source: Caselaw Access Project

author: J. R. Swan, J.

license: Public Domain

text:
    The County Commissioners of Lucas County v. John E. Hunt and others.
    Where the seat of justice of a county is located ata particular'place by authority of law, upon condition that citizens interested in the location would erect there, and donate to the county, a court house and public offices ; and such citizens comply with such condition ; and the seat of justice is afterward removed to another place, and the county commissioners still claim the right to use and dispose of such public buildings for other purposes than those for which they were erected and donated ; and the donors afterward prefer claims before the board of county commissioners, for the money expended in the erection of such public buildings, with interest; and the county commissioners, to compromise these claims, authorize county orders to be issued to the donors for the amount of the original advancement, provided the donors throw off the 'interest thereon, and release the county from all claims on account of such donations; and the donors accept the offer, and execute the release, and the county orders issue. On bill, filed by a new board of commissioners, to enjoin the payment of the county orders, Held:
    1. There was a clear moral obligation on the pari of the county to either give up the property or make compensation, after the county seat was removed.
    2. Doubts might well be entertained whether chancery would not have interfered on behalf of the donors.
    3. The claims of the donors were of that kind of doubtful character in equity, which would raise a sufficient consideration for a compromise; and that, therefore, this court ought not to interfere by injunction, to save the county from the paymeiit of a demand having the sanctions of moral obligation.

      In chancery. Reserved in Lucas county.
    This is a bill in chancery, filed by the county commissioners of Lucas county, to enjoin the payment to defendants, of county orders of Lucas county to the amount of nine thousand twenty-nine dollars and ninety-nine cents, issued to them by the predecessors of the board of commissioners filing said bill.
    The material facts in the case are the following:
    Eor a number of years previous to 1840, much difficulty had existed in Lucas county in regard to the location of the county seat of that county, and for the purpose of finally quieting those difficulties, the legislature of the State of Ohio, on the 23d day of March, A. D. 1840, passed a resolution in words following, to wit:
    “ Resolved by the General Assembly of the State of Ohio, That James Culbertson, of Perry county, Joseph Burns, of Coshocton county, and Joseph McCutchen, of Crawford county, be and they are hereby appointed commissioners to review the seat of justice of Lucas county, and, if in their opinion the public interests require it, to re-locate such seat of justice at such point in said county of Lucas as they may deem most in accordance with the public convenience; and said commissioners shall be governed in all their doings by an act passed February 3, 1824, establishing seats of justice.”
    In pursuance of this resolution, said commissioners entered on the performance of the duty assigned them, and on the 29th day of May, A. D. 1840, gave it to be understood that they would locate the seat of justice of said county on Washington Square, in Maumee City, on condition that the people of Maumee City, and others interested in its location at that point, would erect ai court house and offices for the use of said county, according to plans to be furnished by the commissioners, at a cost not exceeding ten thousand dollars. In accordance with which understanding, John E. Hunt and others, on said 29th day of May, A. D. 1840, executed to the commissioners a bond in the penal sum of twenty thousand dollars, to comply with the terms above stated. On receiving this bond, the commissioners did locate the seat of justice of Lucas county at Maumee City. Very soon after this location, the defendants subscribed a sufficient amount for the construction of said court house and offices, as specified in the bond of John E. Hunt and others to the commissioners, and on the 8th day of October, A. D. 1841, the county commissioners of Lucas county receipted the bond of John E. Hunt and others as having been complied with. On the 14th day of February, A. D. 1843, some question having arisen as to the right of the commissioners to make this location, the general assembly of the State of Ohio passed the following act:
    “ Whereas, by a joint resolution of the general assembly, commissioners were appointed to review and re-locate the seat of justice of Lucas county; and -whereas said commissioners did locate and establish said seat of justice at Maumee City, in said county; and whereas, pursuant to stipulations entered into by sundry citizens of said Maumee City, public grounds have been appropriated, and a court house and offices of the value of twelve thousand dollars have been built by said citizens as a donation, on condition that said seat of justice be permanently established at said Maumee City, and which have been accepted by the commissioners of said county ; and whereas doubts have arisen as to the legality of the acts of said commissioners under said resolution ; therefore,
    “ Sec. 1. Be it enacted by the Q-eneral Assembly of the State of Ohio, That the seat of justice of the county of Lucas is hereby declared to be permanently located at Maumee City, in said county, where the court house now stands, and at the place designated by the commissioners appointed by the legislature in A. D. 1840, to review and re-locate said seat of justice.”
    After the passage of this act, the seat of justice was considered on all hands as being permanently located at Maumee City ; but, at the annual fall election, A. L>. 1852, said seat of justice, by a vote of a majority of the citizens of Lucas county, was removed to the city of Toledo, in said county of Lucas, by virtue of another act of the general assembly of the State of Ohio, said act making no provision for compensation to these defendants in case of the removal of said seat of justice, nor for the restoration to defendants of the buildings by them erected, or of the lots on which the same stood. After the removal, the defendants appeared before the county commissioners, and claimed from them the amount of the original advancements, with interest, on the ground of the failure of the original consideration on which the same was advanced; and, on the 1st day of November, A. D. 1862, the county commissioners, at a special session, at which all the commissioners were present, two of them (being a majority) passed a resolution, that if said contributors would release the county from all claims on account of their said contributions, they, the said commissioners, would allow them orders on the county treasury for the amount which had been actually contributed by them, without interest. In accordance with said resolution, the required release was executed, and orders were issued by the auditor of Lucas county to each of said contributors for the amount so by each originally advanced, without interest. On the 26th day of November, A. D. 1852, there was a change in the board of county commissioners, and this bill was filed to enjoin the collection of the orders so issued, under the authority of the resolution of the former board. On the 2d day of September, A. D. 1853, two of said county commissioners (one of whom is the commissioner who swears to the bill in this case) served notice on an occupant of this court house to recover possession of it.
    The depositions of two of the members of the board of county commissioners, in November, 1852, were taken in regard to the call of the special session mentioned, and the circumstances attending the passage of the resolution.
    Under this state of facts, the question presented is, shall this bill be sustained ?

      Fitch & McBain, and Bassett & Kent, for complainants.

      Bassett & Kent, in argument, submitted the following propositions :
    I. That these defendants had no legal claim against the county which could furnish a consideration for the orders sought to be enjoined.
    The resolution of the general assembly, passed March 23d, 1840, did not make the re-location permanent; neither did the act of February 3d, 1824, by which the commissioners were to be “ governed in all their doings.” Neither did this resolution, or the act of 1824, authorize the commissioners to make any conditions for the location of the seat of justice ; but they were to locate it where the public convenience required.
    The subscription made on the 21st day of May, 1840, says nothing about a permanent location. .It was upon condition that the county seat be located within the limits of Maumee City.
    The bond of Hunt and others, conditioned for the erection of the county buildings, is attached to the answer, and we can find nothing in it that would show that the obligors claimed that they were procuring a permanent location of the seat of justice.
    The court house was completed and accepted, October 8th, 1841.
    This executed the gift, and the donors had obtained all that they had a right to expect — the location of the seat of justice, under a general law, subject to be altered or removed again at any time the legislature might see fit.
    February 14th, 1843. An act of the legislature was passed, permanently locating the seat of justice at Maumee City.
    Thus, sixteen months after the gift had been fully executed and accepted, is the first that we hear that the location was to be permanent.

