text:
    The State, ex rel. Klorer, v. Fimple, Judge.

      Bill of exceptions — Mandamus to compel judge to sign and allow same — Trial by referee and report.

    Mandamus will not lie to compel a judge of the court of common pleas to sign and allow a bill of exceptions upon the overruling of exceptions to the report of a referee and the rendering of final judgment thereon, the referee having been appointed to determine the issues in the 'action and to report to the court all the testimony with his findings of fact and conclusions of law, and his report and the final judgment thereon showing his compliance with the order of his appointment. The record, without a bill, presents to the court of appeals all questions which were presented in the court of common pleas.
    (No. 14734 —
    Decided November 17, 1914.)
    In Mandamus.
    Issues of fact were joined in the court of common pleas in an action in which the relatrix and The Steiner Coal Company were adversary parties. The court referred the case to a referee for trial by the following order: “On consent of all parties in the above-entitled action this cause is referred to James H. Robertson, who is appointed referee herein, and is directed to determine the issues here-: in, to take the testimony of witnesses in writing, and report such testimony and findings of fact and conclusions of law to this court without unneces^ sary delay.” Pursuant to this order, the referee tried the case upon the evidence and announced his findings of fact and conclusions of law. Both the relatrix and the Stepper company filed motions for a new trial before the referee, which were overruled, she excepting. Exceptions were taken before the referee, but no bill of exceptions was tendered to him or signed by him. The referee then made his report pursuant to the order of court, reporting the testimony in full, together with his findings of fact and his conclusions of law. The relatrix filed exceptions in the court of common pleas to the referee’s findings as to both law and fact, and the Steiner company filed a motion to confirm the report of the referee. In the court of common pleas, the defendant in this action sitting as judge thereof, the exceptions of the relatrix and the motion to confirm the report of the referee were heard, the exceptions were overruled and the motion to confirm was sustained “on the pleadings, report of the referee, James H. Robertson, and the evidence taken by said referee and filed by him in this cause in accordance with the former order of this court.” And thereupon the court of common pleas rendered judgment in favor of the Steiner company and against the relatrix. She thereupon filed a motion for a new trial, which was overruled. She then tendered to the defendant for his signature and allowance a bill of exceptions embodying the report of the referee and reciting that all the evidence which it contained had been introducd into court by the parties for the determination of the issues joined in said case. By his endorsement thereon the defendant declined to sign and allow said bill of exceptions because he was without authority so to do. By her petition in the present case the relatrix seeks a peremptory writ of mandamus compelling the defendant to sign and allow the' bill. The defendant answering sets out in detail the proceedings in the court of common pleas and before the referee and the substance of the report, which have already been given with sufficient definiteness in this statement. In his answer the defendant alleges his belief in the want of his authority to sign a bill of exceptions under the circumstances, and further alleges that he has no personal knowledge whatever of anything which transpired before the referee.

      Messrs. Pomerene, Ambler & Pomerene, for relatrix.

      Messrs. Webber & Turner, for respondent.
   By the Court.

That the relatrix is entitled to a review in the court of appeals of the judgment of the court of common pleas in the cause in which she seeks the allowance and signing of this bill of exceptions is not questioned. The question is, Why is the bill necessary to such review, or in what manner would it facilitate it? The authority for the reference and the proceedings thereunder are found in Sections 11475 to 11486, General Code. Attention to the provisions of those sections would seem to determine some questions about which counsel apparently differ. The referee is authorized to summon and compel the attendance of witnesses, to administer oaths and grant adjournments, and it is then comprehensively enacted that “a trial by refereees shall be conducted as if by the court.” His decision may be excepted to and reviewed as in a trial by the court, and his decision stands as the action of the court, upon which judgment may be entered as if the court’ had tried the action, as was done in this instance. The only provision for a bill of exceptions in cases so tried is in Section 11484, General Code, that “The referees shall sign any true exceptions taken to an order or decision by them made in the case, and return it with their report to the court.” This provision is obviously necessary to bring before the court questions arising before a referee who reports only his conclusions of fact and law, his conclusions of fact having the effect of a special verdict, for in such case without a bill signed by him neither the propriety of his procedure nor the correctness of his conclusions of fact could be determined by the court. But why a special bill of exceptions should be signed, even by the referee in a case referred, as was this, to take the testimony of witnesses in writing and report it with his findings of fact and conclusions of law, is not apparent. But no bill of exceptions was taken before the referee, before whom the case was tried as to the court, nor does any appear to have been tendered to him. The allowance and signing of the bill by the judge is sought in this action. The function of a bill of exceptions is to bring upon the record matters material to further judicial inquiry which would not otherwise appear. The trial judge here naturally and properly answers that he has no personal knowledge respecting the proceedings before the referee. For information upon that subject he was confined to the referee’s report. That report was before him as the sole basis of his action in overruling exceptions and in rendering judgment. It is equally available to the court of appeals. It is to be observed that in this case the report of the referee was confirmed and judgment rendered upon it and upon it alone. There could, therefore, have been no evidence whatever before the court of common pleas that was not embraced in the report of the referee, already a part of the record. This bill of exceptions, if signed, would add nothing to the record for the information and action of the court of appeals. The writ of mandamus will not be issued to compel the doing of a vain thing.

Petition dismissed.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    McLarren v. Johnson et al.

      Constitutional law — Conflict of judgment of court of appeals with circuit court — Writ of certiorari — Section 6, Article IV, Constitution (.1912).

    (No. 14748 —
    Decided November 17, 1914.)
    Error to the Court of Appeals of Franklin county.
    On motion to dismiss.

      Mr. H. H. McMahon, for plaintiff in error.

      Mr. Charles T. Warner, for defendants in error.
   By the Court.

The provision in Section 6, Article IV of the Constitution of Ohio, as amended September 3, 1912, directing the judges of a court of appeals to certify the record of a case to the supreme court for review and final determination where they find that a judgment which they have agreed upon is in conflict with the judgment pronounced upon the same question by any other court of appeals of the state, does not authorize the judges of the court of appeals to certify the record of a case where they find that a judgment upon which they have agreed is in conflict with the judgment pronounced upon the same question by a circuit court.

While, under the amendments to the constitution, the courts of appeals are successors to the circuit courts of the state, yet they are not the same as the circuit courts. The amendments to the constitution create the courts of appeals, and the framers of the amendments to the constitution specifically designate that the judgment upon which one court of appeals has agreed must be in conflict with the judgment pronounced upon the same question by another court of appeals. Courts have no power or authority to extend the plain and positive provisions of this section to include circuit courts.

Aside from this consideration, however, it is apparent that the circuit courts were not intended to be included within this provision of the constitution. The circuit courts, as they existed prior to the amendments to the constitution, did not have final jurisdiction. Any party to a suit aggrieved by the decision of the circuit court then had a right to prosecute error to the judgment of that court in the supreme court of this state. These judgments, therefore, were not judgments of a court of last resort and were binding only upon the parties to the suit and courts inferior thereto in that' jurisdiction. Under the amendments to the constitution creating the court of appeals that court is vested with final jurisdiction in all cases, except cases involving questions arising under the constitution of the United States or of the state of Ohio, cases of felony, cases which originate in the court of appeals, and cases of public or great general interest, so that where the judgment of one court of appeals conflicts with that of another, it is necessary that the question involved should be submitted to the supreme court in order that the practice and the general interpretation of the laws of the state should be uniform throughout the state. No such necessity existed prior to the adoption of the amendments, and, therefore, judgments entered by the circuit courts of the state cannot be considered in determining the jurisdiction of this court under this provision of the constitution.

Motion to dismiss sustained.

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


author: Newman, J.

text:
    Guyton v. The Eastern Electric Co.

      Unlawful combinations — Action under Section 6391, General Code —Counterclaim or set-off by defendant — Under Section 6397, General Code — Valentine anti-trust law.

