author: Dickman, J.

text:
    State ex rel. v. Eagle Insurance Co.

      Constitutional law—Impairing the obligation of contract—Res judicata.

    1. A fire insurance company organized under a special charter before the adoption of the present constitution, is subject to such reasonable regulations as the legislature may p! escribe by general law, and the public good may require—such regulations serving to secure the ends for which the company was created, and not being repugnant to the franchises and privileges granted in its charter.
    2. A fire insurance company thus incorporated, will not be exempt from a compliance with the requirements of sections 3654 and 3655 of the Revised Statutes, to prepare and deposit annually in the office of the superintendent of insurance, a statement of its condition, unless such exemption appear to have been clearly granted by its charter.
    3. Where a judgment has been rendered by a court of competent jurisdiction, in favor of one of the parties to an action, for the reason that, otherwise, under' an existing law, a chartered right of such successful party might be involved in danger, the judgment should not be conclusive in a subsequent action between the same parties, when the law has been so amended that such right is thereby assured.
    (Decided April 25, 1893.)
    Mandamus.
    This is a proceeding to compel The Eagle Insurance Company of Cincinnati, to file with the superintendent of insurance, a statement' of its condition on December 31, 1892, as required by sections 3654 and 3655 of the Revised Statutes of Ohio. The company was incorporated under an act passed March 22, 1850, (48 Ohio Raws 498), which reads as follows:
    “AN ACT

      To Incorporate The Eagle Insurance Company of Cincinnati.

    “Sec. 1. Be it enacted by the General Assembly of the State of Ohio, That George Crawford, Timothy Griffith, Isaac Copelen ,William Wood, Henrjr Kesler, Henry Brackman, George M. Herancourt, and the subscribers of the stock of this association and their successors, shall be and are hereby declared to be a body politic and corporate, by the name and style of The Eagle Insurance Company of Cincinnati, and in that name shall be capable in law to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all courts of law and equity, and elsewhere, with full authority to acquire, hold, possess, occupy and enjoy, and the same to sell, convey and dispose of all such real estate as shall be necessary aiid convenient for the transaction of its business, or which may be conveyed in said company for the security or in payment of any debt which may become due and owing to the same, or in satisfaction of any judgment of a court of law or an3^ order or decree of a court of equity in their favor, and to make and use a common seal, and the same to alter and renew at pleasure, and generally to do and perform all things relative to the object of this association.
    “ Sec. 2. That the capital stock of this company shall be one hundred thousand dollars, which may be increased at the pleasure of the majority of the stockholders, to two hundred thousand dollars, divided into shares of one hundred dollars each; at the time of subscribing, there shall be paid on each share twenty-five dollars, and the balance on each share shall be subject to the call of the directors, and. shall be secured by endorsed notes payable on demand, or other property or stocks, to be approved by the board of directors. Moreover, if at anytime the directors shall deem any such security insufficient, it shall be their duty to require additional security on such notes or obligations by them held for the payment of stocks as they shall deem best; and any stockholder failing to pay at the time and in the manner prescribed by the board, any portion of their stock remaining unpaid, or shall fail, neglect or refuse to give such additional securities as may be required of them, it shall be the duty of the directors to sell such delinquent share or shares at auction for cash to the highest bidder, after having given ten days public notice of the time and place of sale, and the proceeds to be applied in payment of said shares; and, moreover, such delinquent stockholder shall be held liable in his individual capacity for any balance remaining unpaid on said shares, and in case any excess shall arise from such sale after having paid up the delinquency and expenses of such sale, such excess shall be paid to said stockholder.
    “Sec. 3. That so soon as four hundred shares are subscribed for and paid, or secured to be paid, as required in the second section of this act, the company shall be competent to transact all kinds of business for which it was established.
    “Sec. 4. That the affairs of the company shall be managed by seven directors, all of whom shall be stockholders, to be elected as follows: A majority of the stockholders composing this association, shall hold a meeting for the first election of directors within one month after the amount of four hundred shares of stock shall be subscribed, and on the first Monday in May in each and every year thereafter, and choose by ballot seven directors, who shall be stockholders, and each share of stock shall entitle the holder thereof to one vote, and the directors so chosen shall serve to the first Monday in May, 1851, and until others are chosen. At. their first meeting after every election, they shall choose by ballot a president from their own number, 'and in case- of the death or disability of the president thus chosen, the directors shall fill the vacancy by ballot as before, and in case of a vacancy in the board of directors, it shall be filled by the remaining directors from the stockholders for the remainder of the year, and the board of directors thus constituted, or a majority of them, when convened at the office of the company, shall be competent to exercise all the powers vested in the board by this act.
    “Sec. 5. That it shall be lawful for said company to insure all kinds of property against loss or damage by fire or any other cause or risk, in and out of the state; to make all kinds of insurance on goods, merchandise or other property in the course of transportation, whether on land or water, or any vessel or boats wherever they may be, to lend money upon bottomry or respondentia, to cause themselves to be insured against any loss or risk they may have incurred in the course of their business, and against any maritime or other risks, upon the interest which they may have in any vessel, boat, goods, or merchandise, or other property, by means of any loan or loans which they may make on mortgages, bottomry, or respondentia, and generally to do and perform all other matters and things connected with and proper to promote these objects.
    “Sec. 6. It shall be lawful for said company to invest all or any part of their capital stock, money, funds, or other property, in such a way as the directors shall deem best for the safety of the capital and interest of the stockholders, and may transfer, sell and dispose of any or all interest which the said company may have acquired by said investment, provided that it shall not be lawful for said corporation to use or employ any part of their capital stock, money, or other funds in buying or selling goods, wares, or merchandise, nor in the purchase of real estate, except as provided in the first section of this act, nor shall the said company trade in the business hf exchange brokerage, nor issue or emit any bills of credit as a circulating medium of trade or exchange, or in any manner engage in the business or operation of banking.
    “Sec. 7. That the president and directors shall declare such dividends of the profits of the business of the company as shall not impair nor in any wise lessen the capital stock of the same. The dividends shall be made half yearly, on the first Monday in January and July, and shall be paid to the stockholders ten days thereafter, but no dividends shall be paid to any stockholder whose stock is delinquent.
    “Sec. 8. The transfers, of stock may be made by any stockholder or his legal representative, subject to such restrictions as the board of directors shall from time to time make and establish.
    “Sec. 9. ■ That all policies or contracts of insurance that may be made or entered into by the said company, may be made either under or without the seal thereof, and shall be subscribed by the president or by such other officer as may be designated for that purpose by the board of directors, and attested by the secretary, and being so subscribed and attested shall be obligatory upon the said company according to the tenor, intent and meaning of this act, and of such policies or contracts, and all such pplicies or contracts so made, subscribed, attested aud executed, and the loans and other business of the company may be made, conducted, and carried on without the presence of the whole of the directors, but by such committee or otherwise as the board may authorize, and the same shall be binding on the company.
    “Sec. 10. That the individuals named in the first section of this act, or such committee as they shall appoint, shall receive the subscriptions to the capital stock of this company, and open books for that purpose at the citjr of Cincinnati aforesaid, upon two weeks’ notice published in at least two daily papers of said city, which books shall continue open from day to day for ten days, unless the whole amount of the capital stock shall sooner be subscribed, and shall receive all moneys paid at the time of subscribing to said stock, and hold the same until the election of the first board of directors, when they sháll dispose of it as said board may direct.
    “Sec. 11. That the president and directors shall have power and authority to appoint a secretary, and such other officers under them as shall be necessary for transacting the business of said institution, and may allow them such salaries as they shall judge reasonable, to order and establish such by-laws and regulations as shall appear to them neces-sary for regulating and conducting the concerns of said institution, not being contrary to, or inconsistent with this -act, the constitution or laws of this state, and of the United ■States; they shall keep full, fair and correct entries of their ‘transactions, which shall be at all times open to the inspection of the stockholders.
    “Sec. 12. That should it so happen from any cause whatsoever, that the annual election of directors should not take place in any year on the day hereinbefore mentioned for that purpose, this corporation shall not be for that reason ■dissolved, but such election may be lawfully held on such •other convenient dajr within six months thereafter, .as may for that purpose be fixed by the president and directors, they causing ten days’ notice thereof to be given in one or more of the newspapers printed in the city of Cincinnati.
    “Sec. 13. That the president and directors may call a general meeting of the stockholders for any purpose relative to the affairs of the company, giving at least ten days’ notice thereof in some newspaper printed in Cincinnati.
    “Benjamin F. Reiter,

      Speaker of the House oj Representatives.

    Charles C. Convers,

      Speaker of the Senate.

    March 22, 1850.”
    A statement of further facts necessary to an understanding of the questions arising upon the record, will appear in the opinion.

