author: By the Court.

text:
    Tobias v. Tobias.

      Receiver — Leave to sue — Effect of failure to obtain.

    A failure to obtain leave of court to sue a receiver, does not affect the jurisdiction of the court in which the suit is brought to hear and determine it. The requirement is for the protection of the receiver: and, if waived by him, no advantage can be taken of the omission by anyone else.
    [Decided June 19, 1894.]
    Error to the Circuit Court of Crawford county.

      Franklin Adams and S. R. Harris, for plaintiff in error.

      Finley & Bennett, for defendant in error.
   By the Court.

On April 8,1889, Nora J. To-bias commenced an action in the court of common pleas against her husband, Daniel M. Tobias, and John Rexroth. Previous to this she had commenced an action in the same court against 'her husband for divorce and alimony, in which Rexroth had been appointed receiver of the rents and profits of lands belonging to her in her own right, that were claimed by the husband»

The suit for divorce was pending at the time she commenced this action, but was subsequently dismissed without prejudice to a new action, and without any disposition of the funds in the hands of the receiver. Afterwards, on January 9,1890j she filed an amended petition, in which she avers that the marriage relation between her and Daniel M. Tobias has been dissolved, that there remains in the hands of the receiver $234.19, belonging* to her as the proceeds of her separate estate, and that it is wrongfully claimed by her former husband, and asks that it be ordered 'paid to ber. It is further averred in her amended petition, that Rexroth had filed an affidavit, stating- the amount of money in his hands; that, without collusion, Daniel M. Tobias claims the money; that he is ignorant of the rights of the parties, and asks that they be required to inter-plead, and have their claims settled. To this a demurrer was overruled, and, also, a demurrer to the original petition. The defendant, Tobias, answered claiming the fund as his ovni, and denying-the right of the plaintiff to it; and as a separate defense claimed, that as Rexroth had no title to the fund, other than as receiver in the prior suit-for divorce, and that suit having been dismissed, the court was without jurisdiction to make any order in the premises.

Issues having been thus made as to the ownership of the fund, the case was tried to the court— the defendant, however, refusing- to waive a jury. The court found for the plaintiff and ordered the fund paid to her. No bill of exceptions was taken, and the record does not, therefore, contain the evidence.

On error, the circuit court held, that the common pleas erred in overruling- the demurrer to the original, and also to the amended petition of the plaintiff, and reversed the common pleas and dismissed the action.

We are unable to perceive any ground on which this ruling can be sustained. By the finding of the court below, the money belonged to the plaintiff as the proceeds of her separate estate. It was in the hands of Rexroth, who made no claim to it, asked that the parties might be required to inter-plead, and was willing to pay it to whichever the court might order. The petition of the plaintiff and the answer of the defendant made an inter-pleading. If it were conceded, that the receiver could not have been sued, without leave of the court, at the time of the filing of the original petition, because the suit in which he had been appointed was then still pending, this was not so at the time of the filing* of the amended petition. The suit for divorce had then been dismissed, leaving funds in the hands of the receiver undisposed of. The fund being claimed by both parties, he had the right to require them to interplead, and have the matter judicially deterxhined for. his own protection in disposing of the fund. This was the substance and character of the suit under the amended petition. Moreover, the failure of a party to obtain leave of the court to sue a receiver appointed by it, does not affect the jurisdiction of the court in which the suit is brought, to hear and determine the matter. The requirement is for the. protection of the receiver, and if he makes no objection to the suit being brought without leave, it is difficult to perceive why anyone else should be permitted to do so. He may, as in this case, invite the suit.

Judgment of the circuit court reversed, and that of the common pleas affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Metz v. Hagerty, Auditor, et al.

      Constitutional law — Cigarette tax — Time of operation.

    1. The act entitled “'An act to tax the business of trafficking in cigarettes or cigarette wrappers,” passed April 24, and took effect August 1,1893 (90 Ohio Laws, 235), is not in conflict with the constitution of Ohio, nor with the constitution of the United States.

      2. Said act does not authorize the assessment or collection of such tax for the year 1893.
    (Decided June 22, 1894.)
    Error to the Circuit Court of Hamilton county.
    The plaintiff in error also plaintiff below, filed the following petition in the court of common pleas of Hamilton county, on the 23d day of September, 1893.
    “The plaintiff, Edward Metz, represents and avers that he is a resident of the city of Cincinnati, Ohio, and there engaged at the northwest corner of Fourth and Main streets, in the wholesale and retail business of trafficking in cigarettes and cigarette wrappers, and has been so engaged for some years; and that he conducts said business in connection with the business of trafficking' in cigars and tobacco.
    “The plaintiff further avers, that the cigarettes and cigarette wrappers used in the traffic in which he is and has been engaged as aforesaid, are made only of pure and wholesome tobacco and harmless paper; that there are no deleterious or noxious ingredients of any kind used in the manufacture of such cigarettes or cigarette wrappers; and that he intends to traffic only in cigarettes and cigarette wrappers of the kind described, there being no other kind to his knowledge.
    “The said plaintiff further avers, that he has at all times heretofore made returns of all his personal property, including’ cigarettes and cigarette wrappers employed in his business of trafficking therein as aforesaid, and has at the times fixed by law therefor, paid into the county treasury all taxes due and owing on account of such cigarettes and cigarette wrappers, but that he has never heretofore been called upon or required to pay any taxes or assessments upon his business of trafficking in such articles.
    “Nevertheless, John Hagerty, who is auditor of said county of Hamilton, defendant herein, has given official notice to all persons intending’ to engage in the business of trafficking in cigarettes or cigarette wrappers, either at wholesale or. retail, to apply at his office at once, and make statements —as mentioned in said notice — ‘as required by law,’ upon blanks to be furnished for that purpose and to be verified by such persons; and that said defendant auditor, as well as Leo Schott, who is treasurer of said county, also defendant herein, claims that under the recent act of the general assembly, entitled ‘An'act to tax the business of trafficking in cigarettes and cigarette wrappers,’ passed April 24, 1893, to take effect and be in force on and after the 1st day of August, 1893, all persons engaged or intending to engage in the wholesale and retail business of trafficking in cigarettes or cigarette wrappers are chargeable with an assessment of ninety-two dollars and fifty-eight cents, on account of such wholesale business, and twenty-nine dollars and thirty-two cents on account of such retail business, payable August 1, 1893, as the proportionate part of the annual assessment claimed to be due under said act for the portion of the year between August 1, and December 20, 1893. That plaintiff commenced the said business of trafficking in cigarettes and cigarette wrappers prior to the fourth Monday of May, 1893, and has ever since continued and intends hereafter unless said tax or assessment is enforced, to continue his said business; but that the said defendants in addition to enforcing all the ordinary remedies for collecting such taxes or assessments, threaten and intend to and will, unless restrained by the order of this court, resort to the institution of proceedings according to the provisions of section 6 of the act of the general assembly aforesaid, to prosecute this plaintiff, who declines to pay said assessment, all of which if permitted, will cause this plaintiff great and irreparable injury.
    “The plaintiff further says, that the business of trafficking in cigarettes and cigarette wrappers, especially the retail business, is actually and of necessity small, being always carried on in connection with and as an incident of the business of trafficking in cigars and tobacco or other articles; and that the enforcement of the taxes or assessments provided for by said act, will, if permitted, operate to destroy and prohibit the traffic itself. Plaintiff further states that said business is such, and is so conducted, and the cigarettes and cigarette wrappers used are composed of such materials, as not to be harmful to the public; that there are a large number of persons, to wit, more than fifty engaged in said county in said business who have different and varying amounts of trade in cigarettes and cigarette wrappers; that their outlays, receipts and profits in money arising therefrom, differ and vary materially according to the amounts of business they severalty conduct; that if the act aforesaid is operative to tax the business of trafficking’ in cigarettes and cigarette wrappers, then that the same is unconstitutional and void, not only for that such law results in double taxation upon plaintiff respecting said articles, but that said law fails and omits to provide for the taxing of other business or property which is equally subject to the taxing power, to wit, the business of trafficking in candies, sweetmeats, cigars and tobacco, as well as the acknowledged staples; that the business and property thus excluded from taxation is of great value, amounting in said county of Hamilton alone to vast sums of money; and that by reason of the differences in quantity of business done by the various dealers as aforesaid, and by reason of the omission from taxation of the business of trafficking in the other articles above mentioned by which the rate of taxation upon other property will be unlawfully and unduly increased, this plaintiff will, if said act is enforced, be taxed, not by a uniform rule nor according to the true value of his property in money, and will also be denied the equal protection of the law; whereby said act passed as aforesaid, April 24, 1893, is repugnant to section 2, article XII, of the constitution of Ohio, and to section 1, of amendment XIV to the constitution of the United States. He also avers that the failure of said act to state distinctly the object of the tax imposed and its failure to discriminate between commerce in cigarettes and cigarette wrappers within this state, and that among the several states, including Ohio, and with foreign nations, renders said act also repugnant to section 5, article XII, of the former, and to section 8 of the latter constitution, plaintiff being an importer and seller of cigarettes and cigarette wrappers in original packages.
    “Wherefore, said plaintiff prays for the issuance of an order restraining ■ the said John Hagerty, county auditor, from further issuing official notice requiring this plaintiff to apply at his office and make statements as to his intention to engage in the business of trafficking in cigarettes and cigarette wrappers, from making said assessments of $92.58 and $29.32, respectively, or any assessment against this plaintiff, respecting such traffic, especially from doubling the amount specified in section 4 of said statute passed as aforesaid, April 24, 1893, to take effect August 1, 1893, and from doing anything else under or in pursuance of the provisions of said statute, restraining said Leo Schott, treasurer of said county, from taking any steps or doing any act towards collecting any assessment of any sum in pursuance of the statute last aforesaid, especially the sums of $92.58 and $29.32, sought to be exacted as aforesaid of this plaintiff; that upon final hearing hereof, said restraining order be made perpetual; and that such other and further relief may be granted in the premises as equity may require.”
    To this petition the defendants filed a general demurrer, which was sustained by the court, and judgment rendered in favor of defendants below. This judgment was affirmed bj^ the circuit court, and thereupon a petition in error was filed in this court to reverse the judgment of both courts below.

      J. W. Warrington, M. A. Norris, John A. McMahon, John H. Doyle, George K. Nash and Andrew Squire, for plaintiff in error.

      Spiegel, Bromwell & Foraker, and James B. Kennedy, for defendants in error.
   By the Court.

A majority of the court are of the opinion, that the act known as the cigarette law is constitutional; but, as the act has been repealed, it is not now important to give the reasons of the majority for so holding.

