text:
    Thompson v. Love. Jamison v. Love.
    In proceedings before county commissioners under the “ Two-mile assessment pikes ” act, Revised Statutes, section 4829 to section 4864, to improve a certain road by straightening the same and macadamizing a certain width and depth;

      Held: 1. No notice is required of the filing or presentation to the commissioners of the petition for the improvement.
    2. In the published notice required under section 4832, “the kind of improvement asked for,” is sufficiently described by the following statement, “and asking that said road be improved by macadamizing, under the two-mile assessment act.”
    3. A county commissioner, or a surveyor,' or engineer, or county auditor, is not disqualified to act by reason of the fact that he owns and resides upon land within the two miles to be assessed, and has signed the petition for the improvement.
    4. When the viewers and surveyor, acting in good faith, have made and returned their report, and the county commissioners, acting thereon, have entered the order that the improvement be made, the further proceedings will not he enjoined because of omissions, by mistake, from the report, of lands and persons to be assessed.
    5. Vendees of land in possession under valid and subsisting contracts of purchase, who are entitled to enforce their contracts, are land-holders within the meaning of the statute ; so also are the owners of estates for life, and the guardians of insane persons who have signed the petition.
    ERROR to tlie District Court of Harrison county.

      Harrison, Olds <& Marsh, and Walter B. Shotwell, for plaintiffs in error :
    I. Branson, the commissioner, and Jarvis, the surveyor, were disqualified by reason of interest. Robb v. Braohman, 38 Ohio St. 423; Fanderheyden v. Young, 11 Johnson (N. Y.) 158; Cooley on Const. Lim. 410 etseq. / State v. Grane, 36 N. J. 394; State v. Commissioners, 8 Nev. 309 ; Railway Go. v. Howard, 20 Mich. 18 ; Commissioners v. Hunt, 33 Ohio St. 176 ; Gommissioners v. Junldns, 19 Ohio St. 348 ; Burroios v. Arthur, 3 Ohio, 333 ; Ferris v. Bramble, 109. It makes no difference how small the interest is. Gregory v. Railroad Co. 4 Ohio' St. 675 ; Haehett v. Braddoch, 3 Burr. 1858 ; Peck v. Freeholders of Essex, 1 Zab. 656. That there was a quorum concurring, without Branson, makes no difference. 36 N. J. 394 ; 3 N. Y. 547; 1 Disney, 370 ; 26 Me. .254; 10 Peck, 277 ; 86 Eng. C. L. 414; 37 Hale (Col.) 190, md see Bellows v. Pearson, 19 Johns. 172. • The fact that one of the viewers of a proposed public road is a petitioner therefor, is fatal. Fjjler v. Hinman, 5 Ind. 459 ; Doggy v. Green, 12 Ind. 303; In re, Ma/ytown Road, 4 Yeates (Pa.) 479 ; State v. Delesdernier, 11 Me. 473 ; In re Road in Radnor and Newtown, 5 Binney, 612 ; Exp. Hinelcley, 8 Greenl. 146. Where the land over which a road is laid by the county commissioners is owned by a railroad company, a stockholder in the company is not disinterested, and cannot be appointed on the committee. Friend’s Appeal, 53 Me. 387; Bowen v. Bteere, 6 E. I. 251; 5 W. Ya. 448'; Morse on Arbitration, 106, 630 ; Eussell on Arb. (3 ed.) 205 ; Smith v. Cooley, 5 Daly (N. Y.) 401; 87 N. H. 286; 48 N. II. 433.

      II. No notice was given of the filing- or presentation of the petition for the improvement as required by section 4641, Rev. Stats. ; Grinnell v. Adams, 34 Ohio St. 44, 45 ; Ferris v. Bramble, 5 Ohio St. 109 ; Sessions v. Crunkilton, 20 Ohio St. 349.
    III. Neither the viewers or surveyor were sworn or affirmed as required by section 4833 Rev. Stats. This was fatal. State v. Jackson, 36 Ohio St. 282 ; Wheeler v. City of Chicago, 57 Ill. 415; State v. Perth Amboy, 38 N. J. 425 ; Merritt v. Tillage of Portchester, 71 N. Y. 309; State v. Hiotchinson, 5 Halsted, 242; 9 Ohio, 94, 95 ; Bryson's Road, 2 Penn. 207; State v. Barnes, 1 Green, 268 ; Trith v. Inferior Cotort, 30 Ga. 723.
    IY. The vendee of real estate, having an executory contract for the purchase of the same, is not the owner of such real estate. Brush v. Kinsley, 14 .Ohio, 20; McCombs v. Howard, 18 Ohio §t. 422 ; Clmrchill v. Little, 23 Ohio St. 307; 13 N. Y. (S. O.) 553; 36 N. J. L. 181; Pomeroy on Contracts, 386 ; 7 Hun, 572; 1 Bibb, 295 ; 34 Me. 89.
    Y. All the lands to be assessed were not included in the report and an injunction will lie to resti’ain further proceedings. 24 Ohio St. 232.

      J. M. Estep, and Cunningham & Hollingsworth, for defendants in error:
    I. No notice was necessary to be given under the act under which the proceedings in question were had. And the notice as given, of the meeting of the viewers and surveyor was sufficient in substance, form and time. 1 Nash Pi. & Pr. 42; Olcott v. Robinson, 21 N. Y. 150 ; 1 Mass. 255 ; Sheldon v. Wright, 3 Selden, 497.
    II. If. the auditor had not authority to administer the oath to the viewers and surveyor, it was not such irregularity as would result, in setting aside their proceedings. Woolsey v. Board of Supervisors, 32 Iowa, 133.
    III. The surveyor, Jarvis, and Branson, the commissioner were not disqualified. As to Jarvis, see sections 4831, 4833, 4835, Rev. Stats. As to Branson, see 11 Pick; 322; 3 Ohio. 290; 27 Ohio St. 662; 20 Ohio St. 507 ; 5 Iowa, 552. The acts of the commissioners were not j udicial. MoMeelcen v. Cincinnati, 4 Ohio St. 394 ; 27 Ohio St. 649 ; 27 Ohio St. 232; 17 Ind. 169; 12 Conn. 464; 8 Met. 69; 29 Mich. 19; 30 Mich. 351.
    IV. As to lands omitted by the viewers by místate. The plaintiff claims they should have been added, by the commissioners, to the list before the final order for the improvement. We say not, see section 4838 Rev. Stats. The commissioners have no power to do anything in the premises until after the final order. Then they have. Glenn v. Waddel, 23 Ohio St. 605; Parlcer v. Burgett, 29 Ohio St. 522; 25 Ohio St. 308.
   Follett, J.

The questions in those cases are similar, and all arise in the case of Thompson v. Love, except one, and that one relates to the disqualification of county commissioner Lindley M. Rranson to act in case of Jamison v. Love.

The original proceedings were instituted before the county commissioners of Harrison county, to straighten and improve what is known as the Cadiz and Union vale ” road, .in the case of Thompson v. Love; and to straighten and improve what is known as the Cadiz and Harrisville ” road, in the case of Jamison v. Love, and to do this under the provisions of the Revised Statutes relating to Two-Mile Assessment Pikes,” sections 4829 to 4864.

In each case the petition for such improvement was pre sented to the commissioners on March 6,1882, and a bond with sureties was given by the petitioners for the payment of the costs, in case the improvement should not be finally ordered, which bond was accepted and approved by the commissioners. The commissioners thereupon, on the same day, appointed viewers and a surveyor, or engineer, under section 4831, and ordered that they meet on April 4, 18S2, in one case, and on April 11, 1882, in the other case, to make their view and survey, and that they report their proceedings to the next regular session of the commissioners.

The petition asked that said road lie straightened, as well as improved, and the report of the viewers and surveyor shows that it was straightened.

The reviewers and surveyor made their report to the June session of the commissioners, and the commissioners, at that session, made a final order that said improvement be made; which order states the kind of improvement, the width and extent of the same, and the lands which shall be assessed for the expense thereof.

Thereupon the plaintiffs commenced their action in the common pleas to enjoin the execution of said final order, alleging in their petition various grounds upon which they claimed the proceedings to be illegal and void. Answers were filed by the defendants, and a reply by the plaintiffs. The case was heard in the common pleas, and a final judgment rendered, enjoining the proceeding. From this judgment the defendants appealed to the district court, where the case was re-tried and a final judgment rendered, by a divided court, dissolving the injunction and dismissing plaintiffs’ petition, with costs.

The object of the present proceeding is to reverse this judgment of the district court. It is not necessary to state at jength the substance of the pleadings, which are quite voluminous, because the district court has stated in writing its conclusions of fact found separately from its .conclusions of law, and the errors assigned in this court are based upon what is claimed to be erroneous conclusions of law of the district court upon the facts so found.

I. Was there error as to the notices ?

The conclusions of fact so found by the district court show that no notice whatever was given, of the filing or presentation, to the county commissioners of said county, of the petition for said improvement.

And the court decided, as matter of law, that no notice was required of the filing or presentation of said petition.

In so deciding the court did not err.

The court also found that no notice whatever of the time and place of meeting of said Viewers and surveyor on the fourth and eleventh of April, 1882, was published, excepting a notice published by the auditor of said county, on the six-tcenth day of March, 1882, and twenty-third day of March, 1882, and on the thirtieth day of March, 1882, in two newspapers published in said county, called the “ Cadiz Sentinel ” and the “ Cadiz Republican,” respectively, of which notice in the case of Thompson v. Love, the following is a copy, to wit:

PIKE NOTICE.
Auditok’s Office, Haeeison County.
• “ Cadiz, Ohio, March 10, 1882.
“Notice is hereby given, that a petition was presented to the commissioners of Harrison county, Ohio, at their March session, 1882, asking that a view and survey be had on the direct road leading from Cadiz to Unionvale; beginning at the gate of the Cadiz cemetery (being the terminus of Cadiz macadamized road), thence by said direct road to the west end of the Unionvale bridge, all in said county, and asking that said road be improved by macadamizing, under the two-mile assessment act; and bond with approved security having been filed, according to law, the board appointed Alexander Henderson, Cyrus T. Long and John N. Haverfield, viewers, and Jacob Jarvis, surveyor, to meet at the auditor’s office, Cadiz, Ohio,' on Tuesday, April 4, 1882, at ten o’clock, a. m., who, after being duly sworn, shall proceed to view and survey said road as provided by statute (§§ 4831, 4833, 4835.
“ James M. Scott, Auditor.
“ March 16. 3w.”