    In an action on-an account by a member of an unlawful combination under Section 6391, General Code, for goods sold the price of which is advanced as a result of the unlawful combination, a defendant injured in his business by reason of the advance in price of the goods purchased by him from such member, may set up by way of counterclaim or set-off the damages allowed by Section 6397, General Code.
    (No. 13916 —
    Decided November 24, 1914.)
    Error to the Circuit Court of Montgomery county.
    Defendant in error filed a petition in the court of common pleas of Montgomery county asking judgment against the plaintiff in error in the sum of $189.99 on an account for lamps furnished plaintiff in error by defendant in error.
    In the first defense in the amended answer and cross-petition of plaintiff in error, by way of cross-petition, it was alleged that defendant in error, during the time covered by the items in the account attached to the petition and for a long time prior thereto, was a member of a combination of manufacturers of electric lamps operated under the name and style of The National Electric Lamp Association, and that the association as constituted by defendant in error and others was a combination formed for the purpose of fixing at an enhanced figure the price of electric lamps as manufactured by the members of said combination among themselves by which dealers and consumers of said lamps should be compelled to purchase the same at such enhanced price and to destroy as between the members of said association all competition in price; that said association, since its formation by defendant in error and others, has so far advanced and maintained the price of lamps and has effected and perfected a monopoly of the sale and distribution of the same; that as a result of such combination the price of lamps to plaintiff in error and other consumers thereof was advanced to the extent of twenty-five per cent., and for a term of four years prior to the filing of said amended answer and cross-petition plaintiff in error had been compelled to purchase of the defendant in error lamps for his trade at such advanced figure, entailing upon plaintiff in error a heavy loss in trade and profit on account thereof; and that during said period plaintiff in error had purchased of defendant in error lamps at a cost aggregating approximately $541.98, of which one-fifth, $108.39 in cost, was due to the illegal combination and which was a damage to plaintiff in error.
    It was further alleged that, in accordance with the act of the general assembly of the state of Ohio of April 19, 1898, recorded in volume 93, Ohio Laws, at page 146 (Section 6397, General Code), he was entitled to twofold the amount of damage sustained by him by reason of the premises.

      Plaintiff in error further averred that there was nothing due to defendant in error on the claim sued on and that he was entitled to recover from defendant in error damages in the sum of $17.78.
    In the third defense of the answer, by way of cross-petition, plaintiff in error adopted all the allegations of the first defense and averred further that the account sued upon in the petition was for a portion of the lamps purchased by plaintiff of the defendant subsequently to the advance in price due to said illegal combination. There was a prayer for judgment against the defendant in error in the sum of $17.78.
    To these two defenses, as well as to a second defense, a demurrer was filed by defendant in error upon the ground that facts sufficient to constitute a defense were not stated therein. This demurrer was sustained to each of the three defenses and cross-petition, and plaintiff in error not desiring to amend or plead further judgment was rendered against him in the sum of $203.08, with interest from May 28, 1912, together with costs.
    Error was prosecuted to the circuit court and the • judgment of the court of common pleas affirmed.
    Plaintiff in error makes no objection to the sustaining of the demurrer to the second defense, but asks for a reversal of the judgment of the circuit court upon the ground that that court erred in sustaining the demurrer to the first and third defenses and cross-petition.

      Mr. Lee Warren James, for plaintiff in error.

      Messrs. VanDeman, Burkhart & Smith, for defendant in error.
   Newman, J.

It appears from the allegations of the amended answer and cross-petition that defendant in error was a member of an unlawful combination, as defined by Section 6391 et seq., General Code, known as the Valentine anti-trust law. No claim is made here that plaintiff in error can avoid payment of the account sued on upon the ground that defendant in error was a member of this unlawful combination, although this point was made in the lower courts. It is insisted, however, that plaintiff in error may set up by way of counterclaim the damages he sustained in the purchase of the lamps mentioned in the account sued on by reason of this unlawful combination and, by way of set-off, the damages he sustained during the four years in which he dealt with defendant in error.

Under the Valentine anti-trust law damages are allowed to a person injured in his business or property by reason of an unlawful combination, Section 6397 providing: “In addition to the civil and criminal penalties provided in this chapter, the person injured in his business or property by another person, or by a corporation, association or partnership, by reason of anything forbidden or declared to be unlawful in this chapter, may sue therefor in any court having jurisdiction thereof in the county where the defendant or his agent resides or is found, or where service may be obtained, without respect to the amount in controversy, and recover twofold the damages sustained by him and his costs of suit. When it appears to the court, before which a proceeding under this chapter is pending, that the ends of justice require other parties to be brought before such court, the court may cause them to be made parties defendant and summoned whether they reside in the county where such action is pending, or not.”

The contention of counsel for defendant in error is that the action which this statute authorizes must be a direct one.

It appears from the answer and cross-petition that plaintiff in error was compelled to purchase from defendant in error, a member of the unlawful combination, lamps for his trade at an advanced figure, entailing upon him a heavy loss in trade and profit on account thereof, and that the account sued on is for a portion of the lamps so purchased by him, and a claim is made for damages under the provisions of the Valentine anti-trust, law.

' The question presented, then, is whether such a claim for damages is a counterclaim under Section 11317, General Code, where it is defined to be “a cause of action existing in favor of a defendant against a plaintiff or another defendant, or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject pf the action.”

The account sued on was for lamps purchased at the advanced price fixed by the unlawful combination. The sale of these lamps at this price gave rise to a cause of action in favor of plaintiff in error and was referable to the transaction had between the parties when the sale was made, and, in the language used in Section 11317, it was “connected with the subject of the action.” As we view it, the claim of plaintiff in error answers the statutory requirement of a counterclaim and it was error to sustain the demurrer to the third defense.

As to the first defense, in which plaintiff in error alleges the existence of the unlawful combination — • that by reason thereof the price of lamps to him was advanced and for a term of four years prior to the bringing of the action he was compelled to purchase of defendant in error lamps for his trade at such advanced figure, entailing upon him a heavy loss in trade and profit on account thereof, and that under the provisions of the Valentine antitrust law he is entitled to twofold damages — the court of common pleas took the view that this claim for damages was upon a liability created by statute and therefore could not be pleaded as a set-off under Section 11319, General Code, which is as follows: “A set-off is a cause of action existing in favor of a defendant against a plaintiff between whom a several judgment might be had in the action, and arising on contract or ascertained by the decision of a court. It can be pleaded only in an action founded on contract.”

The action of defendant in error, being one on a book account, was founded on contract. It is true that the liability of defendant in error to pay damages is fixed by Section 6397, supra, but the cause of action in favor of plaintiff in error grows out of his contract of purchase. Had there been no contractual relation between these parties no cause of action would have arisen in favor of defendant in error. This being true, plaintiff in error had the right to plead this cause of action as a set-off to the claim of defendant in error.

In the cases of Connolly v. Union Sewer Pipe Co., 184 U. S., 540, and Continental Wall Paper Co. v. Voight, 212 U. S., 228, to which our attention is called, the question we are considering in the present case was not decided. The Ohio statutes relating to counterclaims and set-offs were not before the court in the two federal cases, and the part of the opinion of the court in-the Connolly case quoted and relied on by counsel for defendant in error is, therefore, not in point.

Judgment reversed.

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


text:
    The State, ex rel. Kautzman, v. Graves, Secretary of State, etc.

      Elections — Constitutional amendments — Recount of ballots — Mandamus will not lie, when — Section 5090-1, General Code (103 O. L., 265).

    Under existing laws mandamus will not lie to compel the secretary of state to recount or direct a recount of the ballots counted at an election and preserved under the provisions of Section 5090-1, General Code (103 O. L., 265).
    (No. 14775 —
    Decided December 1, 1914.)
    In Mandamus.
    This is a proceeding in mandamus instituted in this court by the relator, a resident and taxpayer of the city of Columbus, who, according to the averments of the petition, brings the action on behalf of himself and all others in like situation. The respondent is the duly elected, qualified and acting secretary of state and is the supervisor and inspector of elections of the state of Ohio.
    On November 3, 1914, at the general election in the state of Ohio, there were submitted to the electors of the state for their adoption or rejection two amendments, one entitled “Home Rule on the Subject of Intoxicating Liquors,” the other “Prohibition of the Sale, Manufacture for Sale and Importation for Sale of Intoxicating Liquors as a Beverage.” There is an averment in the petition that Section 5090-1, General Code (103 O. L., 265), provides for the preservation of the ballots for the purpose of having errors m counting corrected.
    It appears from the petition that in the cities of Cincinnati, Cleveland, Toledo and other places, at said election, there were certain irregularities and illegalities in the conduct of the election and that frauds were perpetrated by the election officers and others at said election, and that by reason thereof there was an incorrect and illegal count of the votes cast on these two amendments. These irregularities, illegalities and frauds are described in the petition and are covered by some sixteen charges.
    There is an averment that on the day following the election there was filed with the county board of deputy state supervisors of elections in Hamilton, Franklin, Cuyahoga and Lucas counties, a protest against said irregularities, illegalities and incorrect count, and a demand was made for a recount of the ballots, which demand was ignored by these county boards. It is averred that because the judges of elections, for the reasons mentioned in the petition, did not count the ballots correctly, as provided by law, it appears that the home-rule amendment was adopted, while in fact if the official count is made correctly it will show that the legal votes cast against the home-rule amendment exceed those cast for the amendment and that the ballots cast for prohibition largely exceed those cast against it.
    It is then averred that on November 14,1914, the respondent, as state supervisor and inspector of elections, "was requested, for the reasons mentioned in the petition, to make a recount of the ballots, or to order the county boards of elections to do so, and that he refused to take action for the reason that the authority for so doing, in his judgment, was not clear and he would await the decision of the court upon the question.
    The prayer of the petition is that this court order the respondent, as chief supervisor and inspector of elections, to proceed at once to a recount of the ballots in the counties of Hamilton,- Cuyahoga, Franklin and Lucas, or to. order the county boards of supervisors of elections in said counties to make a recount and to preserve the ballots until the recount is completed. The relator prays also for such other and further relief as he is entitled to in law.
    The case was presented to this court upon demurrer to the petition, the contention of the respondent being that the facts set out in the petition do not entitle the relator to the relief he seeks.

