author: By ti-ie Court.

text:
    The State of Ohio v. Gross, alias Kimble.

      Criminal law — Estoppel—Embezzlement—Insurance agent estopped to deny agency — Because acting under another name — Agency and criminal intent question for jury — Directed verdict erroneous, when.

    1. The principle of estoppel as applied to agency may be invoked in criminal as 'well as in civil cases.
    2. Where G., under the name of K., entered into a written contract of agency with an insurance company, and pursuant to such agency he sells corporate stock of such insurance company by virtue of which he collects money for the sale of such stock, but fails to account for such money to the said insurance company, upon prosecution for embezzlement, G. is estopped to deny that he was the agent of said insurance company upon the ground that K. was not his correct name, but upon the contrary his correct name was G.
    3. The question of agency and the question of the time of forming criminal intent in a charge of embezzlement are questions for the jury, and unless there is entire failure of proof as to any essential element of the crime of embezzlement, the court is not authorized to direct a verdict.
    (No. 14619 —
    Decided December 15, 1914.)
    Exceptions to a Decision of the Court of Common Pleas of Summit county.
    Facts are stated in opinion.

      Mr. H. F. Castle, prosecuting attorney; Mr. C. P. Kennedy, assistant prosecuting attorney, and Mr. J. H. Orgill, for the exceptions.

      Messrs. Rockwell & Grant, against the exceptions.
   By ti-ie Court.

One, H. E. Kimble, alias George L. Gross, was indicted by the grand jury of Summit county, Ohio, on a charge of embezzling $2,125. It was charged in the indictment that said Kimble, alias Gross, was then and there acting as an agent of The Cleveland National Fire Insurance Company and that by virtue of such agency he came into possession-of said $2,125, which he embezzled. Upon the trial of the case, at the close of the state’s evidence, the defendant moved the court for his discharge upon the ground that the crime charged in the indictment had not been proven.

The court sustained the motion, directed a verdict and discharged the accused. Exceptions to the ruling of the court and its judgment upon said motion were taken by the prosecuting attorney and are now before this court for review.

Counsel supporting the judgment of the court of common pleas rely on three grounds as stated in their brief:

“First. The record does not show that the defendant was the agent of The Cleveland National Fire Insurance Company.

“Second. If any agency existed, it was between the defendant and one James E. Millikin, who was the sales agent of The Cleveland National Fire Insurance Company.'

“Third. That if any offense was committed by the defendant it was the offense of larceny or the offense of obtaining money by false pretenses.”

The written contract of agency in evidence purports to be between “The Cleveland National Fire Insurance Company, Cleveland, Ohio, first party, and H. E. Kimble, Scranton, Pa., Lycoming Building, second party.” The same is signed “The Cleveland National Fire Insurance Company by James E. Millikin, General Manager, H. E. Kimble, second party.” Here was direct positive evidence to sustain the allegations of the indictment, and there is nothing in the record to substantially contradict it. Millikin was only an agent of the insurance company and signed as such. Kimble was a sort of subagent, under Millikin, of the same insurance company, This is confirmed not only by the written contract between the' insurance company and Kimble, but also by the written contract between Millikin and the insurance company. Therefore, upon the question as to whether there was evidence of agency, it is sufficient to say that there was an abundance of it, which should have called for the submission of that issue to the jury.

And even if it were not so, the overwhelming weight of authority, common sense and reason call for the application of the doctrine known as estoppel against the defendant. We too often lose sight of the primary purpose of criminal statutes. They are enacted to protect the public by prohibiting crime and punishing criminals. If a man is agent enough to get possession of money for and in the name of his principal, he is also agent enough to be convicted of embezzlement as such agent. Wharton, Bishop and McLean all agree with this doctrine, and the same has been applied in principle in several Ohio cases.

State v. Pohlmeyer, 59 Ohio St., 496: “And the rule that one who receives money or any other thing of value in the assumed exercise of authority as agent for another, is estopped thereafter to deny such authority, applies in criminal prosecutions as well as in civil actions.” Also State v. Carter, 67 Ohio St, 422.

It matters not that Kimble may have been Gross, Jones or Smith. The actual relation between the individual and company was that of principal and agent. His name had. nothing to do with it. It was simply his label for convenient identification. It is claimed also that the crime proven by the state was larceny and not embezzlement; that the intent to appropriate or convert this money was the result of a conspiracy between Kimble and others to use this agency as a mask or device to steal the money coming into their hands, and that, therefore, the intent to appropriate, convert or embezzle the money preceded the possession of the money and hence could not have been embezzlement.

It is sufficient to say, however, that there was ample evidence to go before the jury upon this issue of fact as to when the intention to appropriate was formed. Like the question of agency, the question of intent is purely a question of fact, with which the courts have nothing whatsoever to do in the trial of a criminal cause. Such questions are to be determined by juries. Ordinarily a claim by the defendant that he was not an embezzler but a thief would not receive very great favor. It is, however, but just to say that as compared with an embezzler a thief is eminently respectable. An embezzler wins personal confidence whereby he obtains property in trust only to betray that trust and to play the part of traitor, which crime he adds to that of wrongfully appropriating the money.

A general criminal intent to convert all moneys coming into one’s possession does not satisfy the demands of the statute of embezzlement. It must be an intention to convert the identical money actually converted, and it is difficult for one to imagine that there was any intention to convert the money charged in the indictment until the time "at which the money came into the possession of the defendant. At least that seems the more probable theory, so much so that any jury would be amply warranted upon the evidence in the cause in finding Kimble guilty of the crime charged.

Courts must get away from these technical tweedledees and tweedledums, especially so in cases entirely beyond their jurisdiction — matters upon which it is the duty of the jury to pass and not the court. Most of our antiquated, technical precedents had their beginning in a period of English jurisprudence when more than two hundred crimes were capital. The hardships and severities of the law were such that it was as difficult for an innocent man to escape conviction as it now is for a guilty man to be convicted.

The exceptions are therefore accordingly sustained.

Exceptions sustained.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Baxter v. The State of Ohio.

      Criminal law — Embesslement—Change of venue — Evidence of similar offenses — Burden and degree of proof — Charge to jury — Receipt of and accounting for moneys banked — Misconduct of counsel.

      1. Where a defendant is charged by indictment with the embezzlement of funds of an insolvent bank, and upon motion for a change of venue it is made to appear by the affidavit of the accused and the affidavit of ten credible persons residing in the county in which the indictment is returned, that there are residing in that county two hundred and fifty-seven stockholders and more than five thousand depositors in the bank, the funds of which he is charged with embezzling, and that in the opinion of the several persons making such affidavits he cannot have a fair and impartial trial in that county, a change of venue should be ordered.
    2. Where evidence of other offenses of a similar character is competent to prove intent, and the accused has not theretofore been convicted of such offenses, the burden is upon the state to prove that the accused is guilty of such other offenses by the same degree of proof required in all criminal cases.
    3. Where evidence of former offenses is properly admitted to prove intent, it is the duty of the trial court, at the time such evidence is offered, to instruct the jury the purpose for which it is admitted.
    (No. 14620 —
    Decided December 15, 1914.)
    Error to the Court of Appeals of Franklin county.
    At the April term of the common pleas court of Franklin county, Ohio, an indictment was returned by the grand jury against Clement S. Baxter, charging that he was the duly appointed, qualified and acting examiner and deputy superintendent of banks for the state of Ohio, and that in his official capacity certain moneys belonging to The Columbus Savings & Trust Company came into his possession, of which moneys he unlawfully and fraudulently embezzled the sum of $3,140.
    The defendant filed a motion for a change of venue, and in support of this motion filed his own affidavit and the affidavit of ten credible persons residing in Franklin county, Ohio, to the effect that in his opinion and in the opinion of the several persons making such affidavits he could not have a fair and impartial trial in Franklin county. It further appeared by affidavit that two hundred and fifty-seven stockholders of the bank, the funds of which he was charged with embezzling, resided in the city of Columbus, Franklin county, Ohio, and that more than five thousand depositors in said bank lived in Franklin county, Ohio. The bank, at the time of the commission of the acts charged in the indictment, was insolvent and in the process of liquidation. The trial court overruled the motion for a change of venue. On the trial of the cause the state offered evidence of other offenses of a similar nature claimed to have been committed by the accused, which evidence was received over the objection of the defendant, his counsel stating in open court, in the hearing of the jury, that such evidence could not be received for any other purpose than to prove the specific criminal intent alleged in the indictment. The court at the time this evidence was received did not charge the jury that the competency of this evidence must be limited to this specific purpose of proving intent.
    During the progress of the trial it was sought to show that about this time the plaintiff in error was in possession of a certificate of deposit for $5,000, and counsel for the state further sought to show, by their inquiry of the accused on cross-examination, that he loaned or gave this money to his brother, who at that time was superintendent of banks, to restore to this particular bank the funds the brother had embezzled, and that the accused had knowledge at the time of his brother’s criminal act, and had discussed the matter with him at the time of its commission and afterwards. A verdict of guilty was returned and sentence passed 'by the trial court. Error was prosecuted in the court of appeals of Franklin county, and that court affirmed the judgment of the trial court.

