of the fee fund, the legislature of the state was wasting its time when it amended this section for the purpose of requiring that thereafter this should be done and omitting from the amended statute all reference to fees for making general or other indexes upon order, of the county commissioners. It is evident that the legislature of the state did not intend or expect any-such construction of the salary act, otherwise it would not have troubled itself to make the amendment.

There is, however, a further amendment in the same act that is conclusive of the questions here involved. Section 1154, Revised Statutes (Section 2766, General Code), was also amended, providing that when indexes should be ordered to be made by the county commissioners, the work of making the same should be advertised and let to the lowest bidder, and that the compensation therefor should be paid out of the public treasury. If the duty of making these indexes is an ordinary and uniform duty that attaches to the county recorder’s office and covered by the uniform salary provided by the legislature for that officer, the general assembly was certainly magnanimous in relieving him from the performance of this enormous work and profligate of public funds in providing that the compensation for such work should be paid out of the county treasury with no hope or expectation of return thereof to the credit of the fee fund or any other fund. The general assembly of the state of Ohio is not in the habit of making large financial donations of public funds to county recorders or any other class of county officers. It could have had no other reason for passing this amendment except that this work was not included nor intended to be included within the work to be compensated by the recorder’s salary, but, on the contrary, that it is an extraordinary service for which the recorder was entitled to receive the additional fees provided for in the statute authorizing the commissioners to cause this extraordinary work to be done, and that the legislature believed it was in the interest of economy to advertise and let to the lowest competitive bidder the making of these indexes instead of paying to the recorder the compensation stipulated in the original act Why, if the contention of the plaintiff in error in this case is correct, and the making of these indexes is a uniform duty that attaches to the office of county recorder, the legislature might just as well have provided that recording all deeds, mortgages and other instruments should be let to the lowest competitive bidder and paid for out of public funds, and still permit the county recorder to draw his full salary. This is so self-evident as to require no argument. If the making of these extensive indexes is a part of the uniform duties of the county recorders throughout the state, except in counties containing a city of the second grade of the first class, and the compensation for the performance of such duties was included in the salary provided for county officers, then the general assembly of the state, in defiance of the rights of the public, has relieved these officers from the performance of these duties and provided that the compensation for others who do the work shall be paid out of the public funds and has made no corresponding diminution in the salaries of the officers whose duty it is to perform this service.

Of course, the legislature intentionally did nothing of the kind. It knew the duties for which it had provided this uniform salary, otherwise it could not have arrived at any just and fair salary to be paid for the services. These indexes must be made only in counties where the county commissioners make an order requiring them. The legislature must have known that in some counties the commissioners would make such order, that in other counties they would make an order for part of such indexes, as was done here, and that in other counties no order whatever would be made. In view, therefore, of the uncertainty of the amount of this extraordinary service that some of the several county recorders would be required to perform, no just, uniform salary could be fixed therefor. The only way a uniform salary could be fixed by the legislature would be to fix a salary that would cover the uniform duties of the county recorders in all the counties of the state and not attempt to include in such salary compensation for service that might or might not be required to be performed by the several boards of county commissioners of the several counties of the state. Therefore, when the general assembly amended the statute it amended it in the furtherance of economy and not in the furtherance of extravagance, waste or charity to county recorders at public expense. It is also self-evident that if those duties attached to the county recorder in such sense that they were necessarily covered by the salary provided for county recorders the legislature would have no authority to interfere with the elected officer of the people in the discharge of his duties or to provide that any of his duties should be performed by a stranger to his office. In brief, if this later amendment is constitutional, and no one seems to question its constitutionality, then the duty of making these general indexes did not and does not attach to the office of county recorder, and the compensation for the performance of these duties was not covered or intended to be covered by the salary act.

There is a further consideration, however, that is decisive of this question. It is true that in this particular instance only a part of the indexes was directed to be made, yet if the county commissioners could order a part of these indexes to be made without compensating the county recorder for making them, they could by authority of the ; ame statute have required all of the general indexes to be made therein provided'for, starting.with the first records of the county and bringing them down to that tipie. ■ In other words, this recorder would be required to perform not only the’ duties incident to his office'during the time that he was in'office, but he must go back over the work of all preceding recorders and prepare and bring down to date indexes of all their work that they should have made and would have been required to niake, if the necessity and importance of such indexes 'had been recognized in the earlier history of the state. The colossal 'nature of these indexes completely refutes the proposition that it was the intention to include compensation for these services in the general salary act. The provision that, in counties containing a city of the second grade of the first class, this work should be upon the competitive bidding plan, applied only to one county—Cuyahoga. All other, counties were included within the provisions of Sections 1154 and T155, Revised Statutes. Suppose that the county commissioners of some of the larger counties of this state had made an order requiring the county recorder to make these general indexes from the earliest history of the county down to date, is it possible that the county recorder would be compelled to perform this immense service that, with the exercise of all due diligence, would take years to complete, and receive no compensation therefor beyond the salary paid to him for the ordinary, uniform duties of that office, equal in amount only to the salary paid the recorder in a neighboring county of like population where no such order was made? It is true that by the last amendment of Section 2780, General Code, (102 O. L., 277-290), the legislature has provided that the fees for transcribing records of other counties, the transcribing defaced or injured records, shall be paid back into the treasury to the credit of the recorder’s fee fund, and it is also true that the commissioners have authority to order this work to be done, and may order it in some counties and may not order it in others, yet the largest amount that could possibly be required in any county is so trifling in comparison with the making of the general indexes of all the records of a county that it presents no parallel case and is no argument in favor of the contention here made upon behalf of the relator. The work of making a complete general index of all the records of any of the counties of this state is such that it would require at least the entire time of a county recorder during all of one term of office. In fact, it is a matter of serious doubt whether it could be completed within one term. At all events, to do the work of such gigantic nature, would at least double the duties of the county recorder in each county where such an order may be made by the county commissioners. To require a county recorder to make such indexes for a salary fixed for the uniform and ordinary duties of each of the county recorders in all of the several counties of the state would be an unjust and unfair imposition upon that officer.

