author: Johnson, J.

text:
    Tabitha R. Hume v. W. A. Dixon.
    1. As between persons having equitable interests, if1 their equities are in all other respects equal, the oldest in point of time will prevail, but this rule does not apply when the junior equity is superior in merit.
    S. K., having the legal title to land subject to a vendor’s lieu in favor of D., sold and undertook to convey the same to H., for a valuable consideration, but the deed was defective as-a conveyance of the legal title, because the officer taking the acknowledgment omitted to subscribe the same. The court, on the sole ground that the vendor’s lien was the elder equity, gave it the preference. Held, error.

      3 If, under all the circumstances of the case, the equity of H., acquired by his purchase, and by the defectively-executed conveyance, is superior in merit to that of the vendor’s lien, it should have priority.
    Error to tlie District Court of Adams County.
    The facts necessary to an understanding of the points considered by the court are found in the opinion.

      John G. Marshall and C. C. W. Naylor, for plaintiff in error.

      G. W. Harding and J. M. Wells, for defendant in error.
   Johnson, J.

The plaintiff below, Dixon, sought to enforce a vendor’s lien against Kirkpatrick, Ms vendee, and against Mrs. Hume, who purchased the land of Kirkpatrick.

In 1874, Dixon sold and conveyed 'the land in fee to Kirkpatrick, receiving in payment part cash, and the balance in a note due in three years, with no security other than the vendor’s lien. Before the maturity of this note, Kirkpatrick sold the land to Mrs. Hume for a valuable consideration, paid and agreed to be paid, and undertook to convey the same to her; but the deed failed to convey the legal title, for the reason that the officer who took the acknowledgment of the deed forgot to sign his name thereto. This omission was not discovered, as it seems, until this action was pending to enforce Dixon’s lien, when the officer, at the request of the attorney for Mrs. Hume,, signed his-name to the acknowledgment, and thus perfected the execution of the deed, as was originally intended by the contract of purchase.

Dixon asserts the priority of his lien over the title-acquired by Mrs. Hume, on two grounds:

He charges that she was not a bona fide purchaser -for value, and had not acquired a meritorious equity in the land.

But if she were such purchaser, she only acquired an1 equitable title, owing to the defect in the deed to her, and that the rule is, as between equities in land, that the. first in time will prevail.

Without passing upon the first point, the district court adopted this rule, and held that, as the vendor’s lien was the I oldest equity, it must be regarded, for that reason only, superior, without regard to its relative merit.

That the failure of the officer to subscribe his name to the acknowledgment of the deed defeated the manifest intention of the parties, is clear from the statement of the case. That this defective deed only vested in Mrs. Hume an equitable interest in the land, with the right to have the defect cured, is equally clear. In such a case, where there is an equity in favor of the vendor to enforce his lien, and one in favor of the purchaser to have a deed in fee in pursuance of a contract of purchase, what is the principle that should guide a court of equity' in determining their priority ?

The defendant in error relies on the case of Hout v. Hout, 20 Ohio St. 119, to support the judgment of the district court.

In that case the vendee claimed under a deed of gift, based upon a meritorious consideration only, being love and affection, but the deed failed to convey the legal title, by the omission of the officer, as in the case at bar, to sign the acknowledgment.

A son of the grantor, for whom no provision was made, claimed a share in the land as his heir, while the grantees claimed an equity, by virtue of this defective deed, superior to the right of the son by inheritance. In the opinion it was assumed, that if the grantees had paid a valuable consideration, their equity would have been superior to the title by descent; but it was held, that the right of the heir, for whom no provision had been made by the father, was, at least, equal to that of the grantees under this deed of gift, and that, as against him and in favor of voluntary grantees, equity would not interfere.

The authority of the court, under section 28 of article 2 of the constitution, to cure such defects, upon such terms as will be just and equitable, is in the exercise of its equity powers.

Without the authority of the court, the equities of the vendor, whatever they were, could not be prejudiced by th.e act of the officer in signing this deed pending this litigation.

If his equity was superior to that of Mrs. Hume, under her contract of purchase, and defective deed, it has not been defeated by the correction made since this suit was commenced.

Who has the superior equity, is a question addressed to the court, to be determined by the ordinary principles of equity jurisprudence, under all the circumstances of the case.

Where the equities are equal, the rule of law is adopted that the oldest in point of time will prevail; but it is a mistake to suppose that the age of an equity is of material significance when the relative character of equities are otherwise not equally meritorious. It is only where, all things considered, the conflicting equities are equally meritorious in quality, that the element of time becomes material.

Anketel v. Converse, 17 Ohio St. 11, much relied on to support this judgment, is in harmony with this principle. There the court examined the relative rights of a vendor for a purchase-money lien, and of a purchaser from the vendee, who had paid part of the purchase-money, under a contract of purchase.

It was said the equity of the vendor rested upon an implied trust that the vendee would hold the legal title in trust, to secure the unpaid purchase-money, and that of the purchaser, on a like trust that the vendee would hold the legal title in trust to be transferred to him, when, by the terms of the contract of purchase, he was entitled to receive it. It was said the vendee held it in trust for the vendor for the purchase-money due, while for the purchaser he held it for the money paid on the contract of purchase. The vendor trusted the vendee, that he would hold the legal title as security for the unpaid purchase-money, while the purchaser from the vendee, under a contract to convey in the future., trusted him to convey the legal title when he was entitled to receive it.

The reasoning of the court in that case was that the equities of the parties were of the same nature and dignity, and, being equally meritorious, the elder in time would prevail.

In such a case, equity adopts the maxim, cpd prior est tempore potior est jure.

But that case distinctly asserts the principle that a vendor’s lien does not prevail against equities superior in merit though later in date.

Whether the conclusion reached upon the facts in that case is in harmony with this principle, we are not now called on to determine.

Rice v. Rice, 2 Drewrey, 73, is perhaps the leading case! upon this point. It was there held that an equitable mortgage, created by a deposit of title deeds, created a better equity than a prior vendor’s lien.

V. C. Kindersley, in delivering the opinion, criticises with great acuteness the loose expressions of the rule sometimes used, and reaches this conclusion, that, As between persons having only equitable interests, if their equities are in all other respects equal, priority of time gives the better equity.”

He says that the true meaning of this rule is that time, as a ground of priority, is to be last resorted to as between equities, and that a court of equity will not prefer one to another, on the mere ground of time, until it has been found, by an examination, that there is no other sufficient ground of preference, and if one has on other grounds a better equity than the other, time is immaterial. In examining the relative merits of opposing equities, no technical rule, nor one of partial application, should be applied; but the same broad principles of right and justice, peculiar to courts of equity, should guide the chancellor.'

It was said in that case, as it can be in the one at bar, that the vendor had voluntarily armed the vendee with the means of dealing with the estate as his own, and that if any wrong comes to him by reason of his breach .of trust, it is the result of his own imprudence.

Here Dixon voluntarily placed in the hands of Kirkpatrick the legal title. He clothed him with the power of sale. He was in a degree accessory to the act of selling to Mrs. Hume Instead of taking a mortgage and placing his lien upon record, so that all might know of it, it was kept secret.

Chief-Justice Marshall, with clear and concise language, thus characterizes a vendor’s lien with reference to its méritorious nature: “ To the world the vendee appears to hold the estate divested of any trust whatever; and credit is given to him in the confidence that the property is his own in equity as ..well as at law. A vendor relying upon this lien ought to reduce it to a mortgage, so as to give notice of it to the world. . If he does not, he is in some degree accessory to the fraud com-¡ mitted on the public by an act which exhibits the vendee as the complete owner of an estate on which he claims a secret lien. * * The lien of the vendor, if in the nature of a trust, is a secret trust; and although to be preferred to any subsequent equal equity, unconnected with a legal advantage, or equitable advantage, which gives a superior claim to the legal estate, will be postponed to a subsequent better equity.”

In Sugden on Yendors (682) eh. xix., § 32, the learned author says, text writers generally quote the rule that, as between persons having equitable interests, the first in time prevails; but says that the'rule is more accurately stated in the quotation we have made from Rice v. Rice, supra.

In Adams on Equity (148,160), it is said the rule qui potior in- tempore has no application if one is superior to the other.

If there be no legal right in either party, the court of chancery cannot be neutral, for it is the only tribunal competent to take cognizance of the dispute. In this ease it acts in analogy to the law, and gives priority to that title which most nearly approximates a legal title ” (160).

The conduct of Dixon in placing in the hands of his vendee the muniments of title, reserving to himself a secret lien for the unpaid purchase-money, is not in keeping with the intention of our recording acts, and as between him and one who has acted upon the faith that the vendee is the equitable as well as the legal owner, and has thus been induced to part with his money, the equities are not of equal merit.

Mrs. Hume’s purchase reposed no trust in Kirkpatrick. She was to have a conveyance in fee at the time. This intention' was defeated by the forgetfulness of the officer and by no fault of hers. Unlike the purchasers by contract in the Anketel case, she did not trust her vendor that he would hold the legal title for her.