    II. But it is said, that if there was no legal obligation on the part of the county, there was a moral one, and that this is a sufficient consideration to support a contract.
    We know that it has sometimes been loosely said, that a moral obligation furnishes sufficient consideration for an express contract ; but this rule, wherever it has been presented to courts for adjudication, has been limited to one class of moral obligations —that is, to cases where there has been some preexisting legal obligation — which has become inoperative by positive law; such as a subsequent promise to pay a debt barred by the statute of limitations. The rule is well stated and discussed in Mills v. Wyman, 3 Pick. Rep. 207, where C. J. Parker limits its operation to the cases we have stated. To the same effect, is Geer v. Archer, 2 Barbour S. C. Rep. 424, and we believe all other cases where the point has been expressly decided.
    But we deny that there was any claim upon the county— legal, moral or equitable. What moral claim had these speculators in city property at Maumee, after they had induced the commissioners to locate the seat of justice so as to enhance the value of their property, if, after the people of the county had suffered the inconvenience for some dozen years, the public convenience so absolutely required its restoration to its former location, that these men had no longer the power to hold it ? The money they subscribed was not given to the county. They built the court house and gave that to the county, and if this donation had been made upon condition that the county seat should be permanent there, they could not ask the county to repay them their money. The consideration of their conveyance would then have failed, and they could have taken their property again. But the consideration has not failed. They have had all they bargained for, the location of the seat of justice, and if it did them any good, they have had the benefit of it; and if it did' them no good, they simply made a bad bargain, and they have no claim upon any one — moral or equitable — to make up the losses of their unprofitable speculation.
    But we are told, that there has been a compromise, and courts will not go behind that, to see which party had the stronger right.
    We, however, beg leave to submit—
    III. That these orders cannot be. supported on the ground that they were given to compromise a doubtful claim against the county.
    1. There was no doubtful claim to be compromised.
    In Longridge v. Dorville, 5 B. and Aid. 117, it was held, “ that the giving up of suit instituted to try a question respecting which the law is doubtful, is a good consideration for a promise to pay a stipulated sum,” and this we do not dispute to be good law. But the party to whom the promise is made, must have a claim, it may not be a claim where he could absolutely recover, but it must at least be one where it is doubtful whether the other party could resist it. In Bdwards v. Baugh, 11 M. and W. 641, Lord Abinger says : “ The declaration only alleges that certain disputes and controversies were pending between the plaintiff and defendant, whether the defendant was indebted to the plaintiff in a certain sum of money. There is nothing in the use of the word ‘ controversy,’ to render this a good consideration. The controversy merely is, that one claims the debt, and the other denies it.” See, also, the case of Wade v. Simeon, 2 C. B., as quoted in 1 Parsons on Contracts 366. See, also, Story on Contracts, sec. 436, and the cases there cited.
    2. There was no agreement to compromise.
    What did the defendants surrender ? If counsel on the other side will show the court, they will do more than we have been able to discover from the proof. It seems to us, that these orders were given as a mere gratuity, on the defendants presenting their moral claim.
    IV. The commissioners had no power to act, except at a regular session.
    The statute in force at the time, was the act of June 1,1831. Swan’s Statutes 1841, p. 205. See Archer v. Com. of Allen Co., 3 Blackford Rep. 501. This decision was made under a law of Indiana similar to ours.

      Young & Waite, and Spink & Murray, for defendants.

      James Murray, for defendants, argued in substance as follows :
    I. In regard to the power of the county commissioners to act, except at a regular session.
    1. The law has made it obligatory on them to hold certain stated sessions ; but, at the same time, has nowhere limited the discretionary power which they possess of holding special, in addition to stated or regular sessions. We are satisfied that the law never intended to restrict the inherent power which the board of commissioners would otherwise possess to meet at irregular times for the transaction of business.
    2. If the court should find that this board of county commissioners had power to execute a contract of this kind; that they did execute it, although at an improper time ; that that contract was made in good faith, on sufficient consideration’, and with a full knowledge of all the facts; is there any equitable principle upon which these complainants can sustain a bill in equity to revoke their contract, because it was made by them at an improper time ? We think there is none.
    It may be urged that such a contract could not bind the county. We reply, that whatever might be the result under some circumstances, it can never be claimed that relief could be had"-against it in that court, whose first principle is, that “ he who seeks equity, must do equity.” If they are equitably bound to make this contract, and the county which they represent is equitably bound to ratify it, they certainly cannot set aside their contract for the reason they have alleged. It would be a violation of the equitable rights of the defendants.
    II. The county was liable to respond to these defendants in damages; yet even admitting the liability of the county to have been doubtful, we conceive no proposition can be clearer than that if such liability was a doubtful one, a promise to pay, on a compromise of the claim made in good faith, without fraud, and on a full uuderstanding of all the facts, will be enforced. Taylor v. Patrick, 1 Bibb Rep. 168 ; Perkins v. Gray, 3 S. C. Rep. 331; Logan v. Matthews, 6 Barr Rep. 417 ; Zane v. Zane, 6 Munf. 406; Fisher v. May, 2 Bibb 448; Mills v. Lee, 6 Monr. 97; Kennedy v. Davis, 2 Bibb 343 ; McKinley v. Watkins, 13 Illinois Rep. 140.
    And it will make no difference, even if the court should find that the county was not legally liable to pay the claims of defendants. As was well said in Ohio v. Piatt, 15 Ohio Rep. 23, “ The board of commissioners are the general agents of the county — they are the proper persons to sue in behalf of the county — liable to suit, and in their representative capacity responsible for the result of such suits.” If this be true, then it seems most clear that the power to sue, and the liability to be sued, must carry with it, the inherent power to settle and compromise such suits. There can be no true rule in regard to the authority of the commissioners to compromise and settle, except the judgment of the commissioners as exercised in good faith at the time.
    We claim that there was on the part of the commissioners of Lucas county, a moral obligation to repay to these defendants the amount by them advanced for the erection of the court house and offices, and the lots of ground on which the same stood. That such moral obligation is a sufficient consideration for an express promise, is well settled by the decision in Heed v. McGrew, 5 Ohio Rep. 375 ; Commissioners of Canal Fund v. Perry, 5 Ohio Rep. 58; Barlow v. Smith, 4 Vermont Rep. 144.
   J. R. Swan, J.

There is not proof of collusion or unfairness used to 'obtain a compromise of the claim of the defendants upon the county. The object of the donations of the defendants to the county, was to procure the county seat to be located at Maumee. It could not have entered into the contemplation of the parties, that the county seat, after being once established at Maumee, would, in the course of years, be removed. It was, however, removed, and the county, notwithstanding, claimed the property of defendants, and the right to use and dispose of it for other purposes than those for which the defendants were induced to give it. Whatever may be the legal rights of the county under such circumstances, it is unjust and inequitable on its part to retain this property, after having deprived the defendants, substantially, of the consideration which induced them to give it. There was a clear moral obligation on the part of the county, to either give up the property, or make compensation after the county seat was removed ; and respectable members of the bar and court might well have entertained doubts whether chancery would not have interfered on behalf of the defendants. Under these circumstances, we are of the opinion that the claim of the defendants was of that kind of doubtful character in equity, which would raise a sufficient consideration for a compromise; and that, therefore, this court ought not to interpose by injunction to save the county from the'payment of a demand having the sanctions of moral obligation.


author: Scott, J.