The notice in case of Jamison v. Love is similar.

The court decided from the foregoing facts, that said notice was sufficient in form and substance, and that sufficient publication thereof was made.

In so deciding the court did not érr. No one complains that he was not notified.

II. Were the acting officers competent and duly qualified?

The viewers and surveyor or engineer must take “ an oath faithfully and impartially to discharge the duties of their appointments .”

And the court found, “ That the viewers and surveyor, appointed by the commissioners of said county, or any or either of them were not sworn nor affirmed to discharge the duties of their appointment, except by the auditor of said county, who assumed to and did administer an oath to them to faithfully and impartially discharge the duties of their respective appointments.

“ That said auditor, at and before the administration of said oath by him, had signed the petition for said improvement, and then owned a lot within two miles of said improvement, which was afterwards reported as benefited thereby, and to be assessed for the expense of the same.

“ The court decide, as a matter of law, on the foregoing facts, that the county auditor had authority to administer an' oath to said viewers and surveyor, and that they were sworn according to.Jaw.”

There was no error in so deciding.

Plaintiff in error, Jamison, claims that, in his case, the proceedings of the board of county commissioners áre invalid by reason of the following facts found by the court:

“ That Lindley M. Branson, one of the county commissioners of said county, was the owner in fee simple in severalty, of a large quantity of land in said county, and within two miles of. said improvement, at and before the time when the petition for said improvement was presented to the county commissioners of said county; his said land is reported as benefited by said proposed improvement, and to be assessed therefor.
After the report of the viewers and surveyor was filed, but before the final order for said improvement was. made, viz., June 5, 1882, said Branson signed the petition for said proposed improvement, and also requested several other resident land-owners of said county, who owned land within two miles of said proposed improvement, to sign the petition therefor, that said Branson requested John Moore, a resident land-owner of said county, whose lands are within two miles of said proposed improvement, to sign a petition therefor, and said Moore objected to doing so on account of his temporary financial embarrassment, whereupon said Branson offered'to loan him money to pay his assessment in case said improvement should be made.
“ That ‘William S. Fox, who was appointed surveyor for said improvement, owned no land subject to assessment, but was, at and before his appointment, and still is, a brother-in-law of said Branson, and had, before his appointment, as said Branson knew, been actively engaged in obtaining petitioners for said improvement, and after his appointment he continued to electioneer in favor of said improvement.
That said Branson overtook said viewers and surveyor, and accompanied them over a small part of the line of said proposed improvement, while they were making their view and survey thereof.
“ That in the selection and appointment of said viewers and surveyor, and in the hearing and decision upon their report, and in determining whether or not the petition for said improvement was signed by a majority, and in making' the final order for said improvement, which was made by the county commissioners of said county, and in the discussion and decision of all other questions and matters relating to said proposed improvement, said Branson sat with, and acted as a member of the board of county commissioners, and voted on all questions pertaining to said proposed improvement.
“ That when said Branson signed said petition, the petition for said proposed road improvement was signed by a majority of the resident land-owners of said county, whose lands lie within two miles of said proposed improvement, and that said Branson was then aware of the provision of the statute as to such road improvements, when defeated by persons who sign the petition therefor, and afterwards remonstrate against the same, being liable for the costs and expenses of the proceeding. ,
“ That upon the filing of the report of said viewers and surveyor, the plaintiffs in this action objected to said Bran-son sitting or acting as a member of said board of county commissioners in the hearing and decision of the questions arising thereon, upon the grounds stated in the petition in this case.
“ But said board of county commissioners, said Branson acting with tbe other two members, refused to exclude said Branson.
“ On the foregoing facts, the court hold and decide that said Branson was not disqualified from acting as a member of said board of county commissioners in the hearing and determination of any of the questions or matters arising in said proceeding before said board of county commissioners, and that said proceedings of said board are valid, notwithstanding the facts hereinabove found by the court.'5

And plaintiff in error, Thompson, claims that in his case there was error by reason of the following facts, found by the court, “ That Jacob Jarvis, who was appointed surveyor for said improvement, on the sixth of March 1882, had previously signed the petition for said improvement, and then owned and still owns part of a lot which is reported as benefited by said proposed improvement, and ought to be assessed to defray the expense of the same. That said Jarvis at no time withdrew his name from said petition.

“ And further find the fact to be, that said petitioners at no time, previous to the making of the final order by the county commissioners, made any objection to the said Jarvis, on account of his said interest, neither did they make any objection to the viewers’ and surveyor’s report on that account.

“ On the foregoing facts the court decide that said Jarvis was not disqualified by reason of his interest in said proposed improvement from acting as surveyor, and that his appointment, and action as such was valid and legal.”

The question is, should further proceedings in these cases be stopped because of the facts found by the court %

The statute defines what shall be done and who shall act. Revised Statutes, section 4829 reads, “ The county commissioners of any county shall have power, as hereinafter provided, to lay out and construct any new county road, or to improve any state, county, or township road, or any part thereof, or any free turnpike road, or any part thereof not completed, by straightening or altering the same, and by grading, paving, graveling, planking or macadamizing the same,” &c. And county commissioners alone can do this.

And-section 4831, after providing for the presentation of a petition and the filing of a bond, as was done in each case, reads, • “ the commissioners shall appoint three disinterested freeholders of the county as viewers, and a competent surveyor or engineer, to proceed, upon a day to be named by the commissioners, to examine, view, lay out, or straighten such roads, as in their opinion public convenience and utility require.”

The three men who were viewers in both of these cases, must have fully met the requirements of the law, as there is no complaint against either of them.

As showing what each one has to do until the report is filed, read the following sections of the statute :

“ Section 4833. The viewers and surveyor or engineer, shall meet at the time and place specified by the commissioners, and after taking an oath faithfully and impartially to discharge the duties of their appointments, shall take to their assistance two suitable persons as chain-carriers and one marker, and proceed to view, examine, lay out or straighten such road, as in their opinion public utility and convenience require, and assess and determine the damages sustained by any person through whose premises the road is proposed to be laid out, straightened or improved; but the viewers shall not be required to assess damages to any person except minors, idiots, or lunatics, in consequence of the appropriation of any private property for the making of the improvement, unless the owner thereof, or his agent, file a written application with the viewers, giving a description of the premises on which damages are claimed by them,” ésa.

“Section 4834. All applications for damages shall be barred, unless they be presented as above required, and any person feeling aggrieved by the assessment made may demand of the commissioners to have the same assessed by a jury, in which case the claimant may appeal to the probate court of the county, and the same proceedings shall there be had, and like orders and judgment rendered, as are provided in chapter four but the guardian of any minor, idiot, or insane person may act for bis ward, and all bis acts shall be binding upon the ward.”

Tbe foregoing provide carefully for all the rights of such owner, and the commissioners do not determine the sáme, neither does the surveyor or engineer. After these are determined, section 4835 provides :

“ The viewers, and surveyor or engineer, shall make a report to the commissioners at their next regular session, showing the public necessity of the contemplated improvement, the damages claimed, and by whom, the amount assessed to each claimant, an estimate of the expense of the improvement, and the lots and lands which will be benefited thereby, and ought to be assessed for the expense of the same,” &e.

The surveyor or engineer has to perform no judicial act under the duties of his appointment. Then comes the following :

“ Section 4836. When the report is filed, the commissioners shall, if in their opinion public utility require it, enter on their records an order that the improvement be made,” &c.

In these cases the reports had been filed and the commissioners had entered on their records, orders that the improvements be made, when further proceedings were stopped. Up to this point in the proceedings no act, judicial in its nature, had been required of the commissioners, and Branson was not disqualified, so that he could not act as such commissioner.

It does not appear that one or both of the other two commissioners were not as much disqualified as was Branson, and it does not appear that they were influenced by Branson ; and it seems to be admitted that Branson could act if it was a necessity that he should. This is conclusive against the plaintiffs! But upon principle the facts found do not show disqualification.

The subject of interest in one exercising judicial powers, is discussed in Wilbraham v. County Commissioners, 11 Pick. 322, by Shaw, C. J.; and the court reach the conclusion that, The circumstance that a county commissioner is a taxable inhabitant of a town through which a contemplated road is to pass, does not constitute such an interest as will disqualify him to act as a county commissioner in the proceedings relative to laying out and making a road.

“ The circumstance that a son and a brother of a county commissioner-have joined with others in a petition that a road may be laid out, does not disqualify him to act on the question of common convenience and necessity of the road, it not appearing that the son or brother has any other than a pxiblic interest in the subject in the petition.”

That the objection was waived by not objecting at the time, had been decided by the same court in Ipswich v. County Commissioners, 10 Pick. 519. And this last case "was followed in Robb v. Brackman, 38 Ohio St. 423, and applied to township trustees when dividing a partition fence; and it is added, “ We do not mean it to be implied that such an objection, if not waived, would be available in cases where a competent number of trustees cannot be had free from the objection, and the function to be performed by the trustees can be exercised by no other body.”

In Danvers v. County Commissioners, 2 Met. 186, the court approves Wilbraham v. County Commissioners, and explains apparent confusion. Shaw, C. J., says, “ Upon this exception, the court are of opinion that a commissioner is not disqualified from acting, in consequence of a small, indirect and contingent interest, which he may have as an owner of land in one of the towns through which the proposed highway may pass. This was fully considered and the reasons assigned in Wilbraham v. County Commissioners, 11 Pick. 322. It is probable that a contrary impression, in regard to the law, was received, and might have caused the opinion upon which Mr. Wildes, the chairman of the commissioners, acted in the present case, from the case of Ipswich v. County Commissioners, 10 Pick. 519. But upon examining the latter case, it will appear that no such opinion was expressed. The exception was taken, and the fact was admitted. Two answers were given to it; first, that the fact did not show such an interest as would work a disqualification ; and secondly, that those who then took the exception had waived it, by proceeding to a hearing on the merits, knowing the fact, but taking no exception. The court decided the case upon the latter ground. Without any determination of the question, whether the minute interest of the commissioner would have disqualified him, had the exception been seasonably taken, the court placed their adjudication exactly on the point, that if the exception was well founded, it had been waived. This decision carried no implication that the court considered the exception a valid one. It may seem to be a matter of surprise, that the case of Ipswich v. County Commissioners, was not cited by the counsel or court in the latter case, in 11 Pick. 322. But it will appear by inspection, that the 10th volume was not published, till long after the decision in the 11th was made. And there is no doubt that the report of it was prepared before the former case was published ; otherwise, it would have been referred to in the opinion.”