      Mr. John F. Wilson and Mr. Kent W. Hughes, for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general, and Mr. Edward C. Turner, prosecuting attorney, for defendant in error.
   By the Court.

While the question of a change of venue in a criminal case is within the sound discretion of the trial court, yet it is a substantial right of the defendant to be tried by a fair and impartial jury. Section 13636, General Code, was enacted by the general assembly of Ohio for the purpose of protecting that right. It is specifically provided in Section 11416, General Code, that when a corporation having more than fifty stockholders is a party to a civil action pending in the county in which the corporation keeps its principal office, or transacts its principal business, a change of venue must be ordered if the opposite party makes affidavit that he cannot, as he believes, have a fair and impartial trial in that county, and his application is sustained by the affidavits of five credible persons residing in such county. This statute is applicable only to civil cases, but it clearly defines the policy of the state in protecting the right of litigants to a fair and impartial jury. ' It recognizes the fact that, in the social and business relations of men, any transaction that particularly and financially affects fifty citizens of a county is apt to have such far-reaching influence upon their friends and neighbors that there would be grave danger that a jury impaneled in that county would not be entirely fair and impartial, notwithstanding that examination upon voir dire would disclose no legal grounds for challenge.

The particular crime charged in this indictment is not an offense against the person but against property, and therefore comes within the reason of the rule in civil suits.

This defendant is charged by indictment with embezzlement of funds in which two hundred and fifty-seven stockholders residing in the city of Columbus and over five thousand depositors residing in the county are financially interested. It was a matter of concern to all those depositors that the funds of this insolvent bank should be honestly and economically administered. The accused stood in the relation of a trustee to all these interested depositors, who, through no fault of their own, except misplaced confidence in the solvency of this bank, were almost certain to lose a large amount of money in any event, and therefore the charge against this defendant that he had increased their probable losses, by the embezzlement of funds that were still available to the creditors, would naturally excite anger and animosity against him. If in a civil suit the court is required to grant a change of venue when only fifty stockholders of a corporation, a party to the suit, reside within the county, it would seem that in a criminal case, where it is made to appear by evidence offered that over five thousand people residing within the county are financially interested in the funds charged to have been embezzled by the accused, a motion by the defendant for a change of venue should be allowed. Certainly it is not the policy of our law to be more zealous in the protection of the property rights of its citizens than in the protection of their liberties.

While evidence of other offenses is competent for the purpose of showing intent when criminal intent is a specific element of the crime charged, yet this evidence is of a highly dangerous character and should be admitted with great caution. A jury is never authorized to consider this evidence for any purpose whatever until after it has found, from the other evidence in the case, that the defendant has committed the acts charged in the indictment. Evidence of other offenses may then be considered by the jury for the sole purpose of determining'the intent of the accused at the time of the commission of the acts charged, and it is the duty of the trial court to so charge the jury at the time such evidence is admitted. In this case when counsel for the state offered evidence of other offenses of a similar nature counsel for the defendant correctly stated in open court and in the presence of the jury the purpose for which such evidence might be received, and it is, therefore, claimed that this relieved the court from the duty of charging the jury in that regard, but it must be remembered that the jury take the law as given them by the court, and not by counsel, and this statement of counsel on that behalf cannot be regarded further than as a request to the court to so charge.

Evidence of a vague and uncertain character offered for the purpose of proving that the defendant had been guilty of similar offenses should never be admitted under any pretense whatever. True, it is not always possible to show an entire transaction by one witness, and, therefore, if the state offers evidence which may become important in connection with other evidence proposed to be offered later in the case, it should be admitted, but if the state fails to introduce such further evidence which, if uncontradicted, would authorize the jury to find the defendant guilty of the other offenses sought to be proven, then there is an absolute failure on the part of the state to make a prima facie case of guilt of the defendant of these-other offenses, and it becomes the peremptory duty of the trial court to strike such evidence from the record and to instruct the ‘jury that they are not to consider it for any purpose whatever.

In this particular case the state sought to prove that this defendant had been guilty of a similar offense in Cincinnati, Ohio, and a similar offense in Kenton, Ohio. The evidence offered on behalf of the state in respect to these two other offenses was absolutely and wholly insufficient to make anything like a prima facie case against the defendant as to these transactions. If the accused had then been upon trial for either of these offenses, it would have been the duty of the trial court to instruct the jury to return a verdict of “not guilty.” The whole scope and extent of the evidence offered tended to prove no more than a suspicion of guilt. If either of these offenses had in fact been committed, the evidence did not connect this defendant with them further than to show that he had the opportunity to be guilty, but it also appeared that at least a half-dozen other persons in each of these transactions had equal opportunity with the defendant to appropriate the funds claimed to have been embezzled.

The court of appeals of Franklin county, which is the court of last resort on disputed questions of fact, found that the testimony admitted in regard to these other offenses was of such a circumstantial character that it did not afford even probable cause that the defendant was guilty, but refused to reverse for this reason upon the theory that this evidence before an intelligent jury would not have any weight.

Evidence that an accused was guilty of other similar offenses must be such that a jury would be authorized to find him guilty of these offenses. The trial court erred in receiving this evidence, erred in failing to instruct the jury at the time it was received as to the purpose for which it was competent, and erred in not striking all of this evidence relating to these other transactions from the record and instructing the jury to disregard the same. The trial court did charge the jury in its general charge that it must -find from the evidence offered that the defendant was guilty of these other offenses, beyond a reasonable doubt, before it would be authorized to consider that evidence for any purpose. But this charge, while perfectly proper in a proper case, could not be otherwise than prejudicial to the accused in this particular case, because the jury would necessarily infer therefrom that there was substantial evidence of the guilt of the accused of these other offenses that it was authorized to consider when in truth and in fact there was no such evidence.

Evidence that a brother of the accused had embezzled funds of the same bank or had been indicted for embezzlement of such funds was incompetent in any view of the case. Counsel for the state had a right to show that this accused was in possession of large sums of money immediately following the time of the alleged embezzlement, and thereby put upon the defendant the burden of explaining the source from which he received this monty, but counsel had no right to s'o shape their inquiries in reference to the possession of this money by the accused, or in reference to the possession by him of a five-thousand-dollar certificate of deposit, as to indicate by the question that the brother had been charged with embezzlement and that this five-thousand-dollar certificate of deposit was given or loaned to the brother for the purpose of enabling him to return moneys embezzled by him. Nor had Counsel for the state the right to inquire of the accused upon cross-examination whether he knew of this transaction of his brother at the time it was committed, or whether he had discussed the same with him then or later. Regardless of the answers given by the accused to these questions, the inquiries themselves were wholly improper and grievously prejudicial to the accused.

In reference to the objection made as to misconduct of counsel for the state, it is apparent from this record that not only counsel for the state but counsel for the accused were permitted larger liberties during the progress of this case than is consistent with a fair and impartial trial. The altercations between counsel, side remarks by counsel loud enough to be heard by the jury, comments by counsel during the trial upon evidence offered or answers made by witnesses, are all equally out of place in a court of justice and should not be tolerated by the trial judge.

It appearing from the record of this case that error has intervened to the prejudice of the plaintiff in error, the judgment of the court of appeals affirming the judgment of the common pleas court and the judgment of the common pleas court are both reversed, and this cause is remanded to the common pleas court for further proceedings according to law.

