author: Bradbury, C, J.

text:
    Lefevre v. The State.

      Evidence—Confession of defendant—Competency of—Duty of trial judge to determine—Defendant may introduce evidence, affecting competency—• Whether stick inquiry may be held in presence oj the jury, is discretionary with the trial judge.

    1. Where, on the trial of a criminal cause, a confession of the defendant is offered in evidence against him, and he objects to its admission on the ground that he had been induced to make it by threats or promises, and that, therefore, it was involuntary, it becomes the duty of the judge to determine this question [Spear v. The State, 2 Ohio St., 583); and upon the preliminary inquiry had before the judge to determine this question, the defendant may introduce pertinent evidence, in addition to that which results from the preliminary examination and cross examination of the witness produced to testify to the confession.
    2. Whether such preliminary inquiry shall be conducted in the presence and hearing of the jury, or not, rests in the sound discretion of the trial judge.
    (Decided October 31,1893.)
    Error to the Court of Common Pleas of Fairfield county.
    The plaintiff in error was indicted, tried and convicted of burglary in the Court of Common Pleas of Fairfield county. During his trial his council excepted to certain rulings of that court, which, being embodied in a bill of exceptions, he asks this court to review.
    The facts necessary to disclose the questions considered by this court will be stated in the opinion.

      L. A. Tussing and M. A. Daugherty, for plaintiff in error.
    The offer by the state to put the confession in evidence, and the objection of the defendant to its admissibility on the grounds stated, made and raised the issue whether in law the confession was voluntary and therefore admissible as evidence to the jury. This issue put upon the court the duty of hearing all competent, relevant and material testimony offered by the state or the accused, to enable it to judicially determine whether the confession was voluntary or involuntary; and this hearing should not take place in the presence and hearing of the jury. Wharton’s Criminal Evidence, 9th editio®, section 674a, 689; Roscoe’s Criminal Evidence, 8th edition, 57, star paging; Bishop’s Criminal Procedure,' volume 1, section 1220, 1236; Greenleaf on Evidence,- vol. 1, 219; Ellis v. State; 65 Miss., 44; Hector v. State, 2 Mo., 166; Commonwealth v. Culver, 126 Mass., 464; Amos v. State, 83 Ala., 1; Biscoe v. State, 67 Md., 6; Pascal v. State, 77 Ga., 596; People v. Yeaton, 75 Cal., 415; Nicholson v. State, 38 Md., 140; Barnes v. State, 36 Texas, 356; Simmons v. State, 61 Miss., 243; State v. Platte, 34 La. An., 1061; State v. Miller, 42 La. An., 1186; People v. Soto, 49 Cal., 69; 25th Report, 16; 3rd South., 188; 17 Pacific, 544; People v. Barker, 60 Mich., 277; Spears v. State, 2 Ohio St., 584; Wharton’s Crim. Ev., 9th edition, sec. 671; Bishop on Crim. Pro., vol. 1, sec. 1234; Price v. The State, 18 Ohio St., 419; Egner v. The State, 25 Ohio St., 464; Sharky v. The State, 4 C. C., R., 102; The State v. Leuth, 5 C. C. R., 94; People v. McMahon, 15 N. Y., 384; People v. Philips, 42 N. Y., 203; 3 Am. and Eng. Ency. of Law, pages 449, 450, and cases cited in note 1; Fonts v. State, 8 Ohio St., 98, 109; Searles v. State, vol. 27, No. 25, Raw Bulletin, 331.

      Jolm M. Wright, prosecuting attorney, and George E. Martin, for defendant in error.
    I. It is argued by the defense that the jury being permitted to overhear the voir dire examination, were influenced and prejudiced by it, notwithstanding the court’s admonition to the contrary; and that thereby the defendant’s case was affected. Our answer to this is, that such a matter is necessarily within the court’s discretion, and the court may, in the exercise of that discretion, rely upon the intelligence and good faith of the jury and their obedience to the court’s admonition as given in this case.

      II. The second claim of the defense is that the court should have heard all testimony offered by both sides, reflecting upon the competency of the confession, before the same should be admitted in evidence; and if then adjudged by the court to be competent, the defense in submitting their case in chief to the jury migh^ again introduce all evidence relating to the competency of the confession, as reflecting also upon its weight. We maintain that no such rule has been laid down by this court nor sanctioned by practice in this state.
    Such a rule would delay trials, distract the attention of the jury, increase the cost of trials to no purpose, and would submit to the court questions of fact, which, under our institutions, ought really to go to the jury. Rufer and Egner v. The State, 25 Ohio St., 464; People v. Cassidy, 333 N. Y„ 612 (30 N. E., 1003); People v. Robinson (Mich.), 49 N. W., 260; People v. Howes (Mich.), 45 N. W., 961; Thomas v. State (Ga.), 10 S. E., 1016; 84 G., 613; Volkavtich v. Commonwealth (Pa.), 12 A, 84.
   Bradbury, C, J.

The record discloses only two questions of sufficient general interest to merit consideration.

1. Where, during the trial of a criminal cause, a confession of the accused is offered in evidence against him, and its admission objected to on the ground that it had not been voluntarilly made, can the accused, in the ensuing preliminary inquiry had before the judge to ascertain the voluntary or involuntary character of the confession, be limited to a cross-examination of the witness who is about to testify to the Confession, or may he, of right, produce other evidence tending to prove that the confession was involuntary?

2. Has the accused a right to require that the preliminary inquiry be conducted out of the bearing of the jury?

During the trial the state produced a witness to testify to an alleged confession of the accused.

To the admission of this confession to the jury, counsel for the accused objected, on the ground that it had not been voluntarily made; and also mov'ed the court for an order that the preliminary inquiry, about to ensue before the judge, to determine the voluntary or involuntary character of the confession, be had out of the presence of the jury. The court refused to cause the jury to retire, consequently the preliminary examination was conducted in its presence and hearing.

Upon this preliminary question the state examined the witness, produced by it to testify to the confession; he was then cross-examined upon the same matter by counsel for the accused. The accused then offered to produce other testimony tending to prove that the confession was not a voluntary one. This the judge refused to receive, thus denying to the accused the right to offer any other evidence than that resulting from the cross-examination of the witness who was to testify to the confession. The judge then found that the confession had been voluntarily made and it was accordingly admitted jn evidence to the jury.

To this action of the court in refusing to conduct the preliminary inquiry in the absence of the jury, in refusing to hear the evidence offered by the accused to prove the involuntary character of the confession, and in admitting the confession in evidence, the accused excepted.

The almost unbroken current of authority holds that the question of the admissibility of a confession belongs to the court. 1 Greenl. Ev., 219 ; Whar. Cr. Ev., 689 ; 1 Bish, on Cr. Procedure, 1220; Thompson v. Commonwealth, 20 Gratt., 724. The authorities are numerous, but the citation of any considerable number of them is unnecessary.

In Commonwealth v. Culver, 126 Mass., 466, the court say upon this subject: “There may be, however, and commonly are, two questions : first, the competency of the evidence, and, secondly, the weight of the evidence; the former is always a question of law, the latter is always a question of fact. The prisoner has always the right to require of the judge a decision of the competency of the evidence.” This is the doctrine announced by this court in Spears v. The State, 2 Ohio St., 583, where it is held, pages 585 and 586, “ That a confession induced by hope or fear, excited in the mind by the representations or threats of any one, is not to be considered voluntary. The question in every case where a confession has followed representations or threats is, was it thus produced? This question is to be decided by the judge, if proof of the confession, when offered, is objected to. If he answers it in the affirmative, the testimony must be rejected; if in the negative, it must be admitted.”

In this state the burden of proving that a confession was involuntary, and therefore not competent evidence against him, rests upon the accused. Rufer v. The State, 25 Ohio St, 464.

Where the law imposes upon a party, the burden of establishing a fact, and upon a tribunal the duty of determining its existence, it would seem to follow, necessarily, that the former should be permitted to produce within reasonable limits and the latter required to hear and consider, any evidence that in its nature is pertinent to-the inquiry. To throw upon a party the burden of proving a fact, and at the same time deny to him the right to adduce the necessary evidence, although at hand and tendered for that purpose, is an anomaly only justifiable by peculiar circumstances or conditions which do not seem to obtain in inquiries like that under consideration.

In Rufer v. State, supra, the accused upon the preliminary inquiry before the judge, to ascertain whether a confession was voluntary or not, had-been denied the right to cross-examine the witness that had been produced by the state. This was declared to be error. He had not tendered any other evidence upon the preliminary inquiry, hence the question of his right to require it to be heard was not before the court in that case, and the court in its discussion of the subject confined itself to the questions presented by the record before it. Whatever is said, however, by the learned judge who wrote the opinion of the court in that case, is in perfect harmony with the conclusions we have reached in the case before us. Wharton Cr. Ev., 689; People v. Soto, 49 Cal., 67; People v. Barker, 60 Mich., 277; Commonwealth v. Culver, 126 Mass., 464. In the latter case the syllabus reads as follows: “At the trial of a criminal case, if the government offers to prove a confession of the defendant, and the latter objects to its admission, on the ground that it was induced by offers of favor made to him by the officer who arrested him and had him in custody, and the officer is called by the government and denies that he made such offers of favor, and the defendant then offers evidence to prove that he did, it is the duty of the judge to hear such evidence before admitting the^concession.”

The foregoing authorities lay down the correct doctrine. The competency and admissibility of a confession depends upon its .having been voluntarily made. The judge is bound to determine this question; how can he intelligently do so unless the evidence is fully and fairly presented to him?

The refusal of the court of common pleas to hear and consider the evidence tendered by the plaintiff in error upon the preliminary hearing was therefore erroneous.

There are many matters that occur in the course of trials, both civil and criminal, that must be left to the sound discretion of the trial court; whether a preliminary inquiry like the one involved in this case should be conducted within or without the presence of the jury is one of them, and we can discover no abuse of that discretion in the record before us.

fiidgment reversed.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Railroad Company v. Brennan.