text:
    The State of Ohio, ex rel. Archibald M. Huston and others, v. The Commissioners of Perry County.
    Under the code, as well as under the former practice in mandamus, the writ may properly issue, and the proceedings be ^conducted, in the name of the State, upon the information of the party beneficially interested.
    The 3d and 4th sections of the act of March 2d, 1853, “ To provide for the removal of the county seat of Perry county, from the town of New Lexington to the town of Somerset,” which prescribe the form of voting on the adoption of the act, the manner of making the returns, etc., took effect from the passage of the act, and by virtue of the enactment.
    The proper construction of the 2d section is, that the act shall not take effect to accomplish its main purpose, to wit, the removal of the county seat, until adopted by the voters.
    The fifth section of said act imposes upon the county of Perry a forfeiture of subsisting rights acquired under a legal contract, in the event of a majority vote against removal of the seat of justice, and is, therefore, unconstitutional.
    As a general rule, one part of an act will not be held unconstitutional, and another part constitutional, unless the respective parts are independent of each other. But in this case, the provisions of the first and fifth sections are intimately connected, they were submitted to the electors and voted on as a whole; the fifth section would induce the adoption or rejection of the first. In such a case they must stand or fall together.
    This is an application for a writ of mandamus.
    The material facts upon which the application is predicated, are the following:
    On the 22d day of March, 1851, the general assembly of the State of Ohio passed “ an act referring to the voters of Perry county, the question of a removal of the seat .of justice of said county.” At the date of this act, the county seat of said county was at the village of Somerset.
    Those portions of said act which are material to a proper understanding of the case, are as follows :
    Section 1st provides for the time and manner of voting on the question ; and for the certificate of the number of votes polled, and the publication of an abstract of the same.
    “ Sec. 2. If there shall be more votes given at said election for removal than are given against removal, then the seat of justice shall be establisned at the town of New Lexington; Provided, that said removal shall not take place until suitable county buildings shall have been provided in the town of New Lexington.
    “ Sec. 3. Should a majority vote in favor of said removal as is provided in the preceding section of this act, then it shall be the duty of the said commissioners to erect in the town of New Lexington a suitable court house, jail and other public buildings for the public offices of said county ; said buildings to be completed on or before the first day of January, eighteen hundred and fifty-six ; and it shall be the duty of the commissioners aforesaid, to dispose of the county buildings in Somerset, as they may think proper, and apply the proceeds thereof in the erection of the new county buildings in the town of New Lexington.”
    Section 4th provides that the sheriff shall issue his proclamation, notifying the electors to vote upon the question of the removal of the county seat.
    “ Sec. 5. That when suitable buildings are provided, the commissioners of said county shall notify the officers, and said officers shall, within twenty days after receiving said notice, remove their respective offices to the town of New Lexington, and the next session of the court of common pleas, and supreme court for said county, shall be holden in the town of New Lexington, thenceforth to be the seat of justice for Perry county, as is provided in section two of this act.
    “ Sec. 6. Provided, that this act shall not take effect unless the friends of removal, on or before the first day of July, 1851, secure to be paid to the commissioners of Perry county, a sufficient amount of money, to be paid in three equal annual installments, to erect suitable buildings in the town of New Lexington (the commissioners to determine the amount necessary). And should the money be secured, as is provided in this section, then it shall be the duty of said commissioners to notify the voters of said county by publication in each of the newspapers of the county, at least four weeks previous to the taking of said vote, that the amount necessary has been secured, then this act to be and remain in full force.”
    Pursuant to the sixth section of said act, and before the 1st day of July, A. D. 1851, the friends of the removal .of said county seat, consisting of the relators and some fifteen others, secured to be paid to the then commissioners of said county, and to their satisfaction, the amount of money by them deemed necessary for the erection of suitable county buildings in the town of New Lexington, of which due publication was made, as provided in said sixth section.
    A vote was taken in pursuance of said act, on the question of removal, and resulted by some hundreds majority in favor of removal.
    The commissioners then in office, on the 2d day of March, 1852, entered into a contract with Samuel Feigley for the erection of a court house, jail, and other public buildings, for the public offices of said county, to be completed on or before the 1st of April, 1854. And, in pursuance of such contract, Feigley proceeded with the construction of said buildings, under the direction and supervision of the then commissioners of said county, until about the month of November, 1853, when said buildings were nearly completed ; at which time the then acting commissioners of said county abandoned said buildings, and from that time refused, and ever since have refused to do, or permit to be done ^.by their authority, anything towards the finishing or completing said building, thus nearly finished and mostly paid for out of funds raised by the relators and other friends of said removal, in pursuance of the said contract with said commissioners. In consequence of said abandonment by said commissioners, said Eeigley, also, then abandoned said building in its then unfinished condition, in which it has ever since remained.
    On the 2d day of March, 1853, the general assembly of the State of Ohio, passed an act, entitled an act to provide for the removal of the county seat of Perry county, Ohio, from the town of New Lexington to the town of Somerset, in said county.”
    And said defendants seek a justification for their abandonment of said public building at New Lexington, and for their refusal to proceed and have the same completed, in the fact of the passage of said act of March 2d, 1853, and in the proceedings and election had in pursuance thereof.
    So much of said act as is material to a proper understanding of the case, is as follows:
    “ Sec. 1. That from and after the taking effect of this act as hereinafter provided, the seat of justice in the county of Perry, shall be removed from the town of New Lexington, and shall be permanently fixed until otherwise provided by law, at the town of Somerset, in said county.
    44 Sec. 2. That this act shall take effect and be in force when, and so soon as the same shall he adopted by a majority of all the electors of said Perry county, voting at the next general election after the passage thereof, as hereinafter provided.
    44 Sec. 3. That the electors of said Perry county, at the next general election after the passage of this act, shall indorse on their tickets either the words 4 for removal,’ or 4 against removal ; ’ and if a majority of all the electors of said Perry county, voting at said election, shall vote 4 for removal,’ this act shall thereupon be considered and holden to be adopted by such majority.”
    Section fourth provides for counting the votes and certifying the result, and the publication of a copy of the certificate, and the entry of a copy of such certificate upon the records of the court of common pleas of the county, at the term thereof next after the election, etc.

      “ Sec. 5. If a majority of said electors of said county, voting at said election as hereinbefore provided, shall vote against removal, then all obligations heretofore given to the commissioners of said county, in accordance with the sixth section of an act entitled ‘ an act referring to the voters of Perry county the question of a removal of the seat of justice of said county,’ passed March 22d, 1851, to secure to be paid to the commissioners of said county a sufficient sum of money to erect suitable county buildings in the town of New Lexington, shall be, by said commissioners delivered up to be canceled, and the commissioners shall proceed at once to levy a tax sufficient to erect a court house, jail, and offices, for said county, in the town of New Lexington, which court house, jail, and offices, shall, in the aggregate, cost not less than sixteen thousand dollars.”
    In pursuance of said act last mentioned, a majority of the electors of Perry county, voting at the general election in October, 1853, adopted said act, in the manner specified in the same, as appears from the certificate of the result of the voting on that question, published and entered of record, as required by the act.
    The relators are tax-payers of Perry county, residents of New Lexington, and owners of property in and near said town, and have, pursuant to their contract with said commissioners, advanced all the money that has as yet been paid towards the erection of said building, and are, with others, bound to said commissioners to furnish, and are ready and willing and offer to furnish, such further sums of money as may be needed to finish said building.
    The relators claim that the act of March 2d, 1853, is in conflict with the constitution of Ohio, and that all proceedings under said act are null and void, and ask for a writ of mandamus, requiring the defendants to proceed under said act of March 22, 1851, and complete said building for the use of said county, and discharge the other duties imposed upon them by said last named act.

      L. Case, C. B. Goddard, and Stillwell & Hazlett, for the relators.

      Hunter & Daugherty, for defendants.
   Scott, J.

A question has been made in this case, whether the proper parties are before the court. The respondents claim that the State of Ohio is not a proper party, and that the relators have not such an interest in the subject matter as will entitle them to the remedy which they seek. The 570th section of the code provides that the writ “ may issue on the information of the party beneficially interested,” and we think the facts stated in the information show such a beneficial interest in the relators as should entitle them to relief. The subject matter of complaint is the refusal by public officers to perform a duty imposed on them by law, and in a case like the present, it must be difficult to point out any mode of obtaining adequate redress, if the performance of that duty cannot be enforced by mandamus.

The question as to the prosecution of the writ in the name of the State, is purely technical; and if this mode of prosecution be informal under the code, leave would of course be given to amend. But we incline to think this mode of proceeding in mandamus proper. The writ is, from its very nature and definition, “ a command issuing in the name of the sovereign authority.”. Bouvier’s Diet. Blackstone says, “ It is a command issuing in the king’s name.” In the United States it has always been issued in the name of the sovereignty by which it has been authorized. We apprehend the code does not contemplate an essential change in the character of the writ or the proceedings under it. From the nature of the remedy, this suit, then, is properly prosecuted in the name of the State.

Passing then to questions more intimately affecting the merits of this controversy, — the respondents seek to justify their refusal to prosecute and complete the erection of public buildings at New Lexington, on the ground that the county seat of Perry county has been removed from New Lexington to Somerset, by virtue and in pursuance of the provisions of the act of March 2, 1853 ; and the main questions in 'the case relate to the constitutionality of this act, and the validity of the proceedings under it.

It is claimed by counsel for the relators that at the time of holding the election by which the defendants claim this act to have been adopted by the electors of Perry county, there-was no law in force authorizing such election, or prescribing the manner in which it should be conducted. It is said that the provisions upon this subject, which are contained in the 3d and 4th sections of the act itself, could not have the force of law, until they, as well as the residue of the act, were first adopted by a majority vote at the very election which these sections assume to authorize and regulate. And it is further claimed that these sections are unconstitutional, because the subject matter of them is not such as to exempt them from the constitutional prohibition against the passage of laws to take effect upon the approval of any other authority than the general assembly.” The argument is specious, and would seem to be warranted by the literal terms of the 2d section, which provides : “ That this act shall take effect and be in force when, and so soon as, the same shall be adopted by a majority of all the electors of said Perry county, voting at the next general election after the passage thereof, as hereinafter provided.”