      Mr. Wayne B. Wheeler and Mr. J. A. White, for relator.

      Mr. T. S. Hogan, attorney general; Mr. Judson Harmon; Mr. Simeon Johnson; Mr. A. J. Freiberg; Mr. Frank Davis, Jr.; Mr. P. E. Dempsey and Mr. James I. Boulger, for respondent.
   Newman, J.

It is suggested that if this court find that the relator is entitled to relief the extent to which it could go in its order would be to require the respondent to make an investigation of the cjiarges of fraud, illegality and irregularity. Such an investigation would be futile if the secretary of state did not have the authority to recount or order a recount of the ballots in the event the charges were found by him to be correct. There would be no adequate or effective remedy for the redress of the wrongs of which the relator complains. Assuming, then, that the charges relied upon by the relator are true and assuming that the relator here is entitled to make the relation, we shall determine only what is concededly the real and important question in the case, viz., Will mandamus lie to compel the respondent to recount or direct a recount of the ballots voted at the election ?

The duties of the deputy state supervisors of elections of the different counties of the state relating to the returns of elections and the abstract of votes to be made by them are prescribed by Section 5093 et seq., General Code. After the count of the ballots by the judges of election there is transmitted to the deputy state supervisors a certified copy of the returns, and within the time fixed by law they open and canvass the returns, make an abstract of the votes and transmit copies thereof to certain officers named in the statute. There is no claim made here that there is any error in the canvass of the returns or in the abstract made and transmitted by the deputy state supervisors, but it is fraud, illegality and irregularity on the part of the judges and clerks and others at the election and in the counting of the ballots of which the relator complains. He avers in his petition that Section 5090-1, General Code (103 O. L., 265), provides for the preservation of the ballots for the purpose of having errors in counting corrected. That sec-' tion is as follows:

“Sec. 5090-1. Before separating, the judges and clerks shall fold in two folds and string closely upon a single piece of flexible wire, all ballots which shall have been counted by them, unite the ends of such wire in a firm knot, seal the knot in such manner that it cannot be untied without breaking the seal, enclose the ballots so strung in a secure cloth or heavy paper covering and securely tie and seal such covering with official wax impression seals, to be provided by the deputy state supervisors of elections, in such manner that it cannot be opened without breaking the seals, and deliver said ballots in such sealed covering to the deputy state supervisors of elections, and such officers shall carefully preserve such ballots for thirty days, and at the expiration of that time shall destroy them by burning without previously opening the package. Such ballots shall be destroyed in the presence of the official custodians thereof and two electors of approved integrity and good reputation and members respectively of the two leading political parties. The said electors shall be designated by the board of deputy state supervisors of elections of the county in which such ballots are kept; provided that if any contest of election shall be pending, at the expiration of said time the said ballots shall not be destroyed until such contest is finally determined. In all cases of contested elections, the parties contesting the same shall have the right to have said ballots opened and to have all errors in counting corrected by the court or body trying such contest, but such ballots shall be opened only in open court or in open session of such body and in the presence of the officers having the custody thereof.”

The legislature has defined clearly the purpose for which the ballots are preserved. They can be recounted in cases of contested elections only. It is to be observed that the ballots are to be opened and errors in counting corrected by the court or body trying' the contest, and they are to be opened only in open court or in open session of such body. No reference is made in this section to the secretary of state. The deputy state supervisors are made the custodians of the ballots, but with no authority whatever to open or recount them.

So there can be no doubt as to when or by whom or where a recount of the ballots can be had. There must be a contest before there is the right in any one to demand a recount. The recount must be made by the court or by the body trying the contest and in open court or before the body in open session.

It is not claimed that there is a contest of election here. In fact, it is conceded that there is no statutory proceeding for contesting an election under a state referendum in the submission of amendments to the constitution. Therefore none of the provisions of Section 5090-1 relating to a recount can apply here. Even if there were a contest pending no authority is conferred or duty imposed by this statute upon the secretary of state to recount or direct a recount of the ballots. This is the only statute bearing upon the subject, and, as we view it, it precludes a recount of ballots by any one other than those designated therein, and then only in the manner therein prescribed.

But counsel for the relator say that even if there is no specific authority granted the secretary of state to recount or direct a recount of the ballots, yet he has the implied power to do so. In Section lb of Article II of the Constitution it is provided that any proposed law or amendment to the Constitution submitted to the electors, if approved by a majority of the electors.voting thereon, shall take effect thirty days after the election at which it was approved and shall be published by the secretary of state. Section 4787, General Code, makes the secretary of state the state supervisor and inspector of elections, and as such he is to perform the duties of such office as prescribed in the title of which the section is a part.

It is claimed by counsel that a reasonable construction of the duties imposed upon this officer, as found in Section 4787, General Code, and in Section lb of Article II of the Constitution, makes clear his duty to make the recount in order that he may publish a truthful result of the election.

It is true that in addition to powers expressly conferred by statute • upon an officer he has impliedly such other powers as are necessary for the due and efficient exercise of those powers expressly granted. The duties of the secretary of state in canvassing the returns and in declaring the result of the election are specifically fixed by statute and are purely ministerial. He is not authorized to try an election contest or to pass upon the validity of election returns made to him. Were such authority given this official then the question of implied power to perform these duties efficiently might arise.

But, as we have seen, the legislature has provided for -the preservation of the ballots by Section 5090-1 and has expressly prescribed by whom and under what conditions they shall be counted. If it had intended that the secretary of state could recount or order a recount he would have been designated in the statute. To hold that the secretary of state has implied power to do an act the performance of which is in positive and certain terms confined to a court or a body trying an election contest, would be usurping the powers and functions of the legislature. In our opinion there is no implied power in the secretary of state to do what relator would have him do.

Mandamus is defined by statute. Section 12283, General Code, reads: “Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

In Selby, Auditor, v. The State, ex rel., 63 Ohio St., 541, the court say: “The writ may issue to command ‘the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station/ It may not issue to compel the performance of an act not so enjoined.”

Can it .be said that the recounting or ordering a recount of the ballots voted at the election is an act specially.enjoined upon the secretary of state as a duty resulting from his office ? Not only is the performance of this act not enjoined upon him, but under the plain provisions of the statute relating to the preservation of the ballots no one except the court or body trying the election contest has authority to open or count the ballots.

Counsel for the relator ádmit that under the ruling of the court in Link v. Karb, Mayor, 89 Ohio St., 326, injunction is not the proper remedy for reaching the alleged irregularities and illegalities in the count. They say this not being an' action where quo warranto will lie, and there being no specific method for contesting the election under the state referendum, the only remedy left is mandamus, and if they are unsuccessful in this there is no remedy for the present wrong which they claim is about to be inflicted on the state.

The power to provide a remedy for the redress of the wrongs of which the relator complains rests in the general assembly, and courts have no authority to usurp the powers of that body. The legislature has seen fit to provide for the preservation of the ballots voted at an election. It has prescribed the conditions under which these ballots can be counted, viz., in case there is a contest of election. It has failed to provide a method for contesting an election under a referendum. Section 21 of Article II of the Constitution provides that the general assembly shall determine by law before what authority and in what manner the trial of contested elections shall be conducted. It is not within the power of the court to do so. The failure of the legislature to provide for a contest confers no jurisdiction upon the courts. Link v. Karb, Mayor, supra.

Demurrer sustained and writ refused.

Nichols, C. J., Shauck, Johnson, Donahue and Wanamaker, JJ., concur. Wilkin, J., not participating.


text:
    Jones v. The Turney & Jones Company et al.