      Divorce and. alimony—Right of wife to credits of husband, when the latter’s debtor made a party—No injunction necessary— Custody of the law.

    (Decided October 31, 1893.)
    Error to the Circuit Court of Erie county.
    Minnie Brennan brought her action against her husband, Edgar H. Brennan, for divorce and alimony, in the court of common pleas of Erie county, and made The Eakeside & Marblehead Railroad Company a defendant, alleging in her petition that the railroad company was indebted to-her husband in the sum of $1,126.37, for which the husband had recovered a judgment against the railroad company-in the court of common pleas of Ottawa county; and she asked and obtained a temporary injunction enjoining the railroad company from paying over to her husband the amount of said judgment or any part thereof.
    The railroad company answered, and denied having any money in its hands belonging to the husband, and averred that the judgment had been set aside and vacated. The case was tried upon its merits, and a divorce granted and alimony adjudged to her in the sum of $20,000; but her petition, as against the railroad company, was dismissed at her costs on the 18th day of April, 1889. On the same day she gave notice of her intention to appeal to the circuit court from this judgment of dismissal, and the bond was fixed at fifty dollars which was given the same day.
    About April 25, 1889, the railroad company allowed the husband to take judgment against the company for the sum of $852.00 in the same case in which the judgment had been set aside by the court. On April 25, 1889, the railroad company paid the amount of the judgment, $852.00, to the sheriff of Ottawa county, upon an execution held by the sheriff against the husband in favor of a creditor, as provided in section 5482, Revised Statutes of Ohio.
    In the circuit court the railroad company filed an amended answer, in which the payment to the sheriff was fully set out.
    The cause was heard upon the merits in the circuit court, and a judgment rendered in favor of the plaintiff below, and the railroad company was ordered to pay over to her said sum of $852.00. To all of which the railroad company excepted,, and filed its petition in error in this court to reverse the judgment of the circuit court.

      B. J. Blandin and T. Alvord, for plaintiff in error.

      Homer Goodwin, for defendant in error.
   By the Court :

Held: That no injunction was necessary to prevent the railroad company from paying the money over to the husband. The company, having been made a party defendant to the action, was bound to hold the money to abide the final disposition of the case, the money being regarded as in the custody of the law.

Judgment affirmed.


author: By the Court:

text:
    Leavans v. Bank.

      Mortgages—Attorney's fees—Stipulations for, void—Public policy.

    (Decided October 31, 1893.)
    Error to the Circuit Court of Cuyahoga county.
    On the 11th day of April, 1887, George F. Eberhard executed and delivered to the plaintiff in error a mortgage on certain real estate owned by him to secure the payment of thirty-five hundred dollars on April 1, 1890, with interest at six and one-half (6J) per cent., payable semi-annually. The mortgage contained a provision that in case an action should be brought to foreclose it a reasonable sum as an attorney fee, the amount to be fixed by the court, should be included in the decree and paid from the proceeds of the mortgaged property. Afterwards, a second mortgage, executed by the mortgagor, was taken upon the same property for the benefit of the defendant in error.
    On October 10, 1889, the mortgagor, being in default for the non-payment of interest, an action was brought by the plaintiff in error to foreclose the mortgage. The mortgage was foreclosed, and the court of common pleas in the decree found the sum of one hundred dollars ($100) to be a reasonable fee for the plaintiff’s attorney for his services in the foreclosure proceeding, and ordered the same to be paid out of the proceeds of the sale of the mortgaged property.
    The defendant in error, having been made a party to the action, excepted to that part of the decree which provides for the payment of an attorney fee, and instituted proceedings in error in the circuit court to modify the decree in this respect, which was accordingly done. Whereupon the plaintiff in error commenced proceedings in this court to reverse the modifying judgment.

      Sherman, Hoyt & Dustin, for plaintiff in error.
    No brief for defendant in error.
   By the Court:

A stipulation -in a mortgage to the effect that, in case an action should be brought to foreclose it, a reasonable attorney fee, to be fixed by the court, for the sendees of the plaintiff’s attorney in the foreclosure action, should be included in the decree and paid out of the proceeds arising from the sale of mortgaged property, is against public policy and void.

Judgment affirmed.


author: Spear, J.

text:
    Moore v. Freeman.

      Justices of the Peace—Jurisdiction.

    A justice’s court has only the jurisdiction expressly conferred by statute. It can have no equity jurisdiction. The power to hear and determine controversies between heirs of an intestate where the fact of advancements to such heirs is to be ascertained, and the legal effect thereof upon their several rights on distribution adjudicated, is an equity power, and cannot be exercised by a justice of the peace. And when an issue of this character is tendered by the plaintiff in a trial there pending, it is the duty of the justice to dismiss the case.
    (Decided December 5, 1893.)
    Error to the Circuit Court of Adams county.
    The action below was brought by the defendant in error against the plaintiff in error, before a justice of the peace, to recover $73.11, with interest, for cash had and received by defendant, being balance due of proceeds of real estate of her father Calvin Moore, her interest being $292.46, of which defendant had paid her only $219.35. Defendant, by answer, denied that plaintiff’s interest amounted to $292.46, and averred that it amounted only to the sum of $219.35, which had been paid.
    At the trial it was shown that Calvin Moore died intestate, leaving a widow and eight children, and seized of 125 acres of land. By a written agreement, the widow and heirs authorized Hosea Moore, (plaintiff in error) to sell the land. This was done, and there remained of the purchase money, after deducting expense of selling and widow’s allowance, $1,754.80. It was further shown that at the time the deed was executed, a question arose as to the amount of the proceeds each heir would be entitled to receive, in view of the admitted fact that advancements had been made by the father to them, in different amounts, and statements were made by several of them upon the subject. These statements the plaintiff before the justice sought to introduce in evidence for the purpose of showing that her interest in the proceeds ■was what she had claimed in the bill of particulars. To the introduction of this evidence the defendant objected. He also filed a motion to dismiss on the ground that the court had no jurisdiction. The evidence was received, over his objection and exception, the motion to dismiss overruled, and a judgment rendered in favor of Mrs. Freeman for the amount of her claim, which was affirmed by the common pleas and by the circuit court.

      T. F. Bay less and W. C. Coryell, for plaintiff in error.

      Fdenry Scott and Byrne, O'Neil & Wardlow, for defendant in error.
   Spear, J.

It will be noted that the amount Mrs. Freeman admitted she had received, $219.35, was one-eighth of the' total amount for distribution. In order, therefore, to. recover a greater sum she would, necessarily, have to offer proof showing the making of advancements, and their amount. The objection to the evidence -was upon the ground that the justice was without jurisdiction to determine the issue thus sought to be ráised, and the question, therefore, is whether or not a justice of the peace has jurisdiction to try a controversy involving the distribution of a fund between heirs where the question of advancements is involved.

An advancement is an irrevocable gift by a parent to a child, in anticipation of such child’s future share of the parent’s estate, and is to be taken into account upon distribution. Necessarily, therefore, the matter is governed by the statute of distribution.

By our statute (sections 4169, 4170 and 4171), advancements are to be considered as part of the estate so far as regards the division and distribution thereof, and an advancement received is to be taken by each child towards his or her share. If the amount equals or exceeds the share, such child shall be excluded from any further portion, but shall not be required to refund, and if less, shall be entitled to as much more as will give a full share. If the advancement has been made in real estate, the value shall be considered and taken as part of the real estate to be divided, and if in money, or other personal property, it shall be considered as part of the personal estate to be distributed; and if, in either case, it exceeds the share of the real or personal estate that would have come to the heir he shall not refund any part of it, but shall receive so much less out of the other ■ part of the estate as will make his share equal to the other heirs in the same degree of consanguinity.

The statute is evidently framed upon the idea of obtaining equalization among the heirs, “collation,” as it is termed by the civil law; of bringing the mass of property together, and so dividing it that each may have, considering what he has already received, his proper share. To make this possible, all the parties must be before the court, and the court must be so far possessed of equity powers as to be competent to compel the bringing in of all the parties, to afford opportunity to them to interplead and to hear and dispose of the entire controversy upon the equitable principle of the statute.

Justices of the peace have not equity jurisdiction, and it would seen not necessary to argue that, in a suit by one of eight heirs, each one of whom has received an advancement, brought against one who is the common agent of the whole, for distribution, where there cannot be a determination of the controversy without invoking the aid of equity, a justice’s court is not the tribunal in which to conduct the controversy.

Judgment below reversed and case dismissed*


author: Burket, J.

text:
    Ryan v. Rothweiler et al.

      Life insurance— Where beneficiaries named, die, before the assured, policy reverts to assured, and passes as other personalty.

    1. If a life insurance policy is taken out and premiums paid by the assured, and the policy made payable at his death to his wife, and in case of her decease during his lifetime to her children by him, in such case, if all the beneficiaries named in the policy die before the death of the assured, such policy reverts to the assured, and at his death becomes subject to administration and bequest the same as his other personal estate.
    2. H. caused his life to be insured and paid all premiums, and had the policy made payable to his wife, and in case of her death, to her children by him. ' H. had only one child, a daughter, by his wife, and the daughter married and had one child, a son. The wife, daughter and son all died in the order named before the death of the assured. Afterwards, H. died, leaving two daughters, by a former wife, and the husband of the deceased daughter surviving him. In a contest over the insurance money, between the administrator of H., and the administrator of the deceased daughter and of the deceased son:

      Held: That the administrator of H. is entitled to the insurance money.
    (Decided December 5, 1893.)