But a reasonable construction must, if possible, be given to statutes. It could hardly have been the intention of the legislature, that the manner of conducting the election and making the returns, etc., should be legalized or nullified by the result of the election itself. We are relieved from this absurdity, and, doubtless, carry out the legislative intent, in holding, as we do, that the provisions of the 3d and 4th sections which authorize the election and prescribe the manner of conducting it, of making the returns, and recording the result, took effect by virtue of the enactment, and from the passage of the act; no other time being designated in the act for their taking effect.

The 2d section can only be reasonably construed to' mean that the act should take effect to accomplish its main purpose, as stated in the 1st. section, to wit, the removal of the county seat to Somerset, when adopted by the electors of Perry county. But, in the mean time, the 3d and 4th sections must take effect by virtue of the enactment; otherwise no election could be held under the act, for the purpose of deciding the question of its adoption.

Such was the construction given by the supreme court of Massachusetts to a similar statutory provision, in a case entirely analogous to the present. Warren and others v. Mayor and Aldermen of Charlestown, 2 Gray’s Rep. 84.

But an objection much more difficult to obviate, is found in the alleged unconstitutionality of the provisions of the fifth section. By the express terms of this section, its operation and effect are made wholly to depend upon the adoption of the act itself by the voters of Perry county. Its language is, If a majority of said electors of said county, voting at said election as hereinbefore provided, shall vote against removal, then all obligations heretofore given to the commissioners of said county, in accordance with the sixth section of an act entitled an act referring to the voters of- Perry county the question of a removal of the seat of justice of said county,’ passed March 22d, 1851, to secure to be paid to the commissioners of said county a sufficient sum of money to erect suitable county buildings in the town of New Lexington, shall be by said commissioners delivered up to be canceled, and the commissioners shall proceed at once to levy a tax sufficient to erect a court house, jail, and offices for said county, in the town of New Lexington, which court house, jail, and offices, shall, in the aggregate, cost not less than sixteen thousand dollars.” If a majority vote for removal, then this section can have no operation whatever ; for the contingency upon which it is to take effect has not arisen. But if the majority vote against removal, then its provisions become operative and absolute. And what are those provisions ?

In pursuance of authority expressly given by the act referred to in this section, a contract had been entered into between the commissioners of Perry county and those friendly to the removal of the county seat to New Lexington, by which the latter stood bound to pay to the commissioners, in annual installments, such a sum of money as -would, in the judgment of the commissioners, be sufficient to erect suitable public buildings at New Lexington. When the act of 1853, now under review, was passed, the present relators, and others identified with them in interest, had paid over to the commissioners a considerable portion of this money, and stood ready and willing to pay the residue, according to the terms of their contract, and of the provisions of the act of 1851, under which it had been made. For the payment of this residue, the commissioners held the obligations of the relators and others.

In this contract, the people of Perry county had a direct interest, and had a right to demand its full performance by the relators and their coobligors.

In this posture of affairs, would it have been within the constitutional power of the legislature, without the consent of the parties, to annul this contract, and by enactment declare that the obligations thus held by the commissioners should be delivered up and canceled ? We do not see how such a law could be reconciled with the provisions of our constitutions, state and national, which were intended to secure the inviolability of contracts. But in the case before us, by the section under consideration, there is taken away from the people of Perry county all possibility of deriving any benefit from the contract which, through their commissioners, they had entered into with the relators; for, if they vote “for removal,” public buildings at New Lexington become unnecessary, and the relators are released from their obligation to furnish means for their construction.

If they vote “ against removal,” then, by the express terms of this section, “ all obligations heretofore given,” etc., “shall be by said commissioners delivered up to be canceled,” and the fund thus taken from the county, in violation of a subsisting valid contract, is to be raised by immediate taxation; so that, in any event, the obligations of the contract are wholly canceled.

But it may be said that no injury is done to the relators, by canceling their obligations to pay money; and that the other party — the county of Perry — would, by its majority vote, either adopt the act, and thus assent to its provisions, or, by determining “ against removal,” with a full knowledge of the consequences of such vote as set forth in the 5th section, would virtually assent to the cancelation of the relators’ obligations.

I reply that, as has been already said, the people of the county are not permitted, by any mode of procedure, to save for themselves the benefit of their contract. But there is another answer. Under our present constitution, the question of a removal of a county seat, must be referred to the free choice of the electors who are to be affected thereby, and their voice alone can give the force of law to any enactment for such removal. This limitation of legislative power would be quite nugatory, if the voters of a county may be dragooned into a ratification of legislative acts, by the imposition of penalties and forfeitures, as a consequence of a majority vote against removal. To secure the freedom and purity of all elections, is a vital part of our State policy. But the act under consideration does not permit the electors of Perry county to vote against the removal of their county seat from the site where their previous vote had fixed it, without an abandonment of their rights under a subsisting legal contract, to demand of the relators a sum of money sufficient to erect the necessary public buildings, nor without their submission to the immediate imposition of a tax of not less than $16,000, to supply the place of the fund of which they are thus arbitrarily deprived.

Whatever may have been the motive which led to the insertion of the 5th section of this act, the forfeiture which it imposes would doubtless have the effect of deterring the tax payers of the county from voting against removal; and taken in connection with the taxing clause which immediately follows, would, perhaps, account for the different result of the vote of 1853 from that of 1851. But be that as it may, we hold that it was the right of the voters of Perry county to retain their county seat at New Lexington, if they chose to do so, and that it was not competent for the legislature to subject them, in the exercise of this right, to any penalties or forfeitures whatever ; and that the 5th section of this act, assuming to do so, is in conflict with the spirit and the letter of the constitution, and is therefore void.

Nor can it fall alone. For, as a general rule, one part of an act will not be held constitutional, and another part unconstitutional, unless the respective parts are independent of each, other. The provisions of the fifth section are such as would naturally influence the vote upon the adoption or rejection of the first and main section, and it would be a fraud upon the electors of Perry county, to .procure their adoption of the first section, by means of the threatened penalties of the fifth, and then declare the fifth section void, but allow' it to accomplish its purpose, by giving vitality and effect to the first, which, without it, would never have been adopted. The provisions of both sections are made equally to depend upon the result of the election; they were submitted by the legislature collectively, to the voters, and could only be passed upon as a ivhole; and we think they must, therefore, stand or fall together. Such is the doctrine of the case already cited, in which Chief Justice Shaw, after conceding that “ the same, act of legislation may be unconstitutional in some of its provisions, and yet constitutional in others,” adds: But this must be taken with this limitation, that the parts so held respectively constitutional' and unconstitutional, must be wholly independent of each other. But if they are so mutually connected with, and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all tho provisions which are thus dependent, conditional or connected, must fall with them.” 2 Gray’s Rep. 98, 99.

We think, therefore, that the first and main section of the act of 1858, must fall with the fifth; and with it the defense of the respondents must fail.

This statute is claimed to be void upon another ground. The act of 1851, whilst it provided for the establishment of the seat of justice of Perry county at New Lexington, contained a proviso “ that said removal shall not take place until suitable county buildings shall have been provided in the town of New Lexington.” Under this proviso, the public offices have been and still are kept and the courts held at Somerset; and, therefore, it is claimed that the act of 1853 is void for want of a subject matter upon which to operate — that there was not a county seat at New Lexington to be removed. Upon this question, which counsel have so fully discussed, the opinion of the court is not entirely unanimous; and as the case does not require its decision, we intimate no opinion.

J. R. Swan, J., having been counsel, did not sit in this case.

Peremptory mandamus awarded.


text:
    George Miller, Assignee of William B. Travis, v. James A. Estill et al.
    T. was doing business as a merchant. B. & B. were also doing business as merchants, under the firm name of E. & B. T. and E. & B. united their stocks, and formed a partnership, under the name of T. E. & Co. T. afterward dissolved the partnership by an assignment of his interest and property in the firm of T. E. & Co., to M. as trustee for the benefit of personal creditors; and afterward, through M. the trustee, received his portion of the capital stock from E. & B., with a stipulation on the part of E. & B. that they would pay the partnership debts. E. & B. afterward did business as the firm of E. & B., and then made an assignment of their partnership and personal assets to a trustee for the benefit of the creditors of E. & B. Held:
    1. That T. could not assert a primary lien for the payment of the partnership debts of T. E. & Co. upon the property of the firm of T. E. & Co., retained by E. & B., and assigned by them to their trustee.
    2. When the primary right of partners to apply the partnership property in extinguishment of the partnership debts is gone, the right of the partnership creditors to enforce the application of the property of the firm to the payment of their debts is also extinguished.
    3. Wheu k firm is dissolved, and the property and assets divided between the partners, the individual members cannot, in contemplation of insolvency, make an assignment of their property, both individual and of that which was derived from the firm, for the benefit of individual creditors, to the exclusion of firm creditors. The statute relating to assignments, will operate upon such an assignment, and effect an equality.
    4. The funds in the hands of the trustee of T., must be distributed pro rata among the creditors of T. and of T., E. & Co., and the funds in the hands of the trustee of E. & B. must be distributed pro rata among the creditors of T., E. & Co., and of E. & B.
    5. If any balance of the funds of E. & B. remains after paying the debts of T., E. & Co., and E. & B., the same may be applied to reimburse T., under the stipulation of E. & B., that the latter would pay the debts of T., E. & Co.