In view of these principles, and assuming that Mrs. Hume was a purchaser in good faith, we think the district court erred in holding that the vendor’s lien was superior to the ¡equity of Mrs. Hume, solely because it was older in point of time. The court should have taken into consideration all the circumstances, and determined which was the better equity. If upon such examination, the equity of Mrs. Hume, acquired by her purchase and defectively acknowledged deed, was superior in merit to that of the vendor, it should prevail, though junior in date ; but if inferior in merit, or if upon the whole case they are found to be of equal merit, then the elder should have the preference.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: White, J.

license: Public Domain

text:
    Joseph Bernier v. William Becker.
    Section 16 of tke act of March 13, 1858, concerning notaries public, which ' declares that an act done by a notary public after the expiration of his term of office shall be valid, is not retroactive. Hence, an unauthorized acknowledgment of a deed taken before the act was passed, is not cured by it.
    Error to the Superior Court of Cincinnati.
    The original action was brought by the plaintiff in error against the defendant in error for the specific performance of an agreement for the sale and conveyance of certain real estate. The defense was that the defendant’s title was defective in this: that a deed, through which plaintiff claimed' title, made by Eliza Smith (who owned the property in her own right), and Samuel H. Smith, her husband, to Margaret Buxton, was acknowledged before one Charles Ililtz, on October 25, 1850, who certified himself to be a notary public at that time, but who, in fact, was not such notary.
    Hiltz was commissioned a notary public on December 2, 1852, under the act of April 2, 1852, 3 Curwin’s Stats. 1751. His term of office under the act was three years; and the acknowledgment of the deed in question was taken more than ten months after his commission expired. There was no evidence of his having assumed to act as a notary public after his termed expired, except in taking the acknowledgment in question ; nor was there any other evidence of his being recognized as such notary.
    On this state of facts the court found that the conveyance from Smith and wife to Buxton was defective, and refused to require the defendant to specifically perform the agreement.
    The petition of the plaintiff was accordingly dismissed. On error, the court in general term affirmed the judgment of dismissal. To reverse these judgments is the object of the present petition in error.

      Fox & Bird, for plaintiff in error.

      John R. Von Seggern, for defendant in error.
   White, J.

It is not claimed that the acknowledgment can be supported on the ground that Hiltz, at the time it was taken and certified, was an officer defaoto. No such color of authority is shown in the record as is required to constitute such an officer. Exp. Strang, 21 Ohio St. 610, 617.

The deed of Smith and wife to Buxton of October, 1856, was inoperative as a conveyance for want of an acknowledgment as required by the statute. The supposed acknowledgment was invalid because not taken befoi’e a competent officer. The commission of Hiltz as a notary public had expired more than ten months before he assumed to take the acknowledgment. lie was not, therefore, an officer dejivre, nor, as before remarked, was he an officer de fasto.

The defect could doubtless have been relieved against, although the deed was intended to convey the estate of the wife, under ihe act of April 17, 1857, amending the,act to give' additional security to land titles. 1 S. & C. 694. But neither the vendor nor those under -whom he claimed took any steps to cure the defect; and he had no right to ask this burden to be cast upon his vendee.

The plaintiff in error relies on section 16 of the act of March 13, 1858, concerning notaries public. 1 S. & C. 872; 4 Cur-win, 3030.

That act repeals the act of April 2, 1852, under which Hiltz was appointed. Section 16 is as follows:

“Any act done by a notary public subsequently to the expi- ■ ration of his term of office shall be as valid as if done during his term of office.”

, Section 17 provides that, “ Any person appointed a notary public who shall do or perform any act as a notary public after the expiration of his term of office, knowing that his term of office has expired, shall be fined in any sum not exceeding five hundred dollars,” &c.

Section 15 declares that all notaries public now holding appointments shall be continued as if this act had not been passed.

The claim of the plaintiff is that section 16 has a retroactive operation, and validates acts which were invalid when done.

This claim is inadmissible. If section 16 has a retroactive operation, so also, it seems to us, does section 17r which makes the-act provided for in section 16 a penal offense, if done knowing the term of office to have expired.

It is laid down as a rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively. Cooley’s Cons. Lim. 370; Broom’s L. Maxims, 35.

This rule is applicable to the statute now in question.

Judgment affirmed


author: Okey, J.

text:
    Hart v. Globe Iron Works.
    Under an agreement with one engaged in manufacturing on premises of which he had a lease for two years, a mechanic furnished and attached to the manufactory certain machinery to be used in the prosecution of the business; after which the tenant made a general assignment of his property for the benefit of his creditors: Held, that this did not interfere with the right of the mechanic to perfect a mechanics’ lien under the act of 1843 (1 S. & 0.833); and that the lien will extend to such machinery.
    Error to the District Court of Cuyahoga County.
    The Roberts Manufacturing Company was a corporation engaged at the city of Cleveland, in the manufacture of wooden ware. The manufactory was situated on lots Nos. 122 and 124 Elm street. The corporation had a written lease on the premises, dated January 1, 1875, and expiring December 31, 1876, and had the right, at the expiration of the term, or before, to remove from the building all machinery and fixtures, but had no right to remove the building. The Globe Iron Works, a partnership, under a contract with the corporation, furnished for and attached to such building, in proper condition for use in said business, a boiler, smoke-stack, and certain machinery, and on August, 5,1875, made an attested account of the things so furnished and attached, and filed it with the county recorder, for the purpose of perfecting a mechanics’ lien.
    On August 4, 1875, the day preceding that on which such account was filed, the Roberts Manufacturing Company, being in failing circumstances, made a general assignment of all its property for the benefit of its creditors, to Arlington M. Hart, who, on August 17, 1875, filed a petition in the court of common pleas of Cuyahoga county to obtain a judgment declaring that such mechanics’ lien was invalid. Issue was joined, trial had, and judgment rendered; and thereupon the cause wTas appealed to the district court. In the district court judgment was rendered in favor of the Globe Iron Works for the amount of its account, with interest, $1,114. This sum Hart, the assignee, was ordered to pay out of the moneys in his hands.
    While the cause was pending, it was agreed by the parties that the assignee should sell the machinery and fixtures in the manufactory, and that whatever lien the Globe Iron Works had on the property should be transferred to the fund arising from such sale. Such sale was accordingly made, and the proceeds thereof amounted to $2,700. The rentable value of the leased premises was no greater than the rent payable under the lease, and the lease was not sold by the assignee, nor was it considered of any value.
    On application of Hart, the assignee, leave was granted to file in this court a petition in error.

      Henderson & Kline, for plaintiff in error.

      Otis, Adams & Russell and E. P. Blickensderfer, for defendant in error.
   Okey, J.

When a proper construction is given to the act of 1843, “ to create a lien uin favor of mechanics,” etc. (41 Ohio L. 66; 1 S. & C. 833; Nev. Stats. §§ 3184-3206), the rights of the parties’to this suit will be determined. The provisions of the mechanics’ lien laws of the various states are so widely different that the decisions of the courts of one state are, as a general rule, very unsafe guides for the courts of another state on this subject. The act of 1843 has, however, been repeatedly under consideration in this court, and the construction the statute has received renders the decision of this case a task of littledifficulty.

Where the articles with respect to which the lien is asserted are furnished continuously, as in this case, such lien dates from the time the first article is furnished, and it is as impossible for the debtor to defeat the lien by an assignment for the benefit of creditors as by a sale of the property. The interest of 'the assignee therein is not greater than the interest which the assignor had, though the assignee is entitled to possession for the purpose of converting the property into money. Lindemann v. Ingham, 36 Ohio St. 1. Nor can the fact that the account of machinery furnished had not been prepared until after the assignment had been made, affect the rights of the parties. The lien was in all respects as effectual at and after the time the assignment was made as it had been before. Filing the verified account with the county recorder simply prevented the lien from being barred by the limitation of four months provided for in the statute.

The assignee claims, however, that this is an attempt on the part of the Globe Iron Works to obtain a mechanics’ lien on personal property. But the lien may be asserted as well against a leasehold, a chattel interest, as against real estate (Choteau v. Thompson, 2 Ohio St. 114; Dutro v. Wilson, 4 Ohio St. 101); and where a mechanic agrees with one in possession as tenant of real estate, under a lease like this, to furnish machinery and attach it to a building on the leased premises, to be used by such tenant in carrying on manufacturing in the building, such machinery, when so attached, becomes so much a part of the leasehold that the mechanics’ lien will extend to the machinery. Here the agreement was that the tenant should have the right, at the expiration of, or during the term, to remove such fixtures, but this did not affect the mechanics’ rights. It does not distinctly appear how the machinery was attached to the building, but probably the tenant would have had the right of removal without the agreement. Teaff v. Hewitt, 1 Ohio St. 511. Nor are the rights of the parties affected by the fact that the interest of the tenant in the building and ground was not sold by the assignee, being considered of no value. The things which, by being annexed to the building, had become an appurtenance of the leasehold, and a part thereof for the purposes of such lien, were sold, and the mechanic was entitled to payment of his judgment out of the fund arising from such sale.

Judgment affirmed.


author: Botnton, C. J.

text:
    The State of Ohio v. Brazier.
    The jurisdiction conferred on the probate court of Clermont county, by the act of May 4, 1859 (2 S. & C. 1223), did not embrace the power to entertain a complaint in a peace warrant proceeding- commenced before a justice of the peace. The jurisdiction conferred by that act ' related only to crimes and misdemeanors.
    Exceptions to an order of tbe Court of Common Pleas of Clermont County, dismissing a peace proceeding for want of jurisdiction.
    In August, 1877, the defendant in error was recognized by a justice of tbe peace of Clermont county to appear at tbe next term of the court of common pleas to be held in said county, to answer a complaint in writing, and upon .the oath of Nicholas Youngbluth, that tbe accused would commit an offense, therein particularly specified, against bis person. Tbe court of common pleas dismissed tbe complaint for want of jurisdiction.
    This order of dismissal is alleged to have been erroneous.

      Frank Davis, prosecuting attorney, for tbe state.
   Botnton, C. J.