      Error to the Circuit Court of Franklin county.
    On the 19th day of March, 1864, The Home Rife Insurance Company executed its policy of that date, and thereby insured the life of Charles C. Helwig in the sum of two thousand dollars in consideration of a premium of $72.20 to be paid on Or before the 19th day of March of each year during the life of said Charles C. Helwig.
    The policy was made payable to Anna Helwig, wife of the assured, and in case of her death during the lifetime of her husband, the policy was made payable to her children by her said husband to their use, or to their guardian, if under age.
    Anna Helwig died November 21,1872, leaving an only child-—-Anna C. Helwig, who was afterward married to Charles T. Ryan, and she died on the 29th day of December, 1881, leaving an only child—Raymond C. Ryan, who died on the 21st day of September, 1883.
    Charles C. Helwig died in the month of September, 1885, leaving two daughters by a former wife surviving him. Their names are Caroline Salome Ketter and Maria Rosina Scherman.
    Jacob Rothweiler was duly appointed administrator of the estate of Charles C. Helwig, deceased, and Charles T. Ryan was duly appointed administrator of the estate of his wife, and also of his infant son. Notice of the death of Charles C. Helwig having been given to the life insurance company, and the company failing to pay the policy, an action was commenced by the administrator of Charles C. Helwig and by his two surviving daughters against the insurance company, and said Charles T. Ryan was made a defendant, and required to set up his interest in the policy.
    The insurance company paid the money into court and was discharged. Charles T. Ryan filed his answer and cross-petition, averring that he had been appointed administrator of the estate of his wife and of his infant child, and claiming the insurance money as such administrator.
    The plaintiff below demurred to Ryan’s answer and cross-petition, on the ground that the same does not state facts sufficient to entitle him to the insurance money. The court of common pleas overruled'the demurrer; to which, exceptions were taken, and plaintiffs below, not desiring to further plead, judgment was rendered in favor of said Charles T. Ryan, as such administrator.
    A petition in error was filed in the circuit court, and the judgment of the court of common pleas was reversed.
    Thereupon Charles T. Ryan filed his petition in error in this court, for the purpose of reversing the judgment of reversal of the circuit court.

      Watson, Burr & Livesay, and Julius L. Anderson, for plaintiff in error.
    Plaintiff in error claims that the moment the policy issued it constituted an irrevocable and executed voluntary settlement in favor cf the wife, and in case of her death during the life of her husband, in favor of their children. That this was a vested right, and thenceforward neither the husband nor his representatives had any control over the fund, except such as he might exercise by ceasing to pay the premiums; that upon the death of the wife leaving a child by Mr. Helwig, the policy became vested absolutely in the daughter, Anna C. Helwig. That the policy was a chose in action, belonging solely to her, and on her death passed to her administrator, the plaintiff in error, for the benefit of her only child, Raymond C. Ryan. That •upon the death of the latter, before distribution, his vested right as distributee, passed to his administrator (who is also plaintiff in error), for the benefit of the distributee of his, Raymond C. Ryan’s estate, who in this case is his father, Charles T. Ryan. "We claim further, that only through this process can the statute be made effectual, and the principle of vested rights be worked out. Bliss on Ins. sec. 317; May on Ins. (third edition) sec. 390; Bacon on “Benefit Societies and Ifife Insurance ” (1888), sec. 292.
    By virtue then, both of the statute and at common law, Mrs. Ryan, the daughter, her mother being dead, had an absolute vested right to the policy and its proceeds. It was a chose iu action to which there was a present fixed right of future enjoyment, when an event should take place which was sure to happen. Schouler on Executors and Administrators, sec. 200; Davis v. Corwin, 25 Ohio St., 668; Williams on Executors, 6th Am. Ed., 718 (top paging), note d2; Bliss, sec. 825; St. John v. Ins. Co., 13 N. Y., 31; Cooke on Life Ins. (1891), sec. 76; Hooker v. Sugg, 102 N. C., 115; Glanz v. Gloecker, 104 Ill., 573; Drake v. Stone 58 Ala., 133; U. S. Trust Co. v. Life Ins. Co., 115 N. Y., 152; Olmstead v. Keyes, 85 N. Y., 593; Ins. Co. v. Haley,, 78 Me., 268; Anderson's Estate, 85 Pa. St., 202.
    Whether in the case at bar the insurance shall be considered that of the husband, as alleged in the petition, or that of the wife, as appears by the terms of the policy,, seems to us not now to be material. Continental Life Ins. Co. v. Palmer, 42 Conn., 60; Ins. Co. v. Dunham, Adm'r, 46 Conn., 79; Harley, Adm'r v. Heist, 86 Ind., 196; Milner v. Bowman, 119 Ind., 448; Baldwin v. Insurance Co., 15 R. I., 106; Allis v. Ware, 28 Minn., 166; Clark v. Durand, 12 Wis., 223; Manhattan Insurance Co. v. Smith, 44 Ohio St., 156; Benefit Societies and Rife Ins. (1888), sec. 294; Bliss, sec. 350; Ricker v. Charter Oak Life Ins. Co., 6 N. W. Rep., 771.
    Again, the decision of the court below ignores the principle lying at the bottom of life insurance. In the Manhattan Insuranc Co. case, it was held that to the extent that the premiums had been paid, the wife had a vested right in the policy which could not be affected by the act of the husband without her consent. This is the very essence of the question. Insurance Co. v. Baldwin, 15 R. I., 106; Phoenix Ins. Co. v. Dunham, 46 Conn., 79.

      Nash & Lentz, and J. M. Tibbetts, for defendants in error.
    Brief of J. M. Tibbetts.

    The money sought to be recovered by this suit is a trust fund, created in the hands of the insurance company, so acknowledged by them; and to relieve themselves from responsibility, they paid it into court, subject to its direction.

      This then being a trust, which fails because of the death of all the persons named in the contract as the cesiui que tncst, the fund reverts to and becomes assets of the grantor’s estate. Story Eq. Jus., par. 1200; The Washington Beneficial Association v. Wood, 4 Mackey, 19.
    In considering the correct disposition of this fund, the court will be governed by the manifest intention of the grantor, if it can be gathered from the express terms of the contract, or be implied from his acts. Bickerton v. Jacques, 28 Hun., 119; 16 Phila., 399; May on Insurance, par. 399 N.; Schouler on Husband and Wife, page 604; Kernan v. Howard, Adm’r, 28 Wis., 108; Clark v. Durand, 12 Wis., 220; Foster v. Gills, 50 Wis., 603 ; Gambs, Adm’r, v. Life Ins. Co., 50 Mo., 44; Weber, Loper & Co. v. Paxton et al., 48 Ohio St., 271; Rothweiler, Adm'r et al. v. Ryan et al., 4 Ohio C. C. R., 338; Glanz v. Gloeckler, 104 Ill., 573; Ins. Co. v. Dunham, Adm’r, 46 Conn., 79; Cooke on Life Insurance, section 76.
   Burket, J.

The petition avers that the premium was paid by Charles C. Helwig, and this is not denied by Charles T. Ryan in his answer and cross-petition. True, he avers in the language of the policy, that the first premium was in hand paid by the wife, and that the subsequent premiums were to be paid, without stating by whom the payments were to be made.

The fact that Charles C. Helwig survived his wife and daughter and grandson, and that no averment is made in the cross-petition as to the payment of the premium during all the years from 1864 to 1885, and the further fact that the allegation in the petition, to the effect that the premiums were to be paid by the assured, is not denied further than by a recital of the contents of the policy, leaves the fact reasonably certain that the premiums were paid by the assured, Charles C. Helwig. In fact, no other conclusion can be reached from a careful reading of the petition and cross-petition, regard being had to the order in which the parties died; and the arguments of counsel on both sides, seem to concede the fact so to be.

On the part of Charles T. Ryan, it is claimed, that by the terms of the policy Mrs. Helwig, and after her death, her daughter, Anna Ryan, had a vested interest in the amount to be paid, which could not be divested by any act of the husband or the insurance company, or both.

That this vested right was a chose in action, a simple contract to pay her (Anna Ryan) a certain sum of money on the happening of an event certain.

That upon her death, the chose in action passed to her administrator to be collected when due, and the proceeds distributed to her next of kin.

On the part of the defendants in error, it is claimed, that this insurance policy is a kind of trust, and that when the beneficiaries of the trust fund died the fund lapsed into the estate of the'person who created the trust, and at his death be.came a part of his estate, subject to administration and bequest as other parts of his personal estate.

Many authorities have been cited by the attorneys on both sides to support these propositions; and the Circuit Court well said that “there is admitted .confusion among the reported cases and authors upon the subject.”'

The question has never been decided in this state, and hence, we are at liberty to adopt such rule as we think is most consistent with justice and the intention of the parties. The question is not governed so much by the ¡irinciples of dioses in action and vested rights, as by the principles, aims and well-known objects of life insurance.

The cases which hold the insurance money to be a trust fund which reverts to the estate of the assured, in case of the death of all the named beneficiaries during the life-time of the assured, give different reasons for the result arrived at. Some place it upon the ground that the person to whom the fund would otherwise go, has no insurable interest in the life of the assured, while others place it upon the doctrine of failure of trust by the death of the beneficiary.

In the case now under consideration, should plaintiff in error succeed, he would receive the insurance money, while he manifestly had no insurable interest in the life of Mr. Helwig.

While Anna C. Ryan had an insurable interest in the life of her father, her administrator had no such interest.

While a man may cause his own life to be insured for the benefit of a stranger, and the want of insurable interest in the stranger will not invalidate the policy, a policy taken out by a man for his own benefit on the life of a stranger, would be void for want of insurable interest. May on Insurance, section 75A

The theory of a failure of trust comes with more force, and stronger reasons than the doctrine of choses in action so strongly urged by counsel for plaintiff in error. We regard the doctrine of choses in action as not fully applicable, because it conflicts in many cases with the controlling doctrine of insurable interest.

The case of Manhattan Insurance Company v. Smith, 44 Ohio St., 156, was a case of attempted change of beneficiary and of forfeiture of policy. No such questions arise in this case. Here the question is not as to change of beneficiary, but as to reverter of the policy to the assured by reason of the death of all the beneficiaries. Hence, that case throws no light upon the question here involved.

On principle, therefore, and aside from any statute on the subject, we think that in this case the policy reverted to Mr. Helwig, and at his death became a part of his estate. It seems to us that this was the manifest intention and understanding of all the parties interested, and that the result is just and equitable. While there may have been a vested interest, it was an interest not in possession, but in expectancy, liable to be divested by the death of the beneficiary before the death of the assured.