      Receivership — Creditors’ committee — Assignment of claims by creditors — Interagreement by two stockholders — Stockholders’ liability — Purchase of claims by one stockholder — Accounting in action to enforce liability — Remedies.
    (No. 14025 —
    Decided December 1, 1914.)
    Error to the Circuit Court of Franklin county.
    John S. Jones filed in the common pleas court in this action an answer and cross-petition in which, among other things, he averred that Henry D. Turney and himself were the principal stockholders and the only solvent stockholders of The Turney & Jones Company; that in 1898 said company became involved financially and unable to continue business, and suits were commenced in the courts to wind up the affairs of said corporation, convert its assets into money, and receivers of said company were appointed in said action for that purpose; that during the next two or three years all of the assets of said company were collected and distributed among its creditors, and in order to facilitate said distribution a creditors’ committee was appointed on behalf of said company and on behalf of said Turney and Jones; that most of the creditors surrendered their claims against said company and assigned the same to this committee, and that as to all the creditors who assigned their claims the affairs of said corporation have been finally settled; that at the time of the appointment of said creditors’ committee it was apprehended by said Turney and Jones that certain creditors of said company would refuse to come into said settlement and would hold all balances due on their claims, respectively, for the purpose of enforcing the stockholders’ liability against said Turney and said Jones; that if either of them was obliged to personally pay any money on said individual stockholders’ liability to the creditors refusing to come into the settlement they would account with each other and each would pay one-half of the amount that either was obliged to pay on account of these outstanding claims not paid or settled through the creditors’ committee; that said written agreement was made on or about the 26th day of August, 1899.
    That afterwards Charles C. Higgins, one of the creditors who refused to enter into this settlement or to assign his claim to said creditors’ committee, commenced this action to enforce the stockholders’ liability against Turney and Jones on behalf of himself and all other creditors, and that thereafter such proceedings were had that the following claims of creditors were approved and allowed against said The Turney & Jones Company: Charles C. Higgins, $235.22; The National Lead Company, $391.01; Trustee of Park Bros. & Co., $118.75; Samuel Butler & Company, $119.12; Henry D. Turney, $13,645.45; that the above claims were the only ones presented or allowed in this action.
    He further avers that the above claim, presented by Henry D. Turney and approved and allowed against said The Turney & Jones Company, consisted of claims of various creditors that Henry D. Turney had settled and paid in accordance with the terms of the contract in reference thereto, and that this defendant had no knowledge that said claims had been presented by Henry D. Turney until after the same had been allowed. This defendant further avers that, acting under and in pursuance of said written contract, he has personally paid and adjusted a large amount of claims against The Turney & Jones Company; that the aggregaté amount of these claims paid, settled and adjusted by the said Henry D. Turney and this defendant, respectively, are largely in excess of the money expended by either of them in the purchase and settlement of said claims, but that the said Turney refuses to account with this defendant upon any fair and equitable basis in reference to the amounts paid by each in purchasing said claims of creditors. The defendant further avers that judgment was obtained against him upon his liability as stockholder in a large sum of money, and he asks that the receiver be enjoined from collecting the same, and that there may be an accounting had between this defendant and Henry D. Turney in accordance with their rights and liabilities as stockholders of said corporation. To this answer and cross-petition a demurrer was filed, which demurrer the common pleas court sustained. Upon appeal by the defendant Jones the circuit court also sustained the demurrer, and this proceeding in error is prosecuted to reverse the judgment of the circuit court.

      Mr. Thomas E. Powell and Mr. Barton Griffith, for plaintiff in error.

      Messrs. Webber, McCoy, Schoedinger & Jones; Messrs. Morton, Irvine & Blanchard and Mr. R. J. Odell, for defendants in error.
   By the Court.

While the answer and cross-petition of John S. Jones filed in this action contains irrelevant, redundant and immaterial matter, and while there are no averments therein contained that would entitle the cross-petitioner to have the judgment against him in this action upon his liability as a stockholder of the insolvent corporation opened up and set aside or the collection thereof enjoined, and no averments therein that would entitle him to have opened up and set aside the allowance and approval of the claim of Henry D. Turney, yet if the averments of this answer and cross-petition that are copied into the above statement of facts are sustained by the proofs, then the cross-petitioner is entitled to an accounting with Henry D. Turney in accordance with the terms and provisions of the written agreement, the substance of which is pleaded in the cross-petition.

If these claims were in fact purchased by Henry D. Turney, after this written contract was made and entered into between himself and John S. Jones, notwithstanding that Henry D. Turney advanced his own money for that purpose, they were purchased for the equal benefit of himself and John S. Jones, and the same is true of all claims purchased or paid by John S. Jones. The fact that these claims purchased by Henry D. Turney under such an agreement with his associate Jones, if they were so purchased, were afterwards presented and their full face value allowed in this action as valid and existing claims against this insolvent corporation, does not divest the cross-petitioner of his joint interest with Turney therein. These claims having been approved and allowed in this action, the cross-petitioner is therefore entitled to assert his interest therein in this suit upon distribution, and should not be required to bring a separate action therefor.

It further appearing that the ascertaining of the respective rights of the cross-petitioner and Henry D. Turney in the claims presented and allowed, involves an accounting between said parties, such accounting should be had in this action as to all the transactions covered by this contract, and this would include the moneys paid and expended both by Jones and Turney under the terms of this contract in the settlement and discharge of claims against this insolvent corporation, together with all moneys that either has paid or may be compelled to pay into court in the satisfaction and payment of claims allowed, together with all costs taxed generally against the funds in the hands of the receiver, but not including any costs that are now or may hereafter be adjudged specifically against either of said parties.

For the reasons above stated the judgment of the circuit court is reversed, and the cause is remanded to that court with directions to overrule the demurrer to this answer and cross-petition.

Judgment reversed.

Nichols, C. J., Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


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    Hier v. Stites.

      Malpractice — Physician—Expert testimony — Degree of skill required — Charge to jury.

    (No. 13917 —
    Decided December 1, 1914.)
    Error to the Circuit Court of Hamilton county.
    The facts are stated in the opinion.

      Mr. C. D. Robertson and Mr. W. A. Hicks, for plaintiff in error.

      Mr. B. H. Stites and Messrs. Hoffman, Bode & LeBlond, for defendant in error.
   By the Court.

This proceeding was begun in the court of common pleas of Hamilton county by tlie defendant in error against the plaintiff in error. In his petition the plaintiff below alleged substantially that in October, 1905, the defendant held himself out to be a practicing physician and surgeon, and that during said month the plaintiff sustained an injury to the nail and end of the middle finger on his right hand; that he employed the defendant as such physician and surgeon to treat the injury; that the defendant conducted himself, in and about his effort to properly treat and heal said injury, so unskillfully, negligently and unprof essionally,' that the plaintiff thereby wholly lost the said finger and that his right hand became permanently injured. Further allegations as to the extent of the injury resulting from the alleged negligent, unskillful and unprofessional conduct and treatment are set out, and judgment for damages is prayed for.

In his answer the defendant admits that he is a practicing physician and surgeon; that the plaintiff sustained an injury to the nail and end of the middle finger of his right hand and that the defendant was employed by the plaintiff for consideration to treat said injury, and denies each and every other allegation in the petition contained.

On the trial a verdict was rendered for the plaintiff and the circuit court affirmed the judgment of the court of common pleas which was entered thereon. Error is prosecuted here to reverse the judgments below.

There was considerable testimony introduced by the plaintiff which tended to sustain the issue on his part. In the progress of the treatment several amputations were made, and the jury, in answer to special interrogatories submitted on the application of the defendant below, found that the defendant failed to sterilize his instruments and neglected to properly cleanse the wound at the time of the first amputation, and that the treatment by the defendant was “not such as is used by physicians and surgeons of ordinary skill, care and prudence in like or similar conditions and circumstances.” They further found, that at the time of the second amputation, the defendant did not sterilize his instruments, did not cleanse the wound antiseptically and that he did not use such treatment as is used by physicians and surgeons of ordinary skill, care and prudence in like circumstances.

Plaintiff in error urges that the trial court erred in the admission of the testimony of expert witnesses. The plaintiff called a physician as an expert and asked him an hypothetical question, in which, after the nature of the injury was described, there was the following: “Now, what would be the ordinary and proper method — the ordinary, usual and approved method for treating that finger in surgery, the injury having occurred say two hours prior to the time the patient came to you for treatment?” Counsel for plaintiff in error insists that the admission of this question and other similár questions violated the rule laid down in Gillette v. Tucker, 67 Ohio St., 106, in which it is held that the degree of care which the physician or surgeon is bound to exercise is the average degree of skill, care and diligence exercised by members of the same profession, practicing in the same or a similar locality, in the light of the present state of medical and surgical science. In the opinion in that case it is said: “In the engagement of the plaintiff in error, as a surgeon, he assumed to exercise the ordinary care and skill of his profession, in the light of the modern advancement and learning on the subject, and became liable for the injuries resulting from his failure to do so.”

In the same case the court quote and approve the rule stated in Craig v. Chambers, 17 Ohio St., 253: “The implied liability of a surgeon, retained to treat a case professionally, extends no further, in the absence of a special agreement, than that he will indemnify his patient against any injurious consequences resulting from his want of the proper degree of skill, care, or diligence in the execution of his employment.”

It would seem to be clear that a proper course to be followed in the determination of the question whether the average or proper degree of care, skill and diligence has been exercised in a particular case is to ascertain the ordinary and proper method in such cases, and then whether such method was followed in the case on trial. There was no error in the admission of the testimony referred to.