I yield to no man in the sincerity of my purpose to protect the public treasury from the assaults of individual greed, but on the other hand I insist that the state should set an example of honesty and fair dealing to which its officers and citizens must conform. There was, indeed, sad need of reformation of the abuses that had grown up under the fee system. In some of the counties of this state there were officers drawing fees for services that required no particular preparation, knowledge or professional skill to perform, aggregating an amount equal to the combined salaries of the governors of ten of the states of this Union, but in bringing about this needed reformation it is not necessary that any county officer should be burdened with the performance of such enormous and extraordinary duties as those provided for in Sections 1154 and 1155, Revised Statutes, without compensation therefor. The amount of the salary of county recorder fixed by statute is fair, reasonable and just for the ordinary and uniform duties of that office in each of the several counties of the state, and evidences the intention of the state to pay a fair price for this service, but if these duties be doubled or trebled in one or two or three of the counties at the will of the county commissioners, and the recorders in this one or two or three counties be compelled to perform these additional duties, then the uniformity of this law is destroyed, and the office of county recorder becomes a burden instead of a profit. The people of this state do not desire or expect this. They are willing to pay a' fair and reasonable price for all public service per-1 formed. All that they ask is that when that' price is paid the hand of greed be stayed to prevent the* looting of public funds.

For these reasons, I cannot agree with-the judg-’ ment of the majority of this court, and I sincerely regret that my associates • have found it necessary to enter such a judgment.

Newman, J., concurs in the dissenting opinion.


author: Wanamaker, J.

text:
    The State of Ohio v. Davis.

      Criminal law—Bribery—State must plead and prove Specific intent, when—Similar offenses may be shown, when—Such proof lim-r ited, how—Charge to jury subject to what limitations,
    1. Where an indictment charges the solicitation of a"bribe, it is-necessary for the state to plead and prove the specific corrupt intent required by the statute, to-wit, “to influence him with respect to liis official duty, action, vote,” etc!’
    2. In proving such corrupt intent other similár offenses'tending to show the corrupt course of dealing of a public official may be shown as tending to prove the specific corrupt intent charged in the indictment.
    3. At the time such proof is offered the trial judge should- limit its' - competency to the specific intent charged in-the indictment, and.if reference be made thereto in the charge the same limitations should be made by the trial judge.
    (No. 14368
    Decided March 17, 1914.)
    Error to the Court of Appeals of Brown county.
    The indictment in this case was brought under favor of Section 12823, Genéral Code, and charges the defendant, S. A. Davis, with soliciting a bribe from one E. H. Townsend to influence, him, the said S. A. Davis, as county commissioner, with respect to his official duty with reference to the purchase of certain roadmaking machinery. The solicitation charged in the indictment was on August 3, 1909. The testimony of Townsend shows that he first met the county commissioners in reference to certain roadmaking machinery in February, 1909; that early in the spring of 1909 he took them to Springfield to see their machinery; this was probably in March or April; that Hare, one of the commissioners, first suggested to Townsend at Springfield that if they bought his machinery “they would want something in the deal.” Townsend began visiting the commissioners after this trip with a view of selling his machinery and met them several times prior to August 3, 1909. At his first meeting with them, Davis told Townsend “that if he bought of me they would want $300.00—$100.00 apiece.” This solicitation was repeated from time to time until the last solicitation on August 3, 1909.
    Over the objection of defendant; evidence was; offered by the state tending to prove other solicitations of bribes by Davis from Townsend, than, the one charged in the indictment.
    The state also offered evidence tending to prove? that the defendant, Davis, solicited bribes ■ from one J. M. Howard as to the purchase of another roadmaking machine. Howard says that, he met Davis about May or June, 1909, when this matter was pending before the commissioners, and when, according to Townsend’s testimony, they had already solicited him. Solicitation of a bribe from Howard was just twenty-two days before the solicitation set out in the indictment. Other evidence was offered tending to prove that the defendant, Davis, solicited bribes with reference to certain bridge contracts prior to August 3, 1909. The evidence tended to show the solicitation of a bribe and, in many cases, the receipt of bribes in a large number of these contracts with Miller & Randall.
    The defendant was found guilty by the jury. A motion for a new trial was overruled and the court théreupon'pronounced sentence, fining the defendant the nominal sum of $300 and the cost of prosecution.
    The defendant prosecuted error to the court of appeals of Brown county. The court of appeals reversed the case for error in the admission of evidence as to the other offenses than the one charged in the indictment and for error in the charge of the court. The journal entry of the court of appeals reads as follows: “On consideration whereof, the court finds there is error therein apparent upon the record to the prejudice of the plaintiff in error in this, that the court erred in the admission of certain testimony offered by the state tending to prove other separaté and distinct offenses, and that the court erred in its charge to the jury relating thereto.”
    Thereupon the state of Ohio prosecutes error to this court to reverse the judgment of the court of appeals and affirm the judgment of the court of common pleas.