See also Lima v. McBride, 34 Ohio St. 338, and cases cited.

There was no disqualification as to Branson, or as to Cox, or as to Jarvis; and the court did not err as to either.

III. What power have the commissioners ?

Section 4836 also says, but such order shall not be made until a majority of the resident landholders of the county, whose lands are repoHed as benefited, and ought to be assessed, subscribe the petition mentioned in section 4831,” &e.

This court held in Burgett v. Morris, 25 Ohio St. 308, that, “ The report of the viewers and surveyor .... furnished the legal data, from which the commissioners, by comparison, were to determine whether the required majority had in fact so signed the petition.” And again, in Parker v. Burgett, 29 Ohio St. 513, the court say, “ it is not necessary that a majority of the resident landholders whose lands ara finally assessed should have signed the petition, in order to render the proceedings valid.” The commissioners have no power to review the report and change it as they judge best.

The reports in these cases were made and filed as required, and those who made and filed them are not charged with fraud, and each gave the commissioners jurisdiction to act in that case ; and the commissioners, if in their. opinion public ■utility required it, must enter on their records an order that the improvement be made. There was no error as to them.

IT. Was there error as to landholders %

The court, after examining the qualifications and number of petitioners, finally found, upon the conclusion of fact and of law, that the jjetition for said improvement, at the time of making the final order for the same, was signed by a majority of the resident landowners of said county, whose lands were reported as benefited and ought to be assessed to defray the expense thereof, and that the plaintiffs’ petition ought to be dismissed.

Section 4836 reads, “ In determining such majority, minor heirs shall not be counted fór or against the improvement, unless represented by legal guardian, and the action of such guardian shall be binding upon such minor heirs; and all heirs or owners, either adults or minors, to any undivided estate, shall only be entitled to one vote for or against such improvement.”

The court found that,

“ 1. Black, S. Dwight,
2. Carruthers, Thomas,
3. Croskey, Wm. Jr.,
4. Grove, William,
5. Ilinkle, John,
6. Morgan, Harvey,
7. Mitchell, James H.,

were each, at the time said final order for said improvement was made, the owner in severalty in fee simple of small lots or pieces of lands, lying in said county, and within two miles of said improvement, and which will be benefited thereby, and ought to be assessed therefor, and were each of full age, and residents of said county; that the viewers and surveyor intended to report their respective lots and lands for assessment, but by mistake the same were omitted from said report; that prior to the making of said final order for said improvement, the plaintiffs requested the county commissioners to have said report of the viewers and surveyor corrected, so as to embrace said lots and lands, and to count each of said persons as a landowner, in determining whether or not the petition for said improvement was signed by a majority of the resident landowners, but said commissioners refused to have said report so corrected, and refused to count either of the seven persons last above named, as a landowner. Neither of said seven persons signed the petition for said improvement.

“The court finds and decides as the law of this case, that neither of said seven persons should bo counted as landowners in determining whether or not the petition for said improvement was signed by a majority, as required by law.”

In so deciding the court did not err, as the commissioners were governed by the report.

The Court found that there were the

“ 1. M. E. Church (1),
2. M. E. Church (2),
3. M. E. Church, African,
4. Presbyterian Church,
5. U. P. Church,

and that each of said churches is the owner in fee of a parcel of land, within two miles of the proposed improvement, consisting, in each case, of a lot on which is a house for public worship only. All the lands adjoining each of them are reported for assessment by the viewers and surveyor. They are not. The Eirst M. E. Church has a lot and parsonage separate from the church lot, which is not reported for assessment. They, the viewers and surveyor, had no discussion as to whether church property was assessable or not, and never thought of the churches in making their view and report. Said Presbyterian church also owns a lot of land within two miles of said improvement, used for hitching purposes, separate from the church building. It is not reported for assessment.

“ Neither of said churches signed the petition for said improvement.

“ On the foregoing facts the court decide that neither of said churches should be counted in determining whether said petition was signed by a majority.”

In thus deciding the court did not err. We do not wish to be understood as expressing the opinion that the commissioners could not have referred the report for proper correction before acting on the same; but we say that after the commissioners have exercised their discretion and have acted upon the report as it was, the further proceedings in the case will not be enjoined because persons an.d lands have by mistake been omitted from the report.

The court found that, “ Cassell, J. W., has the legal title in fee simple to a lot of land in the town of Cadiz, in said county, reported for assessment in his name; that on the sixteenth day of November, A. D. 1880, he contracted in wilting with J. W. Gillespie to sell said lot to him for $866.25, payable $400 in hand and $466.25 in one year, and to execute a deed to him for said lot upon payment of said last named sum; the first payment has been made by Gillespie, and he has given his note for the balance, but the same has not been paid, though he is solvent and responsible. He has had the property insured in his own name and has been paying taxes since his purchase. Said Cassell was a resident of said county at the time said final order was made, and did not sign the petition for said improvement.

“ Upon the foregoing facts the court find and decide as the law of this case, that said J. W. Cassell was not a landowner when said final order was made, and should not be counted in determining the question whether or not the petition for said improvement was signed by a majority as required by law.”

Cassell was a vender of land sold to a purchaser who went into possession, and in deciding said vender should not be counted ; there was no error.

The court found that, Carter, Charles, on May 25, 1868, made a written contract for the purchase of a lot, reported for assessment, of which the following is a copy, to wit:

“ ‘ This article of agreement witnesseth, that E. Z. Hays and S. J. Beebe have sold to Charles W. Carter, of Cadiz, Ohio, the following lot of grounds in the town of Cadiz, Harrison county, Ohio (good description), in consideration whereof, the said Charles W. Carter agrees to pay the ■ said Hays' and Beebe the sum of $165, as follows : $55 on or before Nov. 20, 1868 ; $55 on or before Nov. 20, 1869 ; and $55 on or before Nov. 20, 1870, with interest from date, payable annually.
‘ E. Z. Hats. ‘ May 25, 1868.
Stewaet J. Beebe. ‘ Attest:
ChaRLEs W. Carter.’ ‘D. S. Bruce.
“ When the final order for said improvement was made, there was a balance of more than $60 due on said contract, and Carter bad built a bouse on it worth $100. Said Carter was then a resident of said county, and in possession of said premises, and signed the petition for said improvement. The premises are taxed and reported for assessment in Carter’s name, and be has been paying the taxes. The contract is in full force. E. Z. Hays and S. J. Beebe are both non-residents.
“ On the foregoing facts, the court decide that said Carter was a landowner when the final order for said improvement was made, and shall be counted as such, and as a petitioner for said- improvement in determining whether or not the petition for said improvement was signed by a majority.”

There was no error.

The court found that, “ Bowers, Win., made a verbal contract, fifteen or eighteen years ago, with W. B. Beebe, for a lot reported for assessment; he was to pay $100 for it, $25 per annum until all was paid, with six per cent, on deferred payments. The deed was to be made when all the purchase money was paid. At the time the final order was made there was a balance of $34 due the vendor. There was no stipulation in the contract as to the payment of taxes or assessments. The vendor paid the taxes part of the time, but for a number of years the property has been taxed in the name of the purchaser. He has made some improvements, built a dwelling house thereon, and has obtained a deed for the lot since the final order was made. At and before the time when the final order was made he was a resident of said county, and signed the petition for said improvement. W. B. Beebe, this vendor, owns other property reported for assessment.

“ On the- foregoing facts, the court decide that said Wm. Bowers was a landowner, and shall be counted as such, and as a petitioner in determining whether or not the petition for said improvement was signed by a majority.”

Vendees in possession under valid contracts may be regarded as landholders; and in so deciding there was no error.

The court found that, “ Cope, Joseph and wife, owned in fee simple one hundred and sixty acres of land. Ilis wife united with him in the execution and delivery of a deed to each of their two sons, Benjamin and Oliver respectively. Each deed describes eighty acres of land, and is in all respects an ordinary deed of warranty, save that it contains the following clause : ‘And the said Joseph Cope and Ruth his wife, for themselves and their heirs, do covenant with the said Oliver G-. Cope, his heirs and assigns, that they are lawfully seized of the premises aforesaid and that the said premises are free and clear from all incumbrances whatsoever, except the said Joseph Cope and Ruth, his wife, retain the entire use and control of said tract of land, with all the privileges and appurtenances during their natural lives and during the natural life of the survivor of either of them, and they will forever warrant and defend the same with the appurtenances, unto the said Oliver Gf. Cope,’, etc. ,

“ Said lands are reported for assessment in the name of ‘ Cope, Joseph.’ Said deeds were executed and delivered prior to the making of the final order for said improvement, and said Joseph Cope and wife were, at and before that time, residents of said county.

“ On the foregoing facts, the court decided that said Joseph Cope and wife are together to be counted as only one landowner in determining whether or not the petition for said improvement was signed by a majority.”

Owners of estates for life may be held to be landholders ; and,holding a joint estate, they are to be counted as one; and there was no error in so deciding.

The court found, that, “ Prior to the making of the final order for said improvement, Geo. Hesford died intestate, seized of a small parcel of land, reported for assessment in the name of Hesford, George (heirs), and leaving a number of children.

A proceeding in partition was instituted by one of the heirs, and one of the parties thereto, viz., said John Hesford, after due legal proceedings, elected to take the property at the appraisement.

“ The court approved said election, and ordered the deed to be made by the sheriff to the party so electing, upon the payment to each of the heirs, the part of the appraised value thereof, so found to be due to them respectively. Said Jno. Hesford, prior to the making of the final order for said improvement, had paid to each of said heirs their respective portions, and taken their receipts therefor, and the costs had been paid. But said John Hesford has never received a deed for said property.

“ At and before the time when the final order for said improvement was made, said Jno. Hesford was a resident of said county, and signed the petition for said improvement.

“ On the foregoing facts, the court decide that said John Hesford was a landowner, and shall be counted as such, and as a petitioner for said improvement, in determining whether or not the petition for said improvement was signed by a majority.”