Judgment of the court of appeals and judgment of the common pleas court reversed.

Nichols, C. J., Shauck, Johnson, Donahue and Newman, JJ., concur.

Wilkin, J., not participating.


author: Wanamaker, J.

text:
    Hockett, etc., et al. v. The State Liquor Licensing Board.

      Referendum — Amendment to constitution — Home rule as to intoxicating liquors — Section ga, Article XV, Constitution, regularly adopted — Validity of amendment.

    1. The constitution and the statutes of Ohio provide ample and adequate legal machinery for the initiation, submission and adoption or rejection of any proposed amendment to the constitution of Ohio by what is known as a referendum vote.
    2. Article XV, Section 9a, relating to home rule on the subject of intoxicating liquors, was regularly and legally initiated, submitted and carried by a majority of the voters of Ohio voting thereon at the regular election held in November, 1914, and thereby became a part of the constitution of Ohio.
    3. Said amendment is not in conflict with any provision of the federal constitution.
    (No. 14788 —
    Decided January 26, 1915.)
    Error to the Court of Appeals of Franklin county.

      Mr. A. Jay Miller; Mr. H. B. Emerson; Mr. J. A. White;Mr. W. B. Wheeler; Messrs. Howenstine & Huston; Mr. John E. West and Messrs. Miller, Miller, Brady & Seeley, for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general; Mr. P. .E. Dempsey; Mr. James I. Boulger; Mr. Prank Davis, Jr.; Mr. Judson Harmon and Mr. A. J. Freiberg, for defendants in error.
   Wanamaker, J.

This case is based on what has - become politically known as “The Home Rule Amendment,” pertaining to intoxicating liquors.

The question is not “Should it have passed?” That was addressed to the voters of Ohio at the November election. The question is not “What is the meaning and scope of the amendment?” That is a moot question here and must be reserved for concrete cases arising under the amendment if it should be a valid amendment.

The questions here are:

1. Did it carry? Did it become a part of our Ohio constitution?

2. Is it in conflict with the federal constitution?

Plaintiff in error contends that notwithstanding the official returns made to the secretary of state show a majority prima facie of 12,618 for the amendment, still said amendment did not carry because there was no valid legal machinery provided, either by the constitution or the statutes, for the submission of such amendment and for the casting, counting and returning of the votes thereon.

Article VIII, Section 1, Bill of Rights of the Ohio Constitution of 1802, contained the following provision:

“ * * * Every free republican government, being founded on their sole authority, and organized for the great purpose of protecting their rights and liberties, and securing their independence: to effect these ends they [the people] have at all times a complete power to alter, reform or abolish their government, whenever they may deem it necessary.”

The Constitution of 1851 contains the following provision:

“All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; * * * .” Article I, Section 2, Bill of Rights, Constitution of 1851.

This provision remains in the Constitution of 1912.

Under the amendments proposed and passed in the Constitution of 1912 for the submission of amendments the following provisions are pertinent. Article II, Section 1, of the Constitution of 1912, reads as follows:

“ * * * but the people reserve to therm selves the power to propose to the general assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided. They also reserve the power * * * and independent of the general assembly to propose amendments to the constitution and to adopt or reject the same at the polls.”

Pursuant to this sovereign political power, which is inherent in the people, and their reserved right “to propose amendments to the constitution and to adopt or reject the same at the polls,” a petition was initiated and filed with the secretary of state calling for the submission of such “home-rule amendment” at the next regular or general election.

No complaint is now made, or ever has been, that the petition was not in due form, duly signed and verified, all in accordance with the provisions of law, but the complaint is that there was no legal machinery, constitutional or statutory, for the submission of such amendment to the people for counting, canvassing and returning the votes thereon and the final determination and proclamation as to the official vote of the people of the state on such amendment. It may also be observed in passing that no claim or contention whatsoever was made prior to the election that such amendment had not been regularly and legally submitted. It is now claimed by the plaintiff in error that the vote on the amendment, therefore, was a mere nullity because the constitution failed to provide the necessary legal machinery agreeable to the words “as hereinafter provided,” as found in said Article II, Section 1.

We must remember that we are here construing the constitution of the state of Ohio, affecting five millions of people scattered over more than forty thousand square miles. We are not to use any millimeter measure of interpretation nor employ that strict construction peculiar to criminal law and procedure, but we are to employ that broad-gauged liberal construction that the general terms of constitutional provisions necessarily require in order to make them effective and carry out the real intention of the people in making the constitution, through their representatives, and by adopting the constitution, by their own votes.

The polestar in the construction of constitutions, as well as other written instruments, is the intention of the makers and adopters.

Now what was to be “hereinafter provided?”

Manifestly the manner and means of proposing amendments to the constitution and adopting or rejecting the same by a referendum vote.

An examination of Section la, Article II, clearly and conclusively shows that the constitutionmakers proceeded forthwith to “hereinafter provide” for the submission of amendments to the constitution and for a referendum vote thereon. Notice the language of the very next section:

“Sec. la. The first aforestated power reserved by the people is designated the initiative, and the signatures of ten per centum of the electors shall be required upon a petition to propose an amendment to the constitution. When a petition signed by the aforesaid required number of electors, shall have been filed with the secretary of state, and verified as herein provided, proposing an amendment to the constitution, the full text of which shall have been set forth in such petition, the secretary of state shall submit for the approval or rejection of the electors, the proposed amendment, in the manner hereinafter provided, at the next succeeding regular or general election in any year occurring subsequent to ninety days after the filing of such petition. The initiative petitions, above described, shall have printed across the top thereof: 'Amendment to the Constitution Proposed by Initiative Petition to be Submitted Directly to the electors.’ ”

In addition to these numerous provisions specifically providing for the submission of constitutional amendments for a referendum vote in Section la, Section 1 g includes the further provisions:

"A true copy of all * * * proposed amendments to the constitution, together with an argument or explanation, or both, for, and also an argument or explanation, or both, against the same, shall be prepared. * * * The secretary of state shall cause to be printed * * * proposed amendment to the constitution, together with the arguments -and explanations * * * and shall mail, or otherwise distribute, a copy of such * * * proposed amendment to the constitution, together with such arguments and explanations for and against the same to each of the electors of the state, as far as may be reasonably possible. Unless otherwise provided by law, the secretary of state shall cause to be placed upon the ballots, the title of any such * * * proposed amendment to the constitution, to be submitted. He shall also cause the ballots so to be printed as to permit an affirmative or negative vote upon each * * * proposed amendment to the constitution. The style of all laws * * * shall be * * * and of all constitutional amendments: 'Be it Resolved by the People of the State of Ohio.’ * * * .”

Section lb provides for the ballots on such proposed amendment; also, if the amendment shall carry by a majority of the electors voting thereon, when such amendment shall go into effect and the publication by the secretary of state :

“Ballots shall be so printed as to permit an affirmative or negative vote upon each measure submitted to the electors. Any proposed law or amendment to the constitution submitted to the electors as provided in section la and section lb, if approved by a majority of the electors voting thereon, shall take effect thirty days after the election at which it was approved and shall be published by the secretary of state.”

Again, in Section lg we have the following language:

“Any initiative, supplementary or referendum petition may be presented in separate parts but each part shall contain a full and correct copy of the title, and text of the law, section or item thereof sought to be referred, or the proposed law or proposed amendment to the constitution

This same section goes on to provide who may sign such petitions and how, and then further provides:

“No law or amendment to the constitution sub- ■ mitted to the electors by initiative and supplementary petition and receiving an affirmative majority of the votes cast thereon, shall be held unconstitutional or void on account of the insufficiency of the petitions,” etc.

The astonishing thing about these provisions is not their brevity but the minutia and detail with which the constitutionmakers provided for safeguarding the initiative and referendum as to constitutional amendments.

But after all this was done, in order to make assurance doubly sure, fearing that they might have omitted some clerical step, the Constitution, at the close of Section 1 g, provides as follows :

“The foregoing provisions of this section shall be self-executing, except as herein otherwise provided. Laws may be passed to facilitate their operation, but in no way limiting or restricting either such provisions or the powers herein reserved.”

Agreeable to the last three lines of Section lg above quoted, the legislature of Ohio had formerly passed the following section (Section 4785, General Code), which reads:

“Except when otherwise provided by law, all public elections in this state shall be conducted according to the provisions of this title.”