The correctness of the ruling of tbe court below depends on whether tbe probate court of Clermont county had jurisdiction to entertain tbe complaint and give judgment thereon. Section 4 of chapter 1 of tbe act of May 5, 1877, regulating criminal procedure (74 Ohio L. 311), requires tbe magistrate before whom complaint is made in a peace proceeding, if, in bis opinion, there is just cause for tbe complaint, to recognize tbe accused to appear before tbe probate court of tbe county, if that court has jurisdiction of tbe matter, otherwise to appear before tbe court of common pleas. Tbe act of April 4, 1859 (2 S. & C. 1223), defining tbe jurisdiction of the probate court in the counties therein named, did not confer jurisdiction to entertain a complaint in a peace proceeding. . Tbe jurisdiction which that act conferred related wholly to crimes and misdemeanors. These are offenses against the statute involving the punishment therein prescribed. They are acts of commission or omission in violation of law forbidding or commanding them. The object of a peace proceeding is to obtain security against the commission of a crime from one whose conduct is such as to afford a reasonable ground to believe that he contemplates an offense against the person or property of another. Such conduct, however, is not a crime or misdemeanor within the meaning of the statute, and hence was not embraced within the jurisdiction which the act aforesaid conferred on the probate court of Clermont county.

The next act which related to the subject was that of April 13, 1874 (71 Ohio L. 70), amending the second section of the code of criminal procedure. This act required the justice, if of the opinion that there was just cause for the complaint, to order the person complained of to enter into a recognizance to the court of common pleas; provided, however, that in counties wherein the probate court has jurisdiction of minor crimes and offenses, the recognizance should require the appearance of the accused at that court. What effect this act may have had upon the jurisdiction of the probate court of Clermont county, it is now unnecessary to inquire, as the act was repealed by the act of May 5, 1877.

We know of no other statute bearing on the question. Hence, as the legislation on the subject now stands, the probate court of Clermont county has no jurisdiction of a complaint certified up from a justice of the peace in a proceeding of the character of that which the court below dismissed. It follows that the court of common pleas erred in refusing to entertain the complaint.

Exceptions sústamed.


author: McIlvaine, J.

text:
    Jacob Wyscaver et al. v. W. H. Atkinson et al.
    Section 6 of article 8 of the constitution inhibits the combination, in any form, of the public funds or credit of any county, city, town or township, with the capital of any other person or persons, corporated or unincorporated, for the purpose of promoting any private enterprise whatever. Hence, the act of April 0, 1880 (77 Ohio L. 119), “Toauthorize certain townships to build railroads and to lease or operate the same,” is unconstitutional and void.
    Appeal. Reserved in the District Court of Noble County.
    This case and John T. Clark et al. v. Alfred Skinner et al., reserved on appeal by the district court of Guernsey county, involving similar questions, have been argued and considered together.
    On April 6, 1880, the general assembly passed an act entitled “ An act to authorize certain townships to build railroads and to lease or operate the same ” (77 Ohio L. 119).

      “ The act purports to authorize any township which by the federal census of 1810 had, and which by any subsequent federal census may have, a population of 1,684, on the conditions and in the manner set forth in the act, to issue bonds and borrow $20,000, to be repaid by taxation, and to build a railroad not exceeding seven miles in-length.”
    Beaver township, Noble county, it seems, is the only township in the state to which this act can apply, and on June 12, 1880, in pursuance of its provisions, the electors of that township, by a vote of 191 against 184, decided in favor of the construction of a railroad, under a notice issued by the trustees of the township, of which the following is a copy :•
    “ NOTICE.
    “ Whereas, By a law enacted by the sixty-fourth general assembly of the state of Ohio, on the 6th day of April, a. d. 1880, to authorize certain townships to build railroads, to lease or operate the same, authority is conferred upon township trustees to provide for a line of railway within their townships and to borrow as a fund for that purpose a sum not exceeding twenty thousand dollars ($20,000), by submitting the same to the approval of the electors of said township.
    “ Therefore, in compliance with said law it is
    “ Jiesolved, By the board of trustees of Beaver township, Noble county, Ohio, That it is hereby declared to be essential to the interest of said township, that a line of railway be constructed, running through said township from the point that the Somerset railway intersects the east line of said township, and terminating where the Bellair, Beaver Valley & Shawnee railway intersects the west line of said township, not to exceed seven miles in length, to be known as the Beaver Valley railway, if a majority of said electors voting shall declare in favor of said railway. Therefore the qualified electors of Beaver township are hereby notified to appear at Williamsburg on the 12th day of June, a.d., 1880.
    “ Polls to open between the hours of 6 and 10 o’clock a.m., and close at 6 o’clock p.m., to vote for or against said railway.
    “ Those voting in favor of said railway shall have printed or written on their ballots Beaver Valley Railway, Yes; and those voting against said railway shall have printed or written on their ballots Beaver Valley Railway, No.
    “ Passed May 18, 1880.
    “P. W. Hannahs,
    Philip Finley,
    J. W. Stare,
    Trustees.”
    Thereupon, said township trustees, navmg executed township bonds to the amount of $20,000, for the purpose of constructing such railroad, W. H. Atkinson, Hiram Hastings, John McDaniel, A. C. Cooper and Nathan House were duly appointed trustees, under said act, for the purpose of constructing said road and disbursing the proceeds of said bonds on account thereof, whereupon the plaintiffs, residents and taxpayers of said township, commenced this action in the court of common pleas of said county against said railroad trustees, the township trustees and the township clerk, to restrain further proceedings under said act.

      In tlie court of common pleas a perpetual injunction was decreed, as prayed for by the plaintiffs; and on appeal to tlie district court, the case was reserved for decision in this court. The case is now submitted on the pleadings.

      D. S. Spriggs, D. D., T. Cowen and St. Clair Kelly, for plaintiff:
    The act and the things proposed to be done under it are in conflict with section 6, article 8 : “ The general assembly shall never authorize, any county, city, town or township, by vote of its citizens or otherwise, to become a stockholder in any joint-stock company, corporation or association whatever; or to raise money for, or loan its credit to, or in aid ox, any such company, corporation or association.”
    We object to the act, that it is proposed thereby to “raise money for, or in aid of, or to loan the credit of the township to, or in aid of ” some other company or association within the prohibition of section 6, article 8, of the constitution. This object or purpose is apparent upon the face of the act itself, and is also shown by the allegations of the petition and answer.
    In Walker v. Cincinnati, 21 Ohio St. 14, the supreme court, though it evidently considered the Cincinnati Southern Railway act as an abuse of legislative power, sustained the act, for this reason, among others, that it appeared that the road provided for in that act, and which Cincinnati proposed to build under it, was an entire and independent line of railway, to be wholly built 'and owned in good faith by Cincinnati, on its own sole account, as one of the public works of the city.
    The Cincinnati case was supposed to open a way by which railroad projects might evade the law and secure contributions from the municipalities of the state. Soon after came the general act, known as the Boesel law (April 23, 1872), b_y which a county', township, city, or village, under the pretense of building a railroad to be owned by it, was authorized to raise money in aid of the construction of a line of railway. That act having been found unconstitutional, a tide has now set in of special acts, having the same object in view, and dressed in.less disguise than in the Boesel law. If thé Beaver township act is valid, then, of course, every county, township, city and village in the state, along the line of a railway that anybody proposes to build, may, under like special acts, contribute money and credit to the project; and thus we have back again, in a worse form, all the evils of municipal subscriptions to railroads that—as is well known and admitted— the present constitution intended to “ cut up by the roots and forever put an end to.”
    The Beaver township act is subject to the same objections, so far as this branch of the case is concerned, as the Boesel law. The real object or purpose is as clearly to be seen and is as well known in this case as in that.
    As has been frequently said, the constitutional prohibitions are not directed against words nor names; the question is as to the meaning and substance of the act, and not as to its form. The legislature caunot authorize the municipalities to do indirectly what they cannot do directly.- Taylor v. Comm’rs Ross Co., 23 Ohio St. 22.
    The act purports to authorize the township to build a railroad ; and, by its title, purports to authorize the township to lease or operate the road. The sum of money provided for building the road, which is not to exceed seven miles in length, is $20,000. No provision is made for more money to complete the road if the $20,000 should be insufficient. The -township is said to be the owner of the road, but no provision is made for the township to finish, operate, keep up and maintain, or make any use of the road, except to lease it. All that the township can do under the act, if it does anything, is to make as much road as it can with $20,000. The act does not provide for constructing, equipping, and putting a road in condition for use. Its provision on that subject is : “ They [the board of trustees] shall expend said fund in procuring ' the right to construct, and in constructing a railway, with all the proper appendages, and, if deemed necessary, a line of telegraph between the termini specified in said resolution. . . .”
    The trustees are imperatively required to expend $20,000. They are required to expend it “ m,” or towards, the making of a piece of road which is a part of a line of railway which au association of persons is engaged in making. Thereby a contribution of $20,000 is to be made by the township to that line of railway. This is the end and aim and sole purpose of the act. Nothing else is accomplished or secured by it. It is hoped that by this, and other similar contributions by other townships, and by private capital, a line of railway may be built. If the contribution should be paid, there is no certainty that the road hoped for will be obtained. Even if the Beaver township part should be built, with or without the cooperation of private capital, it will not be an independent road, but a dependent part, over which the township could have no control.
    In answer to the allegation in the petition that the money is insufficient, defendants say, not that it will be sufficient to put the road in condition for use, but that it “ will, in fact, be sufficient to construct said line of railway as contemplated and provided for by said actP "We can have no controversy with this allegation of the answer, for the act only contemplates and provides for the expenditure of the $20,000.
    The case of Taylor v. Comm'rs of Ross Co. is decisive of this case. The two plans—that of the Boesellaw and that of the Beaver township act—are the same ; and the object and purpose of both are the same. The difference is that the B.oesel law is now being cut up into special acts. They are the same in all their material or essential features.
    No way is provided by the act, nor by any law, whereby the township can use or operate it; and, as a road so situated can be of no public use or benefit, it cannot be built by taxation. Before a township can be made by an act of the legislature to assume such powers, there must be a total change in its constitutional organization, or in the duties and liabilities of railway companies and common carriers.
    Cities have powers of taxation which are recognized by the constitution (section 6, article 18), but which are not expressly granted or defined by it. Townships, on the contrary, can exercise only such power of local taxation as may be conferred on them by the legislature for police purposes (section 7, article 10). It is said, that by implication, from section 5, article 8, townships have a power not defined to contract debts. In the opinion in Cass Township v. Dillon, 16 Ohio St., it is said this implied power is limited to debts to suppress insurrection or defend the state in war; and, in that case, the court said it was unnecessary to decide whether or not the legislature, under section 7, article 10, could authorize townships to levy taxes to pay bounties to volunteers, as the legislature, under its general grant of legislative power, could determine finally for the state and all its subdivisions as to the measures and means necessary and proper for defense in war and against invasion.
    The police purposes for which townships may be authorized to levy taxes are such as belong, by ordinary usage and custom, to their local administration. Among these is not included taxation to build a railway; and certainly not, to build a railway to be owned by the township. A railway to be of utility must have engines, cars, and managers, and .must be engaged in its appropriate work. If the township is the owner of the road, it .owns, and must be able, if it desires to do so, to avail itself of, the revenues and profits of this work. If such railroad is to be run for profit, and the township is the owner, then the railroad is the private property of the township, and, as to it, the township is a private corporation. It cannot be, as to such property, the quasi corporation of the constitution. See Cooley Const. Lim. 4 ed. 206, et seq.