A majority of the court are, however, of opinion that the assessments provided for in said act, can not be assessed or collected, upon the traffic in cigarettes for the year 1893. The statute provides that the assessment shall be made annually, and the returns upon which the assessments are to be based, are required to be made by the assessors, with their other returns, on or before the third Monday of May, in each year, and payment is to be made, one-half on or before the 20th day of June, and the other half on or before the 20th day of December, in each year. The assessment is in contemplation of the statute to be an annual assessment, that is, for a whole year from January 1, to December 31. The statute did not take effect until the first day of August, 1893, when only five months of the year remained. The statute is in effect the same as if it had been passed on Aug'ust 1st, to be in force from and after its passage. As the time for making the returns by the assessors and the assessments by the auditors, and the June payment to the treasurer, was long past before the law took effect, it cannot be inferred, without a clear provision to that effect, that the legislature intended that an act so penal in its nature, should have the effect to impose an assessment for seven months of the year, before the law was in force. A majority of the court therefore hold, that the act in question did not authorize such assessment for the year 1893, and that the court of common pleas erred in sustaining the demurrer to the petition, and in rendering judgment in favor of the defendants below, and that the circuit court erred in affirming the judgment of the common pleas. Both judgments are therefore reversed, and cause remanded to the court of common pleas, with instructions to overrule the demurrer to° the petition, and for further proceedings, according to law.

Judgment reversed.


text:
    Romans v. State.

      Forgery — Burden of proof, when signature admitted.

    In a prosecution for the forgery of a promissory note, when the defendant admits the making of the signature, the burthen is not on him to prove that he had authority. In such case the burthen remains on the state to prove that it was without authority, before a conviction can be had.
    (Decided June 22, 1894.)
    Error to the Circuit Court of Harrison county.

      Albert O. Barnes, for plaintiff in error.

      W. T. Perry, Prosecuting Attorney, and J. M. Garvin, for defendant in error.
   By the Court.

The plaintiff in error, John A. Romans, was indicted, tried, convicted and sentenced to confinement in the penitentiary, by the Harrison County Court of Common Pleas, for forging the name of John S. Davidson to a promissory note. From a bill of exceptions taken by him on the trial, it appears that evidence was given on behalf of the state, by John S. Davidson and others, tending to prove that the plaintiff in error signed the name of John S. Davidson to the note in question fraudulently, and without- authority to do so, and that the plaintiff! in error, in person and by other witnesses, gave evidence tending to prove that he had signed the note, and was authorized by said John S. Davidson to sign it. Thereupon the court charged the jury a's follows, to which charge plaintiff in error at the time excepted. .

1 ‘ If the jury find from the evidence that defendant admits that he signed the name of John S. Davidson to the note in question, but that clef end-ant claims he had authority from said Davidson so to do, then the burden of proof is on the defendant to show by a preponderance of the evidence that he had such authority; and if the’ defendant fails to establish by a preponderance of the evidence that he had such authority, your verdict should be against the defendant. In other words, on that branch of the case, the defendant is required to produce evidence of greater weight than that produced by the state. If the testimony as to authority to sign the noté is equally balanced or preponderates in favor of the state, the defendant must fail in regard to that defense. If, on the other hand, the jury finds by a preponderance of the evidence that John S. Davidson did authorize the defendant to sign his (Davidson’s) name to the note in question, your verdict should be for the defendant.”

The conviction and sentence were affirmed by the circuit court, whereupon proceedings were instituted in this court to reverse the judgments of both said courts.

The instructions were erroneous. It was just as necessary to the conviction of plaintiff in error to prove that he signed the note without authority, as to prove that he signed it at all. The signing could not have been fraudulent, and thus criminal, if the plaintiff in error had authority to sign the name, alleged to have been forged. The fraudulent character of the act should have been established by the state with the same degree of proof that any other fact essentially characteristic of the offense must, by the rules of criminal jurisprudence, be established, and that is beyond a reasonable doubt. The presumption that it was a fraudulent signing does not arise from the mere fact of signing'. Nor is it material in this connection whether the fact of signing- was established by the personal testimony of the defendant himself or bji- the testimony of others; it is simply one fact, of a number, that the state must establish to show forgery. The manner of the signing', or circumstances under which it was done, may be significant, and here again, it is the circumstances themselves, rather than the medium by which they are established, that make them significant. The plaintiff in error, in contemplation of law, did not, by this testimony, set forth an independent affirmative defense; he simply controverted the truth of a material averment of the indictment, namely: that he fraudulently signed the name alleged to have been forged. The fraudulent character of the sig'ning, as we have seen, the state must establish, to authorize a conviction. If there remained, upon a consideration of all the evidence submitted to the jury, a reasonable doubt whether or not the plaintiff in error had authority to sign the name in controversy, the same doubt must, of necessity, remain as to whether or not the signing was fraudulent.

Judgment reversed.


author: Bradbury, J.

text:
    Board of Education v. State.

      Taxation — Constihitional law — Act commanding board of education to levy tax to pay claim assessed by individual — Estoppel.
    1. Where no obligation, legal or moral, rests upon a board of education, to pay a claim asserted against it by a private individual, an act of the general assembly, procured by the claimant, commanding such board to levy . a tax for its payment, is unconstitutional and void.
    2. In such case, if the board of education disputes the facts asserted by the claimant as the foundation of his claim, the general assembly, while it may make inquiry to ascertain, in' the first instance, the truth of the facts so asserted, yet is without authority to conclusively find and recite in the act providing relief, the facts in dispute, so as to estop the board of education from contesting them in a court of justice where the act is sought to be enforced.
    (Decided October 16, 1894.)
    Error to the Circuit Court of Fayette county.
    The defendant in error brought an action of mandamus against the plaintiff in error in the circuit court of Fayette county to compel it to levy a tax under and by virtue of the following act of the g’eneral assembly of this state:
    “Section 1. Be it enacted by the General AssembT/y of the State of Ohio, That the board of education of Marion township, Fayette county, Ohio, shall, at the next regular meeting of the said board of education, after the passage of this act, levy upon the taxable property of said Marion township, Fayette county, Ohio, not to exceed one mill on the dollar, as and for a contingent fund, for the purpose of refunding to A. C. Lindsay, former treasurer of said township, the sum of one hundred and' ninety-seven dollars and seventy-six cents, with interest thereon from April 1, 1882, which said sum was charged to said A. C. Lindsay, as treasurer, and said sum paid over to his successor in office, by mistake, and has not been refunded to him ; that said board of education shall certify said levy to the auditor of said Fayette county, Ohio, as required by law, and the clerk of said township shall draw an order upon the treasurer of said township in favor of said A. C. Lindsay for said sum of one hundred and ninety-seven dollars and seventy-six cents, with interest from April 1, 1882, to be paid out of the contingent fund of said Marion township, Fayette county, Ohio.”
    • In his petition he states in substance, that on and before September 29, 1874, and fop several years thereafter, he was the treasurer of said township of Marion, and as such was ex-officio treasurer of the school fund of said township. That the clerk of said township on said 29th day of September, 1874, pursuant to the order of said board of education, issued to one William Clark, a warrant for the sum of $197.76, payable out of the school fund of • said township, which the relator paid from said fund to the person in whose favor said order was drawn. That afterwards, when he came to settle with the county auditor, the said warrant having been lost, he was charged with the amount thereof, and that he has never been reimbursed for the same, and that when he came to settle with his successor in said office the amount of this warrant was charged to and paid by him to such successor. That in the year 1892 the relator found said warrant, presented the same to the said board of education, together with full proof of its having-been paid by him and his never receiving credit therefor, and requested that a warrant be issued to him for the sum due to him by reason of the premises, which said board refused to do, though admitting the facts to be as he claimed they were, on the ground that they had no power to go behind the settlements previously made. Whereupon he applied to the general assembly of the state and procured the act aforesaid, to be passed, and that said board have refused to levy a tax according to its requirements.
    To this petition the board of education answered as follows:
    “Now comes the defendant, the board of education of Marion township, Payette county, Ohio, and for answer to the petition of the plaintiff, says:
    ■ “It denies that the said J. V. Outright, clerk of said township, pursuant to any order br resolution of said board, issued in favor of the said William Clark, the warrant mentioned in the petition. Said defendant denies that it by any order, resolution or otherwise, authorized the said clerk to issue the said warrant. It denies that said order was ever delivered to ■ the said William Clark, or by him presented to the said relator, as such treasurer, or that the said relator ever paid the same to the said William Clark, or to any one else. It says that at the date of said warrant, said defendant was not indebted to the said Clark, nor was the said Clark asserting any demand or claim against it.
    “It denies that in paying to his successor in office the amount of school funds charged against him as such township treasurer, the said relator paid said sum of $197.76, or any other sum of his own funds; but on the contrary, the said defendant charges the fact to be that the said relator became a defaulter in his said office, and was by the township trustees of said township, about the -- — • day of-, 1878, removed from his said office, and one O. C. McCray was appointed his successor, and the said relator was unable to and did not pay to his said successor the amount so charged against him of school funds; and there still remains a balance $60.00 of said school funds so charged against the said relator as such treasurer, which has never been paid to the said successor, or any other treasurer of said township, by the said relator or any one for him.
    “Said defendant further says, it is true that at some time in the year 1892, the relator presented the said warrant to the defendant and requested the defendant to order its clerk to issue a warrant for the payment of the same, and the said defendant refused so to do; but it denies that the said relator ever presented any proof of payment of the same, or the failure of the said auditor to give credit; or that they admitted the facts, as stated in the petition, but the said defendant always denied the facts to be as claimed by the relator.
    ‘ ‘ Said defendant says the facts in regard to said order are as follows:
    “Prior to the 1st day of August, 1874, the said board of education of Marion township had instituted in the probate court of Payette county, Ohio, certain proceedings to condemn lands for schoolhouse site in said township. The awards made in said proceedings, together with the costs taxed to the said board therein, amounted to the said sum of $197.76. The said board had in said proceedings incurred an expense of $15.00 for the services of H. B. Maynard, an attorney, all of which was by said board apportioned between the' two school districts interested, and was paid by two orders, one for 103.43, and one for 109.33, which were on said first day of August, 1874, issued by the clerk, upon the order of said board, to said William Clark, who was at that time a member of said board, and said orders so issued to the said Clark were paid by the said relator, and the money was thereupon disbursed by the said Clark in payment of said award, costs and attorney fee; and said orders so paid by the said relator were duly credited to him in his annual settlement with the county auditor.
    “Afterward, on the 29th day of September, 1874, the said clerk, by mistake, issued another order for the amount of the said award and costs, being the warrant mentioned in the petition, but said warrant was not delivered to the said Clark, the payee named therein, and was not paid by the said relator, the mistake having been discovered in the meantime. But said warrant in some way unknown to the defendant came into the hands of the relator, and he has ever since retained the same, and never until the year 1892, claimed to have paid the same, or that he was entitled to credit for the same in his settlements with the county auditor.
    “The defendant says- the said board of education was never legally, equitably nor morally bound to pay to the relator the amount of said warrant, or any sum on account thereof. The said defendant further says: It is true that the general assembly of the state of Ohio, on the 16th day of February, 1893, passed the act mentioned in the petition; but it avers that said enactment commanding the levy of a tax, and the payment of a claim of the character of that of the relator, for which the defendant was not bound legally, equitably nor morally, as appears from the facts herein-before set out, was not a legal exercise of the taxing power of the said general assembly, said tax ordered to be levied not being- for any public purpose, and said act is for that reason wholly void and of no effect.
    “The defendant further says that at the time when the act of the general assembly, mentioned in the petition, was passed, the defendant denied and still denies the existence of the facts which would furnish the basis for the relator’s demand, or which would render the said defendant equitably and morally, if not legally bound to pay the same; but then, as now, asserted the facts to be as set out in this answer. The said general assembly, in said enactment, did not provide any means of determining the facts on which the demand of the relator is founded; either by the trial in court, before a board of audit constituted for that purpose, or otherwise; but said general assembly attempted, by said enactment, to pass upon the facts, to adjudge the said defendant liable on said demand, and to enforce payment by taxation, which action on the part of said general assembly was an attempt to exercise judicial and not legislative power, and said enactment is for that reason void, and can furnish no basis for the relief prayed for in the plaintiff’s petition.
    “Wherefore the said defendant says that a peremptory writ ought not to issue in this case, and it asks to be discharged and to recover its costs.”
    To this answer a demurrer was interposed by the relator and sustained by the court; whereupon a peremptory writ of mandamus was awarded commanding’ the board of education to levy a tax according to the provisions of the act under which the proceedings had been commenced.