The statute in force when this policy was taken out, S. & C., 737, provided that in case of the death of the wife before the decease of her husband, the amount of the insurance might be made payable to her children, and to their guardians, if the children were under age. But there was no provision for making payment to the administrator of the children, in case they should die before the father. This statute was passed upon the theory that but for the statute the policy being payable to the wife only, would, in case of her death before that of her husband, revert to the husband, as upon a failure of trust by the death of the named beneficiary.

' This act of 1847 was only declaratory of a power which existed independent of the statute, because the children having an insurable interest in the life of the father, the policy might be made payable to them in case of the death of the mother; but the statute was passed, as is often done, to express, define, limit and make certain a power which already existed. By limiting the policy to the children at farthest, a condition was implied, that upon the death of both the wife and children during the lifetime of the assured, the policy should revert to the assured, as upon a failure of trust by the death of the beneficiary.

Eater on, in 1879, the legislature passed what is now section 3629, which provides, as follows:

“But if there are no children, upon the death of the wife, such policy shall revert and become the property of the party whose life is insured, unless it has been transferred as hereinafter provided.”

This statute was passed after the policy in this case was issued, and of course, could not affect the rights of the parties. But it ingrafted no new principle into the law as it stood from and after the passage of the act of 1847, but only made clear and certain that which already existed, but was somewhat obscure.

We, therefore, hold, both upon principle and a construction of the statute, that upon the death of the wife and daughter in this case, the policy reverted to Mr. Helwig, and at his death, became part of his estate, subject to administration and bequest, the same as other parts of his personal estate, and that the plaintiff in error has no interest whatever in the fund.

It is further claimed by plaintiff in error, that there is a misjoinder of parties plaintiff. The insurance company made no such claim, but paid the money into court, to be paid over to the proper owner. Plaintiff in error having no interest in the fund, cannot be heard to complain as to defect of parties plaintiff at this stage of the case as they are not seeking to take any money or property from him.

Jiidgment affirmed.


author: Williams, J.

text:
    Street Railway Company v. Street Railway Company.

      Consiihittonallaw—Street railway companies— When one may appropriate track of another.

    1. The provisions contained in section 3440, of the Revised Statutes, prior to the amendment of April 11,1890 (78 Ohio Laws 178), are constitutional; whether those added by that amendment are constitutional, quere? but if unconstitutional, they are distinct and separable from those of the1 original section, and do not affect their validity.
    2. A street railway company to which the council of a municipal corporation has granted the right to occupy a part of the track of , another company in accordance with section 3438, of the Revised Statutes, is authorizd by section 3440, without the aid of the amendatory provisions of April 11, 1890, to appropriate the track according to the grant, when the companies are unable to agree upon the compensation to be paid therefor; and the appropriation proceeding may be prosecuted under Chapter 8, of Title 2, of Part Third, of the Revised Statutes.
    (Decided December 5, 1893.)
    There are four cases between these parties, bearing the above title, here on error to the Circuit Court of Lucas county, and an action in Quo Warranto brought in this court on the relation of the Attorney-General against The Toledo Electric Street Railway Company, which were heard together.
    The cases are sufficiently stated in the opinion, which is intended to apply to all of them.

      Baker, Smith & Baker and John H. Doyle, for plaintiff in error.
    I. The amendment to section 3440, of April 11, 1890,, confers corporate power by a special act. Atkinson v. R. R. Co., 15 Ohio St., 21, 35; Lewis on Em. Domain, sections 237, 238, pages 317, 318; Lamb v. Lane, 4 Ohio St., 167, 175; R. R. Co. v. Ironton, 19 Ohio St., 299, 303; Harbeck v. Toledo, 11 Ohio St., 219 224; Currier v. R. R. Co., 11 Ohio St., 228, 231, 232; Moorhead v. R. R. Co., 17 Ohio, 340, 350, 353; State ex rel. v. Mitchell, 31 Ohio St., 592, 607; San Francisco v. S. V. W. W., 48 Cal., 493, 511; State ex rel. v. Cincinnati, 20 Ohio St., 36; State ex rel. v. Smith, 48 Ohio St., 211; Ayar’s Appeal, 122 Pa. St., 266, 278; Weinman v. Ry. Co., 118 Pa. St., 192, 201; Wyoming v. Pittsburgh, 137 Pa. St., 501, 502; Pittsburgh's Petition, 138 Pa. St., 413; Peoplev. The Central Pacific Railway Co., 83 Cal., 393, 405; State v. Trenton, 24 Atl., Rep., 478; State v. Plainfield, 24 Atl. Rep., 494.
    II. The amendment to section 3440 relates to subject matter of a general nature, and is confined in its operation to that portion of a certain class of property, namely— street railway tracks in use, which happen to be located in cities of a designated grade and class. So that street railway property in Toledo is governed by a law different fronj that which applies to street railway property of precisely the same kind, in precisely the same situation, in Cleveland, Cincinnati and elsewhere in the state, and it is, therefore, in conflict with article 2, section 26, of the Constitution of Ohio. Costello v. The Village of Wyoming, 27 Bull., 147; 30 N. E. Rep., 613; State ex rel. v. Ellet, 47 Ohio St., 90, 93; Kelley v. The State, 6 Ohio St., 271, 272; McGill v.The State, 34 Ohio St., 228, 238; R. R. Co. v. R. R. Co., 36 Ohio St., 239, 251; Revised Statutes of Ohio, sections 3440, 3441; Falk ex parte, 42 Ohio St., 638, 644; Gordon v. The State, 46 Ohio St., 607 627; Commissioners v. Rosche Bros., 29 W. L. Bull., 176; Cooley’s Const. Dim., 6th edition, pages 482, 483; Sutherland on Statutory Construction, section 118; Millet v. The People, 117 Ill., 294, 300 ; Pasadena v. Stimson, 27 Pacific Rep., 604, 606; Dougherty v. Austin, 28 Pacific Rep., 834, 836; Thomas v. Ry. Co., 40 Fed. Rep., 126, 130; Omnibus R. R. Co. v. Baldwin, 57 Cal., 160, 165 ; Miller v. Kister, 68 Cal., 143, 144, 145 ; San Francisco v. The Spring V. W. W., 48 Cal., 493; Spring V. W. W. v. Bryant, 52 Cal., 132,140; Davis v. Clark, 106 Pa. St., 377, 384; Scranton v. Silkman, 113 Pa. St., 191, 199; Opening of Ruan Street, 132 Pa. St., 257, 274; Kentucky Trust Co. v. Lewis, 82 Ky., 579, 581; Groesch v. State, 42 Ind., 561.
    III. Property already devoted to public use by one company or person, cannot, by the exercise of the power, of eminent domain, be taken from him and turned over to another company or person to be used in the same manner, for the same public use, and an act which attempts this is unconstitutional. Unless such act preserves to the first company such of its property as is necessary for the discharge of the public duties to which the property is devoted, it is void. McQuillen v. Hatton, 42 Ohio St., 202, 204.
    This statute authorizes the track or tracks of corporation No. 1, necessary and devoted to the public purposes of that company, to be appropriated to the use of corporation No. 2, for the same purpose and in the same manner, without guarding or protecting the first company in its use of this property for its public purposes, and it is therefore unconstitutional and void. Eewis on Em. Dom., section 276, page 363; West River Bridge Co. v. Dix, 6 How. (U. S.), 507, 537; Water Co. v. Water Co., .36 Cal., 639, 648; Reeves v. The Treasurer of Wood County, 8 Ohio St., 333, 346; Smith v. The Ry. Co., 25 Ohio St., 91, 100; Taylor v. The Commissioners of Ross County, 23 Ohio St., 22, 83; Attorney General v. Eau Clarie, 37 Wis., 400, 437; R. R. Co. v. Smith, 23 Kans., 745, 755.
    IV. The pretended classification under which corporate power is sought to be conferred, and by which a law of a general nature is to be made uniform throughout the state, is founded on incidents and characteristics arbitrary and restrictive, unreasonable and illusory. District Court Case, 34 Ohio St., 431, 441; Butzman v. Whitbeck, 42 Ohio St., 229, 223; Wasson et al. v. Commissioners, 28 W. L. Bull., 292, 293; Atkinson v. R. R. Co., 15 Ohio St., 21, 35; State
      v. Pugh, 43 Ohio St., 98, 112 ; State ex rel. v. Ellet, 47 Ohio St., 90, 94; Sutherland on Stat. Const., sections 127, 129; State ex rel. Harris v. Herrmann, 75 Mo., 340, 348; Scowden’s App:, 96 Pa. St., 422; Ayar’s Appeal, 122 Pa. St., 266, 280; State v. Ramsey, 51 N. W. Rep., 112; Randolph v. Wood, 49 N. J. R., 85, 88; Zeigler v. Gaddis, 44 N. J. L., 363, 365; Gibbs v. Morgan, 39 N. J. Eq., 124, 127; Hammer v. The state, 44 N. J. R., 667, 669; Costello v. The Village of Wyoming, 27 Bull., 147; 30 N. E. Rep., 613; 49 Ohio St., 242; Platt v. The Pennsylvania Co., 43 Ohio St., 228, 244; R. R. Co. v. Hine, Admix, 25 Ohio St., 629; Long v. Mulford, 17 Ohio St., 508; Montgomery v. Jones, 5 Ind„ 525, 526.
    V. The act in question, if valid, does not authorize the appropriation of a joint and equal use in the property.
    VI. The act in question, if valid, does not authorize the appropriating company to convert a horse railway into an electric road, or to make electrical and other connections and appliances to the horse railroad, to enable the appropriating company to propel its cars by means of electricity over existing tracks.
    These two questions may be most conveniently considered together. Malone v. Toledo, 34 Ohio St., 541, 546; Giesy v. R. R. Co., 4 Ohio St., 308, 328; R. R. Co. v. Holler, 7 Ohio St., 224, 225; Lewis on Em. Dom., Sec. 505; Hill v. R. R. Co., 7 N. Y., (3 Seld.), 152; In re Water Commrs., 96 N. Y., 351, 357; De Camp v. R. R. Co., 47 N. J. R„ 43, 50; R. R. Co. v. De Camp, 47 N. J. R., 518, 544; Lamb and McKee v. Lane, 4 Ohio St., 167, 175; Harbeck v. The City of Toledo, 11 Ohio St., 224; Watson v. Acquackanonck Water Co., 36 N. J. L., 195, 196; Currier v. Marietta & Cincinnati R. R. Co., 11 Ohio St., 228, 232; Miami Coal Co. v. Wigton, 19 Ohio St., 560, 561; Atkinson et al. v. The M. & C. R. R. Co., 15 Ohio St, 21; Platt v. The Penna. Co., 43 Ohio St., 228, 244; P., C. & St. L. R. R. Co. v. Hine, Adm'rx, 25 Ohio St. 629, 634; Moorhead et al. v. Little Miami R. R. Co., 17 Ohio, 340, 350; Endlich on Inter, of Stat., Secs. 22, 23; Rewis on Em. Dom., Sec., 254; 2 Dillon on Mun. Corp. (4th Ed.) Sec., 604; Cooley’s Con. Rim. pages 656 *530; Endlich on Int. of Stat., Sec. 354;
      R. R. Co. v. R. R. Co., 36 Ohio St., 239; Ry. Co. v. Ry. Co., 65 Tex, 502, 505; New York v. The Ry. Co., 50 Barb, 285, 287; Hickok et al. v. Hine, 28 Ohio St, 523; Hatch v. Cincinnati & Indiana R. R. Co., 18 Ohio St, 92, 119: Housatonic R. R. Co. v. Lee & Hudson R. R. Co., 118 Mass, 391, 392; Mobile & Girard R. R. Co. v. Ala. Midland Ry. Co., 87 Ala. 501, 506; Boston & Maine R. R. Co. v. Lowell & Lawrence R. R. Co., 124 Mass, 368, 372; State ex rel. v. Ry. Co., 37 Ohio St, 157, 176; Pennsylvania Company's Appeal, 115 Pa. St, 514; Cincinnati, Sandusky & Cleveland R. R. Co. v. The Village of Belle Centre, 48 Ohio St, 273; Suburban Transit Co. v. New York, 28 N. E. Rep, 525; 128 N. Y, 510; Miami R. R. v. Dayton, 23 Ohio St, 510; Boston, etc., v. R. R. Co., 23 Pick, 360, 393; Horse Ry. v. Horse Ry., 81 Ill., 523; City of Bridgport v. The N. Y. & N. H. R. R. Co., 36 Conn, 255; New Jersey Southern R. R. Co. v. The Long Branch Comm'rs, 39 N. J. L., 28; Milwaukee & St. Paul Ry. Co. v. The City of Faribault, 23 Minn, 167; St. Paul Union Depot Co. v. City of St. Paul, 30 Minn, 359, 362; Pros. Pk. & C. I. R. R. Co. v. Williamson et al., 91 N. Y, 552; The Mayor of Atlanta v. The Central R. R. Co., 53 Ga, 120; Matter of Petition, etc., 99 N. Y, 12, 13; Revised Statutes of Ohio, Secs, 3440, 3441,3442; Chaffer's Appeal, 56 Mich, 244.
    The act is void for want of uncertainty. The act is so indefinite and uncertain that adequate compensation can not be assessed. McArthur v. Kelly, 5 Ohio, 143; Foote v. Cincinnati, 11 Ohio, 411; Lamb & McKee v. Lane, 4 Ohio St, 167; Sharer v. Starrett, 4 Ohio St, 495; Hendershot v. State, 44 Ohio St, 208; Cent. O. R. R. v. Holler, 7 Ohio St, 225; Watson's Ex'r v. Pleasant Twp., 21 Ohio St, 667.
    Any interpretation of this statute violates the constitutional rights of the owning company. R. R. Co. v. Holler, 7 Ohio St, 224 225; Lewis on Em. Dom, Sec,263; Toledo, etc. R. R. Co. v. R. R. Co., 62 Mich, 564, 570.
    There is no warrant in the statute for appropriating the right to use street railway tracks jointly and equally. Joy v. St. Louis, 138 U. S, 45.