    If the township railroad is to be built and run by taxation, without profit—not as a private but as a public work—is it to be burdened with the duties and liabilities of ordinary railroads ? If it is, then, until a public fund is provided for that purpose, the inhabitants of the township will probably be individually liable for its negligences, debts and defaults. See Cooley Const. Lim. 298.
    As well might the legislature undertake to authorize a township to establish a bank, with the usual banking powers, or a manufacturing establishment, to give employment to the people, as a railway. Such enterprises, on the part of the state, for the benefit of the people, are said to have advocates'in other countries, but, as yet, we have only heard of them in the distance.
    The alleged ownership of the road by the township is unreal and impossible. The real owner must be found elsewhere.
    It follows from these propositions, not only that the proposed expenditure is a contribution within section 6, article 8; but, that it is to be made for a private and not a public purpose, and cannot be made by taxation ; and also, that a railroad is not one of the objects for which the legislature may authorize 'a township to levy taxes within section 7, article 10.

      Harrison, Olds & Marsh, and Moses M. Granger (with whom were Belford <& Obey), for defendants:
    I. "When the present constitution was adopted, it was recognized law, that the state government might, either by itself, or in conjunction with others, and either for cash or upon credit, construct works of internal improvement; that it might authorize such works to-be constructed by either individuals or corporations ; and that it might empower either counties, townships, or municipalities, to build them, either alone or by aiding others, and either with money or credit. The power of the legislature to authorize counties, townships, and municipalities, to aid railroad- companies to construct their roads, was derived or inferred from the competency of the legislature to empower such public agencies to build such worhs enii/re with their own means and for their own benefit. C. W. & Z. R. R. Co. v. Commissioners of Clinton Co., 1 Ohio St. 77; S. & I. R. R. Co. v. Trustees of North Township, 1 Ohio St. 105; Loomis v. Spencer, 1 Ohio St. 153; Cass v. Dillon, 2 Ohio St. 622; Walker v. Cincinnati, 21 Ohio St. 14; Taylor v. Commissioners of Ross Co., 23 Ohio St. 22.
    II. It is as competent for the legislature, under the present constitution, as it was under the former, to empower county and township organizations, as well as municipalities, to undertake and execute any public work of a local character, having a special relation to their position, business and interests, either with public moneys previously raised, or upon the public credit-supported by the exercise of the taxing power. A railway is such a public work. Article 8, section 6, of the present constitution, prohibits them from undertaking and executing such works by means of business partnerships or direct unions with individuals or corporations in such a manner as to incur pecuniary expense in the construction of such works. It does not inhibit them from constructing such works with their own means and for their own use or benefit. Walker v. Cincinnati (supra); Taylor v. Commissioners of Ross Co. (supra); Cass v. Dillon (supra).

    III. One of the cardinal objects of the creation of county and township organizations, as well as of incorporated cities and towns, is to provide and furnish the means of travel and transport. Commissioners of Hamilton Co. v. Mighels, 7 Ohio St. 107, 119; Cass v. Dillon (supra); C. W. & Z. R. R. Co. v. Commissioners of Clinton Co. (supra); S. & I. R. R. Co. v. North Township (supra); Walker v. Cincinnati (supra). In Ohio, township roads have always been held to be public highways ; and, therefore, in the establishment of them, private property may be condemned, in the exercise of the right of eminent domain. Shafer v. Starrett, 4 Ohio St. 494; Ferris v. Bramble, 5 Ohio St. 109.
    IV. There is now no question but that a railway is a public highway. In the main purposes and ends which it subserves, a railway is, substantially, the same with common or township roads. It is now an established doctrine, that railroad companies perform a public function,—that of furnishing highways. That is to say, a railroad is so essentially public in its character as a highway that it does not lose that character even though it may be constructed by i/ndi/oidual enterprise aggregated into a corporation. A railroad built by a state, no one claims would be anything else than a public highway, justifying taxation for its construction and maintenance, though it could be no more open to public use than is a railroad built and owned by a corporation. See Olcott v. Supervisors, 16 Wallace, 678, and cases there cited.
    V. Inasmuch as states may directly, or through their political agencies, construct such means of travel and the carrying business as canals, turnpikes, bridges, and railroads, it folíolos
      that tolls may bo imposed, by the same authority, upon passengers and freight, as remuneration for the construction of the improvements and their maintenance; or the same may be leased to individuals or corporations, for the same purposes. The power of a city to lease the right to use and operate a railroad constructed by the city as one of its local works, was recognized and declared in the cases of Walker v. Cincinnati (supra), and Taylor v. Commissioners of Ross Co. (supra).

    YI. A public or governmental ownership and management of railroads is an experiment in the United States. It is one of the questions involved in the solution of the momentous railroad problem. But the legislature, if they deem it expedient, have the right to make such experiment. The courts cannot restrain or prevent the exercise of the right. Walker v. Cincinnati (supra). In 1844, the British parliament passed an act authorizing the government to purchase, after the lapse of twenty years, all railways which should in the intervening period be constructed. Sir Robert Peel stated the object of the act was to prevent railroad companies from having a permanent monopoly against the public.
    YII. The act known as “the Cincinnati railway act” and the act now under discussion, are identical in principle, as well as in their provisions. The court, we think, will look in vain for any substantial difference or distinction between them. The former is the model of the latter. One is almost a literal transcript of the other. It is as competent for the legislature to empower a county, or a township, to construct a railway as one of its local improvements, as it is to empower a city to build such a work as one of its local works. The ground upon which either may be so authorized is the fact that the improvement is calculated to facilitate the social and business intercourse of the local community, and to develop the resources of such subdivision of the state. If we turn to the history of railroads, we find that the early legislators regarded them as Improved turnpikes. See 2 Am. Law. Rev. 25.
    A railroad, like a common road or a turnpike, affects and benefits, directly and specially, the local public or community of a particular county or township, although, in a remote or collateral way, it may be said the general public will be benefited thereby. “ Trunk railways ” are necessary, and they uow abound in the United States ; but local roads penetrating every district, reaching every resource, and affording facilities and transportation to every locality, with low rates of toll, are wliat the public welfare now absolutely requires. The only mode in which the advantages and benefits of the “great trunk railroads ” can be equalized, is by local lateral roads built to them. These essential local facilities will not, at least in numerous and important instances, be afforded, unless they are furnished through the agency of county and township organizations, and municipalities. Capitalists select the projects which are the most feasible, and promise most speedy and certain returns; while there is a class of useful improvements which should be made ; and as capitalists will not make them, the interests of the local communities concerned require that they should be made at public expense. In some instances this is necessary to develop the rich resources of interior localities, remote from the “ through lines ” of railroads. Railways, like other property, cannot be obtained by the public, more than by individuals, withoxxt cost. Until the investment becomes productive, the cost must be paid out of loans or taxes. All internal improvements should be regai’ded as parts of a general system of interior commxxnications, designed to promote the general welfare, rather than as mere im/vestments for gai/n.

    The revenues which may be derived from such improvements as that authorized by the act under examination, are unimportant compared with the more extensive agricultural, commercial, and political results, affecting the social condition of the local communities in which the improvements shall be made. Their effect will be to equalize the local advantages of the different portions of the state. The principal aim of giving public aid in the construction of railroads has been to open xxp xxndeveloped sections of the country to railroad communication. Who can estimate the wealth which such communication has created? Although some portions of the state may excel othera in producing one staple, no portion "is without fertility and resources of wealth. There is uo “ waste laud ” in Ohio. Many localities in the state have ample railroad facilities, both local and general. There may be some in which railroads would be impracticable. On the other hand, there are many localities which are destitute of such facilities ; they need roads for travel and transportation to the “ trunk roads.” The act under discussion and other acts of similar nature are designed to supply that need.
    YII. Even if the court could properly enter upon the inquiry as to what is wise and expedient, no more restrictive rule could be maintained than that the powers conferred on a county or township organization must relate to the public interests of the territory, or body of persons within its limits. Bank of Rome v. Village of Rome, 18 N. Y. 38.