      This action of the circuit court the board of education brings into this court of review.
    Hidy, Patton, Marchant & Nye Gregg, for plaintiff in error.

      John Logan, and Gardner & Rogers, for defendant in error.
   Bradbury, J.

the answer of the respondent, if true, shows that the demand of the relator has no foundation, whatever, in fact or justice; that the board of education was under no obligation, legal or moral, to pay the same, and that the fund to be raised by virtue of the act of the general assembly differed in no essential particular from a mere gratuity provided for his benefit. The de- ’ murrer admits the truth of the averments of the answer. In such a state of things the act must be held invalid unless the general assembly has authority to corhmand a local subdivision of the state to raise by taxation a fund for the benefit of an individual to whom it is under no obligation whatever, or where in such ease a dispute exists, the enacting of a statute, wherein the facts are declared to be as contended by the claimant, is .to be taken to be a legislative determination, of the dispute in his favor, binding upon the parties, so that the alleged debtor will be estopped from contesting the existence of the disputed facts in the courts of justice. If either of these alternatives is true, there is no constitutional limitation on the power of the legislature to levy exactions on the public as a whole, or on subdivisions of it for political or governmental purposes, for the benefit of favored individuals.

It may be true that the responsibility the individual members of the legislature are under to their constituents, or their sense of public duty is a sufficient guaranty against any great injustice in this direction, and, therefore, that unlimited power of taxation vested in that body would not be followed by vicious results generally, though it might be in exceptional instánces. However this might be, we, in the present inquiry, are more concerned in determining whether such unlimited power does exist than in the question of the wisdom and expediency of granting it.

Whatever power of taxation resides in the general assembly does so as an incident -of the general legislative authority delegated to that body by section 1 of article II, of the constitution of 1851. This court, holding in Western Union Telegraph Co. v. Mayer, Treas., 28 Ohio St., 521, that the provisions of article XII, of that instrument, though they relate to finance and taxation, are limitations upon, rather than grants of power of taxation ; and this, too, althoug’h section 4 of this statute expressly requires the general assembly to provide revenue to defray the yearly expenses of the state and pay the interest of its public debt. The power of taxation vested in the general assembly would have been just the same without, as with, this section.

That the authority to impose taxes is in ibs nature legislative, is established by the uniform current of judicial opinion. Cass Township v. Dillon, 16 Ohio St., 38; State ex rel. v. Harris, 17 Ohio St., 608; State ex rel. v. Wilkesville Township, 20 Ohio St., 288; State ex rel. v. Richland Township, Id., 362; State ex rel. v. Circleville, 20 Ohio St., 362; 25 Am. & Eng. Enc. of Law, 1871; Cooley on Taxation, 41-53.

That the legislative branch of the government is necessarily clothed with a broad discretion in determining the character, whether public or private, of the purpose for which funds may be raised by taxation, is equally well settled. Cooley on Taxation, 43; 25 Am. & Eng. Enc. of Law, 72; Cooley’s Constitutional Limitations, 599.

. In doubtful cases the courts should not interfere with the excise of this legislative discretion, and in all cases the legislative determination is entitled to great respect. Hanson v. Vernon, 27 Iowa, 28; Brodhead et al. v. Milwaukee, 19 Wis., 624; 25 Am. & Eng. Ency. of Law, 89, 90. That the power, however, is not unlimited is, we think, clearly established by the great weight of authority as well as of reason. State ex rel. v Commissioners, 35 Ohio St., 468.

The power of taxation is given to the general assembly as an indispensable means of providing for the public welfare, government could not be carried on without such power, and the power should be commensurate with the objects to be attained, but no good reason can be assigned for vesting it with power to take portions, large or small, of the property of one or a number of persons and granting it as a benevolence to another. Where a legislature attempts this, directly or indirectly, it passes beyond the bounds of its authority, and the parties injured may appeal to the courts for protection. The same constitution which grants the power of taxation to the general assembly recognizes the sanctity of private property, and declares that the courts shall be open for the redress of injuries.

This limitation on the legislative power of taxation is generally recognized by the authorities. The rule supported by a long array of adjudicated cases is laid down in 25 Am. & Eng. Ency. of Law, 74, as follows: “It is within the province of the courts, however, to determine in particular cases whether the extreme boundary of legislative power has been reached and passed.” In Weismer v. Village of Douglas, 64 N. Y., 99, Folger, J., says: “But to tax A and the others to raise money to pay over to B, is only a way of taking their property for that purpose. If A may of right resist this, as surely he may, how is he to make resistance effective and peaceable save through the courts, which are set to be his guardians ? How may the courts g’uard and aid him, unless they have the power, upon his complaint, to examine into the legislative act, and to determine whether the extreme boundary of legislative power has been reached and passed?”

It may be conceded that the general assembly may authorize one of the political subdivisions of the state to levy a tax to pay a demand not legally enforceable, but founded upon a moral consideration, or may even command that the levy shall be made for that purpose, and yet deny to it* the power to determine conclusively the existence of such obligation.

On the other hand it may be contended that if the power to levy a tax for a private purpose i s denied to it, it follows as a corollary that it had no power to determine the character of a demand, for if it had the latter power it could defeat thé limitation by falsely finding’ the claim to be founded, at least, on a moral consideration. We do not think the conclusion follows, for that would be to impute bad faith to a co-ordinate branch of the government which is not permissible.

We think, however, that whenever a contention arises between an individual and some public body respecting the existence of a claim against the latter, the controversy falls within the province of the judiciary. We do not deny the power of the general assembly to inquire into the merits of any claim sought to be asserted through its agency, before granting relief to the claimant by legislative action. Not only has it such authority, but its exercise should be carefully and rigidly observed.

Such • investigation, subsequent determination and resulting action, however, clo not estop the parties from appealing to those judicial tribunals of the country that have been established under our constitution and by it vested with the judicial power of the state, and by our laws provided with an appropriate.procedure to conduct such inquiries. Cooley’s Constitutional Limitations, 115, and cases cited. 3 Am. & Eng. Ency. of Law, 681.

If, in the ease under consideration, the relator has paid out money for the benefit of the respond-dent, for which, by some mistake, accident or error, he has never received credit, it is morally bound to make it good and this moral obligation is sufficient to support the statute in question. Lewis, Trustee v. McElvain, 16 Ohio, 355; Trustees v. McCaughy et al., 2 Ohio St., 152; Burgett et al. v. Norris, 25 Ohio St., 308; Rairden et al. v. Holden, Adm'r, 15 Ohio St., 207; Cass Township v. Dillon, 16 Ohio St., 38; Ohio ex. rel. Anderson v. Com'rs of Holmes Co., 17 Ohio St., 608; Board of Education v. McLandsborough, 36 Ohio St., 227; Cooley on Taxation, 127-8, State ex. rel. Bates v. Richland Township, 20 Ohio St., 362; State ex. rel. v. Hoffman, 35 Ohio St., 435; Warder v. Com'rs, 38 Ohio St., 643. Cooley’s Cons. Lim., 283. Where, however, the facts, out of which a moral (or legal) obligation is claimed to arise, are disputed, the contention falls within the province of the courts, under the distribution of governmental powers prescribed by our constitution. Sec. 1, of Article IV of the Constitution of 1851.

Judgment reversed and cause remanded with instructions to overrule the demurrer to the answer of the respondents.

Williams, J., not sitting.


author: Spear, J.

text:
    Coal and Mining Co. v. Admr. of Clay.

      Special charges to jury — Exceptions to — How made — Section 6871, Revised Statutes, construed — Negligence—Master and servant —Eellow servant.

    1. Where, in the course of a jury trial, objection is made to the giving of one of a series of seven special charges by the court to the jury, a special exception should be made to the giving of the objectionable proposition. An exception to the giving of the entire series is too general to bring the objection before a reviewing court.
    2. Section 6871, of the Revised Statutes, which provides that “any miner, or other person, employed in any mine governed by the statute, who intentionally and wilfully neglects or refuses to securely prop the roof of any working place under his control,” etc., shall be guilty of an offense, is intended, in connection with the other provisions of the act regulating coal mines and the working thereof, to protect the lives and limbs of those engaged in a perilous business. It imposes an obligation to perform a duty to others, and anything which tends to operate in opposition to that obligation violates the policy of the statute. Hence, a custom which imposes upon another employe the work of posting and propping the roof of a room in which coal is to be mined, cannot have the effect to exonerate the miner from the duty enjoined b}' the statute, nor to shift' the risk undertaken by himself over upon the company.
    8. In an action against a coal mining company to recover for death caused by the negligence of one of its employes, the result of his incompetency, it appeared by evidence of the plaintiff that the deceased was killed by the falling irpon him of a .portion of the roof of the room in which he was engaged in operating a' machine in the mining of coal, which falling was due to insufficient support, and that, by reason of a custom prevailing at the mine, the work of posting and propping the roof was imposed on an employe called a “filler,” whose principal business was that of filling coal, and who had no control over the miner, no relation of subordination or subjection existing between them, but both were under the orders of a common superior, called “a mine boss.” Held: (a) Such a state of facts does not make a case where the appliance or place is furnished by the master for the work in which the employes are to be engaged, but a case where the furnishing and preparation is itself a part of the work which they are employed to perform in order to effect a common object, viz.: the digging of coal, and the relation of the filler to the miner is that of a fellow servant. .(£) In such case the liability of the master is governed by the law applicable to the relation of fellow servant. Hence, in order to attach liability to the company for the negligence of the filler in not properly posting and propping the roof, the plaintiff must show that the company had knowledge, before the accident, of the incompetency of the filler to perform the duty of posting and propping, or, by the exercise of due care, might have known it, and that he was himself ignorant of such incompetency, and could not, by the exercise of ordinary diligence, have learned it. (c) And where, by the plaintiff’s evidence, it is shown that the deceased knew of the incompetency of his fellow servant, if it existed, or, being an experienced miner, had equal opportunity with the company of knowing, and could have known by the use of ordinary care, and was aware, also, of the danger of working in a room insufficiently propped, and continued his work without complaint, such a case of contributory negligence is shown as will prevent a recovery.
    (Decided October 16, 1894.)
    Error to the Circuit Court of Hocking county.
    The action below was brought to recover for the unlawful killing of George D. Clay, a coal miner, whose death occurred October 10, 1891, in a coal mine operated by the defendant company, by reason of the falling upon him of a portion of the roof of the room in which he was working. Negligence was alleged against the company in not keeping a supply of timber' on hand at the 'place Clay was working’ for the proper propping and support of the roof, and in failing to properly post, prop and support the roof, which duty to prop did not devolve upon Clay, but, by reason of a custom existing at the time at that and other mines, did devolve upon the company, and also in imposing- upon one Dalton, who was in the employ of the company in a different capacity from Clay, and over whom Clay had no control, the work of propping, he, Dalton, being wholly incompetent to perform the duty, and who negligently failed and refused to do and perform the same, of all which the company at the time had knowledge, but of which said Clay was ignorant.
    A demurrer to the petition being overruled, an answer was filed which took issue upon the averment as to custom, and alleged that if it existed it was in direct violation of section 6871, of the Revised Statutes, and upon all charge of negligence of the companjr, and of Dalton, and averred that the death of Clay was caused by his own want of care.
    Reply was filed denying’ that the custom was in violation of the statute, and denying negligence on the part of the deceased.
    Upon trial verdict and judgment were given for the plaintiff below, which was affirmed by the circuit court. To reverse these judgments the present proceeding in error is prosecuted. A summary of the material facts will be found in the opinion.