      Mr. Timothy S. Hogan, attorney general; Mr. Frank X. Frebis, prosecuting attorney; Mr. John R. Moore and Mr. Clarence D. Laylin, for plaintiff in error.

      Messrs. Young & Barnes; Mr. J. W. Bagby and Mr. R. E. Campbell, for defendant in error.
   Wanamaker, J.

The questions here presented are mostly new in Ohio jurisprudence. Bribery is one of the most heinous and atrocious crimes known to the public service. There is but one crook worse than the thief or the embezzler in official life and that is the briber or the bribed. But there is one type that is worse than all and that is the type that solicits the bribe.

As a rule bribery is one of the most difficult crimes to prove, because there are usually only two parties to the transaction, both of whom are either equally guilty or have such a common interest in concealing the crime that exposure of the wicked transaction rarely occurs. If the money is stolen from the public treasury, or from the trust funds in possession of the officer, the time of accounting usually discloses the fact. But. not so with bribery. The records are usually manipulated so that there is neither evidence nor suggestion of the corrupt or wicked act. That is all done sub rosa and “on the side.”

The language of the indictment pertaining to the question here involved is as follows: “That S. 'A. Davis on or about the 3d day of August, 1909, unlawfully and corruptly did solicit from one E. H. Townsend * * * $300.00 for the purpose and with the intent' to influence him, the said S. A. Davis, cbunty commissioner aforesaid, with respect to his official duty, action, vote, and opinion in a certain matter, to-wit, the purchase of certain roadmaking machinery,” etc.

The very nature and necessities of the case, the honor and integrity of public officials and public ‘service, demand that the state of Ohio shall have the advantage of the most liberal construction of the rules of evidence in making its proof of guilt. The competency of other similar offenses to show guilty knowledge, corrupt intent, criminal plan, design o’r system upon the part of the defendant, is very fully considered in a recent case decided by this court, State of Ohio v. Reineke, 89 Ohio St., 390.

It is a well-settled rule that where the crime involves a specific intent, such as forgery, obtaining money or property under false pretenses, and embezzlement; where a specific intent is made a part' 6f ■ the ’ offense, that in such cases other and similar offenses not too remote may be proven to show the intent charged. Also in cases where ■güilty knowledge is an element of the offense, such as passing counterfeit money or knowingly selling adulterated foods, drugs and the like. Again in ■cases of adulterous conduct with consent, as in the case of State of Ohio v. Reineke, supra, and in numerous other classes' of crimes where there is some causal or logical connection between such other similar offense and some element of the c,rime charged in the indictment.

Now, in the case at bar the state of Ohio needed to prove, among other things :

1. That the defendant, Davis, solicited, asked or requested a bribe.

2. For the purpose and with the intent to influence him, the said Davis.

3. With respect to his official duty, action, vote and opinion in a certain matter, to-wit, the purT chase of roadmaking machinery.

Here we have a specific purpose and intent that the state must prove. And also that the act was to influence the defendant as to his action and vote upon certain public contracts. If, now, after the contract had been entered into and consummated, the other party were to make Davis a present or gift of some valuable thing which had in nowise been in contemplation of Davis when he officially acted, in nowise referred to or suggested in. the course of the negotiations, while such conduct would be morally reprehensible, clearly. it would not of itself be sufficient evidence to convict of the charge of soliciting a bribe.

So that it becomes highly important and essential for the state to prove the specific purpose ajncl intent charged in the indictment. .:

Davis was a public officer, representing the county of Brown on its board of county commissioners, charged with the important, duty of preserving and protecting the public’s rights, interests and property with a view of securing the best service, .the best contracts, the best roadmaking machinery upon the most economic and favorable terms to the county. Instead of that the record is clear that evidence was offered tending to show Davis as an habitual grafter and boodler, who was soliciting, whenever opportunity arose, corrupt influences in the shape of bribes.

If other similar offenses are competent for the purpose of showing the specific intent necessary to be proven in other crimes involving guilty knowledge, corrupt purpose, fraudulent intent and the like,; certainly for the purpose of showing the specific intent to influence him as to his official action and vote, other similar transactions may be shown,' though they involve separate and distinct offenses.

The corrupt course of dealing of the public officer is involved directly in the charge, and any evidence tending to show his corrupt course of public dealing, either by being bribed or soliciting a bribe as a public officer, is clearly competent, whether it be with reference to the purchase of the identical road machinery which was purchased, whether it pertain to the contemplated purchase of other and different road machinery, or whether it pertain to the making of any other public contract as such public officer, so long as the transaction is not too remote.

If the evidence, as it tends to do in this case, shows a general plan, design and system of grafting and boodling for his own personal profit and to the loss and prostitution of the public service, such evidence is clearly competent, for when you once prove the corrupt purpose, the corrupt course of dealing of the public officer and the opportunity to repeat and renew the corrupt transaction, you have a chain of evidence circumstantially convince ing that the thing ordinarily done theretofore in a similar transaction would again occur when the Opportunity presented itself. . ..