      J. K. Richards, Attorney General, for the relator.
    I. I shall consider first, the sufficiency of the second •defense.
    The judgment in the suit brought in 1886, to recover a penalty, is no bar to this action, because neither the parties, the cause of action, the facts, nor the law, was the same as in this suit.
    In the former suit, the state was the plaintiff, and the insurance company alone, the defendant; in this suit, the state on the relation of the superintendent of insurance is plaintiff, and the insurance company and its president and secretary, defendants. In that suit, the cause of action was the failure of the company to file a statement of its condition on the 31st of December, 1885; in this suit, the refusal to file a statement of its condition December 31, 1892. That suit was to recover a penalty, this is to enforce a duty. When the suit was decided section 3234 only exempted from its provisions a fire insurance company complying with the requirements of section 3655; on March 8, 1892, (see 89 O. U., 73), it was amended so as to exempt a fire insurance company complying with the requirements of section 3654, and 3655, or any police regulation contained in chapter eleven of that title, or in chapter eight, title three, part first. That is, a fire insurance companjq created before the adoption of the present constitution, complying with these requirements, shall not be deemed to have consented or be held to be a corporation under the present constitution and the laws passed in pursuance thereof. The materiality of this amendment, in a consideration of the question involved in this case, will be more fully discussed later.
    II. The question raised b3^ the first defense is the real question in the case, namely, whether to require this old charter company to file a statement of its condition in the office of the superintendent of insurance, in compliance with section 3654, which applies in terms to all fire insurance companies, will impair the obligation of the contract made by its charter between the state and itself.
    No obligation of the contract created by the charter is. impaired, because the act of March 22, 1850, neither expressly, nor by implication, exempts the company from the duty of filing a statement of its condition with the proper state officer, should the state so require; but, on the contrary, by implication, subjects it to such requirement, which is calculated to further the ends of the incorporation, and secure the observance of the conditions on which the grant was made.

      1. Rule of construction of a charter or grant. The reservation of control need not be expressed; but exemption from control must be expressed; for what is not granted in terms or by necessary implication is reserved to the state. Providence Bank v. Billings, 4 Peters, 515; Charles River Bridge v. Warren Bridge, 11 Peters, 544; Thorpe v. Railway Company, 27 Vt., 140; Fertilizing Company v. Hyde Park, 97 U. S. 659; Georgia Banking Co. v. Smith, 128 U. S., 174; Yazoo R. R. Co. v. Thomas, 132 U. S., 174, 185; State ex rel. v. The Columbus Gas Light and Coke Co., 34 Ohio St., 572; Zanesville v. Gas Light Company, 47 Ohio St., 1, 31.
    2. The charter imposes on this insurance company certain 'duties, which gives the public an interest in the conduct of its affairs, and subjects it to reasonable regulations, calculated to secure the ends for which the company was created.
    This company is an insurance company. That the matter of insurance is of public interest, is apparent from the amount and character of the legislation on the subject, not ■only in this state, but in all states, and in all countries.
    Section 6761, of the chapter regulating proceedings in qzio warranto,, provides that an action may be brought against a corporation -when it has offended against a provision of an act for its creation, or when it has misused its franchises, etc., etc. The superintendent of insurance is sworn and charged to enforce all laws relating to insurance. How can he tell whether an old charter company is or is not misusing its franchises and violating its charter, if no statement is required .to be made, and no examination by him permitted? Chicago Life Insurance Company v. Needles, 113, U. S., 574.
    3. A charter being a contract, privileges being granted by the state in consideration of benefits to accrue to the public from a proper use of the franchises given, the public has the right to know whether the company is discharging its duties and in good faith observing the corporate contract.
    The insurance company, insists the charter created a contract. I admit that. But it was not a one-sided contract. The corporation did not get all, and give or agree to give nothing. The company was granted certain privileges; but these were granted in consideration of benefits expected to' accrue to the public from the exercise of the privileges, granted. If certain rights were conferred, certain duties were imposed on the company. By accepting the charter the' company agreed to discharge these duties, agreed tO' observe the obligations, and be responsible to the state for the misuse of its franchise.. The state having the right to-call the company to account for an abuse of the privileges granted, has a right to be informed how these privileges are being exercised. Without such information, without the power to compel its production, the public is powerless to enforce the obligations of the corporate contract and protect itself against the abuse of its privileges and the violation of its laws. The legislature, which is the agent of the public, charged with the duty of protecting it against fraud or mismanagement on the part of corporations, did no more than was absolutely necessary, in requiring all insurance companies to file the statement in quest on. Commonwealth v. Farmers & Mechanics' Bank, 21 Pick., 542; Sinking Fund Cases, 99 U. S. 722.
    III. To prevent fraud or mismanagement in the operation of insurance companies, and to protect the public against deception and loss thereby, the state has authority, under the police power, to require all companies doing an insurance business within its limits, whether incorporated in this, state prior to or since the adoption of the present constitution, to make, annualfy, public disclosure of the condition of their affairs, by filing the statements mentioned.
    All rights held and enjoyed by individuals and by corporations, even the fundamental rights of liberty and property, are ’not absolute in character, but must be held and enjoyed subject to the proper demands of society and subservient to the common welfare. - Included in the general grant of legislative power, is what is termed the police power of the state. Beer Company v. Massachusetts, 97 U. S., 25, 33; Palmer v. State, 39 Ohio St., 238; Cooley, Constitutional Limitations, (bot. p. 716); Tiedeman, Rimitations of Police Power, pages 576, 580; Stone v. Mississippi, 101 U. S., 814; Butchers’ Union Company v. Crescent City Company, 111 U. S. 746, 751; New Orleans Gas Company v. Louisiana Light Company, 115 U. S., 650, 672; Railway Company v. Jacksonville, 67 Ill., 37, 40; Railway v. Railway, 30, Ohio St., 604, 616; Railroad Company v. Sullivan, 32 Ohio St., 152, 158; State v. Addington, 77 Mo., 116; Powell v. Commonwealth, 114 Penn., 265, 280; Powell v. Pennsylvania, 127 U. S., 678, 684.
    The amendment of March 8, 1892, to section 3234, recognizes the requirements of sections 3654 and 3655 as police regulations, and expressly provides that a compliance therewith shall not divest a fire insurance company, created before the adoption of the present constitution, of any vested rights under its charter. Since this amendment, there is no valid excuse for any fire insurance company refusing to file this statement.

      Follett & Kelley, for defendants.
    I. The Eagle Insurance Company was incorporated under a special act of the legislature of the state of Ohio, passed March 22, 1850. Said special act reserved no power or right to alter, amend or repeal. Said act of incorporation did not provide for or require any annual report to be made by said company to any official of the state.
    This special act was not repealed or abrogated by the second section of article XII. of the constitution of 1851, nor by subsequent legislation relating to insurance. companies. Cass v. Dillon 2 Ohio St., 607; Citizens' Bank v. Wright, 6 Ohio St., 318; State v. Roosa, 11 Ohio St., 16.
    The burden imposed by sections 3654 and 3655, of the Revised Statutes, are entirely new and additional to any requirements of the charter of The Eagle Insurance Company. The object aimed at in section 3654 is evidently to enable the superintendent of insurance to ascertain from such report whether companies, organized in pursuance of the provisions of the act of which that section is a part, have complied with the provisions of said act in the disposition and investment of its capital stock and surplus funds.