And Section 5019, General Code, provides how constitutional amendments shall be submitted, as follows:

“ * * * The provisions of this title, so far as practicable, shall apply to the marking of ballots and the counting of votes upon any constitutional amendment so submitted.”

This section and other kindred sections are found in Part First of the General Code, under the head of “Title XIV. Public Elections,” which title provides for the entire election machinery of the state.

Again, Sections 5088 and 5089, General Code, under the same title, provide for the tally-sheet entries and the compiling and preparing of the count on the day following the election and the certification of the result thereof to the secretary of state.

But it may be claimed that some of these sections were enacted by the legislature prior to the constitutional amendment on the initiative and referendum, and, therefore, have no application. This is fully answered by the express provision of the constitution saving certain statutes, as found in a schedule adopted with the regularly proposed amendments to the constitution on September 3, 1912. Such schedule reads as follows:

“The several amendments passed and submitted by this convention when adopted at the election shall take effect on the first day of January, 1913, except as otherwise specifically provided by the schedule attached to any of said amendments. All laws then in force, not inconsistent therewith shall continue in force until amended or repealed; 5ft * *

So that by express provision of the schedule all old statutes not repugnant to or inconsistent with the provisions of the new constitution are as applicable to the constitutional amendment as those that are passed subsequently to the adoption of the constitutional amendments of 1912.

So that throughout the constitution and the amendments we have abundance of provision for the submission of the amendment at a public election, for the preparation of the ballots, for the casting and counting of them, the certification of the result and the publication finally by the secretary of state. Indeed, it is difficult to imagine any additional provision that could have been made under this right and power of the people for the amendment of their constitution by a referendum vote.

Judge Brewer in the famous Kansas case goes even further and holds that “If there were no legal machinery provision the court nevertheless must take judicial notice of the result.”

The language of the court on the prohibitory amendment is found in Constitutional Prohibitory Amendment, 24 Kans., 700, and is as follows:' “Suppose a majority did adopt, but no machinery is provided for ascertaining that fact, no one is authorized to canvass and proclaim the result, and no one in fact does so canvass and proclaim: must not the court nevertheless take judicial notice of the result ? When the constitution says that upon certain conditions an amendment is adopted, must we not take judicial notice of the happening of those conditions ? It is the election, and not the canvass, that works the change; and if we are bound to take notice ‘of everything that is allowed to affect the validity of any law,’ must we not of everything affecting the fundamental as well as the statute law ?” We hold that this objection to the amendment is not well taken.

As a reenforcement of our position on this question we quote liberally from the pertinent parts of the Kansas case, supra, by Judge Brewer:

“And first, the election itself was authorized by law. It was not a mere voluntary proceeding. The proposition was put by legislative sanction before the people, who were invited to consider and 'act upon it. ‘The following proposition * * * shall be submitted to the electors of the state for adoption or rejection.’ Both constitution and statute name the time and the persons at which and to whom this proposition is submitted. And the statute further provides that the proposition shall be submitted ‘at the general election.’ This implies something more than the mere matter of time. The constitution says ‘at which time.’ But the statute goes further: it does not read, at the time, or on the day of the general election, but at that election itself. For the purpose of voting upon and determining the question submitted, it thus refers to and appropriates the statutory machinery of the general election. Concede that this may technically be limited to the mere proceedings of election day, and that the constitution and the statute together, prescribing the form of ballots, the parties entitled to vote, the time of election, and the election machinery, have exhausted their force at the close of the polls, and what then ?

“Must not the court take judicial notice of the result? We are bound to know what the constitution is — what the statutes are. We take judicial notice of them. No proof is required — none is proper. * * * ‘Of course, we take judicial notice, without proof, of all the laws of our own state. * * •* And in doing this, we take judicial notice of what our books of published law contain, of what the enrolled bills contain, of what the journals of the legislature contain, and, indeed, of everything that is allowed to affect the validity of any law, or that is allowed to affect or modify its meaning in any respect whatever.’

“Now, the constitution provides that, ‘if a majority of the electors voting on said amendments at said election shall adopt the amendments, the same shall become a part of the constitution.’ Suppose a majority did adopt, but no machinery is provided for ascertaining that fact, no one is authorized to canvass and proclaim the result, and no one in fact does so canvass and proclaim: must not the court nevertheless take judicial notice of the result? When the constitution says that upon certain conditions an amendment is adopted, must we not take judicial notice of the happening of those conditions ? It is the election, and not the canvass, that works the change; and if we are bound to take notice ‘of everything that is allowed to affect the validity of any law,’ must we not of everything affecting the fundamental as well as the statute law? And judicial notice does not depend on the actual knowledge of the judge or the extent of the personal labor and inquiry required. The justice of the peace in the most remote county in the northwest portion of the state, who may never have seen a copy of the journal of either house, takes judicial notice of all things appearing in either journal, so far as they affect the validity of any law. When challenge is made, he must investigate and know. So, although it may seem extravagant, yet if the legislature has failed to make provision for the canvass of any vote on a proposed constitutional amendment, and if in fact none be made, must not the courts take judicial notice of the actual vote and its result? It may be said if we take judicial notice of votes on one question, why not on all, and what need of election contests? Let the court determine on its judicial knowledge. But we do not take judicial notice of votes and elections as such, but we can take notice of them so far, and only so far, as they affect the validity of some published law. * * *

“The courts are to know what is and what is not a public law of the state; what is and what is not a part of the constitution; and to that end, must take judicial notice of everything, near or remote, that determines such fact. This argument condensed, is this: The courts take judicial notice of what is public law, statutory or constitutional. When a majority of the electors voting on an amendment at an election properly ordered, adopts it, then it becomes a part of the constitution. So the constitution itself says. The courts must judicially know whether such amendment has been adopted, and is in fact a part of the constitution, and to that end, if need be, must take judicial notice of every ballot cast at that election.

“But, second: does not a fair reading, a reasonable construction of the resolution, make it broad enough to appropriate the entire election machinery, including all relating to canvass as well as to casting votes? It says that the proposition ‘shall be submitted to the electors of the state for adoption or rejection, at the general election to be held on the Tuesday succeeding,’ etc.; and the second section prescribes the form of the ballot. This, as we have just considered, plainly authorizes the vote.

“Does it not also appropriate the whole election machinery ?

“We have a general election law. It is a single statute, yet it covers all details of ordinary elections, names election boards, prescribes rules of election, provides for returns and canvass of all votes * * * it is one election law of the state.It is a general election law. Now, when a proposition is submitted to the people at the general election, without further words or designation, does it not mean that the proposition is to be decided in the manner prescribed by that general election law ? It is an old and familiar doctrine that that which is within the spirit of the statute, though not within the letter, is a part of it; as well as that which is not within the spirit but within the letter, is not a part of it. * * * If * * * it should be stated that a question has been submitted to the electors at a specific and named election, the universal understanding would be, not only that the votes were to be received, but also that they were to be counted, canvassed, and the result proclaimed; and all this would be implied from the simple statement in reference to the submission. Should not equal extent be given to the language used by the legislature if, without such extent, its intended action fails? Of course, what the legislature omits, the courts cannot supply. But the largest latitude may, and should be given to the language used, in order to uphold, rather than defeat its action. Especially is this true when, otherwise, large interests fully considered, will fail, and more especially is this true, when upon the faith of such legislative action the people of the whole state have been stirred up and moved to express their judgment upon a matter understood to be before them for decision. * * * Nearly two years elapsed between the time the proposition passed the legislature and the day of the popular vote. During this •time this question was not forgotten. It was discussed in every household and at every meeting. The state was thoroughly canvassed; its merits and demerits were presented and supported by all possible arguments. Pulpit, press and platform were full of it. It was assumed on all sides that the question was before the people for decision. There was not even a suggestion of any such defect in the form of submission as would defeat the popular decision. * * * But there was not a suggestion from friend or foe. The contest was warm and active. After the contest was ended and the election over, the claim is for the first time made that after all there was nothing in fact before the people; that this whole canvass, excitement and struggle was simply a stupendous farce, meaning nothing, accomplishing nothing. This is a government of the people, by the people, and for the people. This court has again and again recognized the doctrine lying at the foundation of popular governments, that in elections the will of the majority controls, and that mere irregularities or informalities in the conduct of an election are impotent to thwart the expressed will of such majority.”