      L. D. Vickers, for plaintiff in error.
    1. The statute, section 6871, Revised Statutes, imposes certain oblig-ations. The last paragraph of this section provides jüst where the operators shall place the timber, and no custom or rule of the coal company or of the miners themselves can change or dispense with that statute.
    The statute is a criminal statute, and its provisions could not be dispensed with by custom. If so, any dishonorable employee could establish by custom, the right to commit the crimes in his special class. The principle followed out leads to ridiculous conclusions. This statute designates the place where the posts and timber must be put.
    The defendant in error,- in the progress of the ease in the lower courts, and also in the petition, went upon the theory that all the duty as to care was upon the company, and that Dalton, the bank poster, was bound to take all the precaution and exercise all the care, and that Devault, was a mere passive nothing, to be taken care of by the company. In this connection I want to cite the case of The Consolidated Coal Company v. Scheller, 42 Ill. App., 619.
    2. Devault, who was killed, and Dalton, whose negligence it is claimed caused Devault’s death were fellow servants. Hall v. Johnson, 3 H. & C., 589; Troughear v. Lower Vein Coal Company, 62 Ia., 576: Waddell v. Simonson, 112 Pa. St., 567; Delaware & H. Canal Company v. Carroll, 89 Pa. St., 374; Reese v. Biddle, 112 Pa. St., 72; Starne v. Schlothane, 21 Ill. App., 97; Buckley v. Gould & Mining Company, 14 Fed. Rep., 833; Bartonshill, etc., Coal Company v. Reid, 3 Macq., 266; Keilly v. Belcher & Co. Coal Company, 3 Sawy. (U. S.), 500; Berns v. Gaston Gas Coal Company, 27 W. Va., 285; Theleman v. Moeller et al., 73 Iowa, 108; Benn v. Null, 65 Iowa, 407; The Consolidated Coal Company v. Scheller, 42 Ill. App., 619.
    No recovery can be had for injuries received by one servant by reason of negligence or unskillfulness of his fellow servant, unless the common master was negligent in-hiring, or was negligent in retaining the negligent or incompetent servant, after knowledge of such servant’s negligence or incompetency. Whaalan v. .M R. & L. E. R. R. Company, 8 Ohio St., 249; Railroad Company v. Webb, 12 Ohio St., 475; Kumler v. Railroad Company, 33 Ohio St., 150; Railway Company v. Ranney, 37 Ohio St., 665; Wood on Master and Servant, section 419; Kersey v. Kansas City, etc., R. Company, 79 Mo., 362; Murphy v. St. L., etc., 71 Mo., 202; Michigan Ceutral R. Company v. Dolan, 32 Mich., 510; Stafford v. Chicago, etc., R. Company, 114 Ill., 244; Wright v. N. Y. Central R. Company, 25 N. Y., 566, 567; The Ind., etc., Ry. Company v. Daily, 110 Ind., 75; Wood on Master and Servant, section 420.
    An elaborate and exhaustive brief was also filed in the case, on behalf of plaintiff in error, by E. W. Kittredge, Esq.

      Price & Wright, for defendant in error.
    The workman takes upon himself the risk ordinarily incident to the employment he engages in; and those include the results of negligence upon the part of others engaged in the same service.
    On the other hand the master is bound to use ordinary care in providing suitable structures and engine and proper servants to carry on his business and is liable for any negligence in this respect. If he knows or in the exercise of due care, might have known, that his servants are incompetent, or his structures or engines insufficient, either at the time of procuring them or at any subsequent time, he fails in his duty. Akron v. Dennison, 117 Mass., 412; Woods Law of Master and Servant, 330, 416; 37 Ohio St., 549; Smith v. Powell Co., 23 W. L. B., 436; Wright v. N. Y. C. R. R. Co., 25 N. Y., 562; Warner v. Erie R. R. Co., 39 N. Y., 471; Layton v. Chicago, etc., Co., 52 Ill., 491; R. R. Co. v. Froesch, 68 Ill., 545; Connolly v. Poillon, 41 Barb., 366; Shearman & Redfield Law of Neg., secs. 180, 191 and note 2, page 348, sec. 323; Railway Co. v. Herbert, 116 U. S., 642; Ford v. Fitchburg R. R. Co., 110 Mass., 240.
    The degree of care to be observed by an employer must be commensurate with the consequences likely to ensue from a failure to use proper card, and that he must exercise the same degree of dilig’ence in the employment of co-servants, including telegraph operators, that he exercises in the selection of machinery. Negligence in employing the servant is the test, and willfulness is not an essential element. Wabash Ry. Co. v. McDaniels, 107 U. S., 454; Blake v. Railway Co., 77 Me., 60; Lyron v. South, etc., Ry. Co., 61 Ala., 554; Del. & Hudson Canal Co. v. Carroll, 89 Penn., 374.
    The master is bound to inquire as to the servant’s qualifications for the service, and to do all that a prudent man would do under the circumstances, in view of the nature of the services and the consequence of its careless or improper execution. Gilman v. R. R. Co., 10 Allen (Mass.), 233; Wright v. R. R. Co., 28 Barb. (N. Y.), 80; Lanning v. R. R. Co., 49 N. Y., 521; Alabama, etc., R. R. Co. v. Waller, 48 Ala., 457; N. O. R. R. Co. v. Hughes, 49 Miss., 258.

      The duty imposed upon the master in this respect is substantial and absolute. He must at his peril exercise reasonable care in the selection of the appliances of the business and of co-servants, and whether he has done so or not is essentially a question for the jury. Gilman v. R. R. Co., 10 Allen, 233. And the rule is the same whether he charges this duty himself or delegates it to another. Wright v. R. R. Co., 28 Barb., 80; Walker v. Polling, 22 Ala., 294; Grizze v. Frost, 3 F. & F., 622.
    Proof of unfitness of a servant, at the time of employment, makes out aprima facie case against the master, and throws upon him the burden of disproving’ negligence in the selection. Crandall v. McGrath, 24 Minn., 127; Beach on Con. Neg., sec. 353 and note 2, pages 454, 455; see also sec. 354; Pittsburg C. & St. L. R. R. Co. v. Adams, 5 N. E. Rep., 187; Wright v. N. Y. Central Ry. Co., 25 N. Y., 562.
    One may be a fellow servant concerning a certain employment, although he has other duties in exercising which he is the alter ego of the master. Brick v. Rochester, etc., Ry., 98 N. Y., 211; Borgman v. Ornake, etc., Ry., 41 Fed. Rep., 667; 6 S. E. Rep., 31; 22 N. E., 876; Taylor v. Evansville, etc., Ry., 121 Ind., 124; Stephen v. Hannibal, etc., Ry., 80 Mo., 221; Missouri Pacific Ry. v. Williams, 75 Tex., 4; 12 S. W. Rep., 835; 35 N. W. Rep., 100; Anderson v. Bennett, 16 Or., 515; Slater v. Chapman, 67 Mich., 523; Peterson v. Chicago, etc., Ry., 64 Mich., 621; 34 N. W. Rep., 260; Hensey v. Coger, 38 Hun., 639; Reddon v. N. P. Ry. Co., 15 Pac. Rep., 262; Little Miami Ry. v. Stevens, 20 Ohio, 425; Krantz v. Railway Co., 25 N. E. Rep., 206. Beach on Con. Neg., sec. 328.

      The master, as such, is required to perform certain duties, and the person who discharges any of these duties, no matter what his rank or grade, no matter by what name he may be designated, cannot be a servant within the meaning of the rule under discussion. He is an agent, and. the rule of law applicable to principal and agent must apply. The liability of the master, however, for the nonperformance of such duties as the law implies from the contract of service, does not rest upon the ground of guaranty of their performance, but upon the ground whether the master was negligent or not in the performance. Gunter v. Graniteville Mfg. Co., 18 S. C., 262; 44 Am. Rep., 573; Crispen v. Babbit, 81 N. Y., 516; Flike v. Boston, etc., R. Co., 53 N. Y., 549; McCosker v. Long L. R. Co., 84 N. Y., 77; 5 Am. and Eng. R. R. Cases, 564; Brothers v. Carter, 52 Mo., 372; Corcoran v. Holbrook, 59 N. Y., 517; Hannibal, etc., R. Co. v. Fox, 31 Kan., 586; 15 Am. and Eng. R. R. Cases, 325; Fones v. Phillips, 39 Ark., 17.
    The true rule for determining who are fellow servants is to be determined, not from the rank or grade of the offending or injured servant, but by the character of the act being performed by the offending servant. If it is an act that the law implies a contract duty upon the part of the employer to perform, then the offending employee is not a servant, but an agent; but as to all other acts they are fellow servants. Lanning v. N. Y. C. Ry. Co., 49 N. Y., 521.
    And we maintain that the same rule applies as to the master’s duty to furnish a safe working place for his employees. Northern Pacific Ry. Co., v. Herbert, 116 U. S., 642; Sherman & Redfield on Neg., secs. 204, 205; Booth v. Boston, etc., Ry. Co., 73 N. Y., 38, 40.
    It is the duty of the employer to select and retain servants who are fit and competent for the service, and to furnish sufficient and safe materials, machinery or other means by which it is to be performed, and to keep them in repair and order. This duty he can not delegate to a servant so as to exempt himself from liability for injuries caused to another servant by this omission- Indeed, no duty required of him for the safety and protection of his servants can be transferred, so as to exempt him from such liability. Ford v. Fitchburg Ry. Co., 110 Mass., 240; Chicago, etc., Ry. Co., v. Jackson, 55 Ill., 492; Cooper v. Pittsburg, etc., Ry. Co., 24 W. Va., 37; Hough v. Texas, etc., Ry. Co., 100 U. S., 220; Fuller v. Jewett, 80 N. Y., 46; Berying v. Steinway, 101 N. Y., 547; Collyer v. Penna. Ry. Co., 49 N. J. Law; Coal Co. v. Young, 20 N. E., 423; Sanburn v. Maderia, etc., Co. (Cal.), 11 Poe. R., 710; Kelly v. Erie Tel. Co., 34 Minn., 321; Patzer v. Tilly Foster Mining Co., 99 N. Y., 868; Shearman & Redfield on Neg., section 205; Kruger v. Railway, 11 N. E. Rep., 957; Woods’ Law of Master and Servant, section 334.
   Spear, J.