      The language of this section, as to the companies embraced within its provisions, is not more comprehensive than that of section 3637, and we hardly think it possible that any one would claim that the provisions of section 3637 applied to or are obligatory upon The Eagle Insurance Company.
    Section 3637, of the Revised Statutes, directs the investment of the capital stock of all the insurance companies, etc.
    Section 3638 restrains and limits the power of investment of the surplus money, over and above the capital stock of the company, and section 3639 limits the investment of capital stock in national banks, and each of said sections, if applicablé to the defendant compan)?, would deprive the board of directors of the defendant of the discretion vested in them by the charter of the company.
    Section 3661a, Revised Statutes, prohibits any fire insurance company, organized under the laws of this state, or admitted to do business in this state, from including in any statement of assets in any public advertisement, card or circular, any item of value of a class or character not admitted by the superintendent of insurance of this state in the annual reports of said companies. The superintendent of insurance would, of course, feel himself bound to admit nothing as assets which was not embraced with the classification of assets or securities in which insurance companies were authorized to invest their capital stock and surplus funds, and an annual statement, showing other and different classes of investments, if rejected by him, however good such classes of securities might be, would prevent such company from including such securities as part of its assets, under the penalty of one thousand dollars, as prescribed by section 3661¿?. Indeed, all the sections of this chapter are intended to dovetail together and form one system for the government of insurance companies, and we submit that if the superintendent of insurance may single out one of these sections and, by a mandamus, compel a company organized under a special charter, in which the legislature reserved to itself no right to alter, amend or repeal, to comply with its provisions, he may, by mandamus, compel such companies to comply with each and every section of said chapter.
    All these sections apply to all insurance companies equally with section 8654, and if section 3654 can be held to apply to this company, and the other sections alluded to also apply to this company, the effect would be not simply to • alter and amend the charter of this company, but practically to take from it its most essential and vital part. But that the legislature did not intend that any provision of title II. of the Revised Statutes, should apply to corporations organized prior to the adoption of the constitution of 1851, is evident from the language of sections 3232 and 3234, of the Revised Statutes.
    The amendment to section 3234 is the proviso. Prior to said amendment, we had the anomalus condition of the superintendent of insurance insisting that companies organized under special charters, as the defendant company was organized, were required to make a report under the provisions of section 3654, while the statute declared that the making of such report should of itself evidence assent on the part of the company making such report, to be a" corporation under the present constitution, and to have and to exercise all and singular its franchises under the present constitution and the laws passed in pursuance thereof, and not otherwise. Certainly a singular position in which to attempt to place insurance companies, and a remarkable ah tentative presented.
    II. The powers conferred and the duties enjoined by section 3654, Revised Statutes, are not police powers which the state can not surrender, nor is the duty therein imposed upon the defendant company a police regulation.
    We are aware that it has become a convenient method of asserting and attempting to enforce rules and regulations which would clearly be otherwise prohibited, under the claim that they are police regulations, and in the broadest sense to attempt to invoke this power for the accomplishment of that which could not in any other way be accomplished. ' But we think there can be but little doubt in any specific case as to the limits of this so-called police power, and that it can never be exercised in such a way as to destroy constitutional rights, or to deprive any one of the protection furnished by constitutional guarantees, unless the public safety, the public health and -the public morals are directly involved. That this power whatever it may be, is vested in the state we do not deny; and that the state can not, even by contract,' deprive itself of the right to exercise such power, we do not deny; but we do emphatically deny that the provisions of said section 3654, as they are attempted to be applied to the defendant company, is the exercise, or the attempted exercise, of what may legitimately be called the police power. Cooley on Constitutional Limitations, 4 Ed., p. 720; Philadelphia etc. R. R. Co. v. Bowers, 4 Houst. (Del.) 506.
    The defendant company is strictly a private corporation, and in no sense of the term a private corporation for public uses, and while section 3654, in its attempted application to the defendant company, would not come within any of the rules for the exercise of the police power embraced within any of the foregoing definitions, we claim that no definition of the police power yet given could or would apply said section as coming within a legimate exercise of the police power over the defendant company. Indeed, no exercise of police power would be permissible as affecting the defendant company which would not equally apply to any private citizen. The New Orleans Gas Co. v. The Louisiana Light Co., 115 U. S., 650, 660; State Bank of Ohio v. Knoop, 16 How., 369, 370.
    Applying these principles to the case at bar it is manifest that no condition exists calling for the exercise of the police power of the state for the preservation of either the public health, the public morals, or the public welfare. In the Am. & Eng. Enc. of Eaw, vol. 18, p. 748, et seq. is given the various subjects for the exercise of the police power. Tideman’s Regulations of Police Power, section 89.
    III. The second defense of the answer of defendants is the plea of res judicata, setting out the institution of an action by the Attorney General in the name of the state of Ohio against The Eagle Insurance Company, to recover the penalty prescribed by section 3655, for failure to make the report required by section 3654, said action having been brought in the court of common pleas of Franklin county, Ohio, being the court designated in which said action might be brought by the Attorney General by the provisions of said section 3655; the filing of an answer in that case by The Eagle Insurance Company, setting forth its charter, and claiming that it was not required to make such report; that a demurrer was filed to said .answer, .which demurrer was overruled, and said plaintiff not desiring to plead further, final judgment was rendered in said action, which judgment is still in full force, unreversed, and is plead by the defendant as a bar to this action. The questions adjudicated in that case are identically the same as those presented in this case, although the form of action in this case differs. But to determine whether the questions are the same, the court does not look to the form of action but solely to the issues presented. In both cases the sole issue is whether or. not the defendant company can legally be required to make the annual report required by section 3654. There can be no question of the jurisdiction of the court of common pleas of Franklin county, Ohio, to hear and determine that question, for that jurisdiction was conferred specifically for that purpose by section 3655. We shall not cite authorities to the proposition that no person or corporation can be twice called to answer to the same matter, or that-no matter once litigated in a court of competent jurisdiction can be re-litigated between the same parties. These propositions are elementary, and a citation of authorities to sustain them can not be necessary. The doctrine has been settled in this state, in the case of Bell v. McColloch, 31 Ohio St., 397; 1 Herman on Estoppel and Res Judicata, p. 219, section 197.
   Dickman, J.

This proceeding is prosecuted on the relation of W. H. Kinder, superintendent of insurance of the state of Ohio, against The Eagle Insurance Company of Cincinnati, and John K. Green and Samuel P. Post, president and secretary of the company. It is alleged in the petition, that the company is a fire insurance company incorporated under an act passed March 22,11850 (48 Ohio Taws, 498), and that it was and is the duty of the company and its president and secretary, to deposit in the office of the superintendent of insurance a statement of the condition of such company on the thirty-first day of December, 1892, as required by sections 3654 and 3655 of the Revised Statutes of Ohio; that proper blanks were furnished and due demand made, but that the company and its officers have refused and do refuse to file the required statement; and that the company still continues to carry on the business of insurance. The prayer of the petition is, that writs of mandamus may be issued, compelling the company, .its president and secretary, to comply with the provisions of the above mentioned sections of the Revised Statutes.

The defendants answer, and set up two defenses. First, they aver that under the provisions of the act of March 22, 1850, which constitutes the charter of the insurance company, no power was reserved to alter, amend or repeal the charter; and that if sections 3654 and 3655 impose any duty upon the defendants or either of them, they would impair the obligation of the contract embraced in the charter of the company, and would be in violation, of section 28, of article 2, of the constitution of Ohio, and of section 10, of article 1, of the constitution of the United States.

The second defense contained in the answer is that of res judicata. It is averred by the defendants, that on or about July 27, 1886, the attorney general filed a petition in the court of common pleas of Franklin county, Ohio, in which the state of Ohio was plaintiff and The Eagle Insurance Company of Cincinnati was defendant, setting forth that the company and its officers, after due notice and request, had failed, neglected and refused to deposit, either on the first day of January, 1886, or within thirty days thereafter, the statement required by section- 3654, of the Revised Statutes, showing the condition of the company on the thirty-first day December, 1885, and praying judgment against the company for the five hundred dollars penalty and the “additional” thereto, as imposed by section 3655, of the Revised Statutes; that the insurance company in August, 1886, filed its answer, setting up that it was organized and existed as a corporation solely under and by virtue of the act of March 22, 1850, and was not subject to the provisions of sections 3654 and 3655, of the Revised Statutes; that in December, 1886, the state demurred to the company’s answer, and on February 1, 1887, the demurrer being overruled, and the state not desiring to plead further, the action was dismissed by the court, and judgment rendered in favor of the company; that the state took the case by petition in error to the circuit court, and by that court the judgment of the court of common pleas was affirmed, and remains in full force.

To the answer in this proceeding, and to each of the defenses therein contained, the plaintiff demurs.

The Eagle Insurance Company is a corporation, created before the adoption of the present constitution, claiming to exercise certain rights, privileges and franchises, under a special act of the legislature which constitutes its charter. Obviously, such charter or act of the legislature, in connection with its acceptance, may be regarded as a contract, and one which, so long as the body corporate faithfully observes it, the legislature is constitutionally restrained from impairing, by annexing without the consent of the corporation new terms and conditions, onerous in their operation, or inconsistent with a reasonable construction of the contract. And any act of the legislature which violates any corporate right, secured by such charter of the corporation, without its consent, is void as against the constitution of the state and the United States.

But, in determining the corporate rights secured by the charter, the true rule of construction is, that corporations take nothing by intendment but what is necessary to the enjoyment of that which is expressly granted. When a company is incorporated it is to be inferred, that the legislature intended it should exercise only those corporate powers that might be necessary to carry on the business for which the company was organized. And it may be stated as a rule of construction, that where there is a grant of special privileges in derogation of common right, or an exemption from the operation of general laws governing other persons or corporate bodies, it must always be presumed that the legislature does not design to confer franchises of this character, unless a contrary intention be expressed in unambiguous terms. Mor. Corp., §323.

Though there may be no reservation in the charter of incorporation that the state shall have the right to repeal, alter, or amend it at pleasure, the grant of corporate powers, or of exemptions from the operation of general laws, will carry only those that are expressly or unambiguously granted. “The rights of the public are never presumed to be surrendered to a corporation, unless the intention to surrender clearly appears in the law.” Perrine v. Chesapeake mid Delaware Canal Co., 9 How. (U. S.) 192. “A franchise must be created by express terms and cannot be inferred from the mere silence of the charter.” Zanesville v. Gas Light Co., 47 Ohio St. 31. As expressed by Chief Justice Marsharr in the Dartmouth College case, “A corporation possesses only those properties which the charter of its creation confers upon it, either expressly, or ‘as incidental to its very existence.”

When it is sought, therefore, to subject a company, claiming rights under a special charter, to the provisions of a general law, the question at once arises, are the requirements of the law plainly inconsistent with the enjoyment of the charter rights and franchises granted to the company. If the provisions of the general law are consistent with the rights of the corporation as secured by its charter, the corporation will be subject to the law-making power to the same extent as unincorporated individuals. It need hardly be stated, that when the legislature, by a special act or charter, clothes individuals with corporate power, they are not to be presumed as forever thereafter emancipated from all legislative control as to their corporate acts and franchises. A contract of exemption from such further legislation can never be implied.