      Frank H. Hurd, John F. Kumler, Orrville S. Brumback, and E. D. Potter, Jr., for defendant in error.
    For convenience the Act of April 11, 1890, can very properly be divided into two parts designated respectively “a” and “b,” as follows: a. The part that constituted the section before the amendment of 1890. b. The part that was added by the amendment of 1890.
    We submit that counsel for plaintiff entirely misapprehended, the scope and terms of this statute. The portion designated “a” is not to be eliminated and disregarded; it is as much a part of the act, as the portion designated “b.” The whole statute must be considered. Patton v. Sheriff of Pickaway Co., 2 Ohio, 396, 398; Lessee of Allen v. Parish, 3 Ohio, 187,193 ; State of Ohio v. Blake, 2 Ohio St., 147, 152; Giesy v. Cincinnati, etc., R. R. Co., 4 Ohio St., 308; State v. Zanesville & Maysville Turnpike Co., 16 Ohio St., 308, 320 ; Medical College v. Zeigler, 17 Ohio St., 52, 65; State v. McGregor, 44 Ohio St., 628, 631.
    Portion “a” of the act delegating the soverign power of eminent domain, is of uniform operation throughout the State. Boley v. Insurance Co., 12 Ohio St., 139, 144; Dutoit v. Doyle, 16 Ohio St., 400, 405; State v. Commissioners, 36 Ohio St., 326; States. Vanderbilt, 37 Ohio St., 640; Allen v. Russell, 39 Ohio St., 337; State v. Aitditor, 43 Ohio St., 311, 315; State v. Stockley, 45 Ohio St., 308, 309; Heck v. State, 44 Ohio St., 537; United States v. Bowen, 100 U. S., 508; Griffen v. Brooks, 3 C. C. Rep., 114; State v. Brewster, 44 Ohio St., 249, 253.
    That the “ a ” portion of the act delegates sovereign power, would seem to have been the view of this court in the case of Kinsman St. R. R. Co. v. Broadway, etc., R. R. Co., 36 Ohio St., 239, 252.
    Such a right of eminent domain conferred upon street railroad companies, is not without precedent in other states, and under it the use of street railway tracks has been appropriated. Sixth Avenue R. R. Co. v. Kerr, 45 Barb., 138 S. C., 72 N. Y. 330; Metropolitan R. R. Co. v. Highland Street R. R. Co., 118 Mass., 290 ; Metropolitan R. R. Co. v. Quincy R. R. Co., 12 Allen, 202; Union Passenger Railway Co., v.
      Continental Ry., 11 Phila. Rep., 321; Jersey City & Bergen R. R. Co. v. Jersey City & Hoboken, 20 N. J. Eq., 61.
    Portion “ b ” of tbe act operates as a restriction upon tbe ■exercise of power delegated by portion “a” of the act.
    A determination that portion “a” of the act in controversy, confers the power of eminent domain for all the ■street railways in the state, substantially disposes of the •claims of plaintiffs that the act is unconstitutional because ■of being special and not of uniform operation in the state; and defendant is, and was, fully authorized to exercise the power of eminent domain ¡to obtain the use of existing ■street railway tracks in the city of Toledo, unless there is ■something in portion “ b ” of the act taking away the power from the defendant. Giesy v. Cincinnati, etc., R. R. Co., 4 Ohio St., 308, 320.
    If part “b” of the act is unconstitutional, it does not affect the other part. Cincinnati v. Bryson, 15 Ohio, 625 645 ; Exchange Bank v. Hines, 3 Ohio St., 1, 34; State v. Dombaugh, 20 Ohio St., 167; Railroad Company v. Commissioners, 31 Ohio St., 338, 344; Gibbons v.. Catholic Institute, 34 Ohio St., 289; Bowles v. State, 37 Ohio St., 35, 44; State v. Frame, 39 Ohio St., 411; People v. Briggs, 50 N. Y., 553; In re Middletown, 82 N. Y., 196.
    If the “b” portion of the act confers corporate power it is general and of uniform operation. State v. Pugh, 43 Ohio St., 98; State ex. rel. v. Hawkins, 44 Ohio St., 108; State v. Smith, 48 Ohio St., 211; State v. Ellet, 47 Ohio St., 90; Marmet v. State, 45 Ohio St., 66; State v. Anderson, 44 Ohio St., 247; Ohio v. Covington, 29 Ohio St., 110; McGill v. State, 34 Ohio St., 228; State v. Powers, 38 Ohio St., 54; Bronson v. Oberlin, 41 Ohio St., 476; State v. The Judges, 21 Ohio St., 11; State v. Hipp; 38 Ohio St., 199; State v. City of Toledo, 48 Ohio St., 112.
    A law applicable to all corporations of a certain kind in •cities of a certain class, is of uniform operation. Kinsman Street R. R. Co. v. Broadway, etc., R. R. Co., 36 Ohio St., 239, 250; Adolph v. Central Park, etc., R. R. Co., 76 N. Y., 530, 535; Middlesex R. R. Co. v. Wakefield, 103 Mass., 261; Jersey City and Bergen R. R. Co. v. Jersey City and