The first proposition argued is that the common pleas erred in overruling the demurrer to the petition. A majority of the court is of opinion that, under our liberal rules of construction, the pleading in the absence of a motion to make more definite, is sufficient.

The next proposition is that the common pleas erred in giving, in its charge to the jury, one of a series of seven requests asked by plaintiff. To this the exception entered was in this form: “To which ruling of the court in giving the special charges, as asked by the plaintiff, the defendant at the time excepted.” We are of opinion that this exception is too general to bring’ the objection before a reviewing court. The exception should have been directed to the particular proposition to which objection was made.

Another proposition argued is that the trial court erred in refusing to give to the jury instruction No. 10, asked by the defendant, which inr struction is as follows

“10. The defendant asks the court to say to the jury that if they find from the evidence that Clay was in control of the room where he got killed, that then under the criminal statute, section 6871, Revised Statutes of Ohio, it was his duty to properly post the room, and no custom existing at the time at the mine could relieve him of that duty. ’ ’

Upon this point, in its general charge, the court said to the. jury that if they found that Clay “violated a criminal statute, for which violation he could have been prosecuted had he lived, such violation will not preclude a recovery in this action. ’ ’

It is further contended that the undisputed evidence given at the trial shows that there was no case made by the plaintiff justifying a verdictj and that the trial court, therefore, erred in not sustaining the defendant’s motion for a new trial. In order to judge of the bearing of the request which was refused, and the charge given respecting the section of the statute referred to, and the claim above stated, it will be necessary to look somewhat at the facts as shown by the record. It is proper here to correct a misapprehension on the part of counsel for defendant in error. They contend in their brief that the general charge of the court cannot be considered because it was not made part of the bill of exceptions. Doubtless the manner in which the record is printed misled the counsel. The original bill of exceptions shows that the charge is properly attached to and made part of the bill, and we are not, therefore, embarrassed by a defective record.

Geo. D. Clay, the deceased, a man of about twenty-two years of age, was employed at the time of his death in working a machine used in mining coal in the mine of the defendant company. With him at the time, as a helper, was one Harry Devault, who met his death at the same time and by the same accident. Clay had been engaged in mining about three years in all, most of the time as a helper, having had charge of the machine about two months. He was a man in good health, and of averag’e intelligence. The mine embraced a number of rooms in which cutting with the machine was done. The operation of the machine is to punch or jab the coal and so make a bearing in and under the coal for the driller who follows and drills holes in the face of the coal near the top for the reception of the blasting material. The driller is succeeded by the filler, who shoots down the coal, loads it into the cars, etc. Three sets of men are thus engaged in the room, but at different times, and at distinct employments. Necessarily, therefore, the one having’ charge of these several operations has, for the time being, control of the room.

The man Dalton was a filler, and had enjoined upon him, in addition, by direction of the mine boss, one Dilch, the work of posting in the two rooms where he worked as filler, one being the room in which Clay met his death. He had worked in the mine some eighteen months, having been employed originally as a helper, which position did not require him to attend to the work of posting, and later had been advanced to the place of a filler, and had been engaged in posting only about two.months at the time of the accident. In the course of his work he was required to shoot down the coal, fill it into cars, prop the roof where necessary, and get the room ready for the machine to come in again. In the two rooms thus posted by Dalton, Clay had followed in after him during the two months and cut the coal. The operation of cutting occupies about two and a half hours in each room. Ten rooms are usually assigned to one machine, and are cut one after another until the entire number are cut, when the first room is again reached. It does not appear that either Clay or Devault at any time made complaint of the way in which Dalton was performing his duty, either to Dalton himself, or to the bank boss.

Dalton was called by the plaintiff below, and it was shown by his testimony, not contradicted, that on the day Clay and Devault were killed, Dalton was present when they started in to cut the room. He said to Clay that he had better examine the room to see whether there was anything loose or not; to see whether there was any danger there or not. Thereupon Clay took a pick and sounded the roof; and said it was all right. It appears by this and other witnesses that sounding the roof with a' pick was the usual way of determining whether it. was secure or not, and, by witnesses called by plaintiff, that the sounding of the roof was not a hard thing to learn, but an easy thing, and that a common man could do it; if a man had just gone in green he wouldn’t know, but if he had gone in knowing the place to be dangerous and tried to learn, it is easy. No evidence was offered tending-to show that any propping- done by Dalton previously to the workin the room in which the decedents were engaged at the .time of the accident, had been defectively or insufficiently done. Nor was any evidence given by plaintiff tending- to show that the company did not furnish proper timber for supporting the roof at the place Clay was working, but evidence given by defendant, undisputed, shows that proper timber w’as so furnished.

Clay and Devault were killed by the falling upon them of a piece of slate some nine feet square and about a foot in thickness.

At the time of the accident, and for a long time before, a custom existed at this mine whereby the work of posting and propping was given to the workmen called fillers. By force of this custom Dalton was required to post and prop, as before stated.

In their respective duties Daltqn did not have the control of Clay, nor did Clay have control over Dalton. Each was under one common superior called the mine boss.

It was in evidence by the defendant, not contradicted, that the mine boss g-ave instructions to both Claj and Devault to the effect that they were to cut nothing they thought dangerous; to take nobody’s word for it, but to examine the place for themselves before they went to work, and if found unsafe leave it until it was fixed.

The section of the Revised Statutes referred to provides, among other things, that “whoever knowingly does any act whereby the life or health of the persons, or the security of any mine and machinery are endangered, or any miner or' other person employed in any mine governed by the statute, who intentionally and willfully neglects to securely prop the roof of any working place under his control, shall be guilty of an offense,” etc. The same section makes it the duty of the mine owner to keep at the working place of the miner a supply of timber suitable for posting. No doubt exists that the statute applies to this mine. The provision quoted was enacted in substance April 29, 1872 (69 Ohio Laws, 193), the words being as follows: “* * ■* or- if any miner or person employed in any mine governed by the provisions of this act shall neglect or refuse to securely prop or support the roof and entries under his control,” etc. The provision has been continued in all the amendments to the act to the present. The act was entitled “An act reg-ulating coal mines, and the working thereof, ’ ’ and has for its principal object, apparent on the face of all its provisions, the protection of the health and lives of those who work in coal mines.

- .So extensive is this industry in the state that legislation affecting those engaged in it as a daily vocation may be regarded as of public interest, and where a statute, as does the one cited, undertakes to outline and prescribe a particular duty owing- by persons so engaged not only to themselves but to others, it may be properly regarded as indicating a public policy on the subject, and where the same provision has remained in force for so long- a time, about twenty years at the time of this occurrence, the policy may be treated as á settled one. This provision clearly points out a duty devolving upon all who-come within its terms, a grave duty, one so nearly related to the protection of life and. limb that it ought not to be lightly esteemed nor easity avoided.

In the case of Railway Company v. Spangler, 44 Ohio St., 471, where the company sought to avoid liability for an injury caused to one of its employes by reason of the negligence of another employe placed in authority over him because of a contract between the company and the injury party, made as part of the contract of employment, that such liability should not attach, this court held that the plea could not avail inasmuch as the liability of the master was founded upon consideration of public policy. And in the opinion of Owen, Ch. J., it is said: “The policy of our law being well settled, it only remains for us to inquire whether railroad companies may ignore or contravene that policy by private compact with their employes, stipulating that they shall not be held to a liability for the negligence of their servants which public policy demands should attach to them. The answer is obvious. Such liability is not created for the protection of the employes simply, but has its reason and foundation in a public necessity and policjr which should not be asked to yield or surrender to mere private interests and agreements. ”

If the principle of this case has application to.the one at bar, and no reason is perceived why it does not, it would seem to follow that the custom set- up in the petition ought not to be held to have absolved the deceased from the obligation enjoined by the statute. The object of the statute is to encourage carefulness; regard not only for the life of the miner, but for the lives of all who may be subjected to like risks. It imposes an obligation to perform a duty to others. Anything, therefore, which tends to operate in opposition to that obligation would violate the policy of this statute, and hence, whatever right the custom at this mine imposing upon Dalton the work of propping and posting the roof of the room, may have given Clay to call upon Dalton to do the manual work of posting, and delay his own work until that had been properly done, such custom ought not to have the effect to exonerate Clay from the duty enjoined by the statute, nor shift the risk undertaken by himself over upon the company. We think the trial court erred in refusing to give the instruction requested and in the charge as given upon the subject.

It is insisted by the defendant in' error that the duty of the defendant company in respect to furnishing a safe working place, was such that it was liable for the negligence of Dalton, irrespective of the question of his incompetency, and of the Company’s knowledge thereof, and the case was given to the jury by the learned judge of the common pleas upon this theory. Necessarily this view of the law proceeds upon the assumption that Clay and Dalton were not fellow servants, but that, as respects the posting and propping, Dalton was the alter ego of the company, and hence the superior of Clay. The claim is sought to be sustained by a class of cases which hold that the duty of the master to provide a safe working place and machinery for his employees, cannot be delegated so as to absolve the master from liability in case of failure of the vice-principal to perform that duty. It does not seem necessary to review these cases. They are, as a rule, based upon the proposition that where the appliance, or place, is one which has been furnished for the work in which the servants are to be engaged, there the duty above stated attaches to the master. We need not discuss this proposition for we have not that case. Here the place was not furnished as in any sense a permanent place of work, but was a place in which surronnding conditions were constantly changing, and instead of being a place furnished by the master for the employees within the spirit of the decisions referred to, was a place the furnishing’ and preparation of which was in itself part of the work which they were employed to perform. The distinction is shown in a number of cases, among which may be cited Fraser v. Red River Lumber Co., 45 Minn., 235; McGinty v. Athol Reservoir Co., 155 Mass., 183, and Consol. Coal Co. v. Scheller, 42 Ill. App., 619. See also Hall v. Johnson, 3 Hurlst. & Colt., 589; Waddell v. Simoson, 112 Pa., 567.