An association deriving its corporate existence from the state, and engaged in a business of such a character that the public are directly interested in its proper management, should be subject to such reasonable regulations as will secure the ends of its creation. Not only the state may, but it is an obligation binding upon it, for the protection of its citizens, to see that such laws are passed and enforced, as will enable the state to know whether corporations are properly exercising their corporate privileges. It has accordingly been enacted by the general assembty (Revised Statutes of Ohio, sec. 272), that when the superintendent of insurance has reason to suspect, that the affairs of an insurance company doing business in the state are in an unsound condition, he shall make, or cause to be made, by some person b3r him for that purpose appointed, an examination into the affairs of such company; and such company, its officers and agents, shall submit their books and business to such examination, and in every way facilitate the same. From this salutary provision of the statute, no insurance company should be exempted, whether created before or since the adoption of the present constitution. Nor should it, in our judgment, be deemed an unwarranted exercise of the legislative power, if, instead of authorizing the superintendent of insurance to make an examination into the affairs of such company, the law should require the officers of such company to deposit with the superintendent a statement of the condition of the company at any designated time.

Section 3654 of the Revised Statutes, provides that, the president or vice-president and secretary of each insurance company organized under any law of this state shall annually, on the first day of January, or within thirty da3rs thereafter, prepare, under oath, and deposit in the office of the 'superintendent of insurance, a statement of the condition of such company on the thirty-first day of December then next preceding, exhibiting in form, and with specifications in •detail, as prescribed by the statute: (1). The amount of the capital stock of the compa^r; (2) The property or assets ield by the company; (3) The liabilities of the company; (4) The income of the company during the preceding year; and (5) The expenditure during the preceding year.

The main proposition of counsel for The Eagle Iusurance Company is, that the obligation of the contract which the company had with the state, in its charter, will be impaired if that company be held subject to the operation of sections 3654 and 3655. Upon- an examination of the company’s charter, we discover no repugnance between the requirements of those sections of the statute and the provisions of the charter. The charter does not, either in express terms or by implication, absolve the company from the duty of preparing and depositing the required statement of its condition; and it contains no language which, even by a strained construction or remote inference, would exempt the company from a compliance with the provisions of those sections.

Those provisions we regard as no more than reasonable regulations for the safety of the capital, interest of the stockholders, and security of the public, entirely consistent with the corporate rights granted to the insurance company in its charter, and especially proper as a safe-guard for policy holders, entitled to know whether the affairs of the company are in a sound or unsound condition. The fact that The Eagle Insurance Company may be a corporation conducting its business upon a sound basis, does not release it from the operation of those reasonable regulations that may be prescribed by the legislature to promote the purposes of its. creation, and which are not repugnant to its charter.

The regulation that the defendant and other insurance companies shall file the statement of their condition as required by statute, being such as we deem the public good requires, the reasonableness of such regulation'may be illustrated by a reference to what the defendant company may be capable of under its charter, relative to the object of its incorporation. It cannot be said, that the legislature has been shorn of all power by general law, to see that the defendant keeps within the line of its charter, and performs, its corporate duties.

The charter fixes the capital stock of the association at one hundred thousand dollars, which may be increased to-two huudred thousand dollars at the pleasure of a majority ■of the stockholders, to be divided into shares of one hundred dollars each. At the time of subscription, twenty - five dollars must be paid oh each share, and tiie balance on ■each share is made subject to the call óf the directors, and is to be secured by endorsed notes payable on demand, or ■other property. When four hundred shares are subscribed for and paid, or secured to be paid, the company becomes ■competent to transact all kinds of business for which it is ■established. Here are duties and limitations imposed. In such a case, it is not unreasonable that the company should be required to deposit a statement, as provided by section ■3654, of the amount of its capital stock, specifying the ■amount paid and unpaid, and the amount of unpaid assessments on stock.

Again, the charter, in section 1, authorizes the company to hold such real estate only as shall be necessary for the transaction of its business, or may be taken as security for ■or in payment of a debt. Section 3654 properly provides, that in the statement of an insurance company’s condition, there shall be specified the value of the real estate owned by such company, where it is situate, and the value of the "buildings thereon.

Again, under the charter, it is not lawful for the corporation to use or employ any part of its capital stock, money of other funds, in buying or selling goods, wares or merchandise, nor in the purchase of real estate, except as provided in the first section of the charter; nor shall the company trade in the business of exchange brokerage, or in any manner engage in the business or operation of banking. An essential aid, in the enforcement of these prohibitions, is afforded by requiring in the company’s statement a specification of its assets and liabilities.

Furthermore, by the charter it is provided, that the president and directors shall declare such dividends of the profits of the business of the company as shall not impair, nor in anywise lessen the capital stock of the same. Whether this rule is disregarded or complied with, the superintendent of insurance may be enabled to discover through a statement of the company’s condition, which, in addition to the company’s assets and liabilities, shall specify, in accordance with section 3654, the amount of dividends declared and due, and remaining unpaid—the amount of dividends, either cash or scrip, declared but not due—and the amount of dividends paid during the j^ear.

In Chicago Life Insurance Company v. Needles, 113 U. S-574, we find facts and conclusions bearing directly upon the decision we have reached in the case at bar. The Chicago Rife Insurance Company was incorporated by special act of the General Assembly of Illinois, and vested with power to carry on the business of life insurance. Two years after the charter was granted the company, a general law of the state was approved and took effect, which required, among-other things, that every life insurance company incorporated in Illinois, should transmit to the auditor of state, on or before the first day of March, in each year, a sworn statement 'of its business, standing, and affairs, in the form prescribed or authorized by law, and adapted to its business,- and empowered that officer to address' inquiries to any company in relation to its doings or condition, or any other matter connected with its transactions, to which it was required to make prompt reply; and made it the auditor’s, duty to make, or cause to be made, an examination of its condition and affairs, whenever he deemed it expedient to-do so, or whenever he had good reason to suspect the correctness of any annual statement, or that its affairs were in an unsound condition. The auditor of state acting under this and a subsequent statute, made an examination into-the affairs of The Chicago Rife Insurance Company, found it to be insolvent, instituted proceedings to wind up its affairs, and a final judgment was rendered enjoining the company from further prosecution of 'its business. From that judgment a writ of error was prosecuted to the Supreme ■ Court of the state, and to reverse the judgment of that court error was prosecuted in the Supreme Court of the United States.

It was contended by counsel, that the obligation of the contract which the company had with the state, in its orig-inal and amended charter, would be impaired, if the company were held subject to the operation of subsequent statutes regulating the business of life insurance, and authorizing the courts, in certain contingencies, to suspend, restrain, or prohibit insurance companies incorporated in Illinois from further continuance in business.

“This position,” said Justice Harran, delivering the opinion of the court, “cannot be sustained, consistently with the power which the state has, and, upon every ground of public policy, must always have, over corporations of her own creation. Nor is it justified by any reasonable interpretation of the language of the company’s charter-The right of the plaintiff in error to exist as a corporation,, and its authority, in that capacity, to conduct the particular business for which it was created, were granted, subject to the condition that the privileges and franchises conferred upon it should not be abused, or so employed as to defeat the ends for which it was established. Although no such condition is expressed in the company’s charter, it is necessarily implied in every grant of corporate existence.

“Equally implied, in our judgment, is the condition that the corporation shall be subject to such reasonable regulations, in respect to the general concfuct of its affairs, as the legislature may, from time to time, prescribe, which do not materially interfere with or obstruct the substantial enjoyment of the privileges the state has granted, and serve only to secure the ends for which the corporation is created. If this condition be not necessarily implied, then the creation of corporations, with rights and franchises which do not belong to individual citizens, may become dangerous to the public welfare through the ignorance, or misconduct, or fraud of those to whose management their affairs are intrusted.”

The same doctrine is recognized in Commonwealth v. Farmers and Mechanics' Bank, 21 Pick. 542, as applied to the visitatorial power of the state over banks. And the law is clearly stated, to the sanie effect, in the. Opinion of the Justices, 9 Cush. 604, in answer to the question submitted to them by the senate: “Is the corporation known as the ‘ Provident Institution for Savings in the Town of Boston/ chartered in the year 1816, subject to the general laws of the Commonwealth relating to savings banks and institutions for savings, passed since the granting of the charter aforesaid?” The judges in their answer express the opinion, that the legislature, by giving to the institution in Boston the privilege of being a corporation, and of managing its proper business, did not relinquish any power of legislating on all proper subjects of legislation; that the legislature could not be deprived of the power it holds for the public good, by any doubtful construction of the charter; that the position that the legislature had granted away any of its appropriate powers of legislation, could be supported only by clearly showing such grant; and that there appeared to be nothing in the charter of the Provident Institution for Savings in Boston, to exempt it from the provisions of the general laws, passed since the date of the charter, relating to savings banks.

We come now to consider the question, whether the judgment in the suit brought against the defendant, in July, 1886, in the court of common pleas of Franklin county, to recover a penalty, is a bar to this action; whether by reason of the determination in that suit, the right to require the company to prepare and deposit in the office of the superintendent of insurance a statement of its condition, is res judicata. We do not think that the cause of action in the two cases can be held to be identical. In the one case, it was a failure of the company to file the statutory statement of its condition on the 31st day of December, 1885, and the suit was to recover the penalty prescribed by statute for such failure. In the present case, it is a refusal of the. company to file such statement of its condition on the 31st day of December, 1892, and the proceeding is in mandamus to enforce a specific duty.