      It belongs to the legislature, and not to the courts, to determine whether the public benefit will be sufficient to justify the taking of private property for the purpose of a road, canal, or other public improvement. Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 45 ; Harris v. Thompson, 9 Barb. 350. And see Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9; Buffalo & N. Y. R. R. Co. v. Brainard, 9 N. Y. 100. This principle was recognized in Cass v. Dillon, 2 Ohio St. 622. The court in considering the effect of the adoption of the constitution of 1851 upon the legal status and the powers of county and township organizations and cities and towns, held that that instrument did not create the muncipalities of the state, nor attempt to enumerate their powers, but recognized them as existing bodies with powers in exercise, to be limited only by such purposes as should, from time to time, be declared by the general assembly, and assented to by their constituents, and valid within those limits, except when in conflict with actual prohibitions in the constitution, expressed or necessarily implied.
    There is a grant of the taxing power to counties and townships, in article 10, section 7, of the constitution, for “ police purposes.” This express grant does not operate as a limitation of the power of taxation by counties and townships, for any purpose for which the legislature may authorize them to contract a debt or incur an obligation. Tbe phrase “ for police purposes ” is as comprehensive in its meaning as its correlative, “ police powers.” By tbe latter power, persons and property are subject to all kind of restraints and burdens in order to secure tbe general comfort, health, and prosperity of tbe state; and tbe legislature, not tbe courts, must determine wliat will secure these ends. P. W. & B. R. Co. v. Bowers, 4 Houst. 506 ; Thorpe v. B. & C. R. Co., 27 Vt. 140 ; Nelson v. V. & C. R. Co., 26 Vt. 717.
    VIII. The “ Boesel act ” (so-called) and 'the act in question are essentially different. By tbe mere statement of tbe controlling provisions of tbe former act, its unconstitutionality was exposed. From tbe nature of its provisions, tbe court, in Taylor v. Commissioners of Ross Co., 23 Ohio St. 22, found, that it appeared, beyond a rational doubt, that it was not tbe intention of tbe act to authorize tbe local bodies therein named, respectively, to build a railroad as one of its local public works, but that tbe obvious intention was to enable them, respectively, to aid with their money and credit railroad companies, to construct railways to be owned and operated by them.
    Tbe act now before tbe court is free from every indicia of illegality which tbe court found were apparent upon the face of tbe Boesel act, and on account of which that act was declared void. Tbe act now in question is as free from any such badges of illegality as was tbe Cincinnati railway act, tbe exact model from which, as before remarked, this act is drawn.
    Under tbe act in question, a railroad of any garage can be constructed as one of tbe local works or highways of the township. A “ narrow-gauge railroad ” costs but a few thousand dollars per mile; and such a railroad is adapted to tbe uses and purposes of a local or neighborhood road. Numerous narrow-gauge railroads are built in Germany for tbe special purpose of accommodating tbe travel and transport of local communities at low rates. They are consta noted, maintained and operated by tbe public, at a trifling cost and expense. Tbe time is not far in tbe future when many of tbe townships of Ohio will be densely populated, and in which will be carried on many manufactures, with extensive internal and external trade and commeree. Whole townships will soon become substantially wrbcm, instead of rural.
    Every person knows that the course of trade can be affected, and natural obstacles to trade removed, by artificial improvement ; the most potent of which are, now, railways. The general welfare demands that the productions of one locality or district should not be dependent for a market upon private carriage, while those of another are transported on a canal or by steam power.
    Upon the completion of a railroad constructed under this act, it may be leased. Walker v. Cincinnati (supra). It may, therefore, be put into operation and maintained, and the township get the resulting benefits and advantages, without itself purchasing the rolling-stock or becoming a carrier. This act is not in contravention of section 6, article 8, of the constitution, unless the fact alleged in the pleadings, that it may, perhaps, be “operated and controlled by the township in connection with railways east and west of it, as shall best promote the interests of the townships,” shows that it authorizes a “ contribution” in violation of said constitutional provision. Now, if a railway owner isolates his railway and refuses to operate it “ in connection with other railways,” he deprives himself of many of the advantages of his railway. One of such advantages consists in the easy continuance of transit for freight and passengers. If no railways connected at Chattanooga, or other points, with the Cincinnati Southern Railway, that road would be of small benefit to Cincinnati. If a county, township, or municipality, may build, own, lease and operate a railway, why may not the railway be operated so as to make its burdens least and its profits greatest ? Cannot Cincinnati use and operate her road “ in connection with” other roads ? So, as far as concerns transit of passengers and freight, there will be practically one li/ne of railway from Mobile via Chattanooga to Cincinnati; one from Savannah via Chattanooga to Cincinnati, and so on.
    If a township can build, own, lease and operate a railway, how can the fact that such railway touches at one end the railway of an adjoining township, and at the other end a railway owned by a private railway corporation, alter or destroy the constitutional right of the township ?
    Notwithstanding arrangements for running and operating a township railway “in connection with” other railways, the exclusive and absolute ownership of the township continues. No debt of either of the other railways can affect the rights of the township in its road. The work constructed by the money of the township will remain the joroperty of the township. There will be no such commingling of public money with private capital as the framers of the constitution prohibited. The act before us does not contemplate, and will not permit (as did the Boesel act), such contracts and transfers as would vest in any private person, association or corporation any part of the township road, whether complete or incomplete.
    Each connecting railroad will naturally increase the business and profits of each road with which it connects; but surely such incidental or resulting benefit is in no sense such a “ contribution” to another corporation or association as section 6, article 8, of the constitution forbids. The township does not thereby do any one of the acts prohibited by that section, to wit:

      (a) It does not thereby become a stockholder in any joint-stock company, corporation or association.
    (р) It does not raise money for any company: or,

      (с) It does not loan its credit to, or in aid of, any such company. Cincinnati v. Walker (supra).

    TX. The plaintiffs have undertaken to . prove that the act is an unconstitutional and invalid enactment. How great the burden of that proof is, must be measured, in the first im stance, by the strength and extent of the contrary presumption, which it must overcome. These appear from the rules which this court, in Lehman v. McBride, 15 Ohio St. 571, laid down and declared to be “ incontrovertibly supported both by reason and authority.” These rules furnish the standard for comparing the constitution and the legislative act which is questioned ; they must be the measure of the force of the objections which are made, and the test of the soundness and conclusiveness of the argument offered to sustain them. They give us the jpoint of view from which we must examine the act.
   McIlvaine, J.

The constitutionality of the act of April 6, 1880, “ To authorize certain townships to build railroads and to lease or operate the same ” (77 Ohio L. 119), is the only subject considered in this case.

The substance of this statute is to authorize Beaver township, Noble county, to procure the right of way and construct a line of railroad with all proper appendages, and also, if deemed necessary, a line of telegraph, between termini to be designated within said, township, not to exceed seven miles in length, at an expenditure of money not to exceed $20,000, to be raised by taxation, and “on the final completion of any line of railway constructed under the provisions of this act, the board of trustees shall have power to lease Ihe same to any person or persons or company as (who) will conform to the terms and conditions which shall be fixed and provided by the trustees of the township.” No other or further provision is made for using or operating the road. Nor is the purview of the act as above stated materially modified by any other provision. It may, however, be mentioned, that the statute requires the question of constructing the road to be submitted to a vote of the electors of the township; that the money may be borrowed, for which bonds secured by a mortgage on the road shall be executed; and that the construction of the road and the expenditure of the money shall be placed under the control of a board of trustees to be appointed by the court of common pleas of the county.

Whén viewed in the abstract, it is difficult to see in what manner, within the contemplation of the legislature, the proposed road could become of such public utility as to justify resort to taxation ; but when applied to the subject-matter under the existing circumstances, the legislative intent becomes quite apparent. Beaver township, Noble county, the only township to which the provisions of the act were intended to apply, is a sparsely settled agricultural district, with a population of 1,684, without railroad facilities either within’ or bordering upon it. "Without railroad connections, it is quite certain, that the proposed improvement would be utterly useless; hence, in view of this fact, the trustees of the township designated the location of the proposed road as follows: running through said township from the point that the Somerset Railway intersects the east line of said township and terminating where the Belair, Beaver Yalley & Shawnee Railway intersects the west line of said township.” Neither of the connecting railways here mentioned is in existence, but only in contemplation,—the former having been authorized to be built by Somerset township, Belmont county, by an act of the legislature, similar to the one now under consideration, passed on the 18th of March, 1880. So that it is quite evident that the legislative intent, as well as that of the trustees of Beaver township, was to make the proposed road a link in a more extended route or line of railway. The same intent is manifested in the fact, that no provision was made for the operating of the proposed road by the township; but power only was given to lease the same on completion, to any person or persons or company which would conform to the terms and conditions which the trustees should prescribe; and in the event that the road would not be completed with the expenditure of money authorized, a scheme for its sale was provided by the act by foreclosing the mortgage given to secure the bonds ; so that the road, after the expenditure of $20,000, might pass into the hands of another “ person or persons or company.” Otherwise, why mortgage the road, when the faith of the township, by the terms of the statute, was pledged to the payment of the bonds; which pledge included not only all the property of the township, but all taxable property within the township % That a sale under the mortgage would be the probable result, might well be anticipated from the fact that the maximum sum authorized to be expended, as we know from the history of railroad building in this state, would not be sufficient to iron the track, to say nothing about the expense of the right of way, the grading, the tying or the equipping of the road. True, it may be said, this case is submitted on the pleadings, and the averment of the petition that the means provided are insufficient to build the road and pay for the right of way, is met by an averment in the answer, that “ the sum of $20,000 will, in fact, be sufficient to construct the line of road as contemplated and provided by said act.” This averment in the answer does not cover the allegations of the petition; and besides, the main question is, what was contemplated and provided by the act ? Was it contemplated that a complete and independent railroad should be constructed by the township % We think not, and therefore, without speculating as to the manner in which it was intended that the result should be accomplished, it is quite evident, to our minds, that the legislative intent, as well as that of the trustees of the township, was that the proposed road should in some manner and by some means become consolidated or connected with other roads, as part of a more extended line of railway, in order to make it at all subservient to the public welfare, and that in no other way could it be made of public utility.