      In error to the District Court of Columbiana county.
    The record shows the following state of facts :
    Prior to the first of August, 1854, William B. Travis had been engaged, on his own account, in the dry goods mercantile business, in the town of New Lisbon. James A. Estill and Lewis Beebout, under the style of Estill & Beebout, were also engaged in the same business at the same time and place. On the first of August, 1854, Travis, and Estill & Beebout, entered into an arrangement by which they combined their two several stocks of goods, and formed a new firm under the name of Travis, Estill & Co., Travis with an interest of one-half, and Estill & Beebout with an interest of one-half. An inventory of the two several stocks of goods was then taken, and that of Travis amounted to about $3,932, and that of Estill & Beebout to $3,650. This was the capital stock of each, and the goods were all removed to the store room before that time occupied by Travis, and the new firm started in its business. About one month after this, Estill went east to purchase new goods for the firm, taking with him about eight hundred dollars in money, which had been borrowed, and for which the firm notes of Travis, Estill & Co., had been given. This money Estill did not use in purchasing goods for the firm, but, in accordance with the partnership agreement, applied it in payment of the old debts of Estill & Beebout.
    While in Philadelphia, Estill purchased about twenty-three hundred dollars worth of goods on credit, and in the name of Travis, Estill & Co.
    On the 7th day of September, 1854, Travis made a general assignment to George Miller, of all his real and personal property, together with his interest in the stock of goods and merchandise of the firm of Travis, Estill & Co., and firm assets; authorizing him to dispose of the same, and pay over the proceeds to the creditors of Travis. At this time, Travis, Estill & Co., were indebted about thirteen hundred dollars.
    On the 12th day of September, Estill returned from Philadelphia, and, finding the whole stock of goods of Travis, Estill & Co., levied upon, on certain executions against Travis, he immediately made arrangements with the parties from whom he had purchased the goods for Travis, Estill & Co., in Philadelphia, to take them back and cancel the indebtedness for the purchase money.
    An agreement was also made between Travis, Estill, Beebout and Miller, the assignee of Travis, by the terms of which Miller was to receive from the capital stock of Travis, Estill & Co., goods of the value of those Travis had put into the partnership, and as near as practicable the same goods, and Estill & Beebout were to retain the balance of the partnership property, and pay the partnership debts.
    Under this arrangement, Miller, the plaintiff in error, received $3,442 worth of the partnership goods. He claimed more, which Estill & Beebout, alleging that that amount was larger than the amount Travis had invested in the partnership, refused to give.
    James A. Estill and Lewis Beebout, after this agreement was made, continued business in New Lisbon, under the name of Es-till & Beebout, until the 22d day of September, 1854, when they made an assignment to Samuel W. Beebout, one of the defendants in error. This assignment was made by Estill and Beebout as partners, under the name and firm of Estill & Beebout, existing at that time, and transfers to the assignee, Samuel W. Beebout, the stock of goods and assets of the firm, and the personal property and assets of the individual members of .the firm, in trust, from the proceeds “ to pay over to the creditors of said firm, all money he shall receive for said stock of goods, in proportion to their respective claims; and if there should be any surplus left, after paying all expenses, etc., and the debts of said firm, to pay such surplus to said Estill & Beebout, or their order.”
    On the 25th of September, 1854, Miller, the plaintiff in error, filed his petition in the court of common pleas, to compel a specific performance of the agreement of Estill & Beebout to pay the firm debts of Travis, Estill & Co., and for other purposes; and, upon the prayer of the petition, the court appointed Samuel Small receiver, etc., and ordered him to take possession of the effects in the hands of Samuel W. Beebout, held by him under the assignmeut of Estill & Beebout.

      The plaintiff in error, and the receiver, sold the stocks of goods in their hands, at forced sales, and at great sacrifices ; collected the debts, etc., and now hold the proceeds for distribution.
    The district court, at its May term, 1855, rendered final judgment, ordering Miller, the plaintiff in error, to distribute the funds in his hands, pro rata, among the creditors of Travis,- and of Travis, Estill & Co., and also ordering the receiver to distribute the funds held by him among the- creditors of said firm of Travis, Estill & Co., and of Estill & Beebout. The claim of Travis against Estill & Beebout fob the balance 'of the amount he alleged he had put into the capital stock of Travis, Estill & Co., and which he claimed was not withdrawn by plaintiff in error, was disallowed, and the latter and the receiver were ordered, each, to pay one-half the costs of the suit.
    To reverse this judgment,- this petition in error is filed.

      John M. Gilman, for plaintiff in error:
    We think the court erred
    1st. In its order for the distribution of the funds in the hands of the plaintiff as assignee, and Small as receiver.
    2d. In ordering the funds to be distributed among the creditors named in the reports of the assignee and receiver, without including others that might not be named in the reports.
    3d. In not allowing the claim of Travis, against the firm of Travis, Estill & Co.
    4th. In ordering the assignee and receiver, each, to pay one .half of the costs of the case.
    It is evident at a glance, that, by the judgment rendered in this case in the district court, Estill & Beebout get the benefit of the entire consideration for all the indebtedness of the firm of Travis, Estill & Co., while the plaintiff is compelled to pay, from the assets of Travis in his hands, a proportionate share of that indebtedness. Estill & Beebout used all the money that was borrowed in firm name to pay their own private liabilities, and they also got all the goods and other articles purchased by the fitm during its existence. They also got the accounts, claims, and the entire profits and benefits of all the business done by the firm. Every thing of this kind passed into the hands of Small, the receiver; and, under the order of the court, Estill & Beebout reap the entire benefit of it.
    Had there been no agreement between the plaintiff and Estill & Beebout, for the purpose of ascertaining and separating the interest of Travis in the firm, the law would have determined the matter, by first ordering that the creditors of the firm be paid out of the firm property; then, that the accounts between the partners themselves be adjusted and settled ; and that, of the assets, the proportionate share of each should be handed over to the respective assignees for distribution among the creditors, according to the trust. Had this course been pursued, a statement of the accounts between the partners would have brought Estill & Beebout largely indebted to the firm, after paying the partnership liabilities, for the reason, that they had used the money which occasioned the firm liabilities, to pay their own private debts. The result would have shown the interest of Travis to be somewhat more than the amount the plaintiff was to receive by virtue of the agreement. But the agreement between the plaintiff and Estill & Beebout, rendered a statement of the accounts between the partners unnecessary, and avoided trouble, expense and delay.
    The parties had an undoubted right to make such an agreement, if done in good faith. They had a right to agree upon the interest of each in the concern, and also to agree upon the mode and manner of separating their respective interests. The legal effect of the acts of the parties was, that Estill & Beebout should purchase out the interest of Travis in the concern; they taking ' all the stock and effects, and paying for the interest of Travis a certain amount in goods, and agreeing to pay all the debts due from the firm. This did not divest the partnership creditors of their equitable right to be first paid out of the partnership property. And in all such cases, if there is danger that the property will be used for other purposes, leaving the partnership debts unpaid, a court of equity will always interfere on application, and direct the firm debts to be paid out of the property, according to the agreement of the parties. I would ask the attention of the court to the case of Beveau v. Fowler, 2 Paige’s Ch. Rep. 400, which is very analogous to the present case. See, also, 2 Barb. Sup. Ct. Rep. 625; 4 lb. 571; Wildes v. Ohapman, 4 Ewd. Ch. 669; Payton v. Lewis, 12 B. Mon. 356; iSadam v. Williams, 4 McLean 51.
    We think, therefore, that the plaintiff should be ordered to distribute the assets in his hands among the creditors of William B. Travis, and that the receiver should be ordered to pay, first, the partnership creditors, and then distribute the balance in his hands among the creditors of Estill & Beebout. It may be said, that this will leave but a small amount for distribution among the creditors of Estill & Beebout. This is true, but it is occasioned by the fact, that Estill & Beebout withdrew most of their interest in the firm, and used it to pay some of their creditors in full, which they seemed to prefer. It is but the ordinary case of a man who, in insolvent circumstances, pays some of his creditors in full, leaving little or nothing for others.
    Second. We think the court erred in confining the distribution of the assets to the creditors named in the reports of the plaintiff and the receiver. There may be, and in fact are, many creditors who did not hand in their claims, and therefore are not included in the reports. The order for distribution should have been general, and not special.
    Third. The court erred in disallowing the claim of Wm. B. Travis, against Travis, Estill & Co. It was a valid claim against the firm, and, under the agreement, should stand upon the same footing as any other claim against that firm. See Hobart v. Howard, 9 Mass. 304.
    Fourth. We also claim that there was error in ordering the assignee and receiver, each, to pay one half the costs of the case. We bring the suit to enforce the specific performance of an agreement, and if we succeed, costs should follow the judgment.