It is urged however, in behalf of the defendant, that the subject matter now in controversy was drawn in question, and within the issue in the former judicial proceeding which terminated in a regular judgment on the merits. But the rule is well settled, that an adjudication affects no claims which the parties had no opportunity to litigate. There are many cases in which the judgment of a court will be res judicata as long as the circumstances continue the same, but will cease to be so whenever any change takes place in those circumstances. People v. Mercein, 3 Hill 416; Jones v. Petaluma, 36 Cal. 230. Thus, even where title has been tried in a writ of entry, intervening events affecting the issue may be shown, to prevent a former judgment from being conclusive; and the demandant may introduce evidence of a newly acquired title by deed duly delivered sih.ee the commencement of the former suit. Perkins v. Parker, 10 Allen 22. In Hall v. Levy, 10. L. R. C. P. 154,, it was held, that a record works an estoppel only as to those matters capable of being controverted between the parties at the time of the proceedings in the action; and therefore although a deed may have been proved to be valid in one action, yet it may be shown in a subsequent suit to have become invalid, if the circumstances avoiding it have happened after the determination of the earlier action..

These cases, and others like them, rest upon the principle that after acquired rights and change of circumstances may prevent the former judgment from operating as an estoppel in subsequent judicial proceedings. And to apply the principle to the case under consideration, where a judgment is rendered, by a court of competent jurisdiction, in favor of a party to the suit, for the reason that otherwise, under an existing law, a chartered right of such party might be placed in peril, the decision should not be conclusive in a subsequent action between the same parties, when the law has been so amended that such right is thereby assured.

The originals of sections 3654 and 3655 of the Revised Statutes, are found in sections 19 and 21 respectively of “An act to regulate insurance companies,” passed April 15, 1867 (64 Ohio Laws 157). Subsequently, it was provided by section 3234 of the Revised Statutes of 1880, as follows: “Corporations created before the adoption of the present constitution, which take any action under or in pursuance of this title (Title II, Part Second, Corporations), shall thereby and thereafter be deemed to have consented, and shall be held, to be a corporation, and to have and exercise all and singular its franchises, under the present constitution, and the laws passed in pursuance thereof, and not otherwise.” To be a corporation under such conditions, is to be placed on the same footing with corporations formed under general laws, which may, from time to time, be altered or repealed. How reasonable soever might be the regulation that a statement of the condition of an insurance company, created before the adoption of the present constitution, should be filed with the superintendent of insurance, the question would at once be suggested, whether a compliance with such regulation might not be deemed a consent to be a corporation under the present constitution, and a waiver of the companj'-’s chartered rights.» Section 3234 was accordingly amended, May 18,1886, (83 Ohio Raws 201), b3r adding the proviso: “That ai^ fire insurance company so created, complying with the requirements of section 3655, shall not be deemed to have consented, and shall not be affected by the provisions of this section by reason of such compliance.” While the law thus stood, the action was instituted,- in July, 1886. b3r the attorney general, in the name of the state, .in the court of common pleas of Franklin county, to recover the penalty from The Eagle Insurance Company for its failure, neglect and refusal to file the statement required by section 3654. As it was a compliance with section 3655, which, under the amendatory proviso was not to be deemed a consent to be a corporation under the present constitution, the court of common pleas overruled the demurrer of the state, and rendered judgment for the compare The court thereby declined, virtualfy, to visit a penalty upon the company for non-compliance with the requirements of section 3654, when a voluntary compliance, at that time, might have involved in doubt, and perhaps in peril, the chartered privileges of the company.

But by act of March 8, 1892, (89 Ohio Raws, 73), the proviso to section 3234 was enlarged, so that any fire insurance. company created before the adoption of the present constitution, complying with the requirements of sections 3654 and 3655, would not be deemed to have consented to be a corporation, and to exercise all its franchises under the present constitution, and the laws passed in pursuance thereof. Had the proviso to section 3234 contained what it now does, and when this action was begun, the judgment in the former suit to recover the statutory penalty would doubtless have been different from what it was. Under the statute, as it now is, the filing of a statement under section 3654, with the superintendent of insurance, can cast no doubt or shade upon the inviolability of the defendant’s charter, and the prosecution of a proceeding like the present, to enforce a compliance with the provisions of that section, shonld not, we think, be barred by the adjudication in the former suit. The obligation of the contract between i the state and the defendant not having been impaired, and the state not being estopped to maintain this action by the judgment in the court of common pleas of Franklin county, we are of opinion, that a peremptory writ should be awarded.

Judgment accordingly.


source: Caselaw Access Project

author: Bradbury, C. J.

license: Public Domain

text:
    Woolweaver v. The State.
    Homicide— What constitutes an aider and abettor.

    1. A person who becomes involved in a fight with one or more antagonists, should not, upon that ground only, be held an aider and abettor of another, who may be present, and incited by the struggle commits an independent act of - violence, that causes the death of the antagonist, or one of them, if there were more than one.
    2. In such case, to constitute the person engaged in the fight, an aider or abettor of the homicide, it should appear, either, that there was a prior conspiracy, or that he purposely incited or encouraged the slayer, or did some overt act himself, with an intent to cause the death of his antagonist.
    (Decided April 25, 1893.)
    Error to the Circuit Court of Vinton county.'
    Plaintiff in error, together with his sons, Henry and Ells-worth, was indicted at the September term, 1891, of the Vinton county Common Pleas Court, for murder in the second degree, in having killed one Frank Rehuían, in said county, on the first day of the preceding August. He was tried at the March term, 1892, of said court,for said offense, convicted of manslaughter and sentenced to imprisonment in the penitentiary of the state for a term of years; which conviction and sentence were sustained by the circuit court of said county. He thereupon instituted proceedings in this court to reverse the judgments of both said courts.

      C. H. Grosvenor and J. M. McGillivray for plaintiff in error.
    The error complained of in this action, rests almost altogether upon questions as to the correctness of the charge of the court. Certain charges were asked to be given to the jury in advance of argument, and the only definition of aider, abettor or conspirator, is to be found therein.
    The principal contention is, that the common pleas court erred in eliminating all idea of knowledge, express or implied, and notice, either actual or imputed, as a necessary ingredient in the crime of an aider and abettor, before the fact. It was contended in the court below, that if M. H. Woolweaver was ignorant of any intention on the part of his sou Henry to shoot, and innocent of any intention to get his said son into the trouble, he was not guilty of the killing, however wrong he might have been in attempting to strike E.wingwith a bottle; or, in other words, that it devolved upon the state to show, before a conviction of plaintiff in error could be had, either: 1. That he conspired with his son Henry to commit the crime; or, 2. N ot having previously entered into a conspiracy with Henry, he must, at the time of the killing, have intentionally incited said Henry to shoot. And that in the absence of such showing, there must be an acquittal.
    The court below took an entirely different view, and charged the jury in substance, that if the defendant, on triaj, did any act tending to bring about the result, then he might be found guilty, regardless of the fact that there was no intention on his part to commit the crime, and no knowledge nor notice that his son Henry intended to use weapons dangerous to life.
    The first of the instructions asked— the major portion of which is a copy of the eighth proposition of the syllabus in Goins v. The State, 46 Ohio St., 458—was refused, for the reason that it was claimed to be a mere abstract proposition, in so. far as this case was concerned; and it was said by the learned judge, who delivered the opinion in the case in the circuit court, that it was not applicable, because in this case there was but one combat shown, and there was no independent fight as in the Goins case. Granting such conclusion to be justified (which we do not), and yet the evidence certainly tends to show that defendant was engaged in a fight with Ewing, and not with Eehman, and that so far as defendant was concerned, his actions and Ewing’s were entirely and absolutely independent of Eehman and Henry Woolweaver, although the actions of Eehman and Henry may have been, in some manner, dependent upon the fight with Ewing.
    There being evidence tending to show an independent combat between Ewing and the defendant, the proposition was not abstract, but pertinent, and the defendant was entitled to have the jury instructed upon the question, especially when it is known that his counsel claimed there was no evidence tending to prove any previous conspiracy, agreement or understanding, between the defendant and his son Henry, and no witness testified to any word spoken or act done, in the presence of Henry, tending in any way to show a desire on the part of the defendant on trial, to incite his said son, or any other person to engage in the affray.
    Was the modification of said charge, as asked, material ? This question answers itself—the distinction between doing an act “ with a view” to produce a result, and -one merely “tending” thereto, is as wide as the difference between knowledge and ignorance.
    The next proposition presents the question whether, when two persons are engaged in a combat, and two others interfere, one upon either side, and one of the persons interfering slays the other, either of the persons engaged in the original combat are responsible for, or chargeable with the wrong doing of the person so interfering, in the absence of proof of a combination, agreement, or confederation, from which such act of interference, or killing, or both, might be assumed.
    It was claimed in the courts below, by counsel for the defendant, that the manner of the beginning of the difficulty between defendant and Ewing, could in no manner reflect upon the defendant’s responsibility for the shooting, unless the affray was brought about for the purpose of inducing the shooting, or the shooting was done in pursuance of incitement, encouragement or procurement of the defendant, while engaged in the affraj'-; while on the other hand it was contended that if two engaged in an affray, and another rush upon the scene, and without the knowledge,, consent or procurement of either of the combatants, slay one of them, the survivor is guilty of killing, unless it appear that he was innocent in the bringing about of the difficulty.
    There is no claim that there was any previous agreement, combination or conspiracy in this case, and the evidence offered by the state excludes all idea of such combination,, conspiracy, confederation, or understanding, and shows affirmatively that until the actual commencement of active hostilities, both of defendant’s sons were using their best endeavors to suppress all difficulty.
    If there had been a conspiracy between defendant and his sons to beat Ewing, or do some other unlawful act, not itself liable to produce death, and the killing was done by Henry, without the knowledge or consent of the defendant on trial, he would not be guilty of murder. State v. Furney, 41 Kas., 115; Lusk v. The State, 64 Miss., 845; Kirby v. The State, 23 Tex., App., 13; Williams v. The State, 83 Ala., 16; Spies v. The People, 122 Ill. 1,
    One person is never charged with the wrongful act of another except- such act is the result of conspiracy to do it,, the natural result or probable outgrowth of a conspiracy to do a wrong, or the person sought to be charged is an actual participant in the act itself; and no rule of law can be found wherein one man is charged with the criminal act of another, upon any other theory, or upon the theory that the doing of an act by one person, but for the doing of which another would not have acted, is sufficient to charge the original actor with the crime of the second, in the absence of a showing that the person charged acted with a view and intention to bring about the result.
    The law as to conspirators is based on the fact that a co-conspirator is chargeable with all acts done in pursuance of the common design, and notice and knowledge are fixed upon the party sought to be charged, upon the theory that he gave actual consent to the doing of all things necessary to bring about the desired result, and implied consent to all that might probably or naturally be the outcome of the prosecution of the common purpose.
    The law of conspiracy being based upon the criminal intent to do the act complained of, or to cause it to be done, we insist that no stronger rule should be adopted to govern a case where there is no previous - agreement, no confederation, no common purpose and no concert of action shown. Wharton on Criminal Raw (6th edition, p.-113); State v. King, 2 Rice’s Digest, 106.
    Of course there can be no difference in the encouragement, whether it be by words, actions or what not; so long as it does not amount to a participation there is no criminal liability, for the simple reason that there is neither criminal knowledge, nor criminal intention. And may it not be said that one who encourages the continuance of a wrong per se —a fight, is as much to blame as the person who brings it about, and is yet ignorant of the intention of the third party to kill, and innocent of all desire to cause the slayer to do the act. Wharton Crim. Raw, Sec. 120; Rex v. Cruise, 8 C. & P. 541; Russell on Crimes, 8th Am. Ed., 27, 28.
    In all these authorities the knowledge of the commission of the fact is brought home to the party to be charged, either actually, or as a necessary inference from the proofs, that he was of the party of the wrong doer, and engaged with him in some common wrongful enterprise. The same effect is the charge of the court in the Knapp case, for which see 26 Mass., 518; but in none of them is the principle more clearly stated, nor more forcibly illustrated, than in the Goins case, 46 Ohio St., 518. The underlying and controlling principle in the Goins case is, that one person shall not be charged with the criminal act of another where the proofs do not show the wrongful act was done with the knowledge and assent, either expressed or implied, of the defendant on trial. State v. Hickman, 95 Mo., 322; Lamb v. The People, 96 Ill., 73; White et al. v. The People, 81 Ill., 337; People v. Knapp, 26 Mich., 112.
    In this case there is no proof that the defendant ever consented to the killing of Lehman, much less that he said any word, or did any act, with any idea that Lehman or any one else should, or might be killed. There is not in this record any evidence tending to show that in so far as the killing of Lehman was concerned, the plaintiff in error was guilty of the moral turpitude, suggested by’ Justice Dickey, in the case cited from 81 Ill.