In so deciding there was no error.

The court found that, “ Brown, Agnes, on the twentieth of November, 1871, made a written contract with W. B. Beebe, by which she bought of him a parcel of land, reported for assessment, for $100, of which $25 was payable in hand, and was paid, the residue was payable in three annual installments, with interest, but no part of the deferred payments have been made. The lot is unimproved and was never occupied by the vendee.

• “Nothing has ever been said between the parties looking to a rescission of the contract. She has paid no taxes on said property,and is not in possession of the same.

“ Said Agnes Brown was of full age and unmarried when the contract was made, and was then and ever since has been a resident of Harrison county.

“Upon the foregoing facts, the court decide that said Agnes Brown was not a landowner, and has abandoned said contract, and should not be counted on the question of majority.”

The court did not err in so deciding.

The court also found that: “ Voshall, Susan P. (now Susan P. Osborn), prior to the making of the final order for said improvement was the owner in. severalty in fee simple of a lot of land reported for assessment, and signed the petition for said improvement.

“ Prior to the making of the final order she was married to Mr. Alexander Osborn, who was then a resident of Canton, Stark county, Ohio.

“ After the marriage the wife remained in Cadiz, with no intention of removing, and doing business in the name of Susan P. Voshall, the fact of their marriage being concealed from their friends and the public.

“ About the first of September, 1882, and after the final order for said improvement was made, the husband moved to Harrison county and has there resided ever since.

“ On the foregoing facts the court decide that said Susan P. Voshall (now Osborn) was a resident of said county of Harrison at the time the final order for said improvement was made, and shall be counted as a resident land-ownei and a petitioner for said improvement, in determining whether or not the petition for said improvement was signed by a majority.”

A single woman, having a residence and domicil, does not lose the same by marriage only ; she retains the same until, she otherwise abandons it.

The court did not err in deciding that she, should be counted.

The court found that: “ Forker, H. G-., is a clerk in the post office department at Washington, E>. C. ; his business there keeps him employed continuously throughout the year; he has been employed in that capacity for three months prior to the making of the final order for said improvement. Prior to going to accept the position, he kept house in Cadiz with a widowed sister and her daughter in his house in Cadiz; he is himself unmarried. Since the making of -the final order he voted at the state election in Cadiz, his vote was not challenged ; he considers Cadiz his place of residence, and that he is in "Washington, D. C., on temporary business only; he is the owner of a lot reported for assessment, and signed the petition for said improvement.

“ On the foregoing facts the court hold that said Forker was a resident of said county at the time the final order for said improvement was made, and shall be counted as a landowner and petitioner in determining whether or not the petition for said improvement was signed by a majority.”

Tliere was no error.

The court found that as to “ Crosbey, Mrs. ¥m,, Sr. — A farm reported for assessment originally belonged to her husband, who, prior to the making of the final order for said improvement, deeded it to his son John. John, in consideration therefor, among other tilings, executed a mortgage thereon, to his father, duly recorded, by which he secured the payment of portions to his sisters, and a comfortable support to his father and to his mother during their natural lives. His father died prior to the making of the said final order. His mother is still living, and was, at and before the making of said final order, a resident of said county; the land is taxed in the name of John, and is reported for assessment in his name.

“On the foregoing facts, the court decide that Mrs. Wm Croskoy was not a land-owner when the final order for said improvement was made, and cannot be counted as such, in determining whether or not the petition for said improvement ■was signed by a majority.”

The court did not err.

The court found that: “ Hurford, Joseph, was and is a lunatic, and D. A. Cunningham was and is his duly appointed and qualified guardian. Said Hurford was the owner in sev-eralty in fee simple of lands reported for assessment, and he and his said guardian were and are residents of said county, and said guardian signed the petition for said improvement.

On the foregoing facts the court decide that said Joseph Hurford, acting by bis said guardian, shall be counted as a petitioner for said improvement, in determining whether or not said petition was signed by a majority.”

The court did not err.

The court found that as to “John Smith’s heirs, their father died several years ago, intestate. Their mother has since died. There are four children residents of said county, three of whom are of age ; the fourth, Robert, is a minor and has no guardian. They all signed the petition, and are tenants in common of land reported for assessment, inherited by them from their father.

“ On the foregoing facts the court decide that the three adult children of John Smith, deceased, shall, together, be counted as one vote in favor of said improvement, in determining whether or not the petition therefor was signed by a majority.”

The court did not err.

We have carefully examined all the other matters assigned as error, and find, that there is no error to the prejudice of the plaintiffs in error.

Judgment affirmed.


source: Caselaw Access Project

author: Owen, J.

license: Public Domain

text:
    Emmitt v. Brophy.
    1. An agreement made on a valid consideration by one person with another, to pay money to a third, can be enforced by the latter in his own name; and the facts that the instrument evidencing such agreement is under seal, and that such third person is not named therein, do not affect the right to enforce it.
    2. Where a bridge company, owning a toll bridge, sells it, under authority of law (66 Ohio L. 22, 338), to the commissioners of a county, for a consideration, in money, paid to a controlling stockholder of the company, who, to induce, and as part consideration of, the purchase, gives his bond for the use and benefit of the county, conditioned, among other things, “.to pay oil all liens and debts, whether in judgment or otherwise, existing against said bridge,” judgment creditors of the company, who had an execution lien upon the bridge at the date of the bond, may recover the amount of their judgment thereon against the obligor.
    3. The statute of limitations does not interpose a bar to recovery upon such an instrument within fifteen years from the accruing of the cause of action upon it.
    4. In an action to recover the amount of a judgment theretofore rendered, the plaintiff is entitled to recover interest upon the costs adjudged to him, from the date of the original judgment to the time of recovery.
    ERROR to tbe District Court of Pike county.
    Prior to October, 1866, tbe <£ Scioto Bridge Company ” became a body corporate, located within Pike county, Ohio, formed for tbe purpose, among other things, of building and maintaining a toll bridge across tlie Scioto river in that county. It built tbe bridge, owned it, and was taking tolls for its use, when, at the October term, 1866, of tbe court of common pleas of Pike county, Bropliy and Potter, tbe defendants in error, obtained a judgment against tbe company for $483.75 damages, and $218.50 costs. $55 was paid upon tbe judgment. $98.40 increased costs were made in vain attempts to collect the judgment. Brophy and Potter caused execution to be levied upon tbe bridge ; caused it to be appraised and advertised for sale by tbe sheriff. Tbe bridge could , not be sold. No part of tbe judgment could be made against the company by tbe ordinary process. Pending tbe levy, B. & P. commenced an action in tbe same court for tbe appointment of a receiver to collect tbe tolls for application upon tbe judgment. Pending tbe latter proceeding, in 1869, tbe general assembly authorized county commissioners to purchase toll bridges and make them free. By virtue of such enactment, tbe Scioto Bridge Company sold its bridge to the commissioners of Pike county for the sum of $18,000, who made it a free bridge. As an inducement to the commissioners to purchase the bridge and make it free, and as a part of tbe consideration, of the purchase, tbe plaintiff in error, James Emmitt, who owned a controlling intesest in the bridge company and received tbe entire sum of $18,000, was required by'the commissioners and did give his bond to the state of Ohio, as nominal obligee, “ for the use and benefit of Pike county,” in the sum of $5,000.
    The condition of this bond, recited, among other tilings, that:
    “ The county commissioners of the said county of Pike, have this day purchased the Scioto bridge of the owners thereof, and the above bound James Emmitt, being the principal stockholder and chief owner of said bridge, for his own behalf, and to induce the said commissioners to make said purchase, and as part and parcel of the terms of said purchase, has agreed with the said commissioners, to the performance of which he hereby binds himself ... to pay off and liquidate all claims and demands, liens and debts, whether in judgment or otherwise, existing against said bridge, so that the full' use of said bridge may inure to the public without let or liinderancc. And as a further inducement to said, commissioners to make such purchase, the said Emmitt binds himself, to guaranty, and does hereby guaranty to the said Pike county the full, free, undisturbed and peaceable use of the said Scioto bridge together with all its privileges, appurtenances, fixtures, franchises and approaches. And whereas, the said county commissioners, on behalf and for the use of said Pike county, do pay in hand to the owners of said bridge the full amount of the purchase price thereof, the said Emmitt, in consideration thereof and of all the premises, binds himself to the faithful performance of all the conditions foregoing, within a reasonable time from the date hereof ; and upon the failure of the said Emmitt to perform any one of said conditions, said bond becomes forfeit and may be immediately enforced ; and upon a faithful, performance of all of said conditions said obligation becomes void.”
    This bond was executed and delivered November 8, 1870.
    Emmitt and the commissioners had full knowledge of the judgment, the levy, and all proceedings thereunder of B. & P. at the time this bond was made and delivered.
    At the February term, 1880, of the court of common pleas, the judgment of B. & P., being wholly unsatisfied except as to the $55 paid upon it, was caused by them to be revived. On April 10, 1880, B. & P. filed tbeir petition in the court below, setting forth the foregoing facts, that the judgment was still wholly unpaid, except the $55, and prayed judgment against Emmitt for the unpaid balance of their judgment against the bridge company, their costs and the interest thereon. Emmitt’s demurrer to this petition was overruled, and he excepted. He then answered, setting up seven different grounds of defense, all of whiah were demurred to by the plaintiffs. The demurrers were sustained, to which he excepted. He then interposed, as an eighth defense, that the plaintiffs had, prior to their action, transferred their judgment to one Alfred Yaple, upon which issue was joined and found, on trial, to be with the plaintiffs. The court rendered judgment against Emmitt for the unpaid balance of the judgment, including original and increased costs and interest on the judgment and original costs.
    The overruling of the demurrer to the petition, the sustaining of the demurrer to the first seven defenses, the rendition of judgment, and awarding interest on the costs, are severally assigned for error. The district court affirm the judgment below, and to reverse these judgments the present proceeding is prosecuted.