      Hoboken R. R. Co., 20 N. J. Eq., 61; Citizens’ Coach Co. v. Camden Horse R. R. Co., 33 N. J. Eq., 281; Shea v. Portrero and Bay View R. R. Co., 44 Cal. 414; Morawitz Priv. Corp., Sec. 445, note 1st Ed.; State v. Brewster, 39 Ohio St., 653; Giesy v. Cincinnati, etc., R. R. Co., 4 Ohio St., 308; 6 Am. & Eng. Ency. of Raw, 512 et seq.; Cooley’s Const. Rim., 524; State v. City of Toledo, 48 Ohio St., 112; Gordon v. State, 46 Ohio St., 628; Chicago, Burlington & Quincy R. R. Co. v. Cutts, 94 U. S., 155; State v. Butts, 31 Kan., 537; Sutherland on Stat. Const. Sec. 127; Appeal of Ayars, 122 Pa. St., 266; People v. New York Electric Lines Co., 107 N. Y., 593; In matter New York El. R. R. Co., 70 N. Y., 327; In matter of Church, 92 N. Y., 1; Skinner v. Collector, 42 N. J. R., 407; Hanlon v. Commissioners, 53 Ind., 123; State v. Reitz, 62 Ind., 159; Rutgers v. New Brunswick, 42 N. J. R., 51; Hart v. Murray, 26 Law Bul., 327; State v. Commissioners, 35 Ohio St., 458; State v. Judges, 21 Ohio St., 1; State v. Covington, 29 Ohio St., 102, 111; Cricket v. State, 18 Ohio St., 9, 22; McGill v. State, 34 Ohio St., 228, 270; Trustees v. Miner, 26 Ohio St., 452, 458; State ex rel. v. Shearer, 46 Ohio St., 275.
    The question of the power to exercise eminent domain over property already devoted to a public use is no new one in Ohio, and the rules applicable to such case are well settled and easily understood. Railroad Co. v. Village of Belle Center, 48 Ohio St., 273; Railway Co. v. Railway Co., 30 Ohio St., 604.
    Neither does the interference with the business of the old company cut any figure in the case. The senior company took its charter and rights subject to just such interference when the contingency became necessary, as is clearly laid down in the case above cited. Railway Co. v. Railway Co., 30 Ohio St., 623.
    The joint and equal use of the track is the property taken. Railroad Co. v. Village of Belle Centre, 48 Ohio St., 294; Lewis on Em. Dom., Secs. 278, 279, 280; Lockie v. Mutual Union Telegraph Co., 103 Ill., 401; Giesy v. Railroad Co., 4 Ohio St., 308.

      The terms of the act are as applicable to and include any person, persons or company who hereafter, at any time during the life of the act, obtain the right to build and operate a street railway, as they are to the tracks in existence' at the time the act is passed.
    The act of 1890 is not unconstitutional and void because of uncertainty. New York & Hudson River R. R. Co. v. Kip, 46 N. Y., 546; Sixth Avemie R. R. Co. v. Kerr, 72 N. Y., 330; Toledo & Wabash Ry. Co. v. Daniels, 16 Ohio St., 390; Omaha Horse Railway Co. v. Cable Tramway Co., 30 Fed. Rep., 327; Philadelphia Union Pass. Ry. Co. v. Phila., 101 U. S., 528; Philadelphia, etc., Passenger Ry. Co., Appeal, 102 Pa. St., 123; Little Miami Railroad Co. v. Dayton, 23 Ohio St., 510.
    The provisions of a statute ought to receive such reasonable construction, if the words and subject matter will admit of it, as that the existing rights of the public or of individuals be not infringed. Lessee of Moore v. Vance, 1 Ohio, 12; Ireland v. Turnpike Co., 19. Ohio St., 369; Burt v. Rattle, 31 OhioSt., 116; State v. Hamilton, 47 Ohio St., 86; McCormick v. Alexander, 2 Ohio, 65, 75; C., W. & Z. R. R. Co. v. Clinton County, 1 Ohio St., 77, 81; Goshen v. Purcell, 11 Ohio St., 641; State v. Cincinnati, 20 Ohio St., 18, 33; Gilpin v. Williams, 25 Ohio St., 283, 294; Western Union Telegraph Co. v. Mayor, 28 Ohio St., 521, 540; State v. Hipp, 38 Ohio St., 219.
   Williams, J.

The Toledo Consolidated Street Railway Company was incorporated in this state, in 1884, having authority to acquire, construct, and operate lines of street railway in the city of Toledo. There were then several street railwaj^ companies, each operating a railway by means of horse cars, in that city. They transferred their property and franchises to 'the above-named companjq •which obtained a grant from the common council to reconstruct and extend the tracks, and operate the railways, subject to the conditions in the ordinance, one of which was, that if the company should fail to comply with any of the provisions of the ordinances then or thereafter in force, prescribing regulations for the operation of street railways, the rights granted to the company should terminate.

The Toledo Electric Street Railway Company was incorporated in this state, in 1889, and obtained from the common council, by ordinance duly passed, a grant authorizing it to construct and maintain lines of electric railway in the city, including the right to use designated portions of the Consolidated Company’s tracks in certain streets, not exceeding in length one-eighth of the distance between the termini of the grantee’s route as constructed and operated. The two companies being unable to agree upon the terms, under which these tracks should be so used, or the compensation to be paid therefor, the defendant in error instituted proceedings in the probate court of Eucas county, to appropriate the tracks to its use in accordance with the grant made by the council, and for the assessment of the compensation due the plaintiff in error therefor. Another proceeding was also instituted in the probate court, by which, upon a similar state of facts, the appropriation, in like manner, of other portions of the Consolidated Company’s tracks was sought. The authority of the defendant in error to maintain such a proceeding was challenged in various ways, but the objections were not sustained. A jury was impaneled, the amount of the compensation assessed by it was paid into court, and, after the final judgment of the probate court in its favor, the defendant in error entered upon the use of the tracks. The judgment of the probate court having been affirmed by the court of common pleas, and that of the common pleas by the circuit court, error is prosecuted here.

An action to enjoin the prosecution of the two appropriation proceedings, and another, to restrain the execution of the judgments rendered therein, were commenced by the Consolidated Company, in the court of common pleas, and thence appealed to the circuit court, where they were decided adversly to the plaintiff, who thereupon brought the cases here on error. There has also been filed in this court a petition in Quo Warranto, on the relation' of the attorney-general, in which it is alleged, that doubts exist as to the right of the defendant to have or maintain the appropriation proceedings referred to, and it is asked to show by what warrant it has exercised those privileges and franchises. These cases were all argued and submitted together. The question raised by them, is whether the appropriation proceedings instituted in the probate court were authorized by law. The authority, if it exists, must be derived, as counsel concede, from sections 3438, and 3440, of the Revised Statutes. The latter section was amended April the 11th, 1890 (87 Ohio Raws, 178), and in its amended form is as follows:

“ Sec. 3440. When the council or commissioners make such grant, the company or person to whom the grant is made, may appropriate any property necessary therefor when the owner fails to expressly waive his claim to damages by reason of the construction and operation of the railway. And in any city of the third grade of the first class a?iy person, persons or coinpany which is authorized to constmct and operate, and has constructed and is operating a street railway, may appropriate any property necessary for the purpose of occupying and using under section 8Jf88 any existing street railway track or tracks subject to the limitation of said section and jor not more than one-eighth of the entire distance between the termini of the route as actually constructed, operated and run over, of the appropriating compa7iy or person-at the time appropriation proceedings are begun, such appropriation to be made in the mode and manner provided for the appropriation of property in part third, title 2, chapter 8, of the Revised Statutes

The provisions printed in italics constitute the amendment made by the act of April 11, 1890, which took effect previous to the commencement of the proceedings in the probate court. The other part of the section has been in force since the revision of the statutes, of 1880.

The arguments of counsel for the plaintiff in error are directed mainly to the proposition, that the addition made to the section by the amendatory act is unconstitutional; being, they contend, in conflict with section 1, of article 13, of the constitution, which prohibits the conferring of corporate power by special act, and with section 26, of article 2, which requires that laws of a general nature shall have uniform operation throughout the state, and also, with section 19, of article 1, which guarantees the inviolability of private property except for the public use. On the other hand, counsel for the defendant in error maintain that the amendment is obnoxious to neither of the constitutional provisions referred to, and, furthermore, if it should be held to be, authority is nevertheless found in the original section, without the aid of the amendment, for the appropriation proceedings which the defendant in error prosecuted in the probate court; and whether or not such authority is so conferred, is the first inquiry demanding consideration. That the provisions of the original section are so distinct and separable from those of the amendment, that the former, being constitutional may stand, though the latter be unconstitutional, is not questioned; nor, is it claimed that the former are in controvention of the constitution; so that, the real question here presented is, whether the provisions of the original section authorize one street railway company to appropriate to its use the tracks of another company, subject to the restrictions contained in section 3438, of the Revised Statutes. In arriving at a decision of the question it becomes necessary to consider the two sections together.

By the first clause of section 3438, the power is conferred, in general terms; on the councils of municipal corporations, to grant, by ordinance, to street railway companies, the right to construct their railwaj^s within, and bejmnd, the limits of the municipality. The proviso contained in the section places a limitation upon the exercise of the power, to the effect that authority shall not be granted “to occupy the track, whether single or double, or other structure, of any existing street railway for more than one-eighth of the entire distance between the termini of the route” of the company to which the grant is made. The power of the municipal authorities, within the limitations imposed by the proviso, to grant to a street railway company the right to occupy the tracks or other structures of a street railway existing in the municipality at the time of the grant, cannot be doubted. But such grant does not, of itself, confer upon the grantee the right to enter upon the occupancy of the tracks or structures. The owning company has a private property in them and their use, though devoted to a public purpose, of which it cannot be deprived without its consent, except by an authorized appropriation in which it is entitled to have compensation therefor assessed by a jury. So that, to make effective the grant of the municipal authorities to one company to occupy the tracks or structures of another, it becomes necessary to obtain the consent of, or waiver of damages by, the owner; or, if that cannot be done, then to appropriate the tracks or structures to such use by judicial proceedings, in which compensation may be assessed. Railroad Co. v. Railroad Co., 36 Ohio St.. 239. By the terms of the original section 3440, the company “ to whom the grant is- made may appropriate any property necessary therefor, when the owner fails to expressly waive his claim to damages by reason of the construction and operation of the railway.” The authority of the company to appropriate, appears to be as comprehensive as the authority of the municipality to make the grant, and includes the right to appropriate any property, of whatever nature, necessary to render the grant effective. Section 3438, was in force with section 3440, before the passage of the amendatory act of 1890; and unless the right granted under the former section to one street railway company to use the existing tracks and structures of another company could be enforced by appropriation proceedings, the power to máke the grant would be futile, for it could, in every instance, be defeated by the refusal of the owner to consent to such use, or come to an agreement concerning the damages;, a result evidently not intended by the legislature. The terms of the statute prior to the amendment are broad enough to authorize the appropriation sought by the defendant in error, and it is not apparent why their general purport should be restrained. The context does not require it. True, the section prescribes no method of procedure for the accomplishment of the appropriation, nor expressly refers to any; but there can be no objection to conducting the proceeding, as was done in these cases, under chapter 8 of title 2 of part third, of the Revised Statutes, That chapter, which provides the mode of procedure for the appropriation of private property by corporations, is part of the general system of laws enacted in the Revision of 1880, of which original section 3440, is also a part. The first section of the chapter, section 6414, provides, that “appropriations of private property by corporations must be made according to the provisions of this chapter.” The chapter is as applicable to appropriations under section 3440, as if made so by express reference to it in the section.