It is also insisted that the court erred in its charge to the jury. Substantially the infirmity suggested is that the court in its charge adopted the principle of law which naturally followed the admission of the testimony to which we have referred.

The court, at the request of the plaintiff in error, gave the following special charge: “In order to recover, the plaintiff must show, by a preponderance of the evidence, and the jury must find, that the defendant, in the treatment of the injury to plaintiff’s finger, either did some particular thing or things that physicians and surgeons of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances: Or, that the defendant did some particular thing or things, in a manner that physicians and surgeons of ordinary skill, care and diligence would not have done in like or similar conditions or circumstances: Or, that the defendant failed or omitted to do some particular thing or things that physicians and surgeons of ordinary skill, care and diligence would have done under like or similar conditions and circumstances :

“And the plaintiff must also further show and the jury find that the injury complained of was the direct result of such doing or failing to do some one or more of such particular things.”

This fairly stated the question made in the case and the general charge was in entire harmony with the propositions laid down in the special request, and the court fully charged on the issues made in the pleadings.

As we have indicated, there was substantial evidence in support of the contentions of both parties, and the court properly left the question for the determination of the jury. We find no error in the record, and the judgments below are affirmed.

Judgments affirmed.

Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


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    The State of Ohio v. Keith.

      Criminal law — Joint indictment — Nollied against one defendant— Discharge claimed by remaining defendant — Offense joint and several — Sections 12472, 12473 and 12474, General Code — Embezzling or misapplying bank funds — Section 44, Thomas banking act.

    (No. 14502 —
    Decided December 1, 1914.)
    Exceptions by the Prosecuting Attorney to a Decision of the Court of Common Pleas of Hamilton county.
    Keith, the defendant in error, was indicted with one Williams on a large number of counts, charging a violation in various respects, under Section 12473, General Code.
    After the jury was sworn the counts were nollied as against Williams. Whereupon counsel for Keith moved the court to discharge him from further prosecution, for the reason that the indictment being a joint indictment against Nathaniel S. Keith and Fletcher R. Williams, and the said Fletcher R. Williams having been discharged, the defendant in error was also entitled to be discharged; that where two persons are jointly indicted the state could not dismiss one and proceed with the prosecution against the other.
    The court sustained the motion, to which the prosecutor excepted and brings his bill of exceptions to this court for review.

      Mr. T. S. Hogan, attorney general; Mr. Joseph McGhee; Mr. Thomas L. Pogue, prosecuting attorney; Mr. Carl M. Jacobs, Jr., and Mr. J. V. Campbell, assistant prosecuting attorneys, for the exceptions.

      Messrs. Dinsmore & Shohl, against the exceptions.
   By the Court.

The statute does not make the offense charged a joint one and neither does any one of the counts of the indictment. The offense is not inherently joint but joint and several; it may be committed by one person or any number of persons, the same as any offense of larceny, conversion or embezzlement.

Stephens and Everett v. State, 14 Ohio, 386, has been urged to sustain the ruling of the court below.

A careful reading and analysis of this case, in connection with the syllabus, shows that it has not the slightest application to the case at bar. The syllabus reads:

“On an indictment charging two persons with the commission of a joint offense, both cannot be convicted upon proof that each one committed an act constituting ah offense similar to the act charged in the indictment.”

Undoubtedly this is the law, but it has no relevancy to the case at bar, since the question in this case is “whether or not either defendant singly and alone could be convicted of the offense charged in the indictment.” In the Stephens-Everett case, supra, the trial court held that both might be convicted, though the evidence did not show that they were both engaged in the same act. The trial judge held, in effect, that though one defendant separate and alone made one unlawful sale of liquor, and the other defendant separate and alone another unlawful sale, they both might be convicted of the same act.

Of course, this was not the law and the result was reversal. The court erred in sustaining the motion on that ground.

But it is urged that the indictment itself did not state an offense against either defendant, and, therefore, though the court may have been wrong as to its reason, ,it was right as to its judgment. The particular section under which this indictment was drawn is Section 12473, General Code. It is urged that Section 44 of what is known as the Thomas banking act is the basis of this prosecution; that the codifying commission split up this section into Sections 12472, 12473 and 12474, but did not in anywise change or -intend to change the description of the offense or the elements necessary to constitute the offense.

An examination of the federal statute from which the Ohio statute was evidently taken, also the earlier Ohio statutes before codification and after codification, persuades us that it was the intention of the legislature to make the phrase “with the intent in any such case to defraud or injure,” an essential part of each offense under old Section 44 of the Thomas banking act, and of Section 12473, General Code, which is a part of said Section 44.

Therefore, the indictment in this case does not charge an offense, and upon this ground the action of the court dismissing the defendant, Keith, was justified. Exceptions are, therefore, overruled.

Exceptions overruled.

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


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    In the Matter of the Application of Henry H. Steube for a Writ of Habeas Corpus.

      Constitutional law — Weights and measures act — Section 6418-1, General Code (103 O. L., 136), unconstitutional — Section 1, Article I, Constitution — Habeas corpus. ........
    Section 6418-1, General Code, as amended February 27, 1913 (103 O. L., 136), is repugnant to Section 1, Article I of the Constitution of Ohio and is invalid.
    (No. 14508 —
    Decided December 1, 1914.)
    Error to the Court of Appeals of Franklin county.
    Hilton R. Diegle, an inspector of the Ohio dairy and food department, filed an affidavit with T. H. Hennessey, a justice of the peace in and for Montgomery township, Franklin county, in which he charged that Henry H. Steube, on July 17, 1913, in the,-’county of Franklin,- unlawfully sold to him a ^certain quantity of Irish potatoes, • to-wit, about one-fourth peck. It was alleged in the affidavit that the potatoes were not sold by avoirdupois weight, nor by numerical count, nor in a sealed package, nor was there an agreement in writing by and between the said parties to sell the potatoes by measure.
    Steube was found guilty as charged in the affidavit and ordered to pay a fine of $10 and costs, or to be imprisoned in the jail of Franklin county until the fine and costs were paid or he was discharged by due course of law.
    Steube thereupon filed a petition in the common pleas court of Franklin county for a writ of habeas corpus. In his petition he alleged that he was unlawfully imprisoned, detained, confined and restrained of his liberty by the sheriff of Franklin county in the county jail; that said confinement was, by virtue of said order of the justice of the peace, made upon said affidavit charging him with the alleged violation of the provisions of Section 6418-1, General Code of Ohio, as amended by the act of February 27, 1913; that said act is in conflict with the constitution of the United States and the constitution of the state of Ohio, and Is therefore void and of no effect.
    A writ was granted as prayed for in the petition, directed to the sheriff of Franklin county. The sheriff made a return as required by law in which he stated that he had in his custody the said Steube and that he held the said Steube by virtue of the writ issued by the justice of the peace. A copy of the writ was attached to and made a part of the sheriff’s return.

      The matter was heard in the common pleas court upon the petition of plaintiff and the return of the sheriff, and the court found that the petitioner was unlawfully detained in the custody of the sheriff and ordered his discharge and rendered judgment against the sheriff for costs.
    In a proceeding in error instituted in the court of appeals by the sheriff the judgment of the common pleas court was affirmed, and the sheriff has filed a petition in this court asking for a reversal of the judgment of the court of common pleas and that Steube be required to carry out the terms of the judgment of conviction rendered against him by the justice of the peace.

      Mr. Timothy S. Hogan, attorney general, and Mr. John A. Smith, for plaintiff in error.

      Messrs. Williams, Williams, Taylor & Nash, for defendant in error.
   By the Court.

This case involves the constitutionality of Section 6418-1, General Code, as amended February 27, 1913 (103 O. L., 136), which is as follows:

“All articles hereinafter mentioned, when sold, shall be sold by avoirdupois weight or numerical count, unless by agreement in writing of all contracting parties, viz.: apples, grapes, peaches, pears, plums, quinces, cranberries, prunes, raisins, dates, figs, dried apples, dried peaches, apricots, rice, beans, green beans, carrots, onions, parsnips, Irish potatoes, sweet potatoes, tomatoes, turnips, beets, sugar beets, peas, green peas, cabbage, cauliflower, endive, lettuce, spinach, sauerkraut, barley, bran, buckwheat, corn in ear, shelled corn, wheat, rye, oats, sweet corn in ear, shelled sweet corn, hominy, dried sweet corn, popcorn in ear, shelled popcorn, bluegrass seed, broom corn seed, canary seed, cotton seed, castor oil bean, pine tree products and vegetable oils, clover seed, timothy seed, hemp seed, Hungarian grass seed, malt, millet, onion sets, orchard grass seed, rape seed, red top seed, English walnuts, black walnuts, hickory nuts, Brazil nuts, pecans, almonds, filberts, ice, coal, coke, lime, salt, sugar, tea, coffee, bulk spices, cheese, butter, oleomargarine, lard, fresh and salt meats, fish, game, fowls, flour, corn meal, chopped feed, pepper in bulk, and candy in bulk. Nothing in this section shall apply to seeds and other articles in sealed packages. Whoever sells or offers for sale any article in this section enumerated, in any other manner than herein specified, shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be fined not less than ten dollars nor more than one hundred dollars for the first offense, and not less than twenty-five dollars nor more than two hundred dollars for the second offense, or imprisoned not more than three months, or both.”