The authorities are not agreed upon this doctriné as to bribery, but we are persuaded that the ovérwhelming weight of reason is in favor of the admissibility of this evidence when properly limited to the specific corrupt purpose and intent charged in the indictment. ...

In Guthrie v. State of Nebraska, 16 Neb., 667, the following is held in the syllabus: “Under the allegations of the indictment and the circumstances of the case as shown by the testimony, it was held competent for the state to prove other acts of bribery than those alleged in the indictment for the purpose of corroborating the principal witness upon material facts involved in the original contract of. bribery, and also for the purpose of showing the system, plan, and design of the parties, involved in the transaction alleged in the indictment.” The same holding is sustained in State v. DuLaney, 87 Ark., 17; Higgins v. State, 157 Ind., 57; State v. Schnettler, 181 Mo., 173. The sanie .doctrine showing design, plan and general system, in. .reference to the use of the mails, is sustained in Parker v. United States, 203 Fed. Rep., 950. Also in the recent case of Heike v. United States, 227 U. S., 121, decided January, 1913.

Wigmore deals with the subject qí ..bribery in a very clear, concise and logical. manner, in the following text from 1 Wigmore on. Evidence; ■ Section 343: “On a charge of bribery, any of the three general1 principles—knowledge, intent and design—may come into play. To show knowledge of the nature of the transaction, a former transaction of the sort may serve, as indicating an understanding :of the particular transaction, to show intent, another transaction of the sort may serve to negative good faith. To show a general design, a former attempt toward the same general end may be significant.” I desire to quote from Wigmore’s Evidence at the close of this section as to certain cases that hold the contrary doctrine. He says, by way of comment: “People v. Hurley, 126 Cal., 351, offering to accept a bribe, the defendant being a delegate to a nominating convention; similar solicitations to another candidate for the same office about the same time, excluded; a ruling that wrongs the law and. protects a rank crime. * * *

“State v. Fitchette, 88 Minn., 145, taking money for appointment to office; similar transaction six months,-before, excluded; the opinion is over-scrupulous, and is of the sort that helps to create immunity for. rascals. * * *

“People v. Sharp, 107 N. Y., 427, indictment for.offering a bribe in 1886 to a member of the common council of the city of New York, to influence his consent to a franchise for a surface-railway on Broadway; the fact of the offer of a bribe in 1883 to the engrossing-clerk of the state assembly to alter a bill so as to allow the construction of the same railway was rejected; the present principle and precedents were not considered, except by Peckham, J.; there is nothing to he said in support.of this ruling; it is of the kind that breeds defiance of the law and encourages criminals in gambling on the result of judicial quibbles.”

We find, however, that there was error in the trial court’s failing to limit the competency of this evidence as to other offenses to the specific corrupt intent charged in the indictment, because it is well settled, and we think rightly so, that one offense is not competent proof tending to show the commission of another offense. Therefore, it must follow also that there was error in the charge of the court in this same respect, the court treating the evidence at least in certain parts of the charge as being generally competent for any and all purposes instead of expressly limiting it as heretofore suggested.

Another error of the trial court was suggested in the oral argument in this case, though no reference thereto appears in the printed record or brief. The state offered evidence to the effect that Hare or Davis, the witness was uncertain as to which, had said certain things in Springfield near the Arcade hotel. Hare was afterwards offered as a witness by the defense to deny that he either used any such language. or. heard any such language at Springfield at the time and place charged by the state.

We hold that either the witness Hare or Davis should have been permitted to enter a denial in whole or in part as to that conversation. For the above errors, to-wit: 1. Not limiting evidence as to other offenses to the • specific. corrupt intent charged in the indictment, 2. In not charging the same limitation, and, 3. Refusal to permit the denial of the conversation at Springfield, the judgment of the circuit court is affirmed. This cause is remanded to the court of common pleas for a new trial.

Judgment affirmed.

Shauck, Johnson, Donahue, Newman and Wilkin, JJ., concur. Nichols, C. J., not participating.


author: Newman, J.

text:
    The Children’s Home of Marion County et al. v. Fetter et al.

      Proceedings in error—Will not be dismissed as to parties to judgment—Because stranger joins, when—Juvenile courts are courts of record, when—Records conclusive and cannot be assailed, when—Section 1639 set seq., General Code—Habeas corpus— Will not lie against institution—In which juvenile court has committed child, when.