It cannot be necessary to restate the rule of law as to what determines the relation of fellow servant as it is recog’nized in this state. The principle laid down in C., C. & C. R. R. Co. v. Keary, 3 Ohio St., 201; in Whaalan v. Mad River & L. E. R. Co., 8 Ohio St., 249; in Columbus & Xenia R. R. Co. v. Webb, 12 Ohio St., 475, and reiterated in divers cases since, is too well established t,o need repetition, and we think that the facts in this case clearly bring the two men Dalton and Clay into that relation. Applying that rule to this case it was necessary, in order to a recovery, that the plaintiff should show, upon this branch of the case, not only that Dalton was guilty of negligence which was the direct cause of the death of Clay, but that he was incompetent and that his ineompetency was known or could with reasonable diligence have been known to the company prior to the accident; and beyond this, if plaintiff’s proof raised the presumption that such ineompetency was known to Clay, or with reasonable diligence might have been known to him, then to overcome that presumption. If so known, the duty, therefore, to notify the bank boss of the fact, and refuse to continue in the dangerous employment until the risk was removed, followed. As to the effect of a neglect of this duty, see Coal & Car Co. v. Norman, 49 Ohio St., 598. Instead of this being done, it seems to us entirely clear, by the case made by the plaintiff,- that whatever ineompetency has been shown in the work of Dalton was known to Clay; at least he had the fullest opportunity of noticing Dalton’s manner of posting from day to .day as he followed after’ him from room to room to cut the coal; and, so far as the record shows, no effort to give notice of ineompetency was made. And while it was true that it was the duty of Dalton, as between him and his employer, to post the roof of the room to prevent it from falling, yet the plaintiff’s evidence shows that Dalton, Clay and Devault were engaged in one common object in which it was not less the duty of Clay and Devault than of Dalton, because of the nature of the employment, their common interest and their common peril, to watch every appearance of danger, and, if we may consider the uncontradicted evidence of defendant, because of the instructions of their employer the, further duty to give warning promptly, and forbear exposure of their persons while the dangerous conditions existed.

It appears to us, upon a consideration of the whole record, that the verdict and judgment were the result of the erroneous view of the law taken by the trial court; inasmuch as there was no evidence given at the trial which, in law, will sustain the verdict,

The judgment toill, therefore, be reversed.


text:
    No. 2316.
    Thatcher v. Watson et al.
    (Decided January 9, 1894.)
    Error to the Circuit Court of Morrow county.

      Andrews & Simms, for plaintiff in error.

      Dalrymrple & Garver, for defendants in error.
   Judgment reversed, for the reason that the order of the court of common pleas, overruling-the motion to dismiss the appeal, is not a final order, upon which error can be prosecuted,


text:
    No. 2426.
    State ex rel. Summers v. Wallace.
    (Decided January 9, 1894.)
    In Mandamus.

      S. A. Bowman and R. A. Harrison, for relator.

      John L. Zimmerman, for respondent.
   Judgment for the relator, and judgment against the defendant for costs.

Minshall, J., dissents.


text:
    No. 2469.
    City of Toledo et al. v. Rhodes et al.
    (Decided January 9, 1894.)
    Error to the Circuit Court of Lucas county.

      W. H. A. Read and Bissell & Gorrell, for plaintiffs in error.

      E. H. Rhodes and E. D. Potter, Jr., for defendants in error.
   It appearing from the statements of counsel that the city has acquired the ownership of the property upon which the special assessment was made, the questions involved herein have become of an abstract nature, and the judgment is affirmed.

Dickman, J., dissents.


text:
    No. 2470.
    City of Toledo v. Libbie.
    (Decided January 9, 1894.)

      Error to the Circuit .Court of Lucas county.

      W. H A. Read, for plaintiff in error.

      Scribner & Hurd, for defendant in error.
   Judgment affirmed.


text:
    No. 2474.
    Stillwell & Bierce Manufacturing Co. v. Brubaker, Assignee, et al.
    (Decided January 9, 1894.)
    Error to the Circuit Court of Ashland county.

      Markel & Nicol and Gunckel & Rowe, for plaintiff in error.

      J. S. Wertman, J. T. McCray and Campbell & Grosscup, for defendants in error.
   Judgment affirmed.


text:
    No. 2482.
    Roberts v. Loyer et al.
    (Decided January 9, 1894.)
    Error to the Circuit Court of Marion county.

      C. F. Garberson and JB. G. Young, for plaintiff in error.

      D. B. Crissinger and McNeal da Wolford, for defendants in error. ’
   Judgment affirmed.


text:
    No. 2485.
    Hickox et al. v. Rounds, Ex’r.
    (Decided January 9, 1894.)
    Error to the Circuit Court of- Medina county.

      Ba/niard ds Richards, for plaintiffs in error.

      J. Andrew, for defendant in error.
   Judgment affirmed upon the authority of Cook v. Courtright, 40 Ohio St., 248, and Taylor et al. v. Heistand & Co., 46 Ohio St., 345.


text:
    No. 2492.
    Railway Company v. Conrad.
    (Decided January 9, 1894.)
    Error to the Circuit Court of Fairfield county!

      A. I. Vorys and Brasee ds Brasee, for plaintiff in error.

      AL A. Bcmgh&rty, for defendant in error.
   Judgment affirmed.


text:
    No. 2299.
    Peterson, Trustee, v. Babb, Adm’r.
    (Decided January 16, 1894.)
    Error to the Circuit Court of Greene county.

      Hesbit ds Hartley and J. A. Cook, for plaintiff in error.

      Snodgrass ds Schnebly, for defendant in error.
   Judgment affirmed.


text:
    No. 2362.
    State ex rel. Schwartz v. Raine, Auditor, et al.
    (Decided January 16, 1894.)
    Error to the Circuit Court of Hamilton county.

      I J. Miller, for plaintiff .in error. . . .
    Foraker,. Black d Rockholcl and Rufus B. Smith, for defendants in error.
   Judgment affirmed.


text:
    No. 2392.
    Railway Company v. Mathews, Adm’x.
    (Decided January 16, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Estep, Dickey, Ga/rr d Goff and O. G. Getzén-Danner, for plaintiff in error. '

      Kerruish d Shopman, for defendant in error.
   Judgment affirmed.

Spear, DiCKMANand Burket, JJ., dissent.


text:
    No. 2396.
    Keller, Adm’r. v. Miller et al.
    (Decided January 16, 1894.)
    Error to the Circuit Court of Wayne county.

      J. F. Bu/t'ket, for plaintiff in error.

      B. F. Eason,' Yocum d Tcoggert and McOlu/re & Smyser, for defendants in error.
   Judgment affirmed.

Burket, J., did not sit in this case.


text:
    No. 2453.
    Railroad Company v. Wilson et al.
    (Decided January 16, 1894.)
    Error to the Circuit Court of Mahoning-county.

      J. B. Ca/t'ey and Hiñe té Clark, for plaintiff in error.

      B. B. Murray, for defendants in error.
   Judgment affirmed.


text:
    No. 2486.
    Edwards v. Griffiths.
    (Decided January 16, 1894.)
    Error to the Circuit Court of J ackson county.

      A. Leach and James Tripp, for plaintiff in error.

      Wilson c& Ma/rper and David Davis, for defendant in error.
   Judgment affirmed.


text:
    No. 2518.
    Keim v. Gero.
    (Decided January 16, 1894.)
    Error to the Circuit Court of Stark county.

      A. M. McCa/rty and Mong té Me Gariy, for plaintiff in error.

      M. J. Piero and Thayer té Gilson, for defendant in error.
   Judgment affirmed.


text:
    No. 2529.
    Lay et al. v. Lay et al.
    (Decided January 16, 1894.)
    Error, to tlie Circuit Court of Cuyahoga county.

      G. M. <& A. W. Barber, for plaintiffs in error.

      II. O. Bunts, for defendants in error.,
   Judgment affirmed.


text:
    No. 2533.
    Stark et al. v. Dugan et al.
    (Decided January 16, 1894.)
    Error to the Circuit Court of Sandusky county.

      Frank J. Tuttle, for plaintiffs in error.

      John M. Lemmon, for defendants in error.
   Judgment affirmed.


text:
    No. 2924.
    Insurance Company v. Bowersox, Receiver.
    (Decided January 16, 1894.)
    Error to the Circuit Court of Williams county.

      Brewer cfe Palmer, for plaintiff in error.

      Emery & Masters, for defendant in error.
   „ Judgment affirmed, on the ground that a judgment rendered against the assured, on a cognovit note, does not constitute an incumbrance within the meaning of a condition in the policy that avoids it, if the assured suffers an incumbrance to be placed on the property insured.

Spear and Burket, JJ, dissent.


text:
    No. 3116.
    Railway Company v. Sherrard.
    (Decided January 16, 1894.)
    Error to the Circuit Court of Jefferson county.

      J. T. Brooks and W. A. Lynch, for plaintiff in error.

      W. P. Hays and John M. Cook, for defendant in error.
   Judgment affirmed.


text:
    No. 2520.
    Bricker et al. v. Bricker et al.
    (Decided January 23, 1894.)
    Error to the Circuit Court of Licking county.

      Waldo Taylor and Kibler <& Kibler, for plaintiffs in error.

      C. H. Follett and Critchfield d¿ Graham, for defendants in error.
   Judgment affirmed.


text:
    No. 2522.
    Rowand v. Corbett et al.
    (Decided January 23, 1894.)
    Error to the Circuit Court of Clark county.

      Keifer <& Keifer, for plaintiff in error.

      George Arthur and Goode <& Scott, for defendants in error.
   Judgment affirmed.


text:
    No. 2535.
    Smith v. City of Toledo et al.
    (Decided January 23, 1894.)
    Error to the Circuit Court of Lucas county.

      Pratt c& Wilson and Baker, Smith & Baker, for plaintiff in error.

      Orville S. Brumbaek and John F. Kumler, for defendants in error.
   Judgment affirmed.


text:
    No. 2543.
    Barnd et al. v. Albertson.
    (Decided January 23, 1894.)
    Error to the Circuit Court of Wood county.

      Frank Taylor and Burket & Bv/rket, for plaintiffs in error,

      Jason Blackford and Bodge & Canary, for defendant in error.
   Judgment reversed on the ground that the answer is a cross-petition, setting up an independent cause of action for an accounting between partners, which is cognizable in equity, in the trial of which the parties were not entitled to a jury, and which was therefore appealable. Black, Receiver v. Boyd, 50 Ohio St., 46.

Burket, J., did not sit in the case.


text:
    No. 3590.
    Dick, Auditor, v. State ex rel. Cobbs.
    (Decided January 23, 1894.)
    Error to the Circuit Court of Summit county.

      Sander d¡ Rogers, for plaintiff in error.

      F. II. Waters, for defendant in error.
   Judgment affirmed.


text:
    No. 3657.
    Peter, Receiver v. Wessendorf.
    (Decided January 23, 1894.)
    Error to the Circuit Court of Lucas county.

      Kinney d¡ Kewton, for plaintiff in error.