      John T. Moore c& Son, for plaintiff in error :
    As to promise to one for the benefit of third person, see Thompson v. Thompson, 4 Ohio St. 333 ; Grumbaugh ,v. Kugler, 3 Ohio St. 549 ; Lawrence v. Fox, 20 N. Y. 268 ; JBeasley v. Webster, 64 Ill. 458; Johnson v. Knapp, 36 Iowa, 616 ; Morgan v. Overman, 37 Oal. 534; Brewer v.- Maurer, 38 Ohio St. 554.
    Brophy and Potter have never become bound to accept the promise of Emmitt, if such promise exist- in their favor, for they have not released the bridge company. Strother v. Trimble, 25 Ohio St. 378, 381; Brewer v. Maurer, 38 Ohio St. supra. There is here no consideration — no novation. Bacon v. Daniels, 37 Ohio St. 279, 281.
    It is averred, “ that the plaintiffs elect to look, not to the commissioners, but to said Jas. Emmitt, by reason of the premises, and to his said bond in their favor,” &c. Petition was filed, April 10, 1880, more than nine years after delivery of the bond. It is the first election, and comes too late. Acceptance was barred before suit commenced. Pollock Cont. 10, note d; 1 Parsons Cont. ed. 1866, 481-3. Acceptance must be in reasonable time. In addition, the bridge company has not been discharged. Pollock Cont. 189 ; Strother v. Trimble, 25 Ohio St. 381; Brewer v. Maurer, 38 Ohio St. supra.
    .The bond does not specify with sufficient certainty the person to be secured or the debts to be paid. Pollock on Contracts, 174; Pomeroy Spec. Per. § 88; Browne on Frauds, §§ 372, 373 ; State v. Medary, 17 Ohio, 565 ; Long v. Pike, 27 Ohio St. 503. One not a party to contract under seal cannot maintain an action thereon, Robb v. Mudge, 14 Gray, 534; Northampton y. Hlwell, 4. Gray, 81; How v. How, 1 N.- H. 49 ; Moore v. House, 64 Ill. 162. The action was barred by the statute. Pomeroy Spec. Per. § 88 ; Browne on Frauds, § 372 ; Parson on Con. 294. As to the effect of the defense of rescission and withdrawal, see 25 Ohio St. 381; 38 Ohio St. 554; 2 Story’s Eq. § 1196.
    The statute makes no provision for interest upon costs. Rev. Stats. § 3181-2. The command of the writ of execution is to collect judgment and costs. Rev. Stats. § 5381.

      Alfred Tapie and John IF. Washburne, for defendant in error:
    As to whether there was a right to maintain the action for want of privity of contract, see Rodney v. ShanMand, 1 Del. Oh. 35; s. c., 12 Am. Dec. 70 ; 5 Cranch, 322; Thompson v. Thompson, 4 Ohio St. 333; Bagaley v. Waters, 7 Ohio St. 359, 366, 367; Trvmble v. Strothers, 25 Ohio St. 378 ; Crum-baugh v. Kugler, 3 Ohio St. 544, 549; See also, Pom. Rem. § 139, n. 2 ; Bliss Code PI. § 242; Pollock Cont. 199 (Note b, by Wald).
    As to the effect of the contract being under seal, see Coster Mayor, 43 N. T. 399 ; McDowell v. Laer, 35 Wis. 171; Bassett v. Hughes, 43 Id. 319; Rogers v. Gosnell, 51 Mo. 466 ; Garvin v. Mobley, 1 Bush, 48.

      The fact is, that in Ohio there is no difference between a sealed and unsealed instrument, unless some provision of the statute prescribes the distinction.
    The bar is fifteen years. The judgment for costs should draw interest. The statute, section 3181, provides that interest shall be allowed “ upon all judgments and his costs are part and parcel of every plaintiff’s judgment. Rev. Stat. § 1319. “ On. the rendition of judgment, in any cause, the costs of the party recovering, together with his debt or damages, shall be carried into his judgment,” etc.
   Owen, J.

1. It would be unprofitable to discuss in detail the several supposed defenses below, for they nearly all assume the vital, central fact that Brophy and Potter had a valid claim against the bridge company, and a valid lien upon the bridge at the time of its purchase by the commissioners. These supposed defenses mostly proceed upon the assumption that whatever liability Emmitt assumed by his bond was collateral to that of the bridge company, and aver that the plaintiffs had failed to invoke or pursue other remedies and securities within their reach. If Emmitt by his bond became principally and primarily liable to Brophy and Potter, they had their election of remedies and this is decisive against him of each ground of defense. In other words, if the facts alleged in the petition constitute a cause of action against him, they are not avoided by anything alleged in the answer. From the facts apparent upon the record, including the recitals of Emmitt’s bond, we are at liberty to infer that he was, practically, the bridge company ; that the other stockholders were such simply to vitalize the corporation, their interest in which was but nominal.

In his first defense Emmitt avers that: In the month of May, A. D. 1868, an act of the general assembly of the state of Ohio was duly passed, became a law, went into immediate effect and continued in force until the year A. D. 1880 ; which act authorized the said plaintiffs and empowered them to levy upon and sell said bridge on execution issued upon the judgment recited in their petition in this case, and by virtue of said act said plaintiffs did cause execution to be issued upon said judgment and levied the same upon said bridge, which levy was subsisting and in full force at the time said bridge company sold and transferred said bridge to the commissioners of Pike county, who purchased the same regardless of said levy, and immediately caused said bridge to be used by the traveling public without payment of tolls, and caused the same to be and remain thenceforth in every respect a free bridge.”

This averrment is abundantly justified by the act referred to (65 O. L. 136). The plaintiffs had, by their levy, acquired a lien upon the bridge. By the express conditions of the bond, Emmitt agreed to pay off and liquidate all claims and demands, liens, and debts, whether in judgment or otherwise^ existing against said bridge.”

These facts are strongly suggestive that it entered into the contemplation of the parties to this bond at the time of its execution, that this particular lien of the plaintiffs upon the bridge was to be discharged by Emmitt. Its existence was known to them, and they seem to have left nothing to conjecture. Indeed, if Brophy and Potter had been expressly named as the lien-holders, it is difficult to see how this would have added to the definiteness of the bond, or made more certain the intention of the parties. This seems to be a conclusive answer to the suggestion that there is a want of privity between the immediate parties to the bond and the plaintiffs, which is chiefly relied upon by Emmitt as a defense. It is settled in this state that an agreement made on a valid consideration by one person, with another, to pay money to a third, can be enforced by the latter in his own name. Crumbaugh v. Kugler, 3 Ohio St. 549; Bagaley v. Waters, 7 Ohio St. 367; Trimble v. Strother, 25 Ohio St. 381; Thompson v. Thompson, 4 Ohio St. 333.

Nor need he be named especially as the person to whom the money is to be paid. Coster v. Mayor, 43 N. Y. 411.

The law regards that as certain which points to the sources of authentication or identification ; a principle which applies with special force to this bond.

The proposition that the rule invoked against Emmitt, is confined in its operation to simple and unsealed contracts, is not well founded. Coster v. Mayor, 43 N. Y. 411; McDowell v. Laer, 35 Wis. 171; Rogers v. Gosnell, 51 Mo. 466. Tlie plea of tbe statute of limitations is equally untenable. Tbe action was properly prosecuted upon tbe written instrument which evidenced Emmitt’s liability. In bis “ fifth defense,” Emmitt avers that long prior to tbe filing of tbe plaintiffs petition herein, lie contended that be was not bound to pay the judgment, utterly refused to pay it, and “rescinded said alleged promise.” A rescission of tbe contract sued upon by tbe parties to it, prior to tbe plaintiffs assenting to it, would have been a good defense. Trimble v. Strother, 25 Ohio St. 378; Brewer v. Mauer, 38 Ohio St. 554; Crowell v. Hospital of Saint Barnabas, 27 N. J. Eq. 650. But tbe rescission contemplated by this principle is one by tbe parties, whereas the averrment of Emmitt is that be refused to pay tbe judgment and he rescinded the promise. It was not in bis power to do this. Tbe term- “ rescinded,” as be employs it, is convertible with “ repudiated.” It was as easy for him to repudiate, as singly to rescind bis promise.

Tbe plaintiffs’ election to proceed upon tbe bond is denied. Their action was such election. What effect this election may have bad upon their claim against tbe bridge company, or against tbe bridge, is not before us for determination.

Tbe defendant further relies upon the failure of the plaintiffs to assert their rights within a reasonable time, and allowing nine years to elapse before filing their petition. The duty of the plaintiffs to sue was no more urgent than that of Em-mitt to pay. Wherein, be was more prejudiced by their withholding their action than they were by bis withholding their money is not apparent. There having been no change in the status either of the parties or the contract, the statute of limitations furnished the only legal test of promptness in asserting their rights under the bond. In the action of the court upon the demurrers there was no error.

2. The plaintiff in error assigns as error the action of the court below in awarding the defendants in error interest on their costs in their original judgment.

A broad diversity of opinion and practice has for many years obtained with the lawyers and courts of the state concerning the right to tax and collect interest on cost bills. The question has not heretofore been determined by this court, and its importance would seem to justify a careful consideration of the course of legislation concerning it.

“ An act to regulate the taxation and collection of costs ” passed March 9th 1835 (35 Ohio L. 51, and Swan’s Stat. of 1841, 404) provided :

Section 1, for taxing and entering of record separately the costs of the parties.

Section 2 provided that: “ On the rendition of judgment, in any cause, the costs of the party recovering, together with his debt or damages, shall ha carried into Ms judgment.”

Section 3 provided for endorsing on the execution for the judgment the amount of the costs of the party condemned, and for their collection by the officer, in the same manner and at the same time in which the judgment mentioned in the execution is collected.

Section 4 provided that: When the party recovering neglects to sue out execution immediately, or after such execution has been returned without satisfaction of costs, the clerk may, for his own benefit, or shall at the instance of any person entitled to fees in the bill of costs, taxed against either party, and by order of the court, issue against the party indebted to such clerk or other person, for such fees, whether plaintiff or defendant, an execution to compel the party to pay his own costs, in the following form, to wit:

“State of Ohio, county, ss: To the sheriff of the county of , greeting: Whereas, in a certain action of lately prosecuted in our court of common pleas . . wherein was plaintiff, and was defendant, the costs of said were taxed at dollars and cents. You are therefore commanded, that, of the goods and chattels, and for want thereof, of the lands and tenements of the said in your bailiwick, you cause to be made the costs aforesaid, with interest thereon, from the day of , A. D. [the date of the judgment] until paid, and costs that may accrue. . . Witness, &c.”