The purpose and effect of the statute is to unite the means and credit of the township with those of other parties in order to promote a common enterprise, to wit: the construction of a continuous line of railway, which could not be accomplished without such combination of interests.

Such being the scheme and operation of this statute, it is clearly in violation of section 6, article 8, of the constitution, which provides : “ The general assembly shall never authorize any county, city, town or township, by vote of its citizens or otherwise, to become a stockholder in any joint-stock company, corporation or association whatever, or to raise money for, or loan its credit to, or in aid of any such company, corporation or association.” In relation to this section, I cannot do better than adopt the language of C. J. Scott, in Walker v. Cincinnati, 21 Ohio St. 54. He said, “ The mischief which this section interdicts is a business partnership between a municipality or subdivision of the state and individuals or private corporations or associations. It forbids the xmion of public and primate capital or credit in .any enterprise whatever. In no project originated by individuals, whether associated or otherwise, with a view to gain, are the municipal bodies named permitted to participate in such manner as to incur pecuniary expense or liability. They may neither become stockholders, nor furnish money or credit for the benefit of parties interested therein. Though joint-stock companies, corporations and associations only are named, we do not doubt that the reason of the prohibition would render it applicable to the case of a single individual. The evil would be the same, whether the public suffered from the cupidity of a single person or from several persons associated together.” And 1 will add, that it makes no difference whether the scheme for the union of public and private money or credit originates with the party or parties representing the public or the private interests. In short, the thing prohibited is the combination in any form whatever of the public funds or credit of any county, city, town or township with the capital of any other person, whether corporated or unincorporated, for the purpose of promoting'any enterprise whatever.

From these views it is plain that the statute before us manifests an intent to do that indirectly which, if done directly, would constitute a palpable infraction of the constitution, for which reason it must be declared inoperative and void.

In conclusion I may say, that it has been sought to maintain the validity of the statute under consideration upon the principles decided in the case of Walker v. Cincinnati, 21 Ohio St. 14. But as we have shown the scheme of this statute to be essentially different from the one considered in that case, it is not necessary for us to review the doctrines of that decision. On the other hand, we conceive the principles involved in this case to be substantially similar to those in the case of Taylor v. Commissioners of Ross Co., 23 Ohio St. 22, in which the statute was held to be unconstitutional, for reasons entirely satisfactory to the court then and now. "We are content to follow the doctrine of the latter case in disposing of the case before us. And while we regret the necessity of differing with the legislative department of the government in respect to the constitutionality of one of their enactments, we will express the hope that in the future, as in the past, but few occasions may arise for such difference.

Perpetual injunction, granted as prayed for.


text:
    The State ex rel. Attorney-General v. John E. Bailey et al.
    The act of April 8,1881 (78 O. L. 1171, which took effect on its passage, and repealed the former act on the same subject, abolished the board of police commissioners of the city of Toledo, and provided for the immediate appointment and organization of a new board, invested with the police powers of the city. It contained a provision that the members of the old board should “continue to discharge the duties of the office until the organization of the board of police commissioners, to be elected at the ensuing municipal election and no longer.” There was no law authorizing the election of such a board, at the ensuing municipal election, or at any other time.

      Held, that, in view of the general provisions of the act, this clause does not authorize those holding office under the former statute, to continue in office after the organization of the board of police commissioners created under the act;
    Quo Warranto.
    The object of this proceeding is to determine which of two bodies is the lawful board of police commissioners of the city of Toledo. The prayer of tbe petition is, that the defendants be ousted from acting as such board.
    The defendants, whom we shall call the old board, claim title, under sections 1984 to 1997 of the Revised Statutes, under the provisions of which they were elected and are holding office. The plaintiffs claim to be such board under the act of April 8, 1881 (78 O. L. 117), by appointment from the governor, made February 12, 1881. By these sections of the Revised Statutes (repealed by the act of April 8, 1881), the board consisted of eight members, elected for two years, one from each ward of the city, and the mayor, who was ex-officio a member. The act of April 8, 1881, which took effect on its passage amended the law by vesting the police power in a board composed of the mayor and four commissioners who should hold their offices for four years. It provided, that immediately after the passage of the act, the governor should appoint one for one year, one for two years, one for three years, and one for four years, and annually thereafter, one should be elected for four years at each municipal election.
    Under this arrangement, the governor, on April 12, appointed the persons in whose behalf the writ is askéd.
    The controversy arises on the construction of section 3 of this act.
    It reads: “ Section 3. Re it further enacted that nothing herein contained shall be construed to affect the terms of any officers appointed under or by virtue of the sections of the Revised Statutes hereby repealed, except that in cities of the third grade of the first class such officers shall hold their offices only until the organization of the board of police commissioners and the appointment by them of the health officers of cities as herein provided. Provided, further, that in cities of the third grade of the first class, the police commissioners now holding office under subdivisions three (III.), chapter five, division five, title 12, of the Revised Statutes, relating to police boards and officers, shall continue to discha/rge the duties of their ojfice until the organization of the board of police commissioners to be elected at the ensuing municipal election and no longer • at which time all books, papers and appurtenances of the police department, in the hands and under the control of such police commissioners, or any of them, shall be placed at the disposal of the police commissioners elected at such election; but nothing in this act shall be held in any way to affect or change the term or tenure of office of any member of the police force.”
    The persons composing the old board refuse to surrender the books, papers, &c., on the ground that the new board is not entitled to them, and are not a lawful board, because under this section they have the right to continue in office.
    The grounds for this claim, as well as that made by the relators, are stated in the opinion.

      J. C. Lee and (Jeorge K. Nash, attorney-general, for re lators.

      Frank N. Hurd and John V. Kumler, for respondent.
   Johnson, J.

It is conceded that the legislature possessed the power to abolish the old board and create a new board, and to compel a surrender of all the books, papers, &c., to the new board. It is also conceded that it was the manifest intention of the legislature, as exjoressed in the amendments to sections 1984 et seq., independent of this proviso, to abolish the old board, and to vest the police power in the new board to be organized under the act of April 8, 1881; but it is claimed that by the second clause of section 3 this object and intention is rendered nugatory, by reason of the repugnancy between this clause and the general provisions of the act.

By the terms of sections 1984 and 1985, as amended, the police power was vested in a board of four persons, with the mayor as an ex-officio member. These four were to be immediately appointed, after the act was passed. They were so appointed, and were duly qualified and organized, but the old boai'd refused to recognize their title or authority, and claim that it was still the lawful-police board of the city. This claim is based on what is termed the proviso of section 3 which reads: “ Provided, further, that in cities of the third grade of the first class, the police commissioners now holding office.....shall continue to discharge the duties of their office until the organization of the board of police commissioners to be elected at the ensuing municipal election and no longer; at which time, all books, papers and appurtenances of the police department in the hands and under the control of such police commissioners or any of them, shall be placed at the disposal of the police commissioners elected at such election.”

The argument is, that this proviso is repugnant to the general provisions of the statute, and as the last expression of the legislative intent it must prevail. Or, to state the claim in another form, the. legal force and effect of the prior provisions, of the statute and of its 4th and 5th sections, which repealed the former law, and gave it effect'from the day of its passage, is rendered nugatory by this clause as to the expiration of the terms of office of the old members. Notwithstanding the new board was to be immediately appointed and organized, and was to be thereafter vested with all the police power of the city yet the claim is that the proviso is so repugnant to this manifest intention, that, it is defeated by the clause under con sideration.

Is this claim well founded ?

Section 3 consists of two clauses. The first is in its nature a saving clause, and provides that the statute “ shall not be construed to affect the terms of the appointees of the old board made under the repealed statutes. It authorizes them to hold over until the organization of the new board, and the appointment by them of certain officers therein named. The terms used are, until the organization of the board of police commissioners and the appointment by them of. the,, health officers of cities as herein provided.” A definite time is thus fixed when the terms of those officers who hold by appointment shall expire. The legal effect of the general provisions of the statute is, by this clause, so modified as to allow these appointees to continue in office notwithstanding the repeal of the statute under which they derived title, until their successors were appointed by the new board. Thus an interregnum was prevented and the old appointees continued in office after the new statute took effect.

The second clause is of the same nature, and obviously was intended for the same purpose, as to the members of the old board. As some time would necessarily elapse, between the taking effect of the new act, and the organization of the board created thereby, it was necessary in order to prevent an interregnum that the old board should be continued until the new one could be appointed and qualified to assume the duties imposed. Without some saving provisions the legal effect of the act of April 8 was to divest the old board of all power after that date, and to leave the city without a police board until the new one could be organized. To guard against this, and to providefor the time necessarily intervening between the taking effect of the act and the appointment and organization of the new board, was the manifest purpose of this proviso. By its terms, as literally expressed, the old board was to continue “ until the organization of the board of police commissioners to he elected at the ensuing munici/pal election and no longer.”