Its constitutionality is challenged for the reason that it is in conflict with certain provisions of the federal constitution and with Section 1, Article I of the Bill of Rights of the Constitution of Ohio. There is the further claim that it is in conflict with Section 26, Article II of the Constitution of Ohio, relating to the uniform operation of general laws.

The statute was held invalid by the court of common pleas for the reason stated in its opinion that it was repugnant to and in violation of Section 1, Article I of the Constitution of Ohio. The court of appeals was in harmony with the view entertained by the court of common pleas and was of the opinion that the statute was likewise in violation of Section 1, Article XIV of the Constitution of the United States. The petitioner was arrested and convicted under this statute, the charge being that he sold a certain quantity of Irish potatoes, viz., about one-fourth peck, that the same were not sold by avoirdupois weight, or by numerical count, or in a sealed package, and that the petitioner and purchaser made no agreement in writing to sell the potatoes by measure.

Section 1, Article I of the Constitution of Ohio, is as follows: “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”

The right to contract is recognized as a property right essential to the acquisition, possession and protection of property. The right to the use of measures as a means of trade and commerce has long been established, and the custom of buying and selling by these means the articles enumerated in the act under consideration is one of long standing. Under the provisions of this act, however, unless an agreement in writing is made by all of the contracting parties, whoever sells or offers to sell these articles by measure is guilty of a crime and subject to fine and imprisonment. To require the vendor and purchaser of the articles covered by the act to enter into an agreement in writing each time a sale is made by measure, that the sale may be lawful, conflicts with the right to make contracts. As we view this statute, then, it is clearly an invasion of the property rights guaranteed by our constitution.

But it is claimed in support of the constitutionality of the act that the legislature in the exercise of its police power has authority to enact such a law. While it is within the power of the state to guard the public morals, the public safety and the public health, as well as to promote the public convenience and the common good, yet in devising means for such purpose the provisions made must be reasonable. In our opinion this act places an unreasonable and burdensome obligation upon persons engaged in a lawful business and is an unwarranted exercise of the police power. The lower courts were correct in holding this law unconstitutional.

Judgment affirmed.

Shauck, Johnson, Donahue and Newman, JJ., concur.

Wanamaker, J., dissents.


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    The State of Ohio v. Cox.

      Bill of exceptions by prosecuting attorney — To be filed within forty days of judgment — Section 13681, General Code.

    A bill of exceptions presented by the prosecuting attorney to the trial judge under Section 13681,' General Code, must, in conformity with the requirement of the preceding section and of the civil code, be filed within forty days of the rendition of the judgment in the case in which the bill is taken.
    (No. 14550 —
    Decided December 1, 1914.)
    Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Hamilton county.
    The defendant was indicted for a felony on account of acts alleged to have been committed by him as an official of a banking company. On the trial of the indictment the court made rulings of an important character in favor of the defendant, to which the prosecutor excepted. One hundred and forty-six days after the judgment of acquittal in the case, the prosecutor tendered a bill of his exceptions to the trial judge, who, by his endorsement thereon, certified that the bill was a true and correct transcript of the proceedings had in the cause and of the exceptions taken by the prosecuting attorney, and that he, therefore, signed the same without attempting to decide that the bill was presented for his signature at a time which would make it effective, leaving that question for the determination of this court. Upon the presentation of the bill here it was permitted to be filed, the order for that purpose “reserving until final hearing of the cause the question as to the time within which a bill of exceptions of this character must be allowed by the trial judge.” The defendant having been acquitted upon the trial in the court of common pleas, this proceeding is instituted by the prose-' cuting attorney for the purpose of settling the law upon the questions involved for the government of future cases.

      Mr. Timothy S. Hogan, attorney general; Mr. Joseph McGhee; Mr. Thomas L. Pogue, prosecuting attorney, and Mr. Carl N. Jacobs, Jr., assistant prosecuting attorney, for the exceptions.

      Mr. Frank F. Dinsmore; Mr. Walter M. Shohl and Messrs. Darby & Benedict, against the exceptions.
   By the Court.

The proceeding instituted by the prosecuting attorney is under favor of Sections 13680 and 13681, General Code. These sections were derived from Sections 156 and 157 of the Code of Criminal Procedure passed May 6, 1869 (66 O. L., 287). Some intermediate changes were made at the time of codifications, but they are not deemed to be of importance. -

The first of the two sections provides for a bill of exceptions to be taken by the defendant on account of errors conceived by him to have intervened to his prejudice and with a view to the reversal of a judgment of conviction.

The second originally and now provides for exceptions to be taken by the prosecuting attorney, not with a view to procuring reversal of an acquittal of the defendant, but to obtain the judgment of this court for the settlement of the law for the deter: mination of future cases.

The first of the two sections provides that “The taking of all bills of exceptions shall be governed by the rules established in civil cases.” The second provides that “The prosecuting attorney or the attorney general may except to a decision of the court and may present a bill of exceptions thereto, which the court shall sign, and it shall be made a part of the record.” This section in its original form as Section 157 contained the provision “which bill shall be made a part of the record, and be in all respects governed by the rules established as to bills of exceptions in civil cases, except as herein provided.” The requirement of the statute with respect to civil cases is that a bill of exceptions must be filed within forty days of the judgment in the case. The contention on behalf of the state is that this requirement with respect to civil cases does not obtain with respect to exceptions taken by a prosecuting attorney, because the provision just quoted from Section 157 of the original code is omitted from Section 13681, General Code, now in force.

It is pertinent to observe that there is no authority except the statute for the taking of a bill of exceptions, and that with respect to all proceedings in error it is required that the provisions of the statute be substantially complied with. The former of the two sections quoted prescribes the requisites to a bill of exceptions. One of those requisites, by the express terms of the statute, is that the taking of all bills of exceptions must be governed by the rules established in civil cases. There being in Section 13681 no express provision of the statute upon that particular subject, it must be taken for granted that the bill of exceptions which the prosecuting attorney or attorney general may tender to a trial judge for signature is a bill of exceptions which complies with the definition contained in the preceding section. Having defined the bill in one section, the legislature was not required to give the definition of it or state any requisite with respect to the taking of a bill in the section immediately following. Either this conclusion must be adopted or it must be assumed that at any time, no matter how remote from the trial, a bill of exceptions may be presented to the trial judge, for there is no other provision with respect to the time of the taking of the bill.

On mature reflection and an analysis of the statute we are of the opinion that the bill of exceptions was not so taken as to become a part of the record and it will be dismissed.

Exceptions dismissed.

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


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    Board of Commissioners of Henry County v. The State, ex rel. The Commercial State Bank of Napoleon.

      County commissioners — Award of .county money to banks — Offering highest rate of interest — Sufficiency of security for active and inactive deposits — Provisions of Section 2717, General Code, are mandatory, when.

    The provision in Section 2717, General Code, that the county commissioners shall award the use of the county money to the bank that offers the highest rate of interest therefor, provided proper sureties, securities or both, are tendered in the proposal, is mandatory, and those officials cannot refuse to award the use of the inactive deposits of the county to a bank offering the highest rate of interest therefor, for the sole reason that in its proposal for the inactive deposits it names as sureties the same individuals named in its proposal for the use of the active deposits of the county.
    (No. 14526 —
    Decided December 15, 1914.)
    Error to the Court of Appeals of Henry county.
    Facts are stated in opinion.

      Mr. R. W. Cahill; Mr. W. W. Campbell and Messrs. Donovan & Warden, for plaintiff in error.

      Mr. George Meekison, for defendant in error.
   Newman, J.

This was a proceeding in man-

damus in the court of appeals of Henry county to compel the county commissioners to designate the defendant in error, The Commercial State Bank of Napoleon, the relator, as an inactive depositary of the public money of Henry county to the amount of $100,000 in excess of $50,000 awarded to The Corn City State Bank of Deshler, Ohio.