    1. Where a judgment is rendered against two or more parties, they may unite in prosecuting error and the proceeding in error will not be dismissed as to them by the reviewing court, although it appear that a stranger to the judgment has joined with them in the petition in error in asking for a review of the judgment. •
    2. The probate courts of this state acting as juvenile courts under the provisions of Section 1639 et seq., General Code, are courts of record and their judgments, where jurisdiction of the person and subject-matter has been acquired and no fraud has inter' vened, are conclusive and can be assailed in no other court in an independent proceeding.
    3. Where a delinquent child has become a ward of the juvenile court and it has been committed to an institution, under the provisions of the General Code relating to the juvenile court, a proceedings in habeas corpus by á parent against the institution or its officert for the custody of the child will not lie.
    (No. 14251
    Decided March 17, 1914.)
    Error to the Court of Appeals of Marion county.
    Minnie Fetter, on April 23, 1913, filed an application in the court of appeals of Marion county in which she represented that she was the mother of Howard Fetter, a minor nine years of age, that she was entitled to his custody, that she was unlawfully deprived thereof and that said minor was restrained of his liberty by Sylvester Hurr, superintendent of the County Children’s Home of Marion county, Ohio, at which home he was unlawfully detained. She asked that a writ of habeas corpus be issued and that said Howard Fetter be discharged from said illegal restraint.
    To this application was attached, as an exhibit, a certified copy of the record of the proceedings theretofore had in the probate or juvenile court of Marion county “In the matter of Howard Fetter, a minor under seventeen years of age and a juvenile delinquent,” including the order of the juvenile court committing Howard Fetter to the Children’s Home of Marion county.
    It appears from this exhibit that on March 12, 1912, the truant officer of the city of Marion filed in the juvenile court an affidavit setting forth that Howard Fetter appeared to be delinquent or neglected, and that thereupon he and William P. Fet"ter and said Minnie Fetter, his parents, were duly-cited to appear in court.
    That on March 17, 1912, the juvenile court made the following order:
    “March 13, 1912. This day this case came on fbr hearing. The said child was brought before the court and it appearing that the citation heretofore issued has been duly served, and that all persons interested are now before the court. And the judge having heard the evidence and being fully advised in the premises, finds that said Howard Fetter , is under the age of seventeen years, to- , wit, about the age of nine years; and is' a delinquent child, as alleged in the petition; that he is „ incorrigible and by his conduct in school interferes with the progress thereof and with his own educational welfare due to the estrangement between W. P. Fetter, his father, and Minnie Fetter, his mother, and therefore comes into the custody of the court, and will continue for all necessary purposes of discipline and protection, a ward of the court, until he shall attain the age of twenty-one years.
    “There upon motion of the father and agreed to by the mother, it is ordered that until the further, order of the judge the said child is permitted and ordered to make his home with his . father on Monday, Tuesday, Wednesday and Thursday of each week, and with his mother the remainder of the week, Friday, Saturday arid Sunday, and stand subject to such other discipline, disposition and conditions as may be imposed by ■ the judge during its term of probation, and so long ' as such child shall in the opinion of the judge, comply with the conditions and terms of its probation, ¡■final judgment herein, or final commitment to any other place, person, or institution is hereby stayed and suspended, such suspended judgment, however, to be subject to the direction and conditions imposed ■ by the judge for such time as in the opinion of the judge such child has been. sufficiently corrected of its delinquency and final judgment entered herein, otherwise committing or disposing of the custody of such child or discharging it from any. further control by the judge-in this cause.”
    That on March 26, 1913, William P. Fetter, the father of the child, filed a motion in the juvenile court asking for a modification of this order, in which motion he represented that several weeks prior to March 26, 1913, Minnie Fetter, the mother, left Marion county, abandoning said child, who was .a ward of the court under an order made as to care, protection and custody, that he, the father, had in every way abided by said order, that the mother had wholly disregarded the same, that she had removed to the city of Sandusky, Ohio, where ¡she was working in a laundry, rooming with a •family and being in no position to care for or -in any- way to look after the child, and showed by leaving him that she was little concerned about ¡his care, custody or welfare. He asked the court .to "modify-the order'of March 13, 1912, in such respect as to the cQurt seemed just and for the best interests of the child.