      Brewer & Wisden, for defendants in error.
    The first error assigned is, “ that the court erred in its order for the distribution of the funds in the hands of the plaintiff in error, and the receiver.” Did the court err in this ? An ex-animation of the legal and equitable rights of the parties and of their creditors, after the assignment of Travis to the plaintiff in error, and agreement between him and Estill & Beebout for the withdrawal of the interest of Travis from the firm of Travis, Estill & Co., we think will determine this. What were those rights ? The assignment of Travis dissolved the partnership and vested his interest in the plaintiff in error, who became a tenant in common with Estill & Beebout in the partnership goods. 3 Kent 59. Murray v. Murray, 6 Johns. C. Rep. 60. The partnership property was primarily liable to pay the partnership debts, and the surplus, if any, belonged to the partners, according to their respective interests. The liability of the partnership effects to pay the partnership debts, arises from the equity of the partners, who have a lien upon the partnership property, which they may directly enforce to pay the partnership debts. The creditors, however, of the partnership have no such lien; their equity is the equity of the partners operating to the payment of the partnership debts. 3 Kent 65 ; Belknap v. Cram et al., 11 Ohio Rep. 412; Crosvenor f Co. v. The Administrators of S. Austin et al., 6 Ohio Rep. 113. It follows, as a necessary consequence, that when the equities of the partners themselves to apply the partnership property in extinguishment of the partnership debts are gone, the right of the partnership creditors thus to apply it is also divested. This equity of the partners is lost, when by their acts bona fide the partnership property ceases to be their joint property. The partners have then no equitable lien upon it for the payment of the partnership debts, and the equities of the creditors, which can only be enforced through the equities of the partners, are gone. The contract made between the plaintiff in error, Travis, Estill & Bee-bout, for the payment of the debts of Travis, Estill & Co. by Estill & Beebout, and the withdrawal' of the interest of Travis in the partnership property, divested the plaintiff in error of a lien upon the goods left in the hands of Estill & Beebout, and destroyed the right of the creditors of Travis, Estill & Co. to enforce such lien. The subsequent assignment of this property by Estill & Beebout, under the statute, places all their creditors, both individual and partnership, upon an equality, and if it should prove insufficient to pay their debts, the loss must fall upon all their creditors alike. The counsel for the plaintiff in error argues that this agreement did not divest the partnership creditors of their equitable right to be first paid out of the partnership property. If the property was in the hands and under the control of the partners themselves, a court of equity, upon a proper application, might apply it to the payment of the partnership debts; but here the property has passed beyond their control, and the rights and equities of other creditors have intervened. While the partnership was in force, either party could have made a bona fide payment of his own debt out of the partnership fund, and after the dissolution, by the consent and cooperation of all the partners, like payment might have been made. The assignment of Estill & Beebout has given all their creditors a vested interest in the property assigned; they were the owners of that property — had it in their possession — and their act has given their individual creditors a right to share in the proceeds which can no more be divested than the property itself could be recovered had they received it by the consent of all the partners in the payment of their claims. The doctrine of the cases, so far as we have examined them, cited by the counsel for the plaintiff in error, does not militate against these positions.
    . The sale by Estill & Beebout to plaintiff in error of partnership goods to the amount of the interest of Travis in the partnership property was bona fide, and the agreement contemplated the payment of the firm debts of Travis, Estill & Co. This agreement did not give the plaintiff in error any lien upon the goods, etc., left in the hands of Estill & Beebout; by the very terms of the contract, he waived all lien. They were to give him security that they would pay the firm debts. Their failure to comply with this provision gave him a right of action for damages, but did not entitle him to the possession of the goods. His lien being waived, the equitable right of the partnership creditors to payment out of the partnership property is gone, and the assignment of Travis, and of Estill & Beebout, having placed all their creditors, both individual and partnership, upon an equality, giving them a right to be paid pro rata out of the trust funds, we think that there is no error in the judgment of the district court, in the first assignment of the petition in error.
    The doctrine that partners have a right to convert their joint into separate estate, or vice versa, by a bona fide sale to each other, and that such sale defeats the right of the partnership creditors to an equity in the partnership funds for the payment of their claims, is fully recognized by Mr. Justice Story in his work on Partnership; “ and this is equally true,” says the learned commentator, “ although the whole or a part of the consideration of the transfer is, that the partners taking the property shall pay the partnership debts.” Sec. 359. See also, Fx parte Freeman, Buck. 471.
    The second error has no foundation in fact. The order for distribution is “ general and not special.”
    We also think the court did not err in disallowing the claim of Travis, against Travis, Estill & Co. The evidence upon which it was disallowed is not in the record.
    We also think that the court were correct in ordering the assignee and the receiver each to pay one half the costs of the case.
   J. R. Swan, J.

It is assigned for error that the court below erred in the distribution made of the funds in the hands of the plaintiff, George Miller, assignee of William B. Travis ; and also in the distribution of the funds in the hands of Small, the receiver. The determination of these assignments of error involves the question whether either Travis, or the creditors of the several firms, had any priority over each other in the payment of debts out of the funds created by the sale of the goods.

Partnership property is primarily liable to pay partnership debts; and the surplus, if any, belongs to the partners. This primary liability arises from the equity of the partners, who have a lien upon the partnership property, which they may enforce to pay the partnership debts, in preference to the creditors of the individual partners. The creditors of the partnership, however, have no such lien ; and it is only through the right of the partners to have the joint property thus applied to pay joint debts, that the creditors of the firm can invoke the application of the rule, that the partnership property shall be primarily liable. "When, therefore, the right of the partners themselves to apply the partnership property in extinguishment of the partnership debts -is gone, the right of the partnership creditors thus to apply it, is also divested. Thus, it is competent for the partners, upon a voluntary dissolution, to agree that the joint property of the partnership shall belong to one of them ; and if this agreement be bona fide, and for a valuable consideration, it will transfer the whole property to such partner, and, like any other sale to third persons, will wholly free the property from the primary claim of the joint creditors. And this result will, in general, take place, although the whole or a part of the consideration of such transfer is, that the partners taking the property, shall pay the debts of the partnership. It seems to be a general rule, that when the equities of the creditors of a partnership are to be worked out through the medium of that of the partners, it must be done upon the joint effects of the partnership.

Applying these principles to the case before us, it appears .that the partnership of Travis, Estill & Co. was dissolved, and the interest of Travis in the partnership property of Travis, Estill & Co. was divested by the contract under which the plaintiff in error withdrew the interest and capital stock of Travis in the firm, and Estill & Beebout agreed to pay the debts of the firm. The effect of this contract was a sale by Travis, to Estill and Beebout, of the partnership effects, and divested Travis of all further lien upon them. In such a transaction, where one partner takes the partnership property and agrees with the outgoing partner to pay the debts of the firm, there may, in some cases, be circumstances which will induce a court of equity to recognize and assert a lien upon the partnership property, in favor of the outgoing partner. Thus, if there be a voluntary dissolution of partnership with an agreement that one of the partners shall take the partnership property and pay the partnership debts therewith, a court of equity would, perhaps, enforce a proper application of the assets of the firm, in behalf of the retiring partner. But in the case before us, Travis first dissolved the partnership of Travis, Estill & Co., by an assignment to a trustee, and then, through the trustee, divided the property of the firm, and was content with the personal promise of Estill & Beebout that they would pay the partnership debts. The object of the division seems to have been to place the parties, in respect to the partnership property, as they were before the partnership was entered into. We do not think Travis intended to retain a lien upon the partnership property which remained in the hands of Estill & Beebout, or that his equities are superior to other creditors of Estill & Beebout.