Section 6 provides for the collection of costs adjudged against either party on continuances, amendments, or under any special rule, at any time after judgment or order of court awarding such costs, by process, the same in form as to interest as that prescribed in section 4.

The only provision for interest upon costs in the above enactments is to be found in the form of process therein prescribed. The language of these enactments has substantially remained to the present time unaffected by express modification or repeal. “ An act to regulate the fees of clerks of the courts of common pleas ” was passed May 1, 1852 (50 Ohio L. 218; Swan’s Stat. of 1854, 410), section 12 of which provided that: “No interest shall be taxed or collected on the cost bill of any suit or proceeding had in any of the courts of this state.”

In consequence, no doubt, of this provision, we find that in the form of process provided by the act of 1835, sv/pra, as it appears in Swan’s Revision of 1854, 423-4, wherever words regarding interest on costs occur they are in italics (a -familiar mode of indicating that the matter so italicized was obsolete or otherwise affected by other legislation). “ An act to regulate the fees of clerks of the courts of common pleas passed May 1, 1854 (52 Ohio L. 117; 1 S. & C. 628), expressly repealed the act which provided against interest on cost bills, and since that time there has been no express prohibition of such interest; while the form of process presciibed by the act of 1835, as we have already suggested, has remained unaffected by express modification or repeal (1 S. & C. 644; Rev. Stat. § 1321-3); but in each succeeding revision of the statutes since that of 1854, whenever in these forms words regarding interest on costs are used, they have with uniform constancy reappeared in italics, and hence subject to the suspicion of being under the disability either of modification, suspension or repeal. In reality they are unaffected by either. The worst fate that lias befallen them is, that during, the life of the enactment against interest on cost bills — just two years —their legal effect and operation were suspended. These prescribed forms are in effect a direct provision.

They prescribe the command of the writ which the officer is bound to execute according to its terms ; that is, that he cause to be made of the property of the party liable therefor, the costs with interest thereon from the date of the judgment until paid. If it be contended that the provisions above cited do not reach the present case, they are certainly an index to the policy of the state, and aid us in construing the general le gislation of the state regarding interest.

We have already seen that: “ On the rendition of a judgment in any cause, the costs of the party recovering, together with his debt or damages, shall he carried into Ms judgment.” Rev. Stat. section 1319.

“ An act fixing the rate of interest,” passed January 12, 1824 (Swan’s Sta.t. of 1841, 465), provided that: “All creditors shall be entitled to recover interest . . on all judgments obtained from the date thereof.”

This act was in force at the time of the rendition of the original judgment, and remained in force until May 4, 1869, when it was repealed by “ An act to amend an act fixing the rate of interest,” which provides that: “ upon all judgments, decrees and orders of any judicial tribunal for the payment of money, arising out of any contract made or other transaction occurring after the passage of this act, the creditors shall be entitled to interest at six per cent, per annum, and no more.” (66 O. L. 91.) This provision has since remained unaffected. (Rev. Stat. § 3181.)

It seems clear to us, however, that section 3182 of the Revised Statutes, which has the force of a re-enactment as of January 1, 1880, is .decisive of the particular question before us in this ease. It provides that : “ All creditors shall be entitled to collect and receive interest . . upon all judgments, decrees and orders of courts heretofore rendered, precisely as if this chapter had not passed.” The general'question of the right of a party to recover interest upon costs taxed and adjudged in his favor has been the subject of judicial consideration in several of the states; but as the decisions of the courts are as various as the caprice of legislation in their respective states, and are chiefly controlled by such legislation, the light they afford ns, is, at best, but feeble.

It is clear that at the common law, and in the absence of legislation, interest is not recoverable upon costs unless they are actually paid by him in whose favor they are taxed, when his right to it depends upon the general legislation affecting interest.

It is argued that payment of costs by the party entitled to recover them, creates a debt in his favor and that the general legislation upon the subject entitles him to interest upon the demand so created. Whoever may be equitably entitled to the costs when collected, his legal title to, and right to recover the unpaid costs, is clear (Abbey v. Fish, 23 Ohio St. 413), and as by force of section 1319 of the Revised Statutes, his costs are “ carried into his judgment;” and as he is liable at any time after failure to sue out process for his costs or the return thereof unsatisfied, to respond, upon the order of court, to a writ issued for the benefit of those entitled to them for the costs adjudged in his favor with interest thereon, it is difficult to see why his right to interest should depend upon his actual payment of such costs. 14 Viner’s Abridgment, 457; Butler v. Burk, 2 Salk. 623; Rogers v. Burns, 27 Penn. 528; Klock v. Robinson, 22 Wend. 157; Denning’s Appeal, 34 Conn. 204; McCausland v. Bell, 9 S. & R. 388; Hamer v. Highwood, 25 Miss. 95; Gatewood v. Palmer, 10 Humph. 466; Graham v. Newton, 12 Ohio, 210.

The forms of process prescribed for the collection of costs; the fact that but ffor two years in the history of the state, has the right to .interest on costs been the subject'of unfriendly legislation; the plainly declared policy of the state; a liberal and rational'construction, in the light of'such policy, of our legislation concerning interest, lead us to the conclusion that where a party or other person is entitled to costs in any judicial proceeding, which have been adjudged, ordered to be paid or for the collection of which execution is authorized, he is entitled to interest thereon from the date of the judgment or order, or from the time when execution is first authorized. This does not apply to - increased costs, or other costs not adjudged or ordered, or for which execution is not authorized. In the action of the court below there was no error.

Judgment affirmed.


author: JOHNSON, C. J.

text:
    Martin v. Alter.
    The owner in fee of real estate conveyed the same to a trustee to secure a debt to a third person. After the granting clause to the trustee in fee, there was a condition that if the debt was paid at maturity the conveyance was to be void, otherwise the trustee was authorized to sell the land at public sale to pay the same.

      Held: 1. This conveyance was a deed of trust in the nature of a mortgage and not an absolute conveyance in trust to secure the debt.
    2. The legal title remains in the grantor or mortgagor in possession after default, subject to the right of the trustee or creditor, to enforce the condition of the mortgage.
    3. The fact that the conveyance is to a trustee, with power of sale in case of default, does not change its character in this respect.
    4. A judgment against the grantor who remains in possession of the premises, with the acquiescence of the mortgagee, after default, is a lien on said premises, subject to said mortgage.
    ERROR to the District Court of Muskingum county.
    June 20, 1867, John Alter, who was then seized in fee and in possession of certain real estate, borrowed of Benjamin 'Wheeler $1,000 evidenced by his promissory note payable to the order of said Wheeler in one year after date.
    To secure the payment of this note, he executed and delivered to Albert W. Train, a conveyance in trust, whicli reads as follows:
    “ Know all men by these presents, that we, John Alter and Elizabeth D. Alter, his wife, of the county of Muskingum, in the state of Ohio, the receipt whereof we do hereby acknowledge, have given, granted, bargained, sold, aliened, conveyed and confirmed unto the said Albert W. Train, his heirs and assigns forever, the following described parcel of land situate in the city of Zanesville, county of Muskingum and state of Ohio, and being parts of lots one and two in the fifth square to the city of Zanesville, bounded as follows: Beginning at the north west corner of lot one in said square, thence south with the line of Second street seventy-five feet, thence east thirty-eight feet, thence north to Main street, thence west to the place of beginning ; to have and to hold the said granted premises, with all the appurtenances and privileges to the same belonging or in any wise appertaining to the said Albert W. Train, his heirs ar.d assigns forever, to their own proper use, benefit and behoof, as a good and indefeasible estate in fee simple, and I, the said John Alter, for myself, my heirs, executors and administrators, do covenant with the said Albert W. Train, his heirs and assigns, that before and until the sealing and delivery of these presents, I am lawfully seized in fee of the above granted premises and appurtenances ; that I have good right full power, and lawful authority to sell and convey the same to Albert W. Train, that the said premises are free from all incumbrance whatever, and that I do and will warrant and defend the same unto the said Albert W. Train, his heirs and assigns forever, against the lawful claims of all persons whatsoever. Provided, always, and these presents are upon this express condition, that whereas I, the said John Alter, have this day made my certain promissory note in writing, bearing even date herewith, for the payment of $1,000, with interest at ten per cent., payable semi-annually in one year from this date to the order of Benjamin Wheeler. Now therefore, if I, the said John Alter, shall punctually pay to the said Benjamin Wheeler, or to his order, the full amount of the said sum of money and the interest in the said note specified, at the time and place it become due and payable, according to the tenor and effect of said note, then the foregoing conveyance shall he void and of no effect, otherwise to be and remain in full force and virtue. But on the contrary thereof, if I, the said John Alter, shall fail to pay said sum of money in the said note specified, at the time and place it become due and payable, in that case it shall be lawful, and we, the said John Alter and Eliza D. Alter, do by these presents expressly authorize the said Albert W. Train, his heirs and assigns, upon such default accruing in the payment of said sums of money, either in principal or in interest upon giving thirty days notice of the time and place of sale in some newspaper published in Zanesville, Ohio, to sell to the. highest bidder for cash, without reserve and without appraisement, the before described parcel of land, and to apply the proceeds, first to the costs and expense of this trust, and five per cent, commission to the trustee for his services as such trustee, next to the payment of said promissory note, and any interest that may accrue thereon, and to pay the balance (if any), to the said John Alter, his heirs and assigns, and to execute a deed or de.eds to the purchaser or purchasers of said parcel of land, conveying the same to him or them in as full and ample manner as we, the said John Alter and Eliza D. Alter could possibly do. And we, the said John Alter and Eliza D. Alter, for our heirs, executors and administrators, do covenant to and with the said Albert W. Train, his heirs and assigns, that upon any sale being made by virtue of the power herein contained, that we will make, execute and deliver to the said purchaser or purchasers, their heirs and assigns, all such further assurance as may be necessary to rest in him or them an indefeasible estate in fee simple in the said parcel of land; and it is expressly understood that this conveyance is to be everywhere construed as a deed of trust, and not as a mortgage deed, and as giving to the said Albert W. Train, his heirs and assigns, as full and ample authority to sell and convey the said parcel of land, as we, the said John Alter and Elizabeth D. Alter, by a power of attorney, or any other instrument of writing, could possibly do. And it is further understood, that this instrument shall not and can not be revoked or annulled by the said John Alter or Eliza D. Alter, or either of them, or by the death of either or both of them, but shall remain in full force for all purposes herein specified. In witness whereof, we have hereunto set our hands and seals, this 20th day of June, A. D. 1867.
    “ JohN Altee, [Seal.]
    Eliza D. Altee, [Seal.]
    “ Signed, sealed and delivered in presence of
    Ella Altee,
    D. B. Gaby.” [U. S. Rev. Stamp.]