      It further appears, from this exhibit, that upon March 28, 1913, the following order was entered on the record of the juvenile court:
    “March 28, 1913. This day this cause came on to be heard upon the motion of William P. Fetter, praying for a modification of the order heretofore made on the thirteenth day of March, 1912, wherein the time of custody of said child, Howard Fetter, was divided between the father and mother, who were separated and living apart, and it appearing that all parties interested are now before the court.
    “And the judge having heard the evidence and being fully advised in the premises, finds that said former order of March 13, 1912, should be and the same hereby is modified. It further appearing to the judge that because of the estrangement of the parents it would now be to the best interests of said child to remove him from the custody of both William P. Fetter and Minnie Fetter, his parents.
    “It is therefore ordered and adjudged that said child, Howard Fetter, be committed to the Marion County Children’s Home, Marion, Ohio, to be there received, cared for, educated and kept, subject to the control of and until discharged by the proper authorities of said institution, or until further orders of this court upon the proper adjustment of the differences of said parents.
    “It is further ordered that William P. Fetter pay to the superintendent of said Marion County Children’s Home, weekly, for his keeping therein and that a warrant to convey issue to S. N. Titus, probation officer, to convey said child to said institution, and that due return thereof be made to this office.”
    That the said Howard Fetter, on March 29, 1913, upon a warrant issued for that purpose was delivered to the Children’s Home—to the superintendent thereof.
    Upon the filing of the application of Minnie Fetter, a writ of habeas corpus was issued by the court of appeals commanding the sheriff of the county to take the child imprisoned and restrained of his liberty by Sylvester C. Hurr, superintendent of the Children’s Home, and have said child before said court and to summon Sylvester C. Hurr to appear to show the cause of the taking and detention of said child. A copy of the writ was served upon the superintendent of the Children’s Home, and on May 3, 1913, he filed an answer to the complaint of Minnie Fetter, which answer consisted of five defenses.
    In the first defense he averred that the complaint or so-called affidavit in habeas corpus did not state facts sufficient to warrant a writ or any order or judgment; in the second defense he averred that the court of appeals had no jurisdiction by law conferred upon it in habeas corpus proceedings; in the third defense he averred that upon the face of the record habeas corpus proceedings could not be maintained; in the fourth defense he denied that he was then or ever had been unlawfully restraining Howard Fetter of his liberty, and denied that Minnie Fetter was entitled to the custody of the child; in the fifth defense he set out in substance the proceedings had in the-juvenile court, a certified copy of .the record of which was attached to the application filed by the mother, and averred further that several months after the order and decree of March 13, 1912, Minnie Fetter, who was then living separate ajad apart from her husband, left Marion county , and took up her abode in Sandusky city, Erie county, Ohio, where, in the month of December, 1912, she instituted a proceeding in divorce against her husband,, in which she asked for alimony and the custody of the child, and that on March.'24, 1913, said .proceeding was heard in the court of common,pleas of Erie county, and that court, ordered that Minnie Fetter should have the sole and exclusive custody of the child. Fie further averred that neither the sheriff of Marion county, nor said juvenile court, nor said Children’s Flome or the superintendent thereof, were parties to said divorce and alimony proceedings; that the, only parties to the suit were Minnie Fetter and William P. Fetter, and that by virtue of the premises said court of common pleas had no jurisdiction or authority to make any order respecting the custody and control of the child; that said Minnie Fetter did not a.t any time, prior to the decree of the common pleas court of Erie county respecting the custody of the child, make known to said court that the juvenile court of Marion county had prior to that time assumed and retained the jurisdiction and authority over said child. Said superintendent further averred that the orders and decree of the juvenile court were in full force and. effect; that .the same had not been stayed or appealed from; that no proceedings had been instituted to reverse, modify or change the same; that said Minnie Fetter had at no time made application to the juvenile court to alter or modify its order or to place the child in her custody; that he had the custody of said child as superintendent of the Children’s Home of Marion county, by virtue of a commitment paper under seal of the probate or juvenile court of Marion county, and that said custody was legal and lawful by virtue of said commitment, and that by reason thereof Howard Fetter was not restrained by him as such superintendent unlawfully or illegally. He asked that said habeas corpus proceeding be dismissed and that the custody of said Howard Fetter be continued in him as such superintendent.
    • Answers were filed by John C. Francis, the sheriff of Marion county, and William P. Fetter, the father, on the same date, which answers are practically identical with the answer of the superintendent of the Children’s Home. No replies were filed to these answers.
    On May 16, 1913, the court of appeals ordered that the determination of the cause be reserved for twenty days to afford opportunity for application for a modification or vacation by the probate or juvenile- court of Marion county, Ohio, of its order of March 28, 1913, touching the custody of Howard Fétter, or to the trustees of the Children’s Home for the parole or discharge of the child from the home.
    On June 18, 1913, the cause was heard on the petition and the evidence, and the court of appeals found that Howard Fetter was unlawfully detained by the officers and agents of the Children’s Home of Marion county, and that Minnie Fecter was entitled to his custody. It was ordered that Howard Fetter be forthwith discharged from such detention; that Minnie Fetter, the mother, have his custody; that said officers and agents of the Children’s Home deliver said child to Minnie Fetter, and that the Children’s Home pay the costs of the proceeding.
    ■ A motion for a new trial was filed by the Children’s Home and its superintendent, which motion was overruled. A bill of exceptions was taken in which it is certified by the court of appeals that on the hearing and trial of the cause “it was admitted by the respondent as a fact that the said Minnie Fetter would be a fit and suitable person to have the custody and control of the said child, Howard Fetter; and plaintiff introduced no other evidence in the cause, and respondent introduced no other or further evidence in the cause, and thereupon both sides rested, and the foregoing was all the evidence introduced on the hearing of said cause.”
    The Children’s Home of Marion county, Sylvester C. Hurr as superintendent of said home, and William P. Fetter, the father, filed a petition in error in this court in which they ask that- the judgment of the court of appeals be reversed and that final judgment be rendered in their favor.
    After the filing of the printed record in this court, counsel for Minnie Fetter filed a motion to dismiss this action and this proceeding in error and. the petition in error, for the reason that there is a misjoinder of parties plaintiff in error, that the several causes of action are improperly joined and that the petition in error does not state facts which constitute a cause of action. A consideration-of this motion was reserved until the disposition of the case on its merits.

      Mr. Homer Johnson, prosecuting attorney, and Messrs. Finley & Gallinger, for plaintiffs in error.

      Mr. H. L. Peeke, for defendants in error.
   Newman, J.