Estill & Beebout, with the goods thus held by them, commenced doing business under the name and firm of Estill & Bee-bout ; and, afterwards, under that name and firm, assigned the goods and assets of the firm, and their individual property, to Samuel W. Beebout, in trust, to pay the creditors of the firm. It seems there were no creditors of that firm.

If the assignment, however, was intended for the benefit of the creditors of the firm of Estill & Beebout, which existed prior to the formation of the firm of Travis, Estill & Co., then it was an attempt to give the creditors of the old firm a preference over the creditors of Travis, Estill & Co., and the assignment operated, under the statute, for the benefit of creditors generally.

Travis, in his assignment to Miller of his individual and firm property, undertook to give his individual creditors a preference. Whether such a preference can be given in firm property by a partner, or whether his partners could not have insisted upon his assignee applying the firm property thus assigned to the payment of the firm debts, it is not necessary in this case to inquire; for the partners of Travis, Estill & Beebout, soon after his assignment, apportioned and divided the firm property, and delivered to Miller, the assignee of Travis, the amount of the assets which Travis would have been entitled to, had there been a dissolution of the partnership by mutual consent; and then Es-till & Beebout agreed to pay the firm debts. This promise of Estill & Beebout to pay the firm debts did not discharge Travis from the claim of the firm creditors upon his individual property. There was, in fact, after the assignment of Travis, and the apportionment and division of the assets of the firm between Estill & Beebout and Travis’s assignee, no firm property or joint fund to pay the debts of Travis, Estill & Co.; so that the question really is, whether Travis and his partners could make such assignments of firm and individual property as to give individual creditors a preference over the creditors of a firm. It will be observed that a single fund only is created by these transactions of Travis, and that fund is derived, in part from the firm, and in part from the individual property of Travis. Under these circumstances, the assignment must operate under the statute relating to assignments, for the benefit as well of the firm creditors of Travis as his individual creditors. And in thus holding, we do not intend to determine what is the effect of an assignment by a partner of his individual property only for the benefit of his individual creditors. But we do hold that where a firm is dissolved and the property of the firm divided between partners, the members of the firm cannot, in contemplation of insolvency, make an assignment of their property, both individual and that which was derived from the firm, for the benefit of, and giving preference to, their individual creditors, to the exclusion of their firm creditors. The statute relating to assignments in contemplation of insolvency, will operate upon the assignment, and work out an equal distribution.

The agreement of Estill and Beebout with Travis, through . Miller, his assignee, to pay the partnership debts of Travis, Es-till & Co. cannot be interposed to disturb the distribution of the assets in the hands of the receiver and of Miller, to creditors. The creditors must be first paid ; and, when paid, the balance of the funds, if any, may be adjusted, in view of this agreement of Estill & Beebout with Travis. There not being, however, sufficient funds to pay the debts, the creditors of Travis, Estill & Co. receive a pro rata amount upon the whole of their claims; and the amount of those claims remaining unpaid, after the application of the fund derived from the assets of Estill & Beebout, will be a proper subject of adjustment under tbe above mentioned agreement of Estill & Beebout with Travis, to pay the debts of Travis, Estill & Co.; but Travis cannot, under that agreement, place himself in the relation of a creditor of Estill & Beebout, so as to claim any portion of that fund. If Travis could thus, as creditor under that agreement, claim a portion of that fund, a distribution would in effect be obtained twice upon the same debts, and Travis’s portion of the fund on account of his liability to the creditors of Travis, Estill & Co., be transferred and applied to the payment of the creditors of Travis, Estill & Co.

The decree of the court below was in accordance with these views, and must be affirmed.

The order of distribution seems to have been made generally to creditors ; and was not, as the assignment of errors assumes, confined to creditors named in the report.

Whether the court erred in disallowing the claim of Travis against Travis, Estill & Co., we cannot determine, as the record does not disclose the facts upon which the court passed.

The order directing the assignee and receiver each to pay one half the costs, was not, so far as we can' perceive, an abuse of discretion in the court below. We cannot, therefore, disturb it.

Decree of the district court affirmed.


author: Bowen, J.,

text:
    A. H. Ernst v. John Kunkle and others.
    The exercise of the power of assessment by the city of Cincinnati upon real estate, by the front foot, to pay for improving an adjoining street, is not a violation of the constitution of 1851.
    If damages are sustained by the owner or occupant of land, by reason of the grading of a street, the city is liable to the party injured, and the statute provides a remedy which may be pursued in such case ; but until a claim for such damages is filed with the clerk of the city, and sixty days thereafter shall have elapsed, without any steps being taken by the oity to assess the damages, an action will not lie against the city or its agents to recover for such injury.
    A contract, made by the city with K. and It., to grade and macadamize one of its streets, may be legally assigned to other parties, although the assessment for such grading was made by the city to pay K. and R.; and a suit may, after the completion of the work, be sustained by such assignee to recover the assessment.
    A counter claim cannot be allowed to one of several defendants, against the plaintiff, when it appears that another of the same defendants is primarily liable for the claim demanded.
    Petition in error to reverse the judgment of the Superior Court of Cincinnati.
    The facts in this case, so far as the questions determined by the court require them to be stated, are as follows:
    In August, 1853, the city council of Cincinnati passed an ordinance to regrade and macadamize Harrison Road from the west line of Western Avenue to Mill Creek bridge, and to ascertain and assess the expense of so doing, according to the act of March 20, 1850, “ further to amend the charter of the city of Cincinnati,” and the general ordinance of June 12th, 1850, in regard to special taxes for the improvement of streets, etc.
    In September, 1853, the city contracted with McKeon & Reynolds to do the work; and the latter assigned their contract to John Kunkle and Wilson Saffin, who did the work.
    In February, 1854, the work being finished, the city council, to pay therefor, made an assessment of three dollars fifty-eight cents and six and four-tenths mills, on each front foot of the land abutting on that part of the road where the work was done, and directed the owners of the several lots of land to pay McKeon & Reynolds the assessments made upon their several lots respectively, within twenty days from the date of the ordinance, or be subject to interest and penalty.
    A. IT. Ernst was the owner of a lot on each side of the road, and the assessment on his land amounted to three thousand eight hundred and fifty-eight dollars and ninety-seven cents.
    In March, 1854, Kunkle and Wilson Saffin assigned to James •Saffin an interest in the assessments.
    Ernst, having refused to pay the assessment on his lots, Kunkle and the two Saffins sued him for the amount of it, with penalty and interest, in the superior court of Cincinnati,
    In his answer, Ernst set up a variety of defenses, and also a counter claim for damages alleged to have been done to his property by the improvement of the road.
    During the progress of the case through the superior court, the city of Cincinnati was made a party defendant by the plaintiffs below; and Ernst filed an amended answer and cross petition, setting up, among other things, a claim against the city for damages done to his lots by reason of the grading.
    The issues were tried to a jury, and resulted in a verdict against Ernst, who moved for a new trial, and in arrest of judgment; but the motion was overruled and judgment entered on the verdict, and the court ordered that the city be dismissed with costs, “ as there appears to be no cause of action against said defendant.”
    This judgment was affirmed on error, by the superior court in general term, and to reverse the judgment of affirmance, is the object of the proceeding in this court.
    The record shows that during the progress of the trial to the jury, a multiplicity of exceptions were taken by counsel for Ernst to the regularity of the assessment, and to the rulings of the court; but the more substantial points presented, relate to the constitutionality of the act in pursuance of which the assessment was made; and to the questions — whether the plaintiffs as assignees could sustain a suit to recover the assessment — whether the claim of Ernst against the city for damages could be sustained upon the facts in regard to it — and whether the counter claim in favor of Ernst and against Kunkle and Saffin for damages on account of the grading, could be allowed to him, the city being primarily liable therefor.

      Woodruff & Hopkins, and J. T. Crapsy, for plaintiff in error.

      James Saffin and P. Mallon, for defendants in error.
   Bowen, J.,

delivered the opinion of the court:

The exercise of the power of assessment by the city of Cincinnati, upon real estate, by the front foot, to pay for improving an adjoining street, is not a violation of the constitution of 1851.