The Ohio home-rule amendment in question reads as follows:

“No law shall be passed or be in effect prohibiting the sale, furnishing or giving away of intoxicating liquors operative ip a subdivision of the state

upon the option of the electors thereof, or upon any other contingency which has force within a territory larger than a municipal corporation or a township outside of municipal corporations therein. All laws in contravention of the foregoing are hereby repealed. “Nor shall any law hereafter be passed prohibiting the sale, furnishing or giving away of intoxicating liquors throughout the state at large.”

Now, as to the second contention of plaintiff in error, that said “home-rule amendment” is contrary to the federal constitution, or, to use the language of plaintiff in error, a violation of the “Federal Compact.” Plaintiff in error does not attempt to specify any particular article, section or provision of the federal constitution which he claims nullifies this amendment. He contends, however, that it is a violation of the general-welfare clause of the preamble .of the federal constitution. That preamble reads as follows:

“We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The brief of plaintiff in error exhibits unusual research of cases and authorities to sustain his contention, but we are unable to find a single citation or authority which would authorize any court to declare any statuté of provision of any state constitution inyalid because the same was held com trary and repugnant to the preamble of the federal constitution. The preamble of the federal constitution merely states the great cardinal purposes of government. It has been held again and again that it is not a grant or delegation of power, but merely a generic statement of the great aims and ends of our national government.

Chief Justice Fuller in Yazoo & Mississippi Valley Rd. Co. v. Thomas, 132 U. S., 174, 188, says:

“The preamble is no part of the act, and can not enlarge or confer powers, nor control the words of the act, unless they are doubtful or ambiguous.”

Judge Story, in his work on the Constitution (5 ed.), Vol. 1, Section 462, uses this language:

“The preamble never can be resorted to to enlarge the powers confided to the general government or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. * * * Its true office is to expound the nature and extent and application of the powers actually conferred by the constitution, and not substantively to create them.”

Watson in his excellent work on the Constitution, Volume 1, page 92, and following, exhaustively discusses this phase of the subject and the authorities are collected to sustain this doctrine. We quote one more, Jacobson v. Massachusetts, 197 U. S., 11, 22:

“Although that preamble indicates the general purposes for which the people ordained and established the constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States or on any of its departments. Such powers embrace only those expressly granted in the body of the constitution, and such as may be implied from those so granted. Although, therefore, one of the declared objects of the constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the preamble, it be found in some express delegation of power or in some power to be properly implied therefrom.”

Therefore, inasmuch as we have no delegation or denial of power in the preamble, how can it be said that any exercise of governmental power by the state by virtue of its state constitution can be violative of any grant of power or denial of power in the preamble of the federal constitution ? But it may be claimed that if a state constitutional provision cannot be held invalid or contrary to the federal constitution because of the provisions of the preamble to that federal constitution, yet the spirit of that preamble pervades all the provisions of the federal constitution, and therefore the proposed “home-rule amendment” is violative of that spirit and therefore unconstitutional.

The federal constitution is a delegation or denial of powers. This is clear from various provisions, but especially Article X of the Constitution, which reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In substance the same is true of our state constitution. It is a statement of delegated or denied powers to each branch of the government and to the various departments and subdivisions thereof. This appears in various parts of the constitution and the various amendments thereto, but is directly specified in Section 20 of Article I, which reads:

“This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people.”

Cooley discusses the doctrine of violating the spirit of the constitution as follows:

“We have elsewhere expressed the opinion that a statute cannot be declared void on the ground solely that it is repugnant to a supposed general intent or spirit which it is thought pervades or lies concealed in the constitution, but wholly unexpressed, or because, in the opinion of the court, it violates fundamental rights or principles, if it was passed in the exercise of a power which the constitution confers. Still less will the injustice of a constitutional provision authorize the courts to disregard it, or indirectly to annul it by construing it away. It is quite possible that the people may, under the influence of temporary prejudice, or a mistaken view of public policy, incorporate provisions in their charter of government, infringing upon the proper rights of individual citizens or upon principles which ought ever to be regarded as sacred and fundamental in republican government; * * * The remedy for such injustice must be found in the action of the people themselves, through an amendment of their work when' better counsels prevail. Such provisions, when free from doubt, must receive the same construction as any other.” Cooley’s Const. Lim. (7 ed.), 108.

To same effect is the following:

“Nor are the courts at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the constitution, but not expressed in words. 'When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the legislature, we cannot declare a limitation under the notion of having discovered something in the spirit of the constitution which is not even mentioned in the instrument.’ ” Cooley’s Const. Lim. (7 ed.), 239-240; and a large number of cases there cited.

If it be true that all political power is inherent in the people and the powers specified in the constitution are a delegation or denial of power to the legislative branch, judicial branch or executive branch of the government, or any subdivision thereof, then it must follow that such delegation or denial with all their limitations are absolutely obligatory upon the people of the state, no less than upon the officers of the state, so long as such provisions remain a part of the constitution of the state. The remedy is not to amend or to nullify by legislative act or judicial decree, but by further amendment to the constitution in the way provided by law.

Numerous cases can be found in which the state has undertaken, through its constitution and by its legislative acts, to arbitrarily, radically and drastically exercise its police power, which courts have held again and again to be a violation pf the personal rights and property rights guaranteed by the federal constitution. But we have been cited to no authority in which the state undertook not to enlarge but to diminish the exercise of its police power in which such action has been held contrary to the provisions of the federal constitution. If the state had adopted the prohibition or “dry” amendment, which was submitted on the same day, that would clearly be an enlargement of the police power of the state. Cases in large number are available to show that that enlargement of the police power has been contended as a violation of the federal constitution, but both state and federal courts have uniformly held that it was not such. If that be true as to a dry amendment, which enlarges the police power, it is difficult to comprehend why it is not also true when the state seeks to diminish that police power, as is claimed under the “home-rule” amendment. The people are the masters of their legislature and of every other branch of the government. In a matter involving exclusively state functions they may say in their organic law what the legislature may enact and what they may not enact, and a denial to a legislature of such a right, or what otherwise might be such a right, to pass certain laws cannot be made the basis of a valid claim that such denial is a violation of any right which the people of the state may have under the federal constitution. As the constitution is above the legislature, so the people are above the constitution, subject to it and all its parts while it is in force, but possessed of the undoubted right to change, alter or amend it at their own will in any of the regular ways provided by constitution or laws.

The judgment of the court of appeals is, therefore, affirmed.

Judgment affirmed.

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


text:
    Haynes v. Jones. Myers v. Jones.

      Canals and reservoirs — Entry and occupation of land by state— Constitutes appropriation under act of February 4, 1823 (23 O. L., 56), when — Rights of original owners — Fee simple title in state, when — No adverse possession against state — Effect of act of congress of May 24, 1828 (4 Stats, at Large, 306; 8 U. S. Laws, up) — Fee simple title of state in borrow-pits.

    1. The entry and occupation of land by the state of Ohio for canal purposes under authority of the act of February 4, 1825, and the exercise of open and notorious acts of ownership thereon and thereover, in and about the construction of the canal system of the state, was an appropriation of such land for canal purposes within the meaning of that act, and entitled the original owner thereof to demand and obtain compensation therefor from the state.
    2. Under the act of February 4, 1825, the fee simple title of all lands appropriated by the state for canal purposes vested in the state of Ohio.