      This instrument was delivered and recorded as a mortgáge. At the May term 1876, of the court of common pleas of Muskingum county, the plaintiff in error recovered a judgment against said Alter for over $5,000, and on the 19th of May 1876, caused execution to issue thereon, which was levied on the same real estate embraced in the foregoing conveyance, of which said Alter was in possession, and so remained until his death in 1879. •
    His executors soon thereafter filed their petition in the court of common pleas to sell this real estate to pay debts, making Wheeler, Train, Martin and others, as well as the widow and heirs, defendants. Martin filed an answer and cross-petition claiming a judgment lien on the premises, subject to the mortgage to Train to secure the debt to Wheeler which remained unpaid.
    Upon the above state of facts the district court held, as a matter of law, that the conveyance of June 20, 1867, from Alter and wife to Train divested Alter of the legal title to the above described real estate, and that by reason thereof the judgment in favor of Martin did not become a lien upon said real estate,, and that the levy thereon of said execution did not bind the interest of John Alter in said real estate for the payment of said judgment. To this decision of the court on the said questions of law the said Edward Martin then and there excepted.
    - To reverse this judgment is the object of this proceeding in error.

      A. IF. Train, for plaintiff in error.

      F. A. Seborn, for defendant in error.
   JOHNSON, C. J.

No attempt was made by Wheeler or his trustee to take possession, nor to execute the power of salé contained in the conveyance by Alter to secure the debt, though past due over ten years. Alter remained, in the undisturbed possession of the premises until his death in 1879. In the meantime Martin obtained a judgment against him? and caused a levy to be made on tbe real estate covered bj tbe deed to Train.

Did this judgment operate as a lien on this real estate ?

If it was a deed of trust in tbe nature of a mortgage, then the incidents of an ordinary mortgage attach.

In the case'of a mortgage in the usual form, the legal estate remains in the mortgagor in possession, even after condition broken as to all the world, except the mortgagee.

The legal title remaining in the mortgagor is liable to levy and sale on execution. It descends to his heirs, subject to the conditional estate tp the mortgagee.

The latter may maintain ejectment or take other legal steps to obtain possession after condition broken, but until he does so, the mortgagor is at law owner of the fee. The mortgage is a conditional conveyance which becomes void upon payment of the debt, without a formal reconveyance. Lessee of Ely v. McGuire, 2 Ohio, 223 ; Lessee of Phelps v. Butler, 2 Ohio, 224; Farmers' Bank v. Com. Bank, 10 Ohio, 71; Lessee of Perkins v. Dibble, 10 Ohio, 438; Seymour v. King, 11 Ohio, 342; Mc Arthur v. Franklin, 16 Ohio St. 103 ; Swartz v. List, 13 Ohio St. 419; Allen v. Everly, 24 Ohio St. 97.

Inasmuch as the law requires an appraisement of the fee as unincumbered real estate, there is difficulty in selling land subject to a mortgage, unless the purchaser is willing to pay two-thirds of the whole value for the legal title, with the equity of redemption, which he would acquire by such purchase. Baird v. Kirtland et al., 8 Ohio, 21; Seymour v. King, 11 Ohio, 342.

Theconveyauce before us has the ordinary condition which distinguishes a mortgage from an absolute deed, or from a deed creating a trust. It is provided that if the debt is paid according to the terms stipulated, “ the conveyance shall be void and of no effect.” It is not an unconditional deed of trust, but a mortgage, or deed of trust in the nature of a mortgage. It is not an absolute and indefeasible title in the trustee for the purposes expressed in the trust, with nothing but au equity in the grantor, but an estate upon a condition, to secure a debt, to become void upon its payment.

Where the conveyance to a trustee is as collateral security, merely, for the payment of a debt, with the condition that it shall become void upon its payment and with a power to sell the land in case of default, it is a deed of trust in the nature of a mortgage. The grantor parts with his title conditionally only. If there is no such condition, but the conveyance is an absolute deed of trust for the purpose of raising money to pay a debt if not paid as agreed, the grantor. parts with all his legal estate, and whatever rights he has arc, in 'their nature, equitable merely. Hoffman et al. v. Mackall, 5 Ohio St. 130; Woodruff v. Robb, 19 Ohio, 217; Eaton v. Whiting, 3 Pick. 485.

The fact that the deed is made to a trustee with power of sale does not change its character in this respect, same cases.

Moore v. Burnett, 11 Ohio, 334, and Morris v. Way, 16 Ohio, 469, are deeds of trust without a condition that they were to be void if the debt was paid / hence they are the conveyances of an absolute estate in trust to secure a debt, with a power of sale in the trustee to execute the trust, while Woodruff v. Robb, supra, and the case at bar have such a condition. The former divests the grantor of his legal estate, leaving nothing but an equity in the grantor; while the latter is a security for the debt, defeasible upon its payment. The cases of Moore v. Burnett and Morris v. Way, are not in conflict with Woodruff v. Robb. Both forms of instruments are mortgages in equity. In the latter the legal.estate remains in the mortgagor after default, as against all the world, except the mortgagee, while in the former the legal title passes absolutely, leaving an equity merely in the grantor.

With this distinction between absolute deeds of trust with power of sale, and conditional deeds of trust with like power, defeasible upon payment of debt, the cases are reconcilable. In the former case there is no legal estate remaining in the grantor, and therefore no judgment lien, while in the latter the legal estate remains in the grantor in possession, in favor of judgment creditors, subject to the mortgage.

So in Baird v. Kirtland, 8 Ohio, 21, the deed was absolute, with a separate defeasance, or rather penal bond, by which the grantee covenanted upon payment of a debt, to convey back the land. Nothing but an equity remained in the grant- or. This is not subject to levy and sale.

In that case it' was conceded that if it was an ordinary mortgage, the legal estate remained in the grantor.

Here, neither Wheeler nor his trustee sought to enforce their conditional deed but suffered Alter to remain in possession. He was a mortgagor in possession, having, as against judgment creditors, the legal title to the premises, and therefore the judgment of Martin was a lien thereon subject to the Wheeler mortgage.

Judgment reversed.


author: By the Court.

text:
    Spitler v. Heeter.
    Tlie words, “ relict of a deceased husband or wife,” as used in Bevised Statutes, section 4162, are used to designate the relationship to a former married pair, of the survivor of a marriage union ; and such relationship is not destroyed or changed by the subsequent marriage of such survivor.
    Eekob to the district court of Montgomery county.

      John A. McMahon and Pfoutz c6 Hartranft,. for plaintiff in error.

      Geo. W. Mouh, for defendant in error.
   By the Court.

The plaintiff, John Spitler, claims that he is owner in fee simple, and in actual possession of 56 acres of land coming to him by descent as follows : In 1855 Louisa A. M. Ricker married Sebastian Heeter. During such coverture Heeter acquired by purchase title to this land. In 1873 Heeter died intestate and without issue, and Louisa, his wife, took the title to the land by descent under section 4159 Revised Statutes. In 1876 she married plaintiff, and in 1881 she died intestate and without issue. - The defendants are her brothers and sisters, and the brothers and sisters of her former husband, Sebastian Heeter, or their representatives; and defendants claim the land, subject to plaintiff’s life estate. Plaintiff brought this suit to establish and quiet his title in fee simple, relying on Rhea v. Dick, 34 Ohio St. 420. Plaintiff claims as relict of Louisa, his wife, under section 4159 Rev. Stats., which is as follows : “ If there are no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate.”

The defendants claim that this title,’ at the death of Louisa, passed and descended in fee simple (subject to the life estate of plaintiff),' one-half to her brothers and sisters, and the other half to the brothers and sisters of Sebastian Heeter, under section 4162 Rev. Stats., which is as follows : “ When the relict of a deceased husband or wife dies intestate and without issue, possessed of any real estate or personal property, which-came to such intestate from any former deceased husband or wife, under the provisions of section 4159, then such estate, real and personal, shall pass and descend; one-half to the brothers and sisters of such intestate, or their legal representatives, and one-half to the brothers and sisters of such deceased husband or wife from which such personal or real estate came or their personal representatives.” The question is, was Louisa at the time of her death “ the relict of a deceased husband ?” The term relict is applied to the survivor of a pair of married people, whether the survivor is the husband or the wife ; the relict of the united pair, not the relict of the deceased individual.

The relict is the survivor of the union of married people, not simply the survivor of the decedent individually-; and the expression Louisa Heeter, relict of Sebastian Heeter,” does not mean simply that Louisa is the relict of Sebastian, but that Louisa is the relict of the former marriage union of Louisa and Sebastian, as husband and wife. And this rela-tionsbip of Louisa, tbe survivor, to that married pair, cannot be changed by tbe subsequent marriage of Louisa.

Tbe law assumes that tbe relict of a deceased husband or wife ” may be possessed of property that came from any former deceased husband or wifeand thus presumes that such relict may be tbe relict of tbe union of more than one such pair of married people, and provides for each case.

Louisa, at tbe time of her death, was “ tbe relict of a deceased husband,” Sebastian Heeter; and section 4162 of tbe Revised Statutes determines the descent of this land, and gives it to tbe defendants, subject to plaintiff’s life estate. Tbe court did not err, and tbe judgment is affirmed.

Judgment aeeordvngly.


text:
    Young v. Gerdes.
    1. An order of a justice of the peace overruling a motion to discharge an attachment, is reviewable on error as a final order, independent of the action in which the attachment issued.
    2. After said order has been made it is not error for the justice to proceed and determine the cause of action on its merits and render a judgment and order of sale without again hearing evidence as to the grounds upon which the attachment issued.
    Motion for leave to file petition to reverse tbe judgment of tbe District Court of Hamilton county.
    On January 8, 1883, G. & B. Gerdes, defendants in error, by their attorney made an affidavit before a justice of tbe peace that Young & ~Wohlater being indebted to them, bad property and rights in action which they concealed, and have removed and are about to remove their property out of the county, with intent to defraud their creditors, and upon this affidavit caused an attachment to be issued, under which the property of plaintiffs in error was seized. .On January 13, 1883, plaintiffs in error filed a motion to discharge the attachment. On January 17, 1883, the justice of tlie peace overruled tlie motion to discharge the attachment and the case then coming on for hearing upon the merits, one witness was examined and testified as to the amount of the claim said to be owing by Young & Wohlater to G. & 13. Gerdes, and to nothing else, and thereupon, without any other testimony whatsoever being presented, the justice of the peace rendered judgment'in favor of G. & B. Gerdes for the amount claimed, and sustained the attachment.