      James W. Darby, Prosecuting Attorney, O. W. H. Wright, and R. S. Swepston, for defendant in error.
    It is claimed by counsel for plaintiff in error, that before a conviction can be had in this case the state must show, either: 1. That he conspired with his son Henry to commit the crime; or 2. Not having previously entered into a conspiracy with Henry, he must, at the time of the killing, have intentionally incited said Henry to shoot. Neither of the above propositions is sound law, and we have only to quote from the Goins case, page 467, 46 Ohio St.
    This brings us to the discussion of the subject of aiders and abettors.
    Learned counsel for M. H. Woolweaver seem to contend that he did not aid and abet his son Henry, because no open antecedent declarations were made, in so many words, by him to his son, looking to the commission of this crime. Let us examine the law of aiders and abettors, briefly, and see what acts, declarations, encouragement, etc., are necessary to bind a defendant. Sec. 6804, Revised Statutes. The ■defendant may be indicted as a principal and convicted as an aider and abettor. Hanoff v. State, 37 Ohio St., 179.
    By the above section the prosecution and punishment •of criminals—principals, aiders, abettors and procurers— are placed on the same basis. 2 Circuit Court Reports, 40. Aiders and abettors “are persons who either actually or constructively are present at the commission of an offense, aiding and abetting, or counseling and procuring the same to be done.” Am. and Eng. Ency. of Raw, 1-453; Sec. 211, 9th Ed. Wharton Crim. Raw; Sec. 211a, 9th Ed. Wharton Crim. Raw; Wharton Crim. Law, Sec. 213; Archibald Crim. Law, Sec. 10; Breese v. State, 12 Ohio St., which cites Sec. 460 of Bishop on Crim. Raw; State v. Morgan, 25 Ohio St., 383; Hartshorn v. State, 29 Ohio St., 635; Stevens v. State, 42 Ohio St., 150.
    The objection of Woolweaver’s counsel to the 8th syllabus of Goins v. The State, 46 Ohio St., 458, as given to the jury in a modified form, leads us'to consider the subject of conspiracy. We maintain the charge as requested or given could have been wholly refused as an abstract proposition of law, having no application to the facts in this case; but as the first phrase says: “In the absence of proof of a conspiracy,” etc., we are led to consider if the jury and court below did not have clear proof of a conspiracy. What is a conspiracy in Ohio under our decisions and the general law? The actual fact of conspiracy may be inferred, as has been said, from circumstances, and the concurring conduct of defendant need not 'be directly proved. Any joint action on a material point, or collocation of independent but co-operative acts, by persons closely associated with each other, is held to be sufficient to enable the jury to infer concurrence of sentiment; and one competent witness will suffice to prove the co-operation of any individual conspirator. Wharton’s Crim. Law, Vol. 2, sec. 1398, (9th ed.); 4th Syllabus, Goins v. State, 46 Ohio St., 457; Note 2 of Sec. 1398 of Wharton.
    The Elliot case, recently decided by the Supreme Court of Ohio, and the case of Spies v. The People, the Anarchist case, by the Illinois Supreme Court, each give the courts and juries great latitude in determining, by the circumstances and acts and conduct of the parties, the establishment of conspiracy by circumstantial evidence.
    There is no objection to the charge of the trial court, relative to the law of aiders and abettors, that counsel now-urge in behalf of the plaintiff in error; but insist that the court erred in refusing certain charges asked to be given, explanatory of the charge on the subject of aiders and abettors.
    Ret us examine the charges referred to: The charge, about which the main contentions seem to circle themselves, is taken from the Goins case, 46 Ohio St., 458. On page 471 of that case is found the sixth request from which the 8th clause of the syllabus is taken. The Supreme Court, in passing upon the case, say: “In view of the evidence this charge should have been given;” and in deciding the case, in the same connection, say: “In the case at bar, there was no evidence that the plaintiff in error (Goins) said a word or did an act, at the time the fight began or wTas in progress, that could be construed as aiding or abbetting Harrison in taking the life of the deceased.”
    This case, as to the facts, is entirely different from the Goins case, there being, in the evidence of almost every witness, threats of the plaintiff in error, vile language directed specifically and generally by Woolweaver against the people of McArthur Junction; we find him leading the attack armed with a weapon sufficient to take life; we find him refusing to go home at the solicitation of his boy, .and when the fight is begun, he at once takes a part, and after it is over he sets his seal of approval upon all that was done. He never once offers to prevent the use of dangerous weapons; he never at any time denied but what he intended to do just what was done, “but expressed himself that it was “just right.”
    In the light of the array of facts disclosed by the evidence, is it not an inevitable conclusion that there was conspiracy, that it was one and the same fight, and that there were overt acts showing bej^ond a reasonable doubt a purpose and intention on the part of plaintiff in error to commit the crime of which he was convicted, or one, the commission of which might reasonably lead to and result in the unlawful taking of life, as he was charged? We certainly think no conclusion can be reached but that of guilt.
    Counsel for plaintiff in error, in the case at bar, contend that the error of the trial court, in the charge given, consists in changing the phrase “with a view” to “tending,” and inserting “tending” between “act” and “to,” and then giving the charge thus changed. We again refer the court to the sixth request of the Goins case, page 471, and call attention to the fact that neither of the qualifying terms, “with a view” or “tending” is used; and we think it but little difference which term is used in this connection, and both may be dispensed with, and still it is a good proposition of law, because the expression “overt act” means an act showing or making plain a purpose and intention—an open act done in pursuance and manifestation of a criminal design—See Webster’s Die. and Bouvier R. Die. Such an act could not be other then both “ with a view ” and “tending” to the purpose or result intended; and an act with the purpose makes the crime.
    It is not binding upon the court to adopt the exact language of a higher court, but in charging any proposition of law, language should be varied, in each case, according to the facts to which the law is to be applied.
    It is said, in plaintiff in error’s brief, that the trial court erred in modifying the change asked by the defendant. We think that the court was clearly right in the charge as given; it makes a wide difference in criminal responsibilitj'- which party is the aggressor in an assault.
    If a party unlawfully makes an attack, he must be held responsible for all the criminal acts flowing from such an unlawful act, and if some person, whether he be a son or a stranger, under the incitement occasioned thereby, rush into the conflict and slay the innocent party, the slayer must be considered as adopting all the wrong of the aggressor, and the aggressor, under our statute and general law, would be criminally responsible for the homicide, because brought about in the unlawful act, which he himself has begun. Sharp v. The State, 19 Ohio, 379.
    The case was, also, argued orally, by counsel for plantiff and defendant in error.
   Bradbury, C. J.