This view of the cases renders it unnecessary to pass upon the constitutional^ of the provisions added to the section by the amendatory act of 1890. If unconstitutional, they were not essential to the validity of the proceedings below; and if constitutional, the proceedings were in conformity with them.

It is further claimed b3r the plaintiff in error, that the appropriation was unwarranted because it practically defeated the public use to which the property appropriated was already devoted. If that was the effect of the appropriation, it is clear it could not be made, unless the power to make it was granted'expressly, or by necessary implication. Railroad Company v. Belle Center, 48 Ohio St., 273. But, as has been shown, the power to make the appropriation was so granted. Besides, our legislation clearly contemplates that two street railways may be operated in the same municipal corporation at the same time, and in part, over the same tracks; and also, that such use may not only be practicable, but entirely consistent with the purpose for which the tracks were originally constructed, and the right to construct them obtained; and we see no reason why it may not. The ground upon which such railways are permitted to occupy the public streets is, that they facilitate the legitimate uses of the streets by the public; and the common use of a track by two companies, in certain streets, rather than the use of separate tracks by them, may materially promote the convenience and enhance the safety of the public in the use of streets. Municipal authorities are, as we have seen, clothed with power to grant the right to make such common use of the tracks of a street railway by two companies, to a limited extent. And though the use by the owner company may be less convenient than before, and require greater care, and the inconvenience and care be increased when the companies employ different agencies and appliances for propelling their cars, that falls short of rendering the common use wholly inconsistent with the purposes of the original appropriation of the owning company, or of exclusion from its franchise, or property in the tracks, or of superseding or destroying the public use in which they were employed. For the injury done, compensation must be made; and the inconvenience, as in many like cases, must be borne for the public good. Ample power is vested in the common council of Toledo to prescribe by ordinance, from time to time, such reasonable regulations for the use, by the companies, of the tracks appropriated in the cases below, as may be necessary for the protection of both companies, and the public. The power reserved in the ordinance by which the plaintiff in error obtained its grant, is adequate for that purpose; and if the council fail to make such regulations, the rights of the parties may be enforced in the courts.

■ Other matters discussed have received our consideration, but need not be further noticed in the report.

After these cases were decided, the decision announced, and-the opinion prepared, it was suggested that a question in regard to the measure of the compensation involved in the appropriation cases had not been argued, and opportunity to argue the same requested, which the court has concluded to allow.

The judgments in the injunction cases are affirmed. In the Quo Warranto case, judgment will be entered for the defendant. And final judgment in the appropriation cases will be deferred until the question respecting the amount of compensation shall be disposed of.

Judgment accordingly.


author: Minsharr, J.

text:
    DeCamp v. Archibald.

      Notary Public—Power of to picnish contumacious witness— Depositions.

    1. The power of a notary public iu taking depositions to punish a contumacious witness, is not limited by section 119, Revised Statutes, to the powers in that regard conferred on justices of the peace by sections 6541 and 6542, Revised Statutes. By being included in section 5269, Revised Statutes, he has the further power of imprisoning for contempt, .conferred on “an officer” taking depositions, by sections 5252 and 5254, Revised Statutes.
    2. The power conferred by sections 5252 and 5254, Revised Statutes, on a notary, or other officer, in taking depositions, to commit a witness to the jail of the county for refusing to answer a question, is not judicial in the sense of. the constitution, conferring all judicial power upon the courts of the state.
    3. Where the question propounded involves no question of privilege on the part of the witness, it is his duty to answer, if ordered bj' the notary to do so. The question of its competency is a matter for the determination of the court on the trial of the action in which the evidence is taken ; and if he refuses to do so, when ordered, he may be committed as a contumacious witness.
    (Decided December 5, 1893.)
    Error to the Circuit Court of Hamilton county.

      Harmon, Colston, Goldsmith Cf Hoadly, and Follelt & Kelley, for plaintiff in error.
    1. The provisions of sections 6541, and 6542 are the provisions vesting in justic.es of the peace power to compel attendance of witnesses and to punish them for refusing to testify, and it cannot be doubted that those are the sections referred to by section 119 in the Revised Statutes of Ohio.

      The authority sought to be exercised by the notary in this case is attempted to be rested on sections 5252, 5253 and 5254 of the Revised Statutes of Ohio; but it will be noted that those sections are not necessarily contradictory of the sections before cited. The sections cited must be read so that all of them shall have force, if possible, and therefore the authority given by section 5252, and the following sections, should not be interpreted so as to cover every officer named in section 5269, before whom a deposition may be taken. But where, as in case of a notary public, by section 119, the power is expressly limited to that given by law to justices of the peace, the power that is given by section 5252, and the following sections, must be construed so as to include, all the officers before whom depositions may be taken by section 5269, with the exception of notaries public. It is too familiar law to require the citation of authorities, that all parts of the Revised Statutes must be so construed that they shall have equal force.
    II. A notary public, as appears from the sections creating the office and authorizing the appointment of notaries (sections 110 to 123 inclusive, Revised Statutes), isa ministerial officer, appointed by the governor and removed by the governor in the manner provided in section 110. That the legislature could not constitutionally vest such an officer with judicial power, is plain from section 10, article IV, of the constitution, and it only remains to be determined whether the power here attempted to be exercised is a judicial power.
    It is not necessary for us to go at length through the history of the power to commit and punish for contempt. This power has recently undergone a careful examination at the hands of the Supreme Court of the United States, in the case of Kilbourn v. Thompson, 103 U. S., 168.

      Bateman & Harper, for defendant in error.
    The provisions as to the power of the notary, contained in section 119, first appeared in the legislation of this state in the act of April 2, 1852, section 6, (3d Curwen, 1752). The power granted to the notary in sections 5252-4 of the Revised Statutes was adopted in the code March 11, 1853 (3d Curwen, 1988), from the act of March 3, 1831, sections 7 and 8 (3d Chase, 1721), but was put into its present form by the act establishing the civil code, less than a year after section 119 was adopted, so that both provisions were substantially contemporaneous as a part of the general legislation, revising the civil practice and the powers of officers connected with the administration of justice.
    Why the additional powers may have been granted to notaries and other officers taking depositions, under the code, is clear. The provisions in the code applied to the proceedings in the higher courts, exclusive of those before a justice, and were intended to make the punishment of contumacious witnesses, called to testify in proceedings in such courts, before all officers, uniform, and as tribunals of more dignity than that of a justice of the peace, or other inferior courts, whose practice was not regulated by the code, greater power of punishment was given.
    And, by way of providing proper care against the abuse of such power by other than the courts themselves, section 5255 gives to the courts an ample and complete supervision over the proceedings of the officers in the exercise of this power of punishment.
    But it is claimed that sections 5252-4, as applied and intended to grant to notaries the power to punish, are in violation of article 4, section 1, of the Constitution. This assumes that the term “judicial power” embraces all discretionary and judicial functions, or functions in aid of the exercise of judicial power by the courts. This can not be the meaning intended by this provision of the constitution. It must be construed in view of the whole practice, and recognized constitutional order of our civil society, previous to the time of the adoption of the constitution and continued since under it. There are a multitude of functions, in their nature judicial, performed by officers other than courts, that have always been upheld under the laws and practices of this State.
    It is said thát the notary is not an officer of the court. Technically, he is not; but the law authorizes his use in its service, and, when performing such service, he is a subordinate of the court in the exercise of the powers in question, subject to its supervision. His proceedings and orders maybe summarily, on application of the witness, or of the parties, suspended or set aside. Such are the provisions of section 5255. Ex parte Woodworth, 29 Law Bull., 315; Shaw v. Ohio Edison Installation Co., 17 Law Bull., 274; State ex rel. v. George T. Cost, 22 Raw Bull., 250; Ex parte Mushuler, 3 Law Bull., 739; Ex parte Langford, 15 Law Bull., 267; In re Elias (Sims,) 4 Law Bull., 457; Proffatt on Notaries, p. 31; In re Abeles, 12 Kan., 451; Ex parte Priest, 76 Mo., 229; Ex parte McKee, 8 Mo., 599; 76 Md., 229; Dogge v. State, 21 Neb., 272; Session v. Irwin, 8 Neb., 5; Ex parte Zeehandelaar, 71 Cal., 238.
   Minsharr, J.