      Moulton, Johnson <& Levy, for the motion.
   By the Court.

The order "of the justice overruling the motion to discharge the attachment was reviewable on error, and for that purpose a bill of exceptions might have been taken (Rev. Stats. § 2524). As no showing is made that said order was erroneous, the presumption is, that upon the hearing of that motion, the justice found that the affidavit was true, and that the attachment was properly issued. This was an ancillary proceeding to the cause of action afterwards heard upon its merits, and it was not necessary to the rendition of final judgment upon the cause of action that the justice should again hear and determine the grounds for the attachment.

Judgment affirmed.


author: Owen, J. I.

text:
    The State ex rel. Insurance Co v. Moore.
    1. A mutual fire insurance company organized under the laws of another state, but similar to domestic mutual fire insurance companies, which lias at least $50,000 in premium notes, on which at least $10,000 in cash has been paid before commencing the business of insuring, may, so far as its capital is concerned, be admitted to transact business within this state.
    2. "Where a public officer is called upon to perform a plain and specific public duty positively required by law, ministerial in its nature, calling for the use of no discretion, nor the exercise of official judgment, his performance of such duty may, upon his refusal and in the absence of other means of relief, be enforced by mandamus.
    3. When such officer, in determining upon the performance of a public duty, is called upon to use official judgment and discretion, his exercise of them, in the absence of fraud, bad faith, and abuse of discre- . tion, will not be controlled or directed by mandamus.
    4. Where a foreign insurance company, tendering compliance with our laws, applies for authority to transact its business within this state, the superintendent of insurance has no power, in the exercise of a mere arbitrary discretion, to refuse such admission.
    5. It is within the province of such superintendent, in considering the application of such insurance company for admission to transact business within this state, to inquire into its financial soundness, and . if upon such inquiry, made in good faith, he is not satisfied of its financial soundness, he is invested with discretion to refuse such, admission, and his exercise of such discretion will not be controlled by mandamus.
    ARplicatioN for mandamus.
    This is an application for a peremptory mandamus requiring the defendant to admit the plaintiff to transact insurance business in the state of Ohio on the mutual plan. An alternative writ having been issued, the defendant answered and the plaintiff replied. From the following statement of the pleadings, it will be seen that the issues are very simple.
    The petition alleges that the plaintiff is duly incorporated under the laws of the state of Illinois, and authorized to do insurance business on the mutual plan ; that it has cash assets amounting to over $53,000, and premium notes amounting to over $260,000 ; that if has in all respects complied with the laws of the state of Illinois, and is doing business there ; that it made application in due form for admission into the state of Ohio to transact its business, but was wrongfully refused by defendant.
    The defendant in his answer denies all the essential allegations of the petition, and in paragraphs 6, 7, 8 and 9 alleges:
    6. The plaintiff is a corporation for profit as appears from the fact that since its organization it has received $104,470.53 to December 31, 1882, and only paid out in losses $40,082.38, the balance being absorbed in salaries, commissions, etc.

      7. The plaintiff is doing and proposes to do an illegal business in Ohio as shown by reports on file in the insurance department.
    8. The plaintiff has issued a number of policies to citizens of Ohio in violation of law, and is therefore liable to large penalties.
    9. The charter of the plaintiff authorizes it to do business of a character not “ contemplated by the laws of Ohio.”
    The plaintiff for reply denies each and every affirmative allegation in the answer.
    Upon the issues so joined, the cause was heard upon the evidence.-

      A. T. Brewer, for plaintiff.

      D. A. Hollingsworth, Attorney General, and James Lawrence, Attorney General, for defendant.
   Owen, J. I.

The defendant maintains that to entitle the. plaintiff to the certificate of authority to transact its business within this state, it must show that it has a capital of $100,000.. An examination of the various provisions of our statutes upon this subject leads us to the conclusion that a mutual insurance company similar to our own, organized under the laws of another state, which has at least $50,000 in premium notes on which at least $10,000 in cash has been paid before starting its business of insuring, shows itself entitled, so far as this. requirement is concerned, to admission to transact business in this state.

2. A more serious and difficult question is presented by the application of the-plaintiff for a writ of mandamus to compel the defendant to grant to it the certificate of authority provided for by our statutes to transact business within this state.

This involves the inquiries, (1) how far the superintendent of insurance is clothed with discretion in the matter of granting such authority, and (2) how far this court may control the exercise of such discretion by the writ prayed for.

Our statutes nowhere expressly direct the superintendent to grant authority to a foreign insurance company to carry on its business within the state, nor do they otherwise expressly permit such a company to transact its business here.

It is provided (Rev. Stats. § 3656) that such company shall not transact its business within this state until it procure from, the superintendent a certificate of authority to do so. It is true that the provisions of our statute upon this subject were enacted in the light, and upon the assumption, of the settled_ policy of the state to permit foreign companies to do business within it, and we may assume for the purposes of the discussion that a cordial welcome has been extended to such com-. panies of other states as were in unquestionably sound condition to transact their business within the state. But we are dealing with the restraints and limitations which the statutes impose upon the enjoyment of this privilege, which depends more upon the comity of our state than upon its express grant.

It is made the duty of the superintendent of insurance (§ 268, Rev. Stats.) to see to the execution and enforeemént of all laws relating to insurance.” It is his duty to keep himself advised of the business and affairs of insurance companies doing business within the state (§§ 269, 272).

If it shall at any time appear to him, upon satisfactory evidence, that an insurance company not organized under the laws of this state, but transacting business within it, is in an “ unsound condition,” it is his duty to revoke the authority granted to such company (§ 277), and from his decision there is no appeal. This supplies a potent argument for the Targe discretion claimed for and by the defendant in the administration of his office. Let it be supposed that upon the plaintiff presenting its application, with all the forms prescribed by statute, "the superintendent entered upon such investigation of its affairs as furnished evidence, satisfactory to him, that it was, in reality, in an unsound condition. "Will it be seriously contended that, notwithstanding this condition of affairs, he had no discretion to withhold his certificate of authority?- The proofs in this case disclose a condition of things, at the time of his refusal, to challenge the serious consideration and scrutiny of the superintendent. The first appearance among us of this company was when, without either an application or an invitation, it in some manner invaded our borders, and, by its own confession, effected insurance in the aggregate sum of $63,550, by policies issued to citizens of Ohio, in defiance of the express provisions of our law against it. Possibly its entire exclusion from the state for this impropriety would be a penalty unwarranted by our law, but the conduct of the plaintiff was, at the very best, a thing to stimulate the vigilance and scrutiny of a faithful superintendent of insurance.

Then, by its own showing made to the superintendent it has received in premiums and assessments since its organization the sum of $104,470.53, up to and including the 31st day of December, 1882. This is all gone — only $40,082.38 having been paid to policy holders for losses ! The superintendent found that the balance was not satisfactorily accounted for. The most satisfactory explanation of this rather eccentric filian-, ciering comes in the form of an argument that as there is “ no evidence tending to show fraud or the unlawful payments of dividends, it is not material to any inquiry involved in this proceeding.”

If it was material to any inquiry which it was proper for the superintendent to make in determining upon the admission or exclusion of this company, it becomes a question of vital concern in this proceeding. We do not hesitate to say, that the superintendent had no power, arbitrarily, or in his mere caprice, to exclude the plaintiff from the state. On the other hand, we do not hesitate to say that if the superintendent, acting in good faith, discovered what fairly justified him in the opinion that the admission of the plaintiff, by reason of its financial showing, was destined to prove a menace to the interests of our citizens, who were likely to be exposed to peril by such admission, there was confided to him such discretion as called upon him to avert the peril by refusing admission to the plaintiff.

To justify the issuing of the writ prayed for, it must appear that it was a plain public duty of the superintendent to grant the authority applied for by the company, and either that he had no discretion to refuse it, or that in the refusal there was an abuse of bis discretion. In other words, it should appear that in such refusal there was a plain dereliction of duty on his part. Ex parte Black, 1 Ohio St. 30. This is not a proceeding to review and reverse the decision of the superintendent. The question is, had he power to decide at all ? If he- had, then, in the absence of fraud, bad faith and gross abuse of discretion, his decision is final; although upon the same evidence this court might have.reached a different conclusion.

If the superintendent was called . upon to perform a plain and specific public duty positively required by law, ministerial in its nature, calling for the use of no discretion nor the exercise of official judgment, his refusal to act would, in the absence of. other means of relief, call for the remedy herein invoked.

But the principle is too firmly established to be questioned, that where a public officer is invested with discretionary power concerning the performance of a public duty required at his hands, or, .wherever in determining the course of official action he is called upon to use official judgment and discretion, his exercise of them, in the absence of bad faith, fraud and. gross abuse of discretion, will not be controlled or directed by mandamus. Free Turnpike Co. v. Sandusky County, 1 Ohio St. 149; State ex rel. Anderson v. Holmes County, 17 Ohio St. 608; Lake Co. v. Ashtabula Co., 24 Ohio St. 393, 401; Moses on Mandamus, 78; High Ex. Rem. § 24; United States v. Seaman, 17 How. 225.

The important business confided to the supervision of the defendant is too vast in its consequences to the people of our state to admit of a construction of his powers so narrow as to hold that his judgment or discretion are to take no part in determining his action upon the application of a foreign insurance company for permission to transact its business within the state. His refusal in the case at bar was not a dereliction of duty;. On the contrary, .the highest considerations of public duty and official fidelity called upon him to see to it that the security of our people was not imperiled by his action. He wasp called to the exercise of official judgment and discretion. He exercised them; and as no fraud, bad faith or abuse of discretion intervened, so far as it affects the present proceeding, his decision is final/)

Writ refused.