Upon the trial of this cause the plaintiff in error excepted to a number of rulings made by the trial court, only one of which we think merits consideration here, namely: the exception taken to the refusal of the court to give to the jury that proposition of law requested by plaintiff in error, which relates to the proof necessary to constitute one an aider and abettor of a homicide occurring upon a sudden quarrel, where the proof is insufficient to establish a prior conspiracy.

Over many of the circumstances that occurred on the day of the homicide, and which led up to it, there seems to have been no substantial controversy. The record discloses that the plaintiff in error resided and kept a saloon at McArthur Junction, a small village located where the track of The Columbus, Hocking Valley and Toledo Railway Compan3'- and that of The Baltimore and Ohio SouthWestern Railroad Company cross each other; that Geo. T. Ewing was the station agent there; that mutual enmity existed between Ewing and the plaintiff in error; that the saloon of plaintiff in error was situated a hundred feet or more from the station buildings; that the plaintiff in error in the early part of the day of the homicide was intoxicated, and continued in that condition until after the homicide occurred, which happened near the middle of the afternoon ; that Ewing was absent from the station most of the day until about one o’clock when he returned; and that during his absence the plaintiff in error came up about the platform and station building, exhibiting special ill-will towards Ewing, and one or two other employes about the station, and ill-will generally towards the rest of them, applying to him and to them vile and abusive epithets, though exhibiting no ill feeling toward the deceased personally.

So far as the record discloses, the plaintiff in error had become 'quiet before the return of Ewing, though for how long before is left uncertain. Ewing, after his return, though how long thereafter is not made quite clear, walked along the station platform to a point nearly opposite the saloon of plaintiff in error, where he and the latter engaged in a quarrel, on the termination of which the plaintiff in error seems to have entered his saloon while Ewing returned to his office. A short interval, fixed by one witness at one hour and twenty minutes, occurred now, during which little, if anything, transpired, unless the plaintiff in error may have occasionally indulged in boisterous language addressed to no one in particular. At the expiration of this period he started from his residence or saloon towards the, station with, a ginger ale bottle in. his hand; he came near the deceased, and they engaged in a sharp and short quarrel, which resulted in the deceased going' to the railroad office, getting Ewing’s revolver, and starting to return towards the plaintiff in'error; Ewing and Uyons, another employe about .the station, took the revolver from the deceased, and all three moved in the direction of the plaintiff in error, who about this time was joined by his two sons and his wife; an encounter followed in which Henry Woolweaver, a son of the plaintiff in error, shot and killed the deceased. There were many other .circumstances. and facts over and about which the parties contested, and which for that reason are unnoticed in the general statement of what seems not to have been controverted.

The plaintiff in error did not fire the fatal shot, and, therefore, if a party to the homicide, became such either because of a prior conspiracy, that made him a party to the act of his son, by reason of inciting or encouraging his son at the time of its commission, or by some overt act of his own, designed or done with a view to bring about that result.

The proposition requested, and which the court declined to give to the jury, reads as follows: “In the absence of a conspiracy, one who is present when • a homicide is committed by another upon a sudden quarrel, or in the heat of passion, is not guilty of aiding and abetting the homicide, although he may become involved in an independent fight with others of the party of the deceased, unless he does some overt act with a view to produce that result, or purposely incites or encourages the principal to do the act ; and so in this case, if you find the defendant on trial, although present at the time of the shooting, knew nothing of his son Henry having a revolver, or intending to shoot, and took no part in the killing, and done no overt act to produce that result, then he is in no way responsible, and must be acquitted, unless you find from the evidence, and beyond a reasonable doubt, that the shot was fired by Henry in pursuance of a conspiracy previously formed by them.”

This proposition the court modified by erasing the words “with a view,” and inserting in their place the word “tending,” so as to make it read “unless he does some overt act tending to produce that result,” and gave it to the jury as thus modified. If there was no prior conspiracy, and the act was committed upon a sudden quarrel, without the plaintiff in error having purposely incited or encouraged the perpetrator thereof, he ought not to be held to have a guilty connection therewith, unless he did some overt act “with a view,”—that is for the purpose—-to produce the result he is charged with aiding and abetting, for in such a state of fact no criminal intent would exist. But, under the rule of law embraced in this proposition, as modified and given to the jury, the plaintiff in error might have been convicted without proof of a guilty purpose, and when he had a casual connection only with the homicide; for it authorized a verdict of guilty if he did any overt act that tended in any degree to cause the death of the deceased, although the act was done by him without any purpose to cause that result, and in fact did not produce it; and although there was neither a previous guilty conspiracy, nor any incitement or encouragement, purposely given, by him, at the time, to the actual perpetrator of the homicide.

Whenever a father engages in a fight, the tendency of that act is to incite a son, who may be standing by, to acts of violence, either towards the immediate antagonist of the father, should there be but one, or towards the party of that antagonist if there should be more than one; this tendency may be affirmed in respect to many other ties of kindred, or in many instances of merely close companionship. What rash or violent act the by-standing son, kinsman or comrade, may be moved to do, depends in a great measure upon the quality of his temper, the strength of his affection, and the notion, often mistaken, that he may hastily gather under the excitement of the moment, as to who is in fault and to be held responsible for bringing on the conflict. And if the by-standing son, other kinsman, or comrade, should, of his own volition, by an independent act of violence, slay the antagonist, the party engaged in the fight should not be charged with this act merely because he was engaged in a conflict with the deceased, and in that way, but in that way only, incited the fatal act. This is not enough to show a criminal intention; something more must appear; he must have purposely incited or encouraged the party in that course of violence that led to the homicide, or done some overt act himself, with a view to that result, and that in some degree contributed thereto. This is the principle that underlies the eighth clause of the syllabus in the case of Goins v. The State, 46 Ohio St. 457.

True, in the Goins case, supra, the plaintiff in error, at the moment of the killing, was engaged in an independent struggle with a person other than the one wht> was killed, but Goins was of the party with the one who gave the fatal stab, and his immediate antagonist was of the party of the one who received the death wound. In the case under consideration, there was evidence tending to show that the plaintiff in error and his two sons, composed one party, while the deceased and Mr. Ewing, and probably Mr. Ryons, composed the other party. • This difference in the circumstances in no wise affected the principles by which the criminal character of the acts of the parties should be tested. If there was a conspiracy, each conspirator was chargeable with the acts of his co-conspirators; if there was no conspiracy, then upon the springing up of a sudden fight, each should be chargeable only with his own acts, and such acts of the others as he may purposely incite or encourage. The charge in the form in which it was requested, correctly stated this proposition.

Where satisfactory proof of a conspiracy has not been produced, it often becomes a nice and difficult matter to determine the criminal liability of each of a party of friends or kindred for the violent and unlawful acts of his fellows, committed in the course of a conflict, arising upon a sudden quarrel, with one or more antagonists.; and in such case, upon the trial of one of them, it is of the first importance that the correct rule of liability should be laid down to the jury; and if the instructions should extend, too far, the liability of the one on .trial for the acts of his fellows, it would be, necessarily, prejudicial to his lights. Therefore, as the proposition, in the form requested by the plaintiff in error, prescribed the correct rule of liability in the absence of proof of a conspiracy, it should have been given to the jury, and any modification that extended the liability, as thus prescribed, must be regarded as erroneous.

Judgment reversed.


author: By the Court:

text:
    Bolton v. Bank.

      Wills—Construction of—How equitable estates vest and descend— Trust estates.

    1. A devise of real estate to trustees in trust to collect the rents and. pay a definite sum annually to the widow of the testator during her life, and to divide the residue equally among his children “or their heirs;” and, at the death of his widow, to convey an equal part of his lands to each of his children “ or their heirs,” vests an equitable estate in each of his children at the death of the testator, in the absence of a clear intention to postpone the vesting to some later time.
    Equitable estates vest and descend as legal estates. 2.
    (Decided April 25, 1893.)