      3. No adverse occupation and user of land belonging to the state of Ohio, however long continued, can divest the title of the state in and to such lands.
    4. The fifth and sixth sections of the act of congress of May 24, 1828, granting lands to the state of Ohio for the purpose of aiding the state in the construction and maintenance of canals, • operated as a present grant, requiring only the selection and identity of the lands to become a perfect estate in fee ;simple in the state of Ohio.
    5. Where under authority of this act of congress the state of Ohio selected lands for canal purposes, entered thereon and exercised acts of ownership over the same, and evidenced the boundaries of the land selected by it, by open and obvious change of the surface levels incident to the digging and removing of earth and soil therefrom and constructing embankments thereon, the fee simple title of the state became vested and absolute in and to the land so selected as against its grantor, the United States, and all persons claiming thereunder.
    (Nos. 14442 and 14443 —
    Decided January 26, 1915.)
    . Error to Court of Appeals of Licking county.
    Isaac Jones filed his petition in the common pleas court of Licking county, Ohio, against James T. Haynes, averring that he is the owner of certain lands described in his petition, that the defendant Haynes claims the right to the use and occupancy of said real estate and is about to enter and erect buildings thereon under and by virtue of a lease of said premises made, executed and delivered to him by the state of Ohio, that the state of Ohio has no right, title or interest in said premises, and prays that an injunction may issue restraining defendant from taking possession thereof and erecting buildings thereon and for a decree quieting the title and possession of plaintiff in and to said real estate as against any claim of the defendant thereto. To this petition the defendant filed an answer and cross-petition, admitting that he claimed a leasehold estate in said premises under a lease from the state of Ohio, who then was and still is the owner in fee of said premises, and that he is in possession and entitled by authority of said lease to the use of said land for and during the term of said lease for the purposes therein mentioned, denies that said plaintiff is owner or in possession of said realty or any part thereof, and prays that his title be quieted thereto.
    The land in question is the land occupied by the embankment and borrow-pits adjacent thereto on the north side of thé Licking-Summit Reservoir, now known as Buckeye Lake, which reservoir was at the time the embankment was constructed a part of the canal system of the state.
    The common pleas court found against the plaintiff and in favor of the defendant in error, and quieted his title to this land. Upon appeal the court of appeals found for the plaintiff, dismissed the cross-petition of the defendant and quieted the title of the plaintiff in and to all the lands described in his petition that defendant claimed to hold under a lease from the state, subject, however, to the easement of the state in that portion of the lands actually occupied by the embankment to maintain the same thereon.
    This proceeding in error is prosecuted to reverse the judgment of the court of appeals.

      The case of William P. Myers v. Isaac Jones is similar in all respects and presents the same questions.

      Messrs. Flory & Flory, for plaintiffs in error.

      Mr. Timothy S. Hogan, attorney general, and Mr. N. J. Weis end, for the state of Ohio.

      Messrs. Kibler & Kibler, for defendant in error.
   By the Court.

It is conceded by counsel for defendant in error that the state of Ohio did enter upon and appropriate for canal purposes that portion of the land described in plaintiff’s petition that is actually occupied by the embankment on the north side of the Licking-Summit Reservoir, now known as Buckeye Lake. That being true, the fee simple title to the land so appropriated vested by force of the statute of February 4, 1825, in the state of Ohio, and the title of the state could not be divested by any adverse possession by adjoining proprietors. Therefore the finding and judgment of the court of appeals that the fee of this land occupied by the embankment is in the defendant in error, subject only to the easement of the state to maintain its embankment thereon and thereover, is erroneous, and to that extent must be reversed. It is now the claim of the defendant in error that no such selection, entry or appropriation was made of the land adjoining this embankment and included within the borrow-pit as would vest the title in the state. Upon this question there is no conflict of evidence. It is conceded that the state entered upon this land and dug and removed the soil and earth therefrom for the purpose of constructing the embankments on the north and west sides of this reservoir. It is shown by the uncontradicted evidence in this record that the extent of the material taken therefrom would average one hundred feet wide and three feet deep. This borrow-pit, however, is not regular in its width and depth. The inner line is regular in that it conforms to the outer slope of the embankment, regardless of the course of the embankment, throughout its length. In some places the borrow-pit is wider and the excavation deeper than in others, but throughout its whole course the borrow-pit is well defined by the depression caused by digging the soil and earth therefrom for the purpose of constructing the embankment. This depression or borrow-pit, since the construction of the embankment, has been used as a channel to carry off the water seeping throu.gh and overflowing the embankment. The state of Ohio has several times caused this embankment to be cut, when the waters were so high in the reservoir as to threaten its destruction, to permit the surplus water to run through the cut so made in the embankment into and through the channel of the borrow-pit to natural outlets. The term borrow-pit has a well-defined meaning in the science of civil engineering. It means a pit adjacent to a fill or embankment from which material is taken for the purpose of making the fill or constructing and maintaining the embankment. It is- not the same as the procuring of material from remote places and hauling it to the improvement. On the contrary, it is an appropriation of the land itself adjacent to the improvement and for the purposes of the improvement. The entry of the state upon the land occupied by this borrow-pit was not of a temporary or uncertain character. Nor was it merely here and there at certain points. It was along the entire course of the embankment immediately adjacent to it and absolutely necessary not only for its construction but for its maintenance and equally necessary for drainage purposes at all times since the construction of this embankment.

There can be no doubt whatever that the entry, use, occupation and the destruction of this land for agricultural puorposes by the state, was an appropriation of it within the meaning of the act of February 4, 1825 (23 O. L., 56). Nor can it be doubted that the original owner of this land was then and there entitled under the provisions of that act to full compensation therefor. Certainly the state could not have defended against a claim for compensation upon the theory that its acts, use and occupation of this land and the purposes to which it was put did not constitute an appropriation within the contemplation of the law authorizing it to appropriate land for canal purposes. That being true, the fee simple title, by the terms of the statute authorizing the appropriation, vested in the state of Ohio, and having so vested that title could not be divested by any adverse user by an adjoining proprietor. In this particular instance the land occupied by the embankment and borrow-pit belonged at the time of the appropriation to the United States. In 1828 the congress of the United States, for the purpose of encouraging the building of canals and reservoirs, gave, granted and ceded to the state of Ohio land belonging. to the United States and situated within the state of Ohio that the state might select for canal and reservoir purposes (Sec. 5, 4 Stats, at Large, 306; 8 U. S. Laws, 119). The mere act of selecting and occupying this land by the state of Ohio by authority of the act of congress of 1828 vested the fee simple title to the land so appropriated and selected in the state of Ohio without payment of compensation or damages therefor. No private individual was then interested in any part or parcel of this land. It was solely a question between the state of Ohio and the United States. The fact that in 1842, many years after the state had selected and occupied this land for the purposes named in the act of congress in 1828, the United States government issued a patent deed to the predecessor in title of the defendant in error for the entire quarter section in which this land is situated, could not and does not affect the title of the state thereto. It was held in the case of Strong v. Lehmer, 10 Ohio St., 93, that the fifth and sixth sections of the act of congress granting lands to the state of Ohio for the construction of canals, operated as a present grant, requiring only the identity of the lands to be ascertained to become perfect. It was also held in that case that a purchaser who enters land and takes a patent deed, with full knowledge of a selection in fact, cannot in equity hold the land against a grantee of the state, notwithstanding the imperfect execution of the power to grant the land vested in the state by the act of congress. At the time this patent deed was issued to the predecessor in title of the defendant in error this excavation had been made and the embankment constructed. These were open and obvious acts evidencing that the state had made selection and had appropriated this land for canal purposes. The evidence of the selection was plain and unmistakable and the identity of the land selected beyond question. The patentee could not close his eyes to these conditions. Nor can he now be heard to say that he did not know that which was obvious to the most casual observer. He took under his patent deed from the United States government subject to the title of the state, whatever that title was, and it is apparent that that was a fee simple title of all that portion of the quarter section of land described in the patent that was covered by the waters of the lake and occupied by the embankment and borrow-pit. In other words, the patent deed conveyed to him no more land in that quarter section than the United States government then owned and had the right to convey, and he cannot now rely upon that patent deed to prove his title to land which the United States did not then own and which was then in the open, adverse and exclusive possession of the state of Ohio. The judgment of the court of appeals is reversed and judgment for plaintiff in error.

Judgment reversed.

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

Donahue, J., not participating.


text:
    Zilch, a Minor, by etc., v. Bomgardner.

      Workmen’s compensation — Filing first notice and preliminary appli- ' cation — Constitutes application, and bars action against employer, when — Sections 1465-61 and 1465-44, General Code.

    (No. 14653 —
    Decided January 26, 1915.)
    Error to the Court of Appeals of Cuyahogacounty.

      Mr. A. E. Powell and Mr. A. L. McGannon, for plaintiff in error.

      Mr. F. M. Secrest; Mr. Eugene Carlin and Mr. James-1. Boulger, assistant attorney general, for defendant in error.
   By the Court.