If damages are sustained by the owner or occupant of land, by reason of the grading of a street, the city is liable to the party injured, and the statute provides a remedy which may be pursued in such case ; but until a claim for such, damages is filed with the clerk of the city, and sixty days thereafter shall have elapsed, without any steps being taken by the city to assess the damages, an action will not lie against the city or its agents to recover for such injury. It does not appear in this case that the claim of Ernst for damages had been filed with the city clerk.

It was legally competent for McKeon & Reynolds to assign their contract with the city to Kunkle and Saffin, although the assessment to pay for the grading was made by the city to pay the former; and the assignees could, after the completion of the work, sustain a suit to recover the assessment.

The counter claim of Ernst for damages, for injuries to his property on account of the grading, cannot be allowed as against Kunkle & Saffin, as it appears that if the claim is a valid one, the city is primarily liable.

Judgment affirmed.

Bartley, C. J., dissented.

       This case was decided before the case of Hill v. Higdon, ante, page 243, was reported.


text:
    A. H. Ernst v. John Kunkle and others.
   After the foregoing decision in this case was made, counsel for Ernst, for the purpose of taking the case to the Supreme Court of the United States on writ of error, moved this court for a certificate of facts, showing that the decision involved the question, as to whether the statute of this State authorizing local assessments for the improvement of streets in the city of Cincinnati, did not conflict with the constitution of the United States.

Motion overruled.


text:
    John W. Noble and others v. George Baker and others, Commissioners of Noble County.
    Tlie 6th section of the act “ to provide for the permanent location of the seat of justice of Noble county by the legal voters thereof, and for the erection of public buildings therein,” provides only for the natural and necessary exigencies arising from fixing the county seat either at Olive or at Sarahsville; and which exigencies must have been in the contemplation of the voters, whether provided for by the act or not. Said act is not in conflict with the provisions of the State Constitution.
    Petition in error. Reserved in the District Court of Noble county.
    The material facts in this case are as follows :
    On the 29th of April, 1854, the general assembly of this State passed “ an act to provide for the permanent location of the seat of justice of Noble county, by the legal voters thereof, and for the erection of public buildings therein.” 52 Ohio Laws 177.
    The first section of said act provides that from and after the taking effect of the act, “ so far as the location of the county seat of Noble county is affected, as hereinafter provided, the seat of justice in the county of Noble shall be permanently located and fixed, until otherwise provided by law,” at a place particularly described in the northeast quarter of section three, in Olive township, in said county.
    The second section provides “ that this act shall take effect, and be in force, when and so soon as the same shall be adopted by a majority of all the qualified electors of said Noble county, voting at the next general election after the passage of this act, in accordance with the rules and in the manner hereinafter provided.”
    The third section provides for the manner of voting, and that “ if a majority of all the qualified electors of said Noble county, .voting at said general election, shall vote for location of county seat on said northeast quarter of section three, Olive township, this act shall thereupon be considered and holden to be adopted by such majority.”
    The fourth section of the act provides for counting the votes in the several townships, and for transmitting certified returns of poll books to the clerk of the court of common pleas of said county, who, in the presence of the probate judge or sheriff of the county, is directed to count up the whole number of votes in favor of “ locating the county seat on said northeast quarter of section three in Olive township,” and the whole number in favor of the county seat remaining at Sarahsville, and for certifying and publishing the result, etc.
    The fifth section provides for recording the certificate and notice of the result of the election, in case a majority of all the legal voters voting at said election shall vote in favor of locating the county seat on the specified quarter in Olive township ; and that such record shall be legal evidence for all purposes of the result of said voting.
    The sixth section of the act reads as follows: “ That the commissioners of Noble county shall, within twenty days after the result of said election shall be made known, as provided for in' section four of this act, levy a tax sufficient, together with the proceeds of the sale of the public buildings in Sarahsville, which buildings such commissioners are hereby authorized and directed to sell, to erect a court house, jail, offices and other necessary public buildings .for said county on the premises described in section one of this act; provided, that if a majority of all the legal voters of said county, voting at said election, shall not vote in favor of locating county seat on the premises mentioned in the first section of this act, then said public buildings shall be erected by the tax above provided for, in the town of Sarahsville, in said county.”
    The seventh section provides for notifying the electors to vote on the question submitted to them by the act, etc.
    The eighth section declares “ that when suitable buildings are provided, the commissioners of said county shall notify the officers of said county, Avho shall within twenty days after receiving said notice, remove their respective offices to the buildings so provided by said commissioners, as described in this bill, and the next session of the court of common pleas and district court shall be held in said court house so erected, and the place where said public buildings shall be erected in pursuance with the provisions of this act, shall thenceforth be the seat of justice of Noble county, until otherwise provided by law.”
    The ninth section provides that “ any elector of Noble county shall have the right to contest the validity of the vote authorized to be taken by this act, by serving a notice on the commissioners- of said county,” etc.; and that the court of common pleas “ shall hear and determine the contest, and make an order and decree, determining the seat of justice of said county, according to the true result of said vote.”
    A vote was taken in pursuance of said act, and resulted in favor of locating the county seat at the place designated in Olive township.
    Thereupon John W. Noble and others instituted proceedings to contest the validity of the vote.
    The contestors moved the court of common pleas to adjudge that “ there was no law of the State, at the time of said vote, authorizing and prescribing the manner of holding such an election, and that the law authorizing said election and removal is unconstitutional and void.” And the court having heard the cause upon the evidence, overruled this motion, and ordered and decreed that the seat of justice of said county, according to the true result of said vote, “ shall be and is permanently located and fixed ” at the place particularly described in the first section of said act of April 29th, 1854, in Olive township. To this decision and judgment, the contestors excepted, and to reverse the same, filed in the district court of the county a petition in error, which was reserved for decision here.
    The contestors claim in substance that the court of common pleas erred :
    1. In holding said act constitutional,-and in overruling their said motion.
    2. In deciding that by said vote the seat of justice was removed from Sarahsville to Olive.

      3. In deciding that the seat of justice be and is permanently fixed at Olive, before the erection of the public buildings there, which were provided for in the act.

      Stillwell, Ferguson & Casey, for the contestors.

      Hanna, Dudley & Belford, for defendants.
   Scott, J.

The assignments of error in this case present several questions similar to those which arose and were determined by this court at the present term, in the case of Huston et al. v. Commissioners of Perry County.

The general question arising in the case, is as to the constitutionality, of the act “To provide for the permanent location of the seát of justice of Noble county by the legal voters thereof, and for the erection of public buildings therein.”

In the case above referred to, it became necessary to give a construction to a statute quite similar in many of its provisions to the act above named.

Eor reasons stated in the opinion in that case, and which it is unnecessary here to repeat, we hold the true meaning of the second section of this act to be, that the act shall not take effect and be in force to accomplish its main purpose, as expressed in the first section, to wit, the permanent location of the seat of justice at Olive, until it shall be adopted by a majority of the qualified electors of Noble county, etc.; and that the subsequent sections of the act which authorize an election and prescribe the manner in which it shall be conducted and held, returns made, result recorded, etc., took effect in virtue of the enactment, and from the passage of the act.

This construction, which we regard as the only sensible one, obviates the objection that there was no law authorizing the election ; and also the objection founded on the supposed conflict of the law with the first and twenty-sixth sections of the second article of the constitution. The thirtieth section of the same article requires that “ all laws removing county seats shall, before taking effect, be submitted to the electors of the county affected thereby,” etc. And in the case before us, we think it was not the intention of the legislature to submit to the electors anything else than the mere question of the location of the county seat at Olive, or its retention at Sarahsville.

But it seems to be supposed that the sixth section of this act contains provisions which, under the decision in the Perry county case, render the whole act unconstitutional.

The act which was held unconstitutional in that case, imposed upon the county a forfeiture of contract rights, as a penalty for a majority vote against removal. This the legislature could not constitutionally do, either by the act for the removal of the county seat, or by independent legislation. But in the sixth section of the act here drawn in question, we discover nothing of that kind. It contains merely provisions for the natural and necessary exigencies arising from fixing the county seat either at Olive or Sarahsville; and these exigencies must have been in the contemplation of the voters, whether provided for in the act or not. The same provision is made for the erection of the necessary public buildings, whether the one or the other site may be selected by the majority of the electors. It surely would have been competent to provide by subsequent legislation for the erection of such buildings ; and we do not see that the provision becomes unconstitutional when made by the same act which authorized the election.

Order of the common pleas affirmed.