Pursuant to notice duly published by the county commissioners, inviting sealed proposals from banks and trust companies to act as inactive and active depositaries of Henry county, seven proposals were filed. For inactive deposits The Corn City State Bank bid 3|- per cent, on $50,000; The Commercial State Bank bid 3-J per cent, on $100,-000; The Napoleon State Bank bid 3 per cent, on $150,000, 2.5 per cent, on $125,000; 2.2 per cent, on $100,000; 2.1 per cent, on $75,000, and 2 per cent, on $50,000, and The First National Bank bid 2.9 per cent, on $40,000. For active deposits The Commercial State Bank bid 2 per cent., The Napoleon State Bank bid 1.3 per cent, and The First National Bank bid 1.3 per cent. The several banks tendered in their proposals either personal sureties or municipal bonds or surety companies. The relator, The Commercial State Bank, in its proposals for the inactive and active deposits tendered in each twelve personal sureties, the sureties tendered in its proposal for the inactive deposits being identical with those tendered in its proposal for the active deposits.

The county commissioners awarded the money of the county as follows: To The Corn City State Bank $50,000 of inactive deposits at its bid of 3§ per cent.; to The First National Bank $40,000 of inactive deposits at its bid of 2.9 per cent.; to The . Napoleon State Bank $75,000 of inactive deposits at its bid of 2.1 per cent., and to the relator, The Commercial State Bank, all of the active deposits of the county at its bid of 2 per cent.

The court of appeals in its conclusions of fact found that the sureties tendered in the two proposals of the relator, The Commercial State Bank, were eligible, competent and proper sureties in at least the sum of $250,000. It found that the relator was able, ready and willing to enter into a bond conditioned, as required by law, for the faithful performance of its duties as depositary of either or both active or inactive deposits, and that it was able, ready and willing to furnish such additional sureties on such undertaking as the county commissioners might request for the repayment of both active and inactive deposits, in such manner and form as the commissioners might direct.

The commissioners took no action on the proposal of the relator other than to award to it the active funds, and did not request any. additional sureties as to either of its said proposals. For the period covered by the bids the inactive funds of the county will probably average an aggregate amount of not less than $165,000.

The court of appeals found further that with the exception of The Corn City State Bank the relator, The Commercial State Bank, was the highest and best bidder for the inactive funds and that it was to the best interests of Henry county that the inactive funds not awarded to The Corn City State Bank be awarded to the relator.

The court ordered that a writ of mandamus issue to the county commissioners compelling them to designate the relator as an inactive depositary of-the public money of Henry county to the amount of $100,000 in excess of the $50,000 awarded to The Corn City State Bank. Plaintiff in error is here asking a reversal of the judgment of that court.

The statutory provisions relating to county depositaries are found in Sections 2716 to 2745, General Code. Under the provisions of Section 2716 the commissioners are required to publish notice inviting proposals from banks and trust companies to act as depositaries, and there is this further provision: “Each proposal shall contain the name of the sureties or securities, or both, that will be offered to the county in case the proposal is accepted.” Section 2717 fixes the time for the opening of the proposal and provides that “The commissioners in open session shall open the sealed proposals and award the use of such money to the bank or banks or trust companies that offer the highest rate of interest therefor on the average daily balance, provided proper sureties, securities or both, are tendered in the proposal.” Section 2726 relates to the undertaking to be entered into by the successful bidder. It contains, among others, this provision: “The same surety shall not be accepted on more than one undertaking as to any one depositary at the same time.”

Counsel for the commissioners maintain that the relator, in its proposal for the inactive deposits, having tendered sureties identical with those tendered by it in its proposal for the active deposits, and Section 2726 providing that the same surety shall not be accepted on more than one undertaking as to any one depositary at the same time, the relator did not tender “proper sureties” within the meaning of those words as used in Section 2717, and that therefore the provisions of these two sections were not complied with.

The proposal of the relator to become the depositary for $100,000 of the inactive deposits of the county complied with the provisions of Section 2716. It stipulated the rate of interest it would pay, to be computed on the average daily balances, and agreed to enter into and execute a bond in such sum as might be required by the commissioners, conditioned according to law, and named twelve persons eligible and responsible who would sign the bond. If no proposal had been made by the relator for the active deposits the commissioners could not possibly have made any objection to the proposal for the inactive deposits, or if the proposal for the active deposits had not been accepted they undoubtedly would have awarded the inactive deposits to the amount of $100,000 to the relator. The only reason suggested by the commissioners for their refusal to award to the relator the inactive deposits was that the same individuals were tendered as sureties in the proposal of the relator for the active deposits. This fact could not destroy the legality of the proposal for the inactive deposits.

It was found by the court of appeals that, with the exception of The Corn City State Bank, the relator was the highest and best bidder for the inactive deposits and that it was to the best interest of Henry county that the inactive deposits not awarded to The Corn City State Bank be awarded to the relator. This the commissioners should have done, and they were authorized to demand other and further sureties or securities when the undertakings required by Section 2726 were entered into. Section 2728 gives the successful bidder thirty days within which to execute the undertaking, and it is upon the acceptance by the commissioners of such undertaking that the bank becomes the depositary of the money of the county. The court of appeals found that the relator was able, ready and willing to enter into a bond as required by law for the faithful performance of its duties as depositary of either or both active and inactive deposits, and was able, ready and willing to furnish such sureties on the undertaking as the commissioners might require. As we view it, the objection of the commissioners to the proposal of the relator was technical and without merit. The proposal conformed to the requirements of Section 2716. The provision in Section 2717 that the commissioners shall award the use of the money to the bank that offers the highest rate of interest is mandatory, and the relator should have been awarded the use of $100,000 of the inactive deposits of the county. When the commissioners did not make this award it was a failure to perform an official duty enjoined by law and in the interest of the county and the taxpayers. Upon the facts found by the court of appeals the judgment of that court is correct and the same is affirmed.

Judgment affirmed.

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


author: Donahue, J.

text:
    The City of Cincinnati v. Harris et al.

      Cincinnati Southern Railway — Bond issues — Interest and sinking fund — Acts authorising bond issues — Conform to Section n, Article XII, Constitution — Ordinance providing levy unnecessary, when.

    1. The act of March 5, 1913 (103 O. L., 112), supplementary to the act of May 17, 1911 (102 O. L., Ill), conforms to the requirement of Section 11, Article XII of the Constitution of Ohio.
    2. This act and the act of May 17, 1911 (102 O. L., Ill), is the . legislation under which the indebtedness evidenced by the proposed issue of bonds is incurred within the meaning of Section 11, Article XII of the Constitution of Ohio.
    (No. 14719 —
    Decided December 15, 1914.)
    Error to the Court of Appeals of Hamilton county.
    On the 20th day of July, 1914, the city of Cincinnati, by Walter M. Schoenle, city solicitor, filed its petition in the common pleas court of Hamilton county, Ohio, seeking to enjoin the board of trustees of The Cincinnati Southern Railway Company from issuing bonds provided for in the resolution of March 16, 1914, under authority of an act of the general assembly of the state of Ohio, passed May 17, 1911 (102 O. L., Ill), entitled an act supplementary to an act passed April 23, 1898, and the supplemental act thereto, passed March 5, 1913 (103 O. L., 112), and to enjoin and restrain the trustees of the sinking fund of the city of Cincinnati from carrying out their agreement to purchase a portion of said bonds for the reason stated in the petition that the legislation under which the proposed indebtedness is to be incurred does not conform to the provisions of Section 11 of Article XII of the Constitution of Ohio, as amended September 3, 1912.
    To this petition the defendants filed separate answers. To these answers the city demurred. The common pleas court overruled these demurrers, and the plaintiff not desiring to plead further, judgment was entered for the defendants. The cause was appealed to the- court of appeals of Hamilton county, which court also overruled the demurrers to the separate answers of defendants, and a like judgment was entered in that court. This proceeding in error is brought to reverse the judgment of the court of appeals.

      Mr. Walter M. Schoenle, city solicitor, and Mr. Saul Zielonka, assistant city solicitor, for plaintiff in error.

      Mr. W. T. Porter, for defendants in error.
   Donahue, J.

It is contended upon the part of the plaintiff in error that the legislation under which this proposed indebtedness is to be incurred does not conform to the provisions of Section 11 of Article XII of the Constitution of Ohio, which section reads as follows:

“No bonded indebtedness of the state, or any political subdivisions thereof, shall be incurred or renewed, unless, in the legislation under which such indebtedness is incurred or renewed, provision is made for the levying and collecting annually by taxation of an amount sufficient to pay the interest on said bonds, and provide a sinking fund for their final redemption at maturity.”