      Frank II Ilrn-d and Beo. B. Boone, for defendant in error.
   Judgment affirmed.


text:
    No. 3697.
    Railway Company v. Statler et al.
    (Decided January 23, 1894.)
    Error to the Circuit Court of Miami county.

      Byrkett d¡ Gilbeod, for plaintiff in error.

      Thomas B. Kyle, for defendants in error.
   Judgment reversed and judgment for plaintiff in error.


text:
    No. 2124.
    State ex rel. Seiber v. Hunsberger.
    (Decided January 30, 1894.)
    ERROR to the Circuit Court of Summit county.

      George W. Seiber, J. J. Hall and J. A. Arbogast, for plaintiff in error.

      Marvin c& Atterholt, for defendant in error.
   Judgment affirmed.


text:
    No. 2185.
    Bryan v. Insurance Company.
    (Decided January 30, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      John O. Winship, for plaintiff in error.

      Charles E. Penneioell, for defendant in error.
   Judgment affirmed.


text:
    No. 2190.
    Railway Company v. Pouchot.
    (Decided January 30, 1894.)
    Error to the Circuit Court of Summit county.
    Oviatt, Allen <& Gobbs, for plaintiff in error.

      H. G. Sanford, for defendant in error.
   Judgment affirmed on authority of IV Ohio Circuit Court Reports, 187


text:
    No. 2350.
    Garrison v. Smith.
    (Decided January 30, 1894.)
    Error to the Circuit Court of Sandusky county.

      Finch c& Beioey, for plaintiff in error.

      John M. Lemmon, for defendant in error.
   Judgmént affirmed.


text:
    No. 2544.
    Watkins et al. v. Alfred, Assignee.
    (Decided January 30, 1894.)
    Error to the Circuit Court of Franklin county.
    . Powell, Oioens, Ricketts c& Black, for plaintiffs in error.

      LJite <& Coun-tright and G. W. Alfred, for defendant in error.
   Judgment affirmed.


text:
    No. 2564.
    American Express Co. v. Hawk et al.
    (Decided January 30, 1894.)
    Error to the Circuit Court of Tuscarawas county.

      Richcvrds c& McCullough, for plaintiff in error.

      J. M. Lessich and John 8. 'Gi'ahcvm, for defendants in error. ■
   Judgment affirmed.


text:
    No. 3358.
    Close et al. v. Willard, Treas., et al.
    (Decided January 30, 1894.)
    Error to the Circuit Court of Franklin county.

      George Z. Nichols, for plaintiffs in error.

      O. A. Metcalf and A. B. Webber for defendants in error.
   Judgment affirmed.


text:
    No. 3510.
    Railroad Company v. Foley.
    (Decided January 30, 1894.)
    Error to the Circuit Court of Allen county.

      W. E. Hackedorn, IF B. Bichie, John B. OocJwum and ¡Sekoyn N Owen, for plaintiff in error.

      James Z. Price, for defendant in error.
   Judgment of the circuit court reversed, and that of the common pleas affirmed, on the ground that the evidence of the plaintiff below disclosed that he was negligent in voluntarily going under a car sitting in the freight yard, while switching was in progress, without giving notice to the men eng’ag-ed in switching.


text:
    No. 3523.
    Hunter, Treas., et al. v. Earl et al.
    (Decided January 30, 1894.)
    Error to the Circuit Court of Lucas county.

      W. II A. JRecid, City Solicitor, for plaintiffs in error.

      Brown <& Geddes, for defendants in error.
   Judgment affirmed on the ground that the ordinance of July 18, 1889, did not indicate an intention on the part of the city to assess on the abutting’ property, any part of the costs included in the assessment ordinance of October 27, 1890; nor was any opportunity given the parties assessed to be heard on or in opposition to the same.


text:
    No. 3524.
    Hunter, Treas., et al. v. Freeman.
    (Decided January 30, 1894.)
    Error to the Circuit Court of Lucas county.

      W. H. A. Read, City Solicitor, for plaintiffs in error.

      Thomas Bunla/p, for defendant in error.
   The same questions were involved in this, case, as in case No. 3523, ante.

Judgment affirmed.


text:
    No. 3618.
    Railway Company v. Fisher.
    (Decided January 30, 1894.)
    Error to the Circuit Court of Lucas county.

      E. D. Potter, Jr., for plaintiff in error;

      Hurd Jo Scribner, for defendant in error.
   Judgment affirmed.


text:
    No. 3619.
    Railway Company v. Frick.
    (Decided January 30, 1894.)
    Error to the Circuit Court of Lucas county.

      A. W. Scott, for plaintiff in error.

      Hv/rd <& Scribner, for defendant in error.
   Judgment affirmed.

Dickman and Burket, JJ., dissent.


text:
    No. 3627.
    City of Steubenville v. Railway Company.
    (Decided January 30, 1884.)
    Error to the Circuit Court of Jefferson county.

      Dio Rogers, IF P. Ilcuys and John M. Cook, for plaintiff in error.

      J. T. Brooks and W. A. lynch, for defendant in error.
   Judgment affirmed on the grounds that the application for the appointment of arbitrators should have been made to the probate court.

Bradbury, C. J., and Minshall and Williams, JJ., dissent.


text:
    No. 3628.
    Trustees v. Railway Company.
    (Decided January 30, 1894.)
    Error to the Circuit Court of Jefferson county.

      Dio Rogers, W. P. Hays and John M. Cook, for-plaintiffs in error.

      J. T. Brooks and W. A. Lynch, for defendant in error.
   Judgment affirmed on authority of City of Steubenville v. Railway Company, No. 3627, ante.

Bradbury C. J., and Minshall and Williams, JJ., dissent.


text:
    No. 2108.
    Kimberly, Treas., v. Streator, Ex’r.
    (Decided February 1, 1894.)
    Error to the Circuit Court of Cuyahog’a county.
    Hadden, Dissette c§ Gollister and Boynton, Hale <& Horr, for plaintiff in error.

      B. P. Bconney and J. W. Tyler, for defendant in error.
   Judgment affirmed.


text:
    No. 2207.
    Lewis et al. v. Moore et al.
    (Decided February 1, 1894.)
    Error to the Circuit Court of Butler county.

      Thomas Millikin and Palmer W. Smith, for plaintiffs in error.

      Alfred B. Benedict, for defendants in error.
   Judgment affirmed.


text:
    No. 2216.
    Globe Oil Company v. Gardner.
    (Decided February 1, 1894.)
    Error to the Circuit Court of Cuyahog’a county.
    Henderson, Kline da Tolies, for plaintiff in error.

      Blandin té Buell, for defendant in error.
   Judgment affirmed.


text:
    No. 2499.
    Wogoman et al. v. Board of Education et al.
    (Decided February 1, 1894.)
    Error to the Circuit Court of Montgomery county.

      K. Thompson, for plaintiffs in error.

      Hunger té Kennedy and B. W. Allaman, for defendants in error.
   Judgment affirmed.


text:
    No. 2534.
    Aultman, Miller & Co. v. Lewis.
    (Decided February 1, 1894.)
    Error to the Circuit Court of Allen county.
    ' Gable da Pci/rmenter, for plaintiffs in error.

      J. O. Ohler, for defendant in error.
   Judgment affirmed.


text:
    No. 2561.
    Davidson et al. v. Leuther.
    (Decided February 1, 1894.)
    Error to the Circuit Court of Cuyahoga county.
    Estep, Dickey, Ga/rr. c6 Goff, for plaintiffs in error.

      P. E[. Kaiser and Ed. S. Meyer, for defendant in error.
   Judgment affirmed.


text:
    No. 2568.
    Railway Company v. Yohe.
    (Decided February 1, 1894.)
    Error to the Circuit Court of Stark county.

      Baldwin <& Shields, for plaintiff in error.

      Thayer <& Gilson, for defendant in error.
   Judgment affirmed.


text:
    No. 3629.
    Wilmoth v. State.
    (Decided February 1, 1894.)
    Error to the Circuit Court of Adams county.

      Bayless <& Blai/r, for plaintiff in error.

      O. F. Wikoff\ for defendant in error.
   Judgment affirmed.


text:
    No. 3716.
    Toledo Electric Company v. Gosline.
    (Decided February 1, 1894.)
    Error to the Circuit Court of Lucas county.
    Doyle, Scott db Lewis, for plaintiff in error. •

      Frank II. Ilwrd and George B. Boone, for defendant in error.
   Judgment affirmed.


text:
    No. 2243.
    Brinton v. Cromwell.
    (Decided February 20, 1894.)
    Error to the Circuit Court of Hamilton county.

      Wilby db Wald, for plaintiff in error.

      Me Olintick db Strong, for defendant in error.
   Judgment affirmed.


text:
    No. 2571.
    Renz v. Smith.
    (Decided February 20, 1894.)
    Error to the Circuit Court of Morrow county.

      Olds db Olds and Fluckey db Poiuell, for plaintiff in error.

      Andrews db Bc(/rry, for defendant in error.
   Judgment affirmed.


text:
    No. 2581.
    Little v. Gearhart.
    (Decided February 20, 1894.)
    Error to the Circuit Court of Ross county.

      Lawrence T. Neal, for plaintiff in error.

      J. B. McLaughUn and. W. E. Gil/more, for defendant in error.
   Judgment affirmed.


text:
    No. 2588.
    City of Mt. Vernon v. Culbertson.
    (Decided February 20, 1894.)
    Error to the Circuit Court of Knox county.

      N. D. Gritchfield, City Solicitor, and Da/oid F. Ewing, for plaintiff in error.

      W. O. Gulberlson, in propria persona.
   Judgment affirmed.


text:
    No. 2597.
    Hunter v. Stull et al.
    (Decided February 20, 1894.)
    Error to the Circuit Court of Trumbull county.

      George JP. Hunter, for plaintiff in error.

      Washington Hyde, for defendants in error.
   Judgment affirmed.


text:
    No. 2600.
    Hall et al. v. Kull.
    (Decided February 20, 1894.)
    ERROR, to the Circuit Court of Fairfield county.

      Brasee c& Brasee, for plaintiffs in error.

      O. W. Me Gleery, for deféndant in error.
   Judgment affirmed.


text:
    No. 2604.
    National Bank v. Wheelock.
    (Decided February 20, 1894.)
    Error to the Circuit Court of Cuyahógacounty.

      James H. Moyt, A. St. J. Newberry and A. G. Dustin, for plaintiff in error.

      Prentiss & Vorce, for defendant m error.
   Judgment of the circuit court is reversed, and that of the court of common pleas affirmed; and the court further find that if the said defendant in error is entitled to maintain any action herein, her remedy and relief must be sought in a court of equity.


text:
    No. 2608.
    Beatty et al. v. Adams & Steeley.
    (Decided February 20, 1894.)
    Error to the Cireuit Court of Logan county.

      McLaughlin d) Doiv, for plaintiffs in error.

      James Neman, for defendants in error.
   Judgment affirmed.


text:
    No. 2609.
    Black v. Mogle.
    (Decided February 20, 1894.)
    Error to the Circuit Court of Darke county.