That the legislature intended to abrogate the old board, and invest the new with the police powers of the city, is frankly conceded by defendants’ counsel; but it is claimed that this manifest intent must fail because of the repugnance between this second clause and the. general provisions of the act. This clause refers to a time to which “ and no longer ” the old board shall hold over. The old board shall continue in office until the organization of the board of police commissioners to he elected at the ensuing municipal election and no longer. As by the act only one member of the board is to be elected at the ensuing municipal election, and one each year thereafter, there is no board to be elected at such ensuing election. The event referred to is one that can never happen. If it be regarded as a proviso and not a saving clause, it can have no possible force, as an authority to the old board to hold over, or as an implied repeal of the prior provisions of the act. If this clause had, like the preceding one, designated the new board in general terms as “the board of police commissioners,” there would have been no incongruity between it and the purview of the statute, but when by way of description is added the words, “ to be elected at the ensuing municipal election,” the difficulty arises ; and if the act provided for the election of a board at the ensuing election in 1882, there would have been a clear case of repugnancy.

The rule relied on is, that in case of such repugnancy the proviso must prevail. Sedgwick, in his able work on statutory construction, characterizes this as “ a curious rule of a very arbitrary nature.” Sedgwick, 49.

He calls attention to the fact that it is in conflict with the one as to a repugnant saving clause, and quotes Chancellor Kent,- as saying : “ A proviso repugnant to the purview of the statute renders it equally nugatory and void as a repugnant saving clause; and it is difficult to see why the act should be destroyed by the one and not by the other, or why the proviso and the saving clause, when inconsistent with the body of the act, should not both of them be" rejected.”- We are not required in this case either to accept or challenge this rule of construction. If we concede its full force, it only applies, when the proviso is so repugnant to the body of the act, that both cannot stand. A proviso, to have such an effect, must be plain and specific, and have legal force and effect. The terms of the proviso must be in such direct conflict with the other provisions of the act that both cannot stand.

If this clause read, “ until the organization of the board of police commissioners provided for by this aetf there would have been no uncertainty as to its meaning. It would have accomplished the evident purpose of the legislature. It would do no violence to accepted canons of construction to so read it, and thereby avoid defeating the admitted intention of the law-makers. Rut if we must adhere to the terms used, then this proviso is itself nugatory as fixing no time when the old board is to surrender the office, books, &c., to the new. Giving to the rule of construction invoked its full force, it can have m> application to a proviso which is of no force or effect.

The principle underlying this rule is, that in case of conflicting provisions so repugnant that both cannot be reconciled and have effect, the latest expression of the legislative will must prevail. It rests upon the same foundation as repeals by implication, where a subsequent statute is in conflict with a prior statute. Repeals by implication arising out of conflicting provisions are not favored, and cannot exist when the last and conflicting provision has no legal effect, or where it can be so construed as not to defeat the manifest intention of the statute, considered as a whole.

Judgment of ouster.


author: White,' J.

text:
    The Miami and Montgomery Turnpike Company v. Lloyd Baily.
    1. In an action to recover for personal injuries, caused by tlie negligence of the defendant, tire court Iras power to require the plaintiff to submit his person to an examination by physicians or surgeons, when necessary to ascertain the nature and extent of the injury.
    3. On the refusal of the plaintiff to comply with such order, when properly made, the court may dismiss the action, or refuse to allow the plaintiff to give evidence to establish the injury.
    3. ■ The refusal of the court to order such an examination of the plaintiff will not be presumed to have been made on the ground of a want of power in the court to make the order, but, in the absence of any showing to the contrary, on the ground that, under the circumstances, the order ought not to have been granted.
    4. The application for such order ought to be so made, as not unnecessarily to prolong the trial, or to prejudice the plaintiff in proving his case. Hence, where the application is not made until after the close of the plaintiff’s evidence in chief, and the commencement of the introduction of the defendant’s evidence, and no reason is shown for the delay in making the application, it may be refused on that ground.
    5. It was not error for the court to refuse to charge the jury, that the refusal of the plaintiff, “at any time after the close of the testimony on his behalf,” to allow an examination of his person touching the injury, by any competent physician and surgeon, affords a presumption against the claim of the plaintiff, as to the character and extent of the injury
    Error to tbe Superior Court of Montgomery County.
    Tbis was an action in the court below by the defendant in error, Baily, to recover damages in the sum of $10,000 for an alleged injury in the small of his back, hips, &c., on the 26th day of February, 1876, which he claims was caused by the said turnpike company unlawfully, &c., permitting a certain bridge on its road in Montgomery county, Ohio, to get, and continue out of repair, and to become and remain an unlawful bridge, &c.; and he further avers that on said day, while lawfully traveling over and upon said road with a wagon drawn by one horse, having with him in said wagon his minor daughter, that he, together with bis said wagon, horse and daughter, without fault, &c., on liis part, and by reason of the unlawful, unsafe and dangerous condition of said bridge, were all precipitated off of the east side thereof, &c., by reason of which, lie avers, he was injured in the small of his back, hips and right side permanently, and that his horse, wagon and harness were greatly injured and damaged.
    The answer denied the allegations of the petition.
    The trial resulted in a verdict of $3,000 in favor of the plaintiff, on which judgment was rendered.
    A bill of exceptions was taken on the trial, embodying all the evidence. The principal question in controversy was as to the extent of the plaintiff’s injuries. The plaintiff examined physicians as experts, to show the effect and extent of the same. The defendant, likewise, produced expert testimony, and during the examination of one of the medical witnesses for the defense, the witness said he was ready and willing to make an examination of the plaintiff’s back. Counsel for defendant then asked the plaintiff to submit to an examination and inspection of his back, by the witness, either in private or in an adjoining room provided for the purpose, or before the jury, and the plaintiff then and there refused to allow the witness' to make the examination or inspection requested of him in behalf of the defendant, whereupon the defendant, then and there, by its counsel, in open court asked and moved the court to order said plaintiff to allow such examination and inspection to be made as aforesaid, and the court refused to make such order and overruled said motion, to which overruling and said refusal to make such order or orders as aforesaid by said court, the said defendant excepted. Similar testimony was given by another witness, and a like request and ruling made during its delivery.
    The evidence being closed and the jury charged, the defendant asked the court to give further, in charge to the jury, the following instructions:

      “ If the jury find from the evidence that the plaintiff claims to bear the plain perceptible physical mark or deformity of the injury, of which he complains, about the region of the small of his back, and willfully and without reasonable explanation justifying or excusing it, the plaintiff refused (being present in court) at any time after the close of the testimony on his behalf, to allow an inspection or examination of such mark or deformity, by any competent physician and surgeon, at the request of the defendant, either privately or before the jury, such refusal affords a presumption against the claim of the plaintiff as to the character and extent of such mark or deformity, and the jury have the right to consider such refusal in favor of the defendant.”
    And the court refused to give said instruction as so prepared and asked in charge to the jury, but changed and modified the same by drawing a pencil line through and striking out the following words, to wit: “ Such refusal affords a presumption .against the claim of the plaintiff as to the character and extent of such mark or deformity, and the jury have the right to consider such refusal in favor of the defendant,” and added thereafter and in lieu of the words so stricken out as aforesaid the following words, to wit:

      “ The jury have the right to consider such refusal in con- . nection with the proof as affecting the question of the char acter and extent of such mark or deformity.”
    To the refusal to charge as asked, and to the modification, the defendant excepted.

      A. Humphreys and David A. Houk, for plaintiff in error :
    On the question of the power of the court .to order an examination as requested we cite: 2 Best on Ev. 1 Am. ed. from 6th London ed., § 513, and the note “ K” thereto, p. 868 ; 1 Plowden, 125, and note A; Schrœder v. Chicago, Rock Island & Pacific R. R., 6 Cent. L. J. 47. As to the question raised by the refusal to give the special charge as requested, and in altering the same and giving it as altered, we maintain it presents a case, which, on principle, is analogous to the presumption arising upon the spoliation of papers, or concealment of evidence claimed to be against the party withholding it, and therefore comes within the rule of the maxim; “ Orrmia praesumwntur conto'a spoliatoreml 2 Best on Ev. same ed. § 413, and authorities cited therein ; 1 Phillips on Ev. 5 Am. ed. note 176, p. 498, m. p. 602; Starkie on Ev. 10 Am. ed. from 4th London, p. 74, m. p. 75 ; 1 Greenleaf on Ev. § 38; 3 Greenleaf on Ev. § 408.

      Conover & Craighead and Dennis Dwyer, for defendant in error.
   White,' J.

There are only two questions in the case that we deem it necessary to notice: 1. The question arising on the refusal of the court to require the plaintiff to submit his person to an examination ; 2. That relating to the refusal to charge as asked.

These questions are answered by the following propositions, which we lay down as governing the ease.

In an action to recover for personal injuries caused by the negligence of the defendant, the court has power to require the plaintiff to submit his person to an examination by physicians and surgeons, when necessary to ascertain the nature and extent of the injury.

On the refusal of the plaintiff to comply with such order, when properly made, the court may dismiss the action, or refuse to allow the plaintiff to give evidence to establish the injury.

The dismissal is authorized by section 5?14, Revised Statutes. Authority to exclude the evidence arises out of the inherent power of the court over the subject under investigation. Schrœder v. C. R., I. & P. R. Co., 47 Iowa, 375.