It is insisted that, because the board of trustees of The Cincinnati Southern Railway has no authority to make provision for interest and sinking fund purposes, it is necessary that the city council of the city of Cincinnati should pass an ordinance making provision for the levying and collecting annually by taxation of a sum sufficient to pay the interest on these bonds and to provide a sinking fund for their final redemption at maturity before these bonds can be lawfully issued. While it is true that the board of trustees of The Cincinnati Southern Railway has no authority to make or provide for such levy, yet it by no means follows that it is necessary for the city council to supplement the statute, under authority of which these bonds are proposed to be issued, by an ordinance providing for such a levy. The act of March 5, 1913 (103 O. L., 112), provides, among other things, that the bonds to be issued under authority of the act of May 17, 1911 (102 O. L., 111), “shall be secured by a pledge of the faith of the city and a tax in addition to all other taxes for municipal purposes which shall be annually levied by the council of said city on the real and personal property returned on the grand levy sufficient to pay the interest thereon and to provide a sinking fund for their final redemption." This is the legislation under which this indebtedness is incurred, and this legislation conforms in letter and spirit to the provisions of Section 11 of Article XII of the Constitution of this state. This act is equally mandatory upon the council of the city of Cincinnati, not only as now constituted but as may be constituted at any time during the life of these bonds, as any ordinance the present city council could now pass.

While it is true that the city council is required to levy this tax, yet it does not necessarily follow that it has the discretion to levy or refuse to levy the same. It may be required to make this levy as an agency of the governmental powers of the state without regard to its official judgment as to the necessity.

State Board of Health v. City of Greenville, 86 Ohio St., 1; Bd. of Comrs. of Champaign County v. Church, etc., Admr., 62 Ohio St., 318; State v. Freeman, 61 Kans., 90; State, ex rel., v. Williams, Treas., 68 Conn., 131; People, ex rel., v. Mayor, 51 Ill., 17.

Judgment affirmed.

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


author: Nichols, C. J.

text:
    The New Amsterdam Casualty Co. v. Johnson, Admx.

      Accident insurance — Death by cold plunge bath — Causing dilation of heart — Not within terms of policy, when.

    Where an insured holding an accident policy indemnifying him against bodily injuries which independently of all other causes are effected solely and exclusively by external, violent and accidental means, suffers an injury due to the dilation of the heart following the voluntary taking of a cold-water bath, it will not be considered as the result of an accident where under the circumstances attending the dilation, there is no evidence that anything occurred which the insured had not planned or anticipated, excepting the dilation and its consequences.
    (No. 14143 —
    Decided December 15, 1914.)
    Error to the Court of Appeals of Cuyahoga county.
    Facts are stated in opinion.

      Messrs. Seaton & Paine, for plaintiff in error.

      Messrs. Ford, Snyder & Tilden, for defendant in error.
   Nichols, C. J.

This is an action on a policy of insurance issued by The New Amsterdam Casualty Company to Charles W. Johnson, of the city of Cleveland, Ohio, indemnifying him against bodily injuries which, independently of all other causes, were effected solely and exclusively by external, violent and accidental means.

The petition avers that on June 6, 1909, the insured had' been out horseback riding, and coming home took a cold plunge, as he frequently had done before and as is frequently done by others, under the same or similar conditions, without any ill effects whatever; that the plaintiff in taking such cold bath did not expect, anticipate or intend that any ill effects should follow in consequence thereof and that the' plaintiff had no reason to expect or anticipate such ill effects; that in consequence of the shock caused to plaintiff’s system, by contact externally of the cold water in said plunge with his body, there was caused an acute dilation of the heart of the plaintiff for a period of twenty-nine weeks.

The defendant company in its answer denied that the injury, alleged in the petition to have been sustained by voluntarily taking a cold plunge bath, was a bodily injury effected solely and exclusively by external, violent and accidental means.

The essential facts in the case are entirely free from controversy.

The insured was a well and active man. He had no orgánic trouble with his heart. He was accustomed to take cold plunges, when heated and after exercising and horseback riding, without any apparent trouble. The cold plunge caused the heart dilation. The dilation of the heart from taking the cold plunge was an unusual result and one not reasonably to have been expected.

However, the danger in taking such bath when heated is known to the average layman. Heart dilation following the taking of such bath when heated is a natural result from a natural cause. The bath was taken in tub, not under shower or spray.

Verdict was had for the insured.

Error is prosecuted on two grounds:

First. That the trial court erred in overruling the motion of the company for an instructed verdict.

Second. In the ' charge of the court defining what would constitute an injury occurring by accidental means under terms of the policy.

Argument: The issue in the case is one of law wholly.

The respective claims of the parties may be fairly stated as being: First. On the part of the insured: That if the event preceding the injury, and which proximately caused the injury, produced injurious results not common or usual or to be reasonably anticipated as a result therefrom, the unlooked-for result makes the initial event an accident and the injury one sustained by accidental means — in short, the result determines the cause.

Second. On the part of the company: That the event preceding the injury (in this case the cold plunge) and which was the proximate cause of the injury must be in the nature of an accident; that an unexpected or unusual result of an act not an accident in itself does not render it (the act) an accident or the consequent injury one happening from accidental means. In other words, the cause determines the result.

In construing the language of an insurance policy it has been universally and properly held that the words of limitation should be most favorably construed in behalf of the insured and against the company.

This does not mean, however, that a strained, unnatural and forced meaning should be given words or phrases, but rather the everyday meaning, which must have been plainly in the minds of the contracting parties.

It can hardly be asserted that the act of voluntarily entering a bathtub filled with cold water is an accident. If some one had pushed the insured into a tub so filled, or for that matter, into a pond of cold water, and the results had followed, which ensued when he voluntarily committed his body to the water, then the act would have been an accident in the ordinary acceptation of the term.

It is not an accident for which an insurance company would be liable if one so insured would, while in a state of lively perspiration, stand before an open window, take cold and die. Nor if, by some grave immoderation in eating, acute indigestion be occasioned and heart failure result. Nor yet, if in taking a dose of strychnine, aware of its poisonous nature and knowing that in certain-sized doses it is a heart stimulant and not deadly, but mistaking the effect of a given quantity, death ensues.

It is urged that heart dilation is not usually attendant on the taking of a cold bath; when it does occur it is unexpected, unusual and unforeseen and therefore an accident.

Undoubtedly an accident, in both its technical and commonly accepted meaning, is an event which occurs without one’s foresight or expectation and wholly undesigned, yet it is not true that every unusual, unforeseen and unexpected event is an accident within the true meaning of the term as used in insurance policies.

The attending physician in the case at bar says that the result which followed the bath, while unusual, was yet the direct and natural effect of the voluntary immersion of the body of the insured.’ The insured did nothing but that which he intended to do. He planned for and deliberately entered on the project and, so far as appears, it was carried out precisely as intended. He did not slip or fall. The water was no colder than he wanted it to be. His aim was to lower the temperature by a cold-water bath. Such a bath chills the skin by causing the external blood vessels to contract, hence the blood pressure would be raised and might embarrass a weakened heart by the increased work required. Under normal conditions such a bath really gives tone to the circulation, and in treating cases of high fever the cold-water bath is now generally administered, causing the external blood vessels to contract, increasing the blood pressure and reducing the heartbeat. In this particular instance the weakened heart failed to do its work properly; the sudden contraction of the surface blood vessels must have necessarily and correspondingly increased the blood pressure, thus throwing an additional burden on the heart. It failed to respond to the work of propelling the blood over the body and acute dilation occurred.

In every moment of our conscious or sleeping hours we are all possible victims of errors of the human system, respiratory, circulatory or digestive; errors that our physicians would term accidents of nature. Even the diseases which afflict humanity are frequently the result of accidents pure and simple. As has been expressively said, nature slips a cog and the well man is invalided.

The separation of injuries, occasioned by accidental means from those occasioned by means non-accidental, is not free from difficulty, and an attempt to logically analyze every supposable case of this character and differentiate along consectary lines would lead to some contradictions.

While the views of the laity cannot in the very nature of things be the controlling gauge wherewith to measure doubtful legal propositions, yet it might be suggested that the average business man, were the question involved in this case submitted to him, would in all likelihood be surprised if not shocked to learn that it had been held that an injury of the character suffered by the defendant in error should be followed by the payment of indemnity by a strictly accident insurance company.

The court is constrained to hold that the result which followed the taking of the bath by the insured was not an accident upon which recovery can be had under the wording of the policy. A case is cited where recovery was had by reason of a ruptured blood vessel occasioned by the mere lifting one’s self naturally out of a chair. It is felt by this court that in such case, as in the case at bar, such a conclusion would be unduly pressing the construction of the language universally employed in naked accident policies. It would amount to an unfair and unjust enlargement of the company’s liability and would convert accident companies into both sick-beneficial and life insurance companies; and, worse than this, the apparent vice of it is that if countenanced it would inevitably result in the necessity of requiring constantly increasing premiums from the vast multitude of the laboring classes as well as people of moderate means who chiefly buy this character of insurance.

The judgment of the court of appeals will be reversed and judgment rendered in favor of plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Shauck, Johnson, Donahue and Newman, JJ., concur.

Wanamaker, J., dissents.