Plaintiff in error brought an action in the court of common pleas of Cuyahoga county to recover damages for injuries sustained by him, on June 6, 1913, while in the employ of the defendant in error. The injuries were due to the negligence of the defendant in failing and neglecting to guard a circular saw, as required by Section 1027, General Code, and in his failure to exercise ordinary care in furnishing plaintiff a safe place in which to work. One of the defenses of the defendant was that prior to the time of the injury he had paid into the state insurance fund the premium provided by the workmen’s compensation act and was entitled to all the privileges and benefits of the act, and that plaintiff, on or about June 14, 1913, made an application for an award from the state liability board of awards for the injuries complained of and thereby waived all right he might have had to exercise his option to institute proceedings in a court for damages for said injuries. Plaintiff filed a reply denying these allegations.

It appears from the record, and it is uncontradicted, that plaintiff, a few days after he received . the injuries complained of, made out, signed and sent to the state liability board of awards a paper the caption of which was as follows:

“In the Matter of the Claim of William Zilch for Payment to Him of Money Out of the State Insurance Fund.”

Opposite this caption was the following:

“No. 5490. First Notice of Injury and Preliminary Application.”

Immediately below the caption and the matter opposite thereto, above quoted, appeared the following :

“I hereby make application to the state liability board of awards for the payment of money out of the state insurance fund on account of the injury to me hereinafter described and hereby request that all forms and blanks necessary for the proper proof of my claim be furnished to me, free of charge.”

Then followed certain statements of fact, which included the name of plaintiff, his address, nationality, the name of his employer with his office address and nature of business, the date of the accident, the location of the place where the accident happened, the manner of its happening, the nature of the injury, his inability to work, the time when he would probably be able to perform work, his ability to take up regular employment when he did return to work and the name of plaintiff’s physician and address. This was signed by plaintiff.

On the back of this blank, which was filled out and signed by plaintiff and sent to the liability board of awards, is a copy of the rules of the board. Rule 4 provides that an employe who has been injured in the course of his employment and who contemplates filing an application for an award, shall, within one week from receiving such injury, notify the board of the time, place and nature of his injury and the name of his employer, and the forms of notice are to be obtained from the employer and mailed to the state board. Rule 7 provides that applications for awards in all cases of injury not resulting in death must be made by the party injured not less than two weeks nor more than three months after the injury is received. Rule 9 provides that in all cases of injury where the preliminary notice provided for by rule 4 has been given, and no application for compensation has been made within the time provided by rule 7, it shall be the duty of the director of claims to notify the injured person by mail of his noncompliance with rule 7, enclosing him a copy thereof, and should no application be filed within two weeks after such notice, the board may consider that such injured person has waived his right to compensation, and make a finding accordingly.

The blanks requested by plaintiff in the paper signed by him were furnished by the state board, but he failed to take any further action in reference to his claim, and at the end of two weeks, after notice served upon him, the board found that he had waived his right to compensation and made its finding accordingly.

These facts in reference to the dealings of plaintiff with the state liability board of awards appearing upon the trial of the case, the defendant moved that the cause be withdrawn from the jury and that a judgment be rendered in his favor. This motion was overruled, the case was submitted to the jury and a verdict was rendered in favor of plaintiff and judgment entered thereon.

The court of appeals reversed this judgment upon the ground that plaintiff, when he filed the notice and preliminary application, so called, waived his right to exercise his option to institute proceedings in court, and plaintiff in error asks this court to reverse the judgment of the court of appeals and to affirm the judgment of the court of common pleas.

Section 1465-61, General Code, authorizes a claimant to make a claim for compensation out of the state insurance fund, or institute proceedings in a court for damages on account of his injury, in a case such as the one at bar, where the injury has arisen from a failure of the employer to comply with a statute for the protection of the life or safety of his employe.

In the last paragraph of this section this language is found:

“Every employe, or legal representative in case death results, who makes application for an award from the state liability board of awards, waives his right to exercise his option to institute proceedings in any court.”

The only question for determination here is whether the “First Notice and Preliminary Application” filed by plaintiff was an application within the meaning of that term as used in Section 1465-61. If it were, then plaintiff could not institute this proceeding in the court of common pleas of Cuyahoga county.

It is the claim of plaintiff in error that the paper signed by him was not an application, but was merely a notice as provided in rule 4 of the state board.

Under the provisions of Section 1465-44, the board is authorized to adopt reasonable and proper rules to govern its procedure and to regulate and provide for the kind and character of notices in cases of accident and injury to employes. While the state board, under the provisions of this section, may make rules, it is not authorized to say that an application is not an application.

The language used in the blank signed by plaintiff in error is plain and unambiguous. It reads:

“I hereby make application to the state liability board of awards for the payment of money out of the state insurance fund on account of the injury to me hereinafter described.”

Then follows the request that all forms and blanks necessary for the proper proof of his claim be furnished to him.

Our holding is that this was an application within the meaning of that term as used in Section 1465-61 and the state liability board of awards was not warranted in holding that plaintiff had waived his right to compensation from the insurance fund in accordance with rule 9. That rule is applicable where a preliminary notice only has been filed. It cannot apply where an application has been made, as was made in the case under consideration. Having made his application for compensation from the insurance fund, plaintiff waived his right to exercise his option to institute a proceeding in court, and his proceeding in the court of common pleas should have been dismissed.

We find no error in the judgment of the court of appeals in reversing the judgment of the court of common pleas and in rendering final judgment for defendant in error.

Judgment affirmed.

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


author: Jones, J.

text:
    Walsh v. J. R. Thomas’ Sons.

      Partnerships — Fictitious name — Right to maintain action — Section 8104, General Code — Pleading—Noncompliance with Section Sopp, General Code — Constitutes defense and defeats action, when — Special findings by jury — Section 11464, General Code — ■ • Error for court to explain, when — General and special verdicts.

    1. A partnership, doing business under a fictitious name, may commence or maintain an action under Section 8104, General Code, without alleging compliance with the act requiring registration; noncompliance may be shown as a defense and will defeat the action unless compliance with Section 8099, General Code, be made during its progress.

      '2. Upon submission by the court, of a request for a special finding upon a particular question of fact under Section 11463, General Code, it is error for the court to explain to the jury the legal effect of the answer thereto, or to give any instruction, explanation or suggestion that seeks to harmonize the answer with the general verdict or with other special findings submitted for determination.
    (No. 14610 —
    Decided February 2, 1915.)
    Error to the Court of Appeals of Mahoning county.
    The defendant in error, under the style of J. R. Thomas’ Sons, a partnership, brought an action in the court of common pleas of Mahoning county against the plaintiff in error, Anna Walsh, upon an account in the short form, alleging that it was a partnership, organized and doing business in the state of Ohio; that defendant below was indebted to it for merchandise sold to the defendant and delivered at her request to one Frank Lenderman. A copy of the account is attached to the petition. The defendant admitted that the plaintiff was a partnership, but denied each and every other allegation contained in the petition, and specifically alleged that if any goods were delivered to Frank Lenderman and charged to defendant’s account and credit, such was done without the defendant’s knowledge or consent.
    Prior to the filing of the amended answer the defendant filed a demurrer to the petition, upon the ground that the plaintiff, being a partnership doing business under a fictitious name, was legally incapacitated from bringing the action. The court overruled the demurrer and the trial resulted in a judgment for the plaintiff below for the amount claimed, which judgment was affirmed by the court of appeals.
    Prior to the introduction of any evidence the defendant below asked for the direction of a verdict in her favor for the same reason contained in a special demurrer —■ that the plaintiff partnership was suing in the name of J. R. Thomas’ Sons and that it had not alleged in the petition that it had complied with the statute relating to registration.
    On the trial of the case, in connection with the general verdict, the jury was asked to return a special finding upon the following question: “In the contract or agreement for the sale of the goods, involved in this case, did Anna Walsh agree to pay for the same, if Frank Lenderman did, or would, not?” The jury answered this question in the negative.

      Mr. W. L. Countryman, for plaintiff in error.

      Mr. Ensign N. Brown, for defendant in error.
   Jones, J.

Whether a partnership transacting business under a fictitious name is required to allege in its petition, as a prerequisite for recovery, the fact that it has complied with Section 8099 et seq., General Code, has been variously decided in this state by the lower courts.