The object of this proceeding is to reverse an order of the court of common pleas of Hamilton county, affirmed by the circuit court, remanding the plaintiff in error to the custody of the sheriff of the county, in a proceeding in habeas corpus, the return of the sheriff showing that the party had been committed to the jail of the county by a notary public for refusing to answer certain questions propounded to him, his deposition being taken at the time before the notary to be used as evidence in an action then pending in the Superior Court of Cincinnati; the suit being that of Charles A. Costello v. The Post Publishing Co., for an alleged libel published in the paper of the defendant, called “The Cincinnati Post.” The plaintiff in error, Joseph M. DeCamp, having been called as a witness by the defendant, was asked, among other questions, the following: “You have stated that you prepared the substance of the article published in the Miami Valley News and employed somebody else or got somebody else, to assist you in putting it into shape. I will ask you who that person was ?” After an exception to the question by the plaintiff as incompetent' and irrelevant, the witness answered, “Well, it was not Mr. Costello.” To which the counsel for the defendant said, “That does not answer the question. I did not ask you who it was not, but who it was.” To this the witness answered, "Well, I have stated several times that Mr. Costello had noting to do with that article.” He was then asked if he refused to answer the question, and he answered that he did. Thereupon counsel for defendant said: “I shall ask the notary to order you to answer the question and I state that the article from which the matter complained of in the petition in this case was taken, referred to the article mentioned in the question in The Miami Valley News as the occasion for writing it, and charged Mr. Costello with having procured the article to be published. And we expect to show that the person who prepared the article, or assisted Mr. Costello in preparing it, was Otto Reich; that Otto Reich did prepare it, caused it to be typewritten and put in shape for publication, with the knowledge and in consultation with Mr. Costello; that the article itself was scurrilous, indecent and scandalous, and was the provocation for writing and publishing the article which is complained of in the plaintiff's petition. And therefore we desire the evidence for the purpose of proving, or aiding in the proof of, the above facts.”

He was then ordered by the notary to answer the question, but refused to do so.

Counsel for the defendant then stated that, before asking the commitment of the witness for his refusal to answer the above question, there were some other questions he wished to ask him. He then said, “You have stated that 300 copies or thereabouts of the article were sent to your house on Saturday, and on Saturday night distributed partly by the aid of persons you had requested to assist you in doing it. I ask you to state who these persons were?” The witness stated that Mr. Costello was not one of them, but refused to answer who they were. Counsel for the defendant then stated: “We shall offer testimony at the trial to show that the publication and distribution was made with the knowledge of, and in consultation with, the plaintiff in this action, and that the circumstances of such distribution to the families of Wyoming, including the family of the author of this article, constituted the provocation for the writing of the article complained of, which refers to the article in The Miami Valley News and the manner of its distribution, as being in part an act of Mr. Costello. I shall therefore ask that the witness be compelled to answer the question, and I shall object to any statement of the witness as testimony being made until this question is answered.” The notary then ordered the witness to answer the question, and he still refused. At the conclusion of the examination, the notary adjudged the witness guilty of contempt in refusing to answer the above questions, and committed him to the jail of the count}' there to remain until he should testify as ordered.

It is claimed that the court erred in remanding the party on these grounds: (1), that no power is conferred on a notary by the statutes of Ohio, in taking a deposition, to commit a witness to jail for refusing to answer a question;' or, if this be not so, then, (2), such power being judicial in character cannot be conferred on a notary; and (3), the questions propounded the witness were incompetent and irrelevant, and furnished no ground for a commitment.

As to the first question, is such power conferred on a notary public by the statutes of the state. It is claimed that the only power possessed by a notary in such matters, is that conferred by section 119 Revised Statutes, giving to him the same power, in taking depositions, to punish a witness for refusing to testify, that is conferred on a justice of the peace; which power is conferred by sections 6541 and 6542 Revised Statutes. These sections empower a justice of the peace to impose a fine of five dollars upon a witness who refuses to testify before him in any matter in which he has power to require such witness to appear and testify. The power to imprison or to impose a greater fine than five dollars, is not conferred by these sections. If this were the' limit of the power conferred by statute, upon an officer in taking depositions, to deal with a contumacious witness, the argument would be conclusive. But we do not think so. The mode of taking testimony by depositions is provided for !n the part of our Revised Statutes, relating to civil procedure. Section 5269, designates the officers before whom evidence in this form may be taken, and includes “a notary public.” Section 5252 provides, among other things, that “a refusal to answer as a witness, when lawfully ordered, may be punished as a contempt of the court or officer by whom-the attendance or testimony of the witness is required;” and section 5254 provides that “The punishment for the contempt mentioned in section 5252, shall be as follows: When the witness fails to attend in obedience to the subpoena, the court or officer may fine him in a sum not exceeding fifty dollars; in other cases the court or officer may fine the witness in a sum not exceeding fifty nor less than five dollars, or may imprison him in the county jail, there to remain until he submits to be sworn, testifies, or gives his deposition.” It is plain that by these sections a notary, as any other officer, empowered to take depositions, may imprison a witness in the jail of the county for a refusal to testify before him, when required to do so, and the imprisonment may be until he consents to do so; and this is not inconsistent with the power conferred on him by section 119, Revised Statutes. This section does not. purport to limit the powers of a notary public to those of a justice of the peace in matters of contempt, and is entirely consistent with a statute that confers on him other and greater powers in such matters, as is done 'by the section above referred to.

The fact that this construction seems to render the provision as to notaries, contained in section 119, unnecessary, is of no consequence, when we consider how the statutes of the state have been built up by the annual labors of the legislature, through a long series of years; and, so long as consistency is preserved by the legislature in making amendments to the laws, redundancy is a matter of -no-great moment.

It is next maintained that the imprisonment of a witness for refusing to answer a question, cannot be conferred on a notary, to be exercised in taking a deposition, because such power is,judicial in character, and is conferred by the -constitution upon the courts of the state. Article 4, section 1.

It is a rule of general application that words used in a constitution are to be interpreted with reference to the usages and customs of the country at the time of its adoption. It will be presumed to have been adopted by the people with the understanding of its terms derived from such sources. Thus it is said, by White, J., in State ex rel. v. Harmon, 31 Ohio St., 250, that, “What constitutes judicial power, within the meaning of the constitution, is to be determined in the light of the common law and of the history of our institutions as they existed anterior to and at the time of the adoption of the constitution.” And so, in Merrell v. Sherburne, 1 N. H., 199, Woodbury, J., speaking of the constitution of his own state, says: “No particular definition of judicial power is given’in the constitution; and considering the general nature of the instrument, none was to be expected. Critical statements of the meanings, in which all important words were employed, would have swollen into volumes; and when those words possessed a customary signification, a definition of them would have been useless.”

The term “judicial power” as used in the constitution is not capable of a precise definition. It is included in the power to hear and determine, but does not exhaust the power. That it embraces the hearing and determination of all suits and actions, whether public or private, there can be no doubt. But we think that it is equally clear that it does not necessarily include the power to hear and determine a matter, that is not in the nature of a suit or action between parties. Power to hear and determine matters more or less directly affecting public and private rights, is conferred upon and exercised by administrative and executive officers. But this has not been held to affect the validity of statutes by which such powers are conferred. State ex rel. v. Hawkins, 44 Ohio St., 98-109. The term “judicial power” has never been taken with such latitude of construction in the usages and customs of our American commonwealths ; and to so extend the jurisdiction of the courts would lead to the most embarrassing results with little or no compensation whatever. The taking of depositions is not only a very ancient, but, in many instances, pecessary method of obtaining evidence to be used in the trial of a cause. Without such means of obtaining evidence justice could not in many cases be done, as the attendance of the witness at the trial could not be secured; and, if the witness cannot be compelled by the officer taking the deposition to answer a proper question, the rights of a party might be sacrificed to the perversity of the witness. In states where, as in our own, the power is conferred by statute, it has frequently been exercised- by notaries and sustained by the courts. Dogge v. State, 21 Neb., 273, 278; In re Abeles, 12 Kan., 451; Ex parte McKee, 18 Mo., 599; Proffatt on Notaries, § 89; Giauque on Notaries, § 146,

The case of Kilbourn v. Thompson, 103 U. S., 168, is relied on by the plaintiff in error, but is not, as we think, in point. The case does not deny to either house of Congress the power to punish a witness for contempt, where the matter that is the subject of inquiry is within its jurisdiction. It is only when it it has no jurisdiction that the power is denied;- and, the matter then being inquired into, the indebtedness of Jay Cook & Co., being, as held by the court, within the jurisdiction of the courts of the United States, and not in that of congress, the commitment of Kilbourn for refusing to answer a question put to him by a committee of the house of representatives, touching that indebtedness, was held illegal.

This seems the first time the question has been presented to this court, though the statute conferring the power is of long standing. Any abuse is carefully guarded against, by the power given any judge by § 5255, Revised Statutes, on application of the witness, to discharge him if he find the imprisonment to be illegal.

Finally it is claimed that the questions put to the plaintiff in error as a witness, were incompetent, and, therefore, the commitment was illegal. It might be a sufficient answer to this to say that neither of the questions involved any question of privilege on the part of the witness, and no such privilege was claimed as an excuse for not answering; and it seems well settled that, whether the questions are in other respects competent, is a matter for the determination of the court on the trial of the action in which the depositions are being taken. Ex parte McKee, 18 Mo., 599; People v. Sheriff, 7 Abb. (N. Y.) Pr., 96; The People v. Cassels, 5 Hill, 164; Bradley v. Veazie, 47 Maine, 85; Rapalje on Contempts, sections 66, 69, 70; Proffatt on Notaries, 202.

Here, however, the evidence sought by the questions seems to have been entirely competent. The action being for a libel, the defendant had the right, in mitigation of damages, to show provocation. He had the right to show a prior publication by the plaintiff of a provoking character, or that the plaintiff had been instrumental in the distribution of such a publication. This seems to be unquestioned law. Townshend, Slander and Eibel, section 414. “For the law makes .allowances for the infirmities of human nature and for what is done in the heat of passion, produced by the improper conduct of the adverse party.” Newell on Defamation, 519. The object of the questions that the witness refused to answer was, as appears from the statement of counsel, to show that the plaintiff in the action had assisted in the publication and distribution of a scurrilous, indecent and scandalous article in The Miami Valley News, and which provoked the publication complained of. It is true that the witness stated that Mr. Costello had nothing to do with it. This may have been true to the best of his knowledge, but may not have been true in fact. An answer to the questions would not therefore necessarily have tended to impeach him. The person who assisted the witness may have been instigated by Mr. Costello. The defendant had, therefore, the right to know who assisted the witness in the publication and distribution of the article in The Miami Valley News, as such information might have enabled him to connect the plaintiff with the publication and distribution of the article in that paper. Hence, both questions were competent, and should have been answered.

ffidgment affitmed.