Counsel in support of their motion to dismiss this proceeding rely upon Chapman Mfg. Co. v. Taylor, 61 Ohio St., 394. There separate judgments were rendered against separate parties on separate causes of action in favor of the same party. The parties against whom such separate judgments were rendered united in prosecuting error. The'court held that there, was a misjoinder of parties plaintiff and dismissed the proceeding in error. The law of that case does not apply here where the judgment was rendered against the Children’s Home and its superintendent—neither separate judgments nor judgments based upon separate causes of action. There is no reason why these two parties may not unite in a proceeding' for a review of this adverse judgment. But it is claimed that W. P. Fetter is not entitled to become a party to this proceeding because no judgment was rendered against him. Conceding this, his joining in the petition here does not invalidate the proceeding in error as to the other two parties. The petition in error is in usual form. It recites the rendition of the judgment and assigns the several errors upon which the parties rely. Then follows the prayer for a reversal and for final judgment in favor of plaintiffs in error. This proceeding, so far as the Children’s Home and its superintendent are concerned, is properly here, and the motion to dismiss is therefore overruled.

Counsel for plaintiffs in error challenge the judgment of the court of appeals upon the grounds that the complaint in habeas corpus was insufficient and that the court of appeals had no jurisdiction of the subject-matter.

The contentions of counsel for Minnie Fetter, the mother, are, that the juvenile court never had jurisdiction; that if it had, it lost it, because it could make but one of two orders—it could commit ■the boy to the Children’s Home or it could discharge .him—it had no authority to divide the custody of the boy between the parents; that if the juvenile court had jurisdiction, its rights were wholly subordinate to the right of either parent if ■fit, able and willing to care for the child; that the court of common pleas of Erie county had exclusive jurisdiction of the parties and subject-matter and custody of the child.

An affidavit as authorized by Section 1647, General Code, was filed by the truant officer of Marion ■in the probate court, acting as a juvenile court, ■with the jurisdiction and powers conferred upon it by Section 1639 et seq.

A citation was issued to W. P. Fetter and Minnie Fetter, the parents having the custody and control of the child, as required by Section 1648. On March 13, 1912, the child was brought before the court, evidence was heard and a finding was made that he was under the age of seventeen, that he was incorrigible, that he was a delinquent child and that he came into the custody of the court and would continue for all necessary purposes of discipline and protection a ward of the court until he attained the age of twenty-one. In Section 1644, a “delinquent child” is defined, and includes, among others, a child under seventeen years of age that is incorrigible. Section 1643, prior to the amendment of April 28, 1913, was as follows: “When a child under the age of seventeen years comes into the custody of the court under the provisions of this chapter, such child shall continue for all necessary purposes of discipline and protection, a ward of the court, until he or she attains the age of twenty-one years. The power of the court over such child shall continue until the child attains such age.”

On March 13, 1912, by order of the juvenile court, on motion of the father, agreed to by the mother, Howard Fetter was permitted to make his home with his father on certain days of the week and with his mother on the remaining days, also to stand subject to such other discipline, disposition and conditions as might be imposed by the judge during the term of probation. It was further ordered that so long as the child should, in the opinion of the judge, comply with the conditions and terms of the probation, final judgment or final commitment to any other place, person or institution be stayed and suspended, such suspended judgment, however, to be subject to the directions and conditions imposed by the judge, “for such time as in the opinion of the judge such child has been sufficiently corrected of its delinquency and final judgment entered herein, otherwise committing or disposing of the custody of such child or discharging it from any further control by the judge in this cause.”

Counsel for the mother insist that the juvenile court had no authority to make this order, that it could commit the child to the Children’s Home or discharge it. We cannot agree with counsel, for, under the provisions of Section 1652, General Code, the court is authorized to make temporary provision for a child such as was made here, subject to be returned to the judge for further proceedings whenever such action might appear necessary.

Such action was necessary in this case, as shown by the records of the juvenile court in its finding of March 28, 1913, and it is immaterial that the matter was brought to the attention of the juvenile court by the father of the child after the decree in the divorce proceeding. The court speaks by its record, and it appears that all parties interested were before the court, that the court heard evidence on the subject and was convinced that there should be a modification of its former order in reference to'the custody of. the child. It did not, however, change its finding that the child' was a delinquent. It found that on account of the estrangement of the parents it would be to the best interests of the child to remove it from their custody, and it committed it to the Marion County Children’s Home, to be there received, cared for and educated, and kept subject to the control of and until discharged by the proper adjustment of differences of said parents. This order of the court, at the time of the proceeding in habeas corpus, was unreversed and unmodified and was in full force and effect.

The proceeding in Erie county was one in divorce, and the only parties’ there were Minnie Fetter and W. P. Fetter. As between them the common pleas court may have had the authority to determine which of the two was entitled to the custody of the child, but its order in no way could affect the order of the juvenile court under which, on March 13, 1912, the child became a ward of the juvenile court to continue as such until the age of twenty-one. Exclusive jurisdiction of the child and of the subject-matter was acquired by the juvenile court several months prior to the proceedings in divorce and was a continuing jurisdiction, and that the order of commitment to the Children’s Home was made subsequently to the decree in divorce in Erie county is wholly immaterial.

As required by Section 12164, General Code, a copy of the commitment of Howard Fetter to the Children’s Home was exhibited to the court of appeals with the complaint of Minnie Fetter, the mother. The exhibit attached to the complaint contained not only a copy of the-commitment but a certified copy of the entire proceedings had in the juvenile court. It appeared then to the court of appeals that Howard Fetter, alleged to be restrained of his liberty, was in the custody of the Children’s Home by virtue of an order of a court of record.