      Error to the Circuit Court of Cuyahoga county.
    The original suit was commenced in the common pleas of Cuyahoga county, and appealed to the circuit court. It ■was brought by the trustees under the will of Thomas Bolton, deceased, against the beneficiaries and those claiming under them for a construction of the instrument. The testator died in 1871, and his estate was settled by his executors. The provision of the will requiring a construction is the one creating and defining the trust, and is as follows:
    “3d. I give and devise to Moses Kelly, Franklin T. . Backus and George H. Russell, and to the survivors of them, all the real estate of which I may die seized or possessed, wherever situate, in trust and for the following use: All that piece or parcel of land, with the appurtenances, lying between Euclid and Cedar streets in said village and now occupied as my homestead, to the sole and exclusive use and benefit of n^ beloved wife, Emeline Bolton, if she survives me, during her natural life and so long as she remains unmarried and my widow, and so long as she shall live and remain unmarried and my widow, to pay her twenty-five hundred dollars per year, at such times as she may need the same, out of the first rents and profits of the restand residue of my said real estate; and from the balance of said rents, to pay the necessary expense of executing said trust; to keep the said real estate in repair; to pay all taxes and assessments levied or assessed on all of said real estate; and to pay the balance semi-annually to my five children or their heirs, considering and treating them all as of full blood, and not half blood, to-wit: T. Kelly Bolton, Elizabeth C. Bolton, Festus C. Bolton, James H. Bolton and Charles Chester Bolton, share and share alike; and at the death or marriage of my said wife, to deed to said five children ’or their heirs (and in ascertaining who their respective heirs is or are they are to be considered and held as of full blood) forever, all and singular, said real estate so held in trust by said Kelley, Backus and Russell.”

      The testator left surviving him his widow, Emeline Bolton, and his five children named in the will. P'estusC. Bolton has since died insolvent, leaving children, and Thomas K. Bolton has also died leaving children. Festus C., before his death, executed a mortgage upon his interest in his father’s estate under the will to two banks to secure his indebtedness to them. Also on February 13, 1871, all the children of the testator entered into a written agreement with the widow Emeline, by which they agreed that she should have $1,500 annually in addition to the allowance made in the will. Upon this state of facts the trustees asked the instruction and advice of the court upon a series of questions, all of which arise out of the question as to the nature of the estate which the children took in the lands devised in trust by the will of their father. The answer to these questions were, so far as considered material, as follows:
    “1. Said children of the testator took upon his death in the lands so devised in trust an equitable remainder in fee, coupled with an equitable life estate in the surplus rents and income therefrom, aftei satisfying the expenses of the trust and the provision made in said will in favor of the widow accruing during the widowhood of said Emeline. 2. The interest so devised to said children by way of equitable remainder vested in them at the death of said testator and became at once alienable by them, so that upon the death of said Emeline the plaintiffs will be bound to convey the same to the alienees of such children instead of their heirs. '3. The children of the testator took at his. death a vested remainder in fee in sgid lands, and also a vested interest in the income therefrom accruing during the widowhood of said Emeline, which was likewise alienable by them. 4. The creditors of said children may subject their interests in said lands to the payment of their debts. 5. Income accruing since the death of said Festus may be subjected by his creditors to the payment of his debts, and, except as the same may be so subjected or was otherwise disposed of by said Festus during his'lifetime, is payable to his heirs. 7 and 8. Said writing delivered to the widow was based upon a valid consideration, and is to be treated as a valid assignment to her binding the income after the death of said Thomas K. and Festus C., the sum therein mentioned is still payable to her out of their respective shares of said income, and is prior to the claims of said judgment creditors to such income under their assignment of said Festus C. Bolton, and under the provisions of said will and said written assignment the surviving trustee should pay from the income derived from such trust to the said Emeline Bolton the sum of four thousand dollars per annum from and after the death of said testator and during her widowhood.
    All of the defendants, except the banks, excepted to the construction of the court and asked for a new trial, which was overruled, and judgment entered in accordance with the foregoing constructions; and error is now prosecuted here to reverse the judgment of the circuit court.

      Ranneys & McKinney, for plaintiff in error.

      Henderson, Kline <Sf Tolies, Boynton, Hale & Horr, and Samuel E. Williamson, for defendant in error.
   By the Court:

We see no error in the construction placed on the will of the testator, nor in the instructions given the trustees for the administration of the trust. It is the settled rule of this court to construe all devises and bequests as vesting in the devisee or legatee at the death of the testator, unless the intention of the testator to postpone the vesting to some future time is clearly indicated in the will. The fact that the devise to the children is to them “or their heirs,” does not make it contingent—the words “or their heirs,” being regarded as words of limitation, and not as the substitution of a new class of beneficiaries, taking as purchasers from the testator. Linton v. Laycock, 33 Ohio St. 128; Brasher v. Marsh, 15 Ohio St’ 103.

The only distinction between this case and the previous ones, is, that in this case the property is devised to trustees who are to carry out the trusts and make conveyances as directed in the will, so that the estates of the devisees are equitable and not legal. But this does not affect the question, for it is well settled that equitable estates vest and descend as legal estates. 2 Washburn on Real Prop. 5th Ed. 530-531-569. Doe v. Considine, 6 Wallace, 458; McArthur v. Scott, 113 U. S. 340.

Judgment affirmed.


author: By The; Court:

text:
    Siegfried v. Railroad Company.

      Statute of limitations—Dismissal of action.

    Where an action which has been commenced in due time, is dismissed by the plaintiff after the time limited for the commencement of such action has expired, a new action for the same cause, thereafter commenced, is barred, though commenced within one year after the dismissal of the former action. Such dismissal is not a failure in the action, within the purview of section 4991, of the Revised Statutes.
    (Decided April 25, 1893.)
    Error to the Circuit Court of Mahoning county.
    On the 9th day of January, 1890, Henry Siegfried commenced his action in the court of common pleas of Ma-honing county, against The New York, Lake Erie & Western Railroad Company, to recover damages for personal injuries caused him, as in his petition alleged, on the 14th day of February, 1886, by the negligence of the defendant. After the issues were riiade up, the cause was removed, on the application of the defendant, to the Circuit Court of the United States, for the Northern District of Ohio, where it was pending until the 14th day of May, 1891, when, as shown by the record, it was dismissed on motion of the plaintiff, without prejudice to a future action, and judgment rendered against the plaintiff for costs. On the next day, May 15,1891, Siegfried commenced the action below, in the court of common pleas of Mahoning county, against the railroad company, upon the same cause o'f action set forth-in his first petition filed January 9, 1890, against the railroad company. His last petition contains the further allegation of the commencement and dismissal of the former action, at the times above stated.
    The answer, among other defenses, pleads the statute of limitations in bar of the action, and the reply controverts the allegations of that defense. On the trial, the record of dismissal of the former action, by the Circuit Court of the United States, was given in evidence, from which it appears that action was dismissed, on motion of the plaintiff, without prejudice to another action; the record showing that the plaintiff directed the clerk to request the court to so dismiss it, which was accordingly done. At the conclusion of the evidence, the defendant requested the court to charge the jury that the action was barred, and to return a verdict for the defendant; which the court refused to do, and the defendant excepted. The plaintiff obtained a verdict, upon which judgment was rendered, and the defendant prosecuted error to the circuit court, where the judgment was reversed, and the action dismissed. To reverse that judgment, the plaintiff prosecutes error to this court; and the only question raised, is whether the action was barred.

      George F. Arel, Frank Jacobs and W. S. Anderson, for plaintiff in error.

      Fline & Clark, and Williamson & C%isking, for defendant in error.
   By The; Court:

More than four years after the plaintiff’s cause of action accrued having elapsed when the action below was commenced, the action, it is conceded, was barred, unless it is saved by the provisions of section 4991, of the Revised Statutes, which reads as follows: “If, in an action commenced in due time, a judgment for the plaintiff be reversed, or the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has, at the date of such reversal or failure, expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after such date; and this provision shall apply to any claim asserted in any pleading by a defendant.” The first action brought by the plaintiff was commenced within time; but when it was dismissed on his motion, by the Circuit Court of the United States, to which it had been removed, the time limited for the commencement of the action had expired. The precise question in .the case is, therefore, did-the plaintiff fail in his first action, within the purview of 'the section of the statute above quoted. If he did not, the action below was barred; but if he did, it was not barred, for it was commenced the next day after the dismissal of the first action. We think the plaintiff, by the voluntary dismissal of his action, did not so fail; and his second action, the action below, was therefore barred. To fail, implies an effort or purpose to succeed. One cannot, properly, be said to fail in anything he does not undertake, nor, in an undertaking which he voluntarily abandons. The right to commence the new action is preserved by section 4991, only where, in the former action, judgment for the plaintiff has been reversed, or he has failed otherwise than upon the merits. The reversal of the judgment involves the action of the court, which may render it necessary, or proper, for the plaintiff to commence a new action; and a failure in the action, by the plaintiff, otherwise than upon the merits, imports some action by the court, by which the plaintiff is defeated without a trial upon the merits. Under the provisions of section 5313 of the Revised Statutes, the court may dismiss an action without prejudice to a future action, (1) where the plaintiff fails to appear on the trial; (2) for want of necessary parties; (3) on application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence; and (4) for disobedience by the plaintiff of an order concerning the proceedings in the action. Where the court, under either of these provisions dismisses an action, the plaintiff fails, within, the meaning of section 4991; and, in that respect the case of Bates v. Railroad Company, 12 Ohio St., 620, is distinguished from this case. By the provisions of section 5313, a plaintiff may voluntarily dismiss his action, either at term, or in vacation on payment of costs, without prejudice to a future action, at any time before the final submission of the case to the jury, or to the court when the trial is by the court; except that he cannot dismiss in vacation when a counter-claim or set-off has been filed in the action. A dismissal by the plaintiff, involves no action of the court; it is a voluntary .withdrawal of his case, and is not a failure in the action.

Judgment affirmed.