      Anderson <& Bowman and J. O. Elliott for plaintiff in error.

      Sater c& Bobeson, for defendant in error.
   Judgement affirmed On the authority of Mogle v. Black, 5 O. C. C. Rep., 51.


text:
    No. 2611.
    McLaughlin et al. v. Peckham & Brown.
    (Decided February 20, 1894.)
    Error to the Circuit Court of Holmes county.

      Gritchfield <& Huston and H. Stilwell, for plaintiffs in error.

      Morr c& Smith, for defendants in error.
   Judgment of the circuit court reversed in so far as it rendered judgment against the plaintiffs in error on the issues in the case, and cause remanded to the court of common pleas for further proceedings. Gay, Ex’r, v. Davey et al., 47 Ohio St., 396.


text:
    No. 2613.
    City of Zanesville et al. v. Grant et al.
    (Decided February 20, 1894.)
    ERROR to the Circuit Court of Muskingum county.

      Isaac P. Humphrey, City Solicitor, Robert II. McFarland and F. II. Southard, for plaintiffs in error.

      W. II. Ball and Hollingsworth & McDermott, for defendants in error.
   Judgment affirmed on the authority of Wheeler et al. v. Treasurer of Muskingum County and City of Zanesville, 3 Ohio C. C. Rep., 596.


text:
    No. 2614.
    City of Zanesville et al. v. Wheeler et al.
    (Decided February 20, 1894.)
    Error to the Circuit Court of Muskingum county.

      Isaac P. HimipJvr'ey, City Solicitor, Robert II. McFarland and F. II Southard, for plaintiffs in error.
    • W. H. Ball and Hottingstoorth & McDermott, for defendants in error.
   Judgment affirmed on same authority as No. 2613, ante.


text:
    No. 3642.
    Railroad Company v. Hefferman.
    (Decided February 20, 1894.)
    ERROR to the Circuit Court of Lucas county.

      Alexander I. Smith, for plaintiff in error.

      G. A. Thatcher, and Scribner <& Hurd, for defendant in error. .
   Judgment affirmed.


text:
    No. 2256.
    Express Company v. Walter.
    (Decided February 27, 1894)
    Error to the Circuit Court of Richland county.
    Ramsey, Maxwell Ramsey and R. Rirlam for plaintiff in error.

      Qonnolly <& laser, for defendant in error
   Judgment affirmed.


text:
    No. 2262.
    Lucas, Adm’r, v. Knoop.
    (Decided February 27, 1894.)
    Error to the Circuit Court of Miami county.

      M. H. <& W. R. Jones, for plaintiff in error.

      A. F. Broomhall and SiolUvan d? Long, for defendant in error.
   Judgment affirmed.


text:
    No. 2264.
    National Bank v. Bank of Coshocton.
    (Decided February 27, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      A. T. Brewer, for plaintiff in error.

      Wilby <& Wald and Steanms <& Kelley, for defendant in error.
   Judgment affirmed.


text:
    No. 2324.
    Chase et al. v. National Bank et al.
    (Decided February 27, 1894.)
    Error, to the Circuit Court of Lucas county.

      E. P>. Potter, Jr., for plaintiffs in error.

      Pratt <& Wilson, for defendants in error.
   Judgment affirmed.


text:
    No. 2578.
    Reck et al. v. Stock.
    (Decided February 27, 1894.)
    Error to the Circuit Court of Darke county.

      J. C. Elliott and Glarh <& Ghenoweth, for plaintiffs in error.

      Walter 8. Thomas and Allread ds Biolcel, for defendant in error.
   Judgment affirmed.


text:
    No. 2273.
    Randolph v. Ammon & Son.
    (Decided March 6, 1894.)
    Error to the Circuit Court of Miami county.

      J. A. do E. II. Kerr, for plaintiff in error.

      A. F. Broomhall and W. 8. Kessler, for defendants in error.
   Judgment of the circuit court modified in part, and all else affirmed, and cause remanded to the court of common oleas for new trial.


text:
    No. 2289.
    Smith v. Pursley et al.
    (Decided March 6, 1894.)
    Error to the Circuit Court of Payette county.

      YanPeman do Chaffin, for plaintiff in error.

      Worthington do Post and Ilidy do Patton, for defendants in error.
   Judgment affirmed.


text:
    No. 2298.
    Aid Association v. Cannon.
    (Decided March 6, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Gottschall do Brown and Blandin & Buell, for plaintiff in error.

      A. T. Brewer, for defendant in error.
   Judgment affirmed.


text:
    No. 2300.
    Johnson v. Mark.
    (Decided March 6, 1894.)
    Error to the Circuit Court of Payette county.

      Semper do MemSiant, for plaintiff in error.

      Carpenter c& Logan, for defendant in error.
   Judgment affirmed.

Williams. J., not sitting in the case.


text:
    No. 2660.
    Curran et al. v. Hauser, Kramer & Co.
    (Decided March 6, 1894.)
    Error to the Superior Court of Cincinnati.

      Charles W. Baker, for plaintiffs in error.

      Drausin Wulsin and Frank O. Swire, for defendants in error.
   Judgment of the superior court, at general term, on answer and cross-petition of the defendants below, reversed; and judgment of the said court at general term, reversing the judgment in favor of the plaintiff below at the special term of said eoiirt, affirmed, and cause is remanded to said court at special term for a new trial.

Spear, J., dissents.


text:
    No. 3671.
    Railway Company v. Adams, Adm’x.
    (Decided March 6, 1894.)
    Error to the Circuit Court of Harrison county.

      J. Dunbar, for plaintiff in error.

      W. P.IIays and D. A. Hollingsworth, for defendant in error.
   Judgment affirmed.


text:
    No. 3765.
    Hagerty, Aud’r., v. McDonald.
    (Decided March 6, 1894.)
    Error to the Circuit Court of Hamilton county.

      Spiegel, Brormoell d> Foraker, County Solicitors, and Wm. L. Avery, for plaintiff in error.

      Germxl, Lampe do Stallo and Ramsey, Maxwell do Ramsey, for defendant in error.
   Judgment affirmed on the authority of Alexander McDonald v. John Hagerty, Auditor, 7 O. C. C. R., 508.


text:
    No. 2304.
    Roberts v. Anderson et al.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Morgan county.

      Ball do Lvers and McElhiney dh Danford, for plaintiff in error.

      E. M. Stcmbery and Nevoel Corner, for defendants in error.
   Judgement affirmed.


text:
    No. 2310.
    Railroad Company et al. v. Huren.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Portage county.

      M. Stuan-t, for plaintiffs in error.

      C. E. Newton and Jones do Anderson, for defendant in error.
   Judgment affirmed.


text:
    No. 2312.
    Nichols v. Fenn.
    (Decided March 13, 1894.
    Error to the Circuit Court of Sandusky county.

      Richards Heffner, for plaintiff in error.

      Finch <& Deioey, for defendant in error.
   Judgment affirmed.


text:
    No. 2590.
    Thompson v. Coal Company.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Athens county.

      O. 8. Welch, for plaintiff in error.
    Z. M. Jexoett, for defendant in error.
   Judgment affirmed.


text:
    No. 2620.
    Green v. Dempsey et al.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Arnold Green, for plaintiff in error.

      Estep, Dickey, Gcurr c& Goff and Squire, Sanders & Dempsey, for defendants in error.
   Judgment affirmed; no error appearing on the record as printed.


text:
    No. 2621.
    Stephens v. Dempsey et al.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Arnold Green, for plaintiff in error.

      Estep, Dickey, Oa/rr & Goff and Squire, Sander-, (& Dempsey, for defendants in error.
   Judgment affirmed; no error appearing on the record as printed.


text:
    No. 2622.
    Athey v. Dempsey et al.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Arnold Green, for plaintiff in error.

      Estep, Dickey, Ocwrr <& Goff and Squire, Sanders <& D&mpsey, for defendants in error.
   Judgment affirmed; no error appearing on the record as printed.


text:
    No. 2623.
    Graves v. Dempsey et al.
    (Decided March 13, 1894.).
    Error to the Circuit Court of Cuyahoga county.

      Arnold Green, for plaintiff in error.
    • Estep, Dickey, Oa/t-r <& Goff and Squire, Banders <& Dempsey, for defendants in error.
   Judgment affirmed; no error appearing on the record as printed.


text:
    No. 2624.
    Street Railway Co. v. Dempsey et al.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Arnold Green, for plaintiff in error.

      Estep, Dickey, Ccurr <& Goff and Squire, Sanders cé Dempsey, for defendants in error.
   Judgment affirmed; no error appearing on the record as printed.


text:
    No. 2626.
    Jackson et al. v. State ex rel. Huling.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Franklin county.

      Powell, Owen, Rickets &' Black, for plaintiffs in error.

      Gyrus Puling, prosecuting attorney, for defendant in error.
   Judgment affirmed.


text:
    No. 2643.
    Allen et al v. Meeker.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Fairfield county.

      C. D. Mcvrtm, and M. A. Daugherty, for plaintiffs in error.

      Bcurton Griffith, Shaw <& Cunningham, and C. W. Me Oleery, for defendant in error.
   Judgment affirmed.


text:
    No. 2644.
    Adams v. Meeker.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Fairfield county.

      G. D. Mrn'tin and M. A. Dcvugherty, for plaintiff in error.

      Barton Griffith, Sha/w c& Cunningham and G. V. Mg Oleery, for defendant in error.
   Judgment affirmed.


text:
    No. 2645.
    Young v. Meeker.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Fairfield county.

      C. D. Martin and M. A. Daugherty, for plaintiff in error.

      Shaw c& Cunningham, Barton Griffith and C. W. Mg Oleery, for defendant in error.
   Judgment affirmed.


text:
    No. 2652.
    City of Toledo v. Wellever
    (Decided March 13, 1894.)
    ERROR to the Circuit Court of Lucas county.
    TP. H. A. Bead, for plaintiff in error,

      O. S. Brumback, for defendant in error.
   Judgment affirmed.


text:
    No. 2657.
    Bright et al. v. Brehm, Adm’r.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Hocking* county.

      S. II. Bright, John Hansen and O. W. H Wright, for plaintiffs in error.

      L. D. Vickers, for defendant in error.
   Judgment affirmed.


text:
    No. 2664.
    Kerr v. Commissioners.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Franklin county,

      O. T. Gla/rk, for plaintiff in error.

      Gyrus HuUng, prosecuting attorney, for defendants in error.
   Judgment affirmed on authority of Stephen v. Shannon, 6 O. C. C. R., 142.

Minshall, J., not sitting in the case.


text:
    No. 3232.
    Stephens et al. v. Taylor, Ex’r, et al.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Franklin county.

      Jones c& Jones, for plaintiffs in error.

      Taylor <& Taylor, for defendants in error.
   Judgment affirmed on authority of Stephens v. Shannon et al., 6. O. C. C. R., 142.

Minshall, J., not sitting in the case.