Section 8104, General Code, provides that persons doing business as partners contrary to the provisions of the registration statutes, shall not commence or maintain an action until they first file the certificate required therein; but if such partners at any time comply with such provisions, they may then commence an action, or if one has been commenced they may maintain it on all such partnership contracts, etc.

This section of the statute does not, in terms, require that the petition must allege compliance with the registration acts. The section denies the right of commencing or maintaining an action to those partnerships only which have neglected to comply with the provisions of registration. Partnerships doing business under fictitious names, which have complied, however, have the right to commence and maintain actions on account of contracts made or transactions had in their partnership name.

The question involved is not so much a question of the right to commence and maintain an action as it is the form of petition upon which such action is based. The want of allegation of compliance was attempted to be reached in this case by special demurrer. Under our code the demurrer challenges only those facts which appear upon the face of the petition. The alleged incapacity in this case does not appear upon the face of the petition, and therefore cannot be reached in the manner attempted. Taking into consideration the entire scope of the act, it would seem that it does not require, as a prerequisite to the bringing of an action of this character, that an allegation of compliance with the registration statute is necessary. Under its provisions any such partnership has the right not only to commence, but to maintain, an action, if it has complied with the provisions named. It will not be presumed in favor of the demurrer that a plaintiff partnership nas not complied with the terms of the statute, and, by its express provisions, the plaintiff could at any time amend its pleadings to show compliance therewith. Noncompliance with the provisions relating to registration is defensive matter, may be interposed as such, and will defeat the action unless compliance with Section 8099, General Code, be made during the progress of the cause. In this case, on the trial, the plaintiff did in fact offer proof of proper registration.

As developed upon the trial, under the issues joined, the real question was whether primary liability attached and credit was given to the defendant Anna Walsh for the goods delivered to Frank Lenderman; of whether her engagement was collateral and thus within the statute of frauds under a promise to become liable for Lenderman’s debt.

An examination of the record shows that the entire testimony was based upon that issue. When the special interrogatory relating to this issue was given to the jury, the court said: “Also in addition to that, you will return what is known in law as a special verdict: ‘In the contract or agreement for the sale of the goods, involved in this case, did Anna Walsh agree to pay for the same if Frank Lenderman did, or would, not?’ That may be somewhat misleading and let me help you to understand what that means. If on one hand you find that this original contract was made with Mrs. Walsh and they entered into an agreement by which she purchased those goods from J. R. Thomas’ Sons and by her assent they gave her credit for it and not Lenderman, then of course this answer would be 'no.’ It is only when you find, if you shall find from the evidence or fail to find, rather, by the preponderating weight of the evidence, that that was so, which I have just said to you — that this agreement was made between Mrs. Walsh and J. R. Thomas’ Sons — will you inquire into the question of whether she made a promise to pay the debt of Lenderman. If she made a promise to pay the debt of Lenderman and the contract was made with Lenderman, and she says T will pay for Lenderman if he don’t,’ she. is not liable, as I have said to you. So that, gentlemen, you may take the special verdict and answer it as you find.” •

Whenever a proper special finding is submitted to the jury upon a controlling, ultimate fact, the statute makes it the imperative duty of the court to submit such question for their determination. The question propounded to them, if answered in the affirmative, would have determined the issues between the parties in favor of the defendant. It was in nowise misleading, as the court stated, and required neither explanation nor comment. Under our code the duty of the court in relation to its instructions to the jury is clear. The province of the court is to apply the law governing the case to the facts produced on the trial, and this is done in the course of its general charge or by special instructions asked to be given by the parties. In connection with special interrogatories it is not proper for the court to explain to the jury what the legal effect of the answer may or may not be. In the instant case the court said to the jury that if they found that the promise of the defendant was to pay for Lenderman if he did not, then, in that event, she would not be liable. Thus the court warned the jury what would be the legal effect of .its answer, and it could trim its course accordingly. This was error. And there is no reason why the same rule applying to special verdicts under another section of the code should not apply as well to the special findings of fact made by the jury. Explaining the legal effect of answers in cases of special verdicts has been held erroneous in the following cases: Morrison v. Lee, 13 N. D., 591, 102 N. W. Rep., 223; Musbach v. Wisconsin Chair Co., 108 Wis., 57.

In this connection the court also directed the jury to answer the question only in the event that they found that there was no agreement between Mrs. Walsh and the plaintiff by reason of which plaintiff gave her credit for the goods. It directed the jury to answer negatively, after it had first determined favorably plaintiff’s contention on the issue tendered by it. This is tantamount to saying that if they found for the plaintiff in their general verdict, their answer, to be consistent, must be “no.” It was an evident effort on the part of the court to effect consistency between the answer and the general verdict.

Section 11464, General Code, provides: “When a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.”

The purpose and spirit of this section of the statute were contravened in the effort of the court to harmonize the special findings of the jury with the general verdict. The purpose of the section was to give either party in the case the right to demand, uninfluenced by the action of the court, an answer upon a controlling issue without regard to the general verdict. It frequently happens in the trial of a case that the controlling issue of fact thus specially found by the jury may be inconsistent with the general verdict; and to interfere with the province of the jury in this respect, by instruction, explanation, comment or suggestion that would seek to harmonize the answers with the general verdict or with other special findings submitted to them for determination, is clearly erroneous and prejudicial. Beecher v. Galvin et al., 71 Mich., 391.

Complaint is also made as to the misconduct of counsel in his closing argument to the jury upon this point. In discussing the question of the statute of frauds and the special interrogatory propounded to the jury, counsel stated in argument: “It seems to me my friend has been subconsciously trying and purposely trying to befuddle you and get you to think that this question of the statute of frauds is in this case. It ain’t. It has nothing to do with this statute. And I say this because he has asked you and the court will instruct you to answer in writing by ‘yes’ or ‘no’ a special finding, and the special finding involves only this question of statute of frauds. * * * Now gentlemen I say to you I want you and I think under the evidence you ought to answer that question ‘no.’ I don’t want you to get an idea into your head that this statute of frauds gets into this case for it don’t.”

The argument of counsel in this connection was wholly improper and beyond the field of legitimate argument. While it is proper for counsel to comment upon the facts involved in a special finding, it is improper to impeach the action of the court, by denying that questions propounded are involved in the case, or to caution the jury how the question should be specifically answered. An examination of the record, however, will disclose that opposing counsel did not make any objection at that time. At the close of the entire argument a general objection was made. In view of the fact that the court’s attention was not directed at the time to the improper remarks, so that the court might take proper action thereon, this question is not available to plaintiff in error.

The record discloses that the account sued upon was based upon items ranging from September 2, 1911, to July 2, 1912. The reliance of the plaintiff below was based upon testimony tending to show that the defendant, Mrs. Walsh, had pledged her credit as a debtor for an indefinite length of time for goods which were to be delivered to Lenderman. Upon the trial the defendant asked that the following separate written instruction be given to the jury before argument, which the court refused: “If you find from the preponderance of the evidence, that on or about September 30, 1911, the defendant, Anna Walsh, personally or through Frank Lender-man, as her agent, objected to the plaintiff or its representatives, to having the goods delivered to the store of Frank Lenderman, charged to the credit of Anna Walsh, and that she was informed by the plaintiff, or its representatives, that, this would no longer be done, and if you find further, from the preponderance of the evidence, that the bills for the goods thereafter delivered did not bear the name of the defendant, then the plaintiff cannot recover arid your verdict must be for the defendant.”

If the testimony tended to develop that, after pledging her credit for the delivery of the goods to Lenderman for an indefinite time, the defendant had cancelled her obligation by notifying the plaintiff not to deliver any more goods under such an agreement, in that event the defendant would not be liable after the time such notice was given. However, the record discloses that there is no testimony upon which this charge could be based. The entire contention of the defendant was that she had made no promise whatever by which she should be charged, and, consistently with this attitude, she offered no testimony which recognized her in any way as the primary debtor. There is no testimony in the record which discloses the fact that either the defendant or any one for her, and with her assent, had notified the plaintiff not to furnish further goods to Lenderman, and there was no error upon the part of the court in refusing to give the special request.

Judgment of the court of appeals will be reversed and the case remanded to the common pleas court for further proceedings according to law.

Judgment reversed, and cause remanded.

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