The refusal of the court to order such an examination of the plaintiff will not be presumed to have been based on the ground of a want of power in the court to make the order, but, in the absence of any showing to the contrary, on the ground that, under the circumstances, the order ought not to have been granted.

The application for such order ought to be so made as not unnecessarily to prolong the trial, or to prejudice the plaintiff in proving his case. Hence, where the application is not made until after the close of the plaintiff’s evidence in chief, and the commencement of the introduction of the defendant’s evidence, and no reason is shown for the delay in making the application, it may be refused on that ground.

It was not error for the court to refuse to charge the jury, that the refusal of the plaintiff, “at any time after the dose of the testimony on his lehalff to allow an examination of his person touching the injury, by any competent physician and surgeon, affords a presumption against the claim of the plaintiff as to the character and extent of the injury.

The request excluded from the consideration of the jury, as a justifying or an excusing circumstance, the fact that the application was not made until after the plaintiff had closed his testimony. This might of itself be sufficient ground for the refusal. The object of asking the examination was to obtain the assistance of the plaintiff in furnishing the defendant with additional expert testimony. Testimony thus furnished, the plaintiff had no reason to anticipate when he closed his evidence. If the defendant required an examination of the plaintiff for this purpose, he should have applied for it before the evidence iff the plaintiff was closed. It would have been unjust to the plaintiff to require him to furnish such evidence against himself after his case was closed, and to which evidence he could not have replied except by a successful appeal to the discretion of the court. Por additional evidence on the subject by the plaintiff would have been evidence in chief, and not rebutting evidence.

Judgment affirmed.


author: Boynton, C. J.

text:
    The State of Ohio v. Henry Beal.
    Upon the trial of an indictment for burglary, the evidence tended to show that the accused, in the night, broke and entered a warehouse with intent to steal money supposed to be in a safe therein, belonging to the owner of the building, which safe, however, was not used as a place for the deposit of money. The court charged the jury, that if the accused broke and entered the building with the intent to break into the safe and steal money supposed to be therein, and the safe was not used as a place for the deposit of money, and there was none therein at the time, he was not guilty.

      Held, that the instruction was erroneous.
    Exceptions by the state to instructions by the Court of Common Pleas of Wayne County to the jury.
    The defendant, Henry Beal, was indicted for burglary.
    The indictment charged, that the defendant, in the night season of the 31st day of October, 18YY, “into a certain warehouse of William Houts, situate in Wayne county, did willfully, maliciously, burglariously and forcibly break and enter, with intent then and there feloniously and burglariously to steal take and carry away, the personal goods, chattels and property of the said William Houts, then and there being,” &c.
    Evidence was offered tending to show that the defendant, in the night season of the day named, broke and entered the warehouse of Ilonts with intent to steal moneys which he supposed to be in a safe belonging to Houts in the warehouse, and which he attempted to open; but evidence being given tending to show that there were no moneys in the safe, and that Houts did not use the same as a place for the deposit of money, the court instructed the jury as follows:
    “ If the jury find that the defendant, Henry Beal, broke and entered the warehouse of the prosecuting witness, William Houts, with the intent to. break open the safe of the said William Houts, in said warehouse, and intended to steal money of said William Ilonts, which he supposed to be in the safe, and the jury further find that said Houts did not use said safe as a place for the deposit of money, and that no money was actually in the same at the time the defendant so broke and entered said warehouse and attempted to break open said safe, they should acquit the defendant.”
    • The jury having acquitted the defendant, the prosecuting attorney alleges that the above recited instruction was erroneous.

      Edward S. Dowell, prosecuting attorney, for the state:
    The building alleged to have been burglariously broken and entered in this case was a warehouse, and the statute of Ohio reads, “ Whoever in the night season maliciously and forcibly breaks and enters any warehouse with intent to commit a felony or with intent to steal property of any value shall be imprisoned,” &c. Ohio Criminal Code, 12.
    If the defendant broke and entered the said warehouse, with the intent of stealing from a s^afe therein certain moneys which he supposed to be in such safe, belonging to said Ilouts, he was guilty under the statute of the crime of' burglary, whether there was any money in said safe or not. Commonwealth v. Jacobs, 9 Allen, 274; Hamilton v. State, 36 Ind. 280; 1. Bishop Crim. Law, §§ 427, 674, 676, 677; 2 Wharton Crim. Law, § 2697.
   Boynton, C. J.

The judge presiding at the trial seems to have been of the opinion, that the averment of an intent to steal the personal effects or property of the owner of the building broken into, is not sustained, unless property belonging to such owner and which the accused intended to steal, was found within the building. The instruction, in effect, directed the acquittal of the defendant if no money was kept in the safe, although he believed money would there be found, and the breaking and entry were with the intent to steal it. In this we think the court erred. • Burglary, under the statute, involves the ingredients of breaking and entering the building, in the night, forcibly and maliciously, with intent to commit a felony, or with intent to steal property of some value. It differs but slightly from burglary at common law. 2 East P. C. 484. The offense is complete when the facts entering into the above definition exist, whether the intent is executed or not. It has been repeatedly held, and the rule is well established, that in an indictment for burglary, it is not necessary in alleging the intent to steal, to specify to whom the goods intended to be stolen belong. It was not required at common law, nor is it under the statute. Queen v. Nichols, 1 Cox C. C. 218 ; Reg. v. Lawes, 1 C. & P. 62; 2 Russ. on Cr. (9 Am. ed.) 44.

The breaking and entering with the felonious intent constitute the offense. It is true, that in the Queen v. Jenks, the trial of which is reported in 2 Leach, 4 ed. 774, the court held, upon review, that where a specific intent is laid to steal the goods of one, not the owner of the building, the intent must be proved as laid. 2 East P. C. 514; 2 Russ, on Cr. 44. The doctrine of this case has not met with universal approval, its correctness being denied by Mr. Bishop in 2 Bish. on Cr. Law, § 114, where it is asserted that if it appear that there were a breaking and entry with intent to steal, a conviction should follow, although the specific intent charged is not established by the proof. Whether the rule in Jenks’ case is correct or not, we need not stop to inquire, as the present case seems clearly distinguishable from it. The question here is, whether •the act of breaking and entering with intent to steal money from the safe of the owner of both the building and safe, in the belief that money was there, is reduced to a mere trespass from the circumstance that, contrary to the expectation of the defendant, no money was there found, coupled with the fact that the safe was not used as a place for its deposit. We think it was not. The offense was complete whether money was there deposited or not. The breaking and entering were with intent to steal the property of Houts. This brings the case within both the words and object of the statute. The public security was as much disturbed by the act committed, as if money had been actually found. The offense is one against the security of property, and the failure to execute the intent was the result only of an unforeseen and unexpected circum■stance. Where a statute makes an assault upon a person with intent to steal from his pocket, a criminal offense, it is no answer to an indictment charging 'such offense that nothing was found in the pocket. It has been repeatedly held, that where the hand is thrust into the pocket with intent to steal what may there be found, the offense is complete whether anything be found or not. State v. Wilson, 30 Conn., 500 ; Hamilton v. State, 36 Ind., 280 ; Commonwealth v. Jacobs, 9 Allen, 274; 1 Bish. Cr. Law, § 743, et seq.

A distinction seems to prevail, in the English cases, between an attempt to commit a felony and an act done with intent to commit it. In The Queen v. Goodall, 2 Cox C. C. 41, the accused was indicted for using an instrument upon the body of Catharine Snowden with intent to procure a miscarriage. The statute declared that whosoever, with intent to procure the miscarriage of any woman, shall . . . unlawfully use any instrument, &e., . . shall be guilty of felony. It appeared from the evidence that the instrument was used with the intent laid in the indictment; but the medical witnesses stated, from the result of a post mortem examination, that Catharine Snowden was not pregnant at the time the instrument was used. Upon reservation of the question for the consideration of the judges, it was held immaterial whether the woman was, in fact, pregnant or not. In McPherson’s case, it was held that, where a statute makes it an offense to attempt to commit a felony, the attempt must be to do that which, if successful, would have constituted or resulted in a felony, and consequently, that, where the attempt-charged was to steal certain goods from a dwelling-house, no conviction could be had, it appearing that the goods had been previously stolen by some one else. Dearsley & Bell, 197. Cookburn, C. J., in delivering the 0]únion, however, remarked, that “ attempting to commit a felony is clearly distinguishable from intending to commit it.”

That this distinction is not supported by the American cases is asserted by both Mr. Bishop (1 Bishop Cr. Law, § 742) and by Mr. Wharton (1 Wharton Cr. Law, § 18G). See Holmes on Common Law, 09. In the present case it is not necessary to examine the ground on which the distinction is said to rest. We are of the opinion that the breaking and entering the warehouse of the prosecutor, as alleged, with intent to steal money supposed to be in the safe within the building, was burglary, notwithstanding the fact that no money was there found or kept. The failure to accomplish the result contemplated was wholly independent of the defendant’s will, and did not in the least mitigate the turpitude of the offense.

The statute was designed to afford security against a breaking and entering with intent to steal, and when the act and intent concur, the statute is none the less violated, because through some unforeseen circumstance the criminal enterprise proves unsuccessful in its result.

Exceptions sustained.


author: By the Court.

text:
    John P. O’Brien v. The State.
    Application for leave to file a petition in error to reverse the judgment of the District Court of Cuyahoga County.

      R. A. Davidson and M. Foran for the motion.

      George K. Nash, attorney-general, contra.

   By the Court.

The printing or selling of an obscene newspaper is within the inhibitions contained in section 7027 of the Revised Statutes. Leame refused.