As has been repeatedly held by this court,, the probate courts of this state are courts of record, and their records import verity. Their judgments are binding and conclusive, where there is no fraud and when it appears that there was jurisdiction of the person and the subject-matter. The proceedings in the probate court of Marion county, acting as a juvenile court, were regular and it had jurisdiction to make the order of commitment.

We are of the opinion that the court of appeals was without authority to allow the writ of habeas corpus, for, under the provisions of Section 12165, the writ shall not be allowed when it appears that the. person alleged to be restrained of his liberty is in the custody of an officer by virtue of a judgment or order of a court of record and that the court had jurisdiction to issue the process, render the judgment or make the order.

Hoffman v. Hoffman, 15 Ohio St., 427, is cited by counsel for the mother. In that case it was held: ‘Where a court of common pleas, on rendering a decree of divorce, further decree the ‘custody, care, and control’ of the minor children of the marriage to one of the parties, a probate court, while such decree remains in force, cannot, as between the parties to the decree, legally interfere with the custody' sb-decreed, either by habeas corpus or letters of guardianship.”

This case, as we view it,-does not support the contention of counsel, but is, we think, an authority against their position. The court' there held that1 the jurisdiction of the court of common pleas of the subject of the custody of children in divorce cases is a continuing jurisdiction. In the case at bar, under the provisions of Section 1643, General Code, Howard Fetter came into the custody of the juvenile court- and the power of that court over him was continuing until he attained the age of twenty-one years. An independent proceéding in another court, even of higher jurisdiction, cannot be maintained to affect this order of a court of record and competent jurisdiction.

No finding of facts was made by the court of appeals. Counsel therefore insist upon the application-of the rule announced in McGrath v. Cowen, 57 Ohio St., 385: “Where, in a proceeding in error in this court, the record does not show an agreed statement or finding of the facts, but there is a bill of exceptions purporting to contain all the evidence, and the reversal of the judgment is sought on the ground that the undisputed facts, or those proven by uncontroverted testimony, require its reversal, it will be presumed, in support of the judgment, that all facts necessary to sustain it, which the evidence fairly tends to prove, were established to the satisfaction of the court whose judgment is under review.”

‘This rule has no application here. The only evidence in the case at bar was an admission by the respondent that Minnie Fetter would be a fit and suitable person to have the custody and control of the child. Conceding this to be true, in view of the finding of the juvenile court this fact could not confer jurisdiction of the subject-matter on the court of appeals. It would not authorize that court to nullify completely the action of the juvenile court. The court of appeals recognized the jurisdiction of the juvenile court over the subject-matter, for its order was reserved to afford opportunity for an application for a modification or vacation by the juvenile court of its order of March 28, 1913, or to the trustees of the Children’s Home for the parole or discharge of Howard Fetter. It doés not appear whether such application was made. But by the final order of the court of appeals the child was discharged from the institution and awarded to the custody of the mother. Counsel claim that “no fault was charged against Howard Fetter, but against the parents of the boy.” In view of the express finding of the juvenile court such a claim is, we think, not tenable. That court found expressly that the child was incorrigible and therefore a delinquent. True, it found that this delinquency was due to the estrangement between the parents, when it made its original order on March 13, 1912, and when the. modification of the order was made there was a finding that this condition still existed. Yet there was a positive finding upon evidence of a jurisdictional fact, viz., that the child was a delinquent. This finding was conclusive and could not be attacked in an independent proceeding in another court.

It is urged with some feeling by counsel for the mother that the jurisdiction of the juvenile court, even if it had any in this case, is subordinate to the right of the mother if she is fit, able and willing to care for the child.

The legislature in the exercise of its police power, in order to protect children and to remove them from evil influences, has established the juvenile court. When proceedings are regularly had in that court and there is a finding that the child is delinquent it becomes a ward of the court. In the interest of the child and in the interest of society the court can commit its custody to strangers or to an institution for its moral training and education over the objection of the parents. The presumption is that the juvenile court of Marion county, when it committed Howard Fetter to the Children’s Home, was acting with reference to the best interests and welfare of the child. It is in the power of that court, if it deem it advisable, to restore the child to its parents. But there is no authority for any other court to interfere, in an independent proceeding, with the custody of the child thus entrusted by law to the jurisdiction of the juvenile court.

When it appeared to the court of appeals that the juvenile court had acquired jurisdiction of the child, and that it had become a ward of that court, it should have dismissed the application for a writ of habeas corpus.

Counsel for plaintiffs in error insist .that all- the allegations in the fifth defense of the answer, of the superintendent of the Children’s. Home stand confessed and admitted to be true, for no reply was filed thereto. It is claimed by opposing counsel that the superintendent by going to trial without objection waived a reply. It is unnecessary to pass upon this question, for the uncontroverted facts precluded the court of appeals from acquiring jurisdiction. The questions presented for ,oqr determination were properly raised by the other defenses in the answer. .. ..

For the reasons we have given the judgment of the court of appeals is reversed and the application for a writ of habeas corpus is dismissed, the Children’s Flome of Marion county to have the custody of the child under the order of commitment made by the juvenile court.'

Judgment reversed and judgment for, plaintiffs -irt error.

Nichols, C. J., Sitauck, Johnson, Dcdnahue, Wanamaker and Wilkin, JJ., concur.