author: Speak, J.

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

      Owner of land assessed for street improvement — Not entitled to injunction against collection, when — Assessment not unlawful — Because assessed hy abutting foot — If amount does not exceed benefit.

    1. An owner of land which has been assessed for the improvement of a street is not entitled to an injunction restraining the collection of such assessment where a statute in all material respects the same as the one under which the improvement was made and the assessment levied, and the bonds of the municipality to pay the cost issued, had theretofore • been adjudged valid by the highest court of the state, simply because similar legislation was held by the same court long afterwards to be in violation of the constitution.
    2. An assessment for street improvements, otherwise lawful, is not rendered invalid because assessed in terms by the abutting foot, where it appears that the amount of the assessment did not exceed the special benefit to the land. Schroder v. Overman, 61 Ohio St., 1; Walsh v. Barron, same vol., 15; Walsh v. Sims, 65 Ohio St., 211.
    (Decided June 23, 1903.)
    Error to the Circuit Court of Hamilton county.
    The action below was begun July 15, 1901, in tbe court of insolvency of Hamilton county by tbe plaintiffs in error against tbe City and tbe auditor, to enjoin tbe collection of an assessment for tbe improvement of Mercer street which bad been levied on a lot owned by them on tbe corner of Yine and Mercer streets. It was shown by tbe petition that tbe ordinance providing for tbe improvement was passed by tbe board of legislation of tbe City, February 8, 1897, and tbe ordinance prbviding for tbe payment of tbe costs, tbe issuing of tbe bonds, and tbe levying of tbe assessments, being “levied and assessed on each abutting foot of tbe several lots of land bounding and abutting on Mercer street from Vine street to Walnut street,” was passed by tbe board of administration October 12, 1897. Tbe plaintiff had paid tbe installments for tbe years 1898, 1899 and 1900, and it was to restrain tbe collection of tbe balance that suit was brought.
    Tbe answer of tbe City contained tbe following averment, viz.:
    “Further answering, tbe defendant says that tbe said assessment levied as described in tbe petition is in proportion to tbe special benefits conferred by tbe improvement of Mercer street on said property of tbe plaintiffs and each abutting foot thereof upon which said assessments were levied; that said assessments levied upon said property and each abutting foot thereof, are not in excess of tbe special benefits conferred upon said property and each abutting foot thereof; that said special benefits do, in fact, as to said property, and each abutting foot thereof, fully equal tbe assessments levied thereon, and as to each parcel of land and each abutting foot thereof upon which tbe assessments for said Mercer street were levied, tbe assessments are in proportion to the special benefits conferred thereon by said improvement of said street.”
    In tbe insolvency court a demurrer to this answer was sustained and judgment awarded plaintiffs. On error tbe circuit court reversed this judgment and remanded tbe cause. Tbe plaintiffs ask tbe reversal of the last judgment and affirmance of that of tbe court of insolvency.

      Mr. Charles B. Wilby and Mr. Charles E. Tenney, for plaintiffs in error.

      The assessment set forth in the foregoing pleadings was levied under section 22646, Revised Statutes. The contention of the plaintiffs in error is, that (1) section 22646, Revised Statutes, is unconstitutional and void; (2) An assessment levied thereunder is a nullity; (3) It will not be sustained either in whole or in part on the ground that the result in a particular case is equitable, or is identical with the result which could have been reached by a valid assessment.
    Section 22646, Revised Statutes, provides a standard for street assessments in three classes of cities, each class containing but one city, which standard differs from that provided by the statutes for the remainder of the state. Therefore, section 22646, Revised Statutes, has not a uniform operation throughout the state, and, being a law of general nature, it violates article 2, section 26 of the constitution of Ohio, and is void.
    The new municipal code has repealed the old statutes on the subject of street assessments and enacted new ones. But at the time the assessment in this case was levied the general law on the subject was section 2264, Revised Statutes.
    This, court held that, under this section the assessment must be according to the actual frontage of the lot, and not according to the number of feet which the lot abutted on the improved street; and that the assessment “must conform to the' principle upon which it was adopted — assessment by the foot front, not by the abutting foot, merely.” Haviland v. Columbus, 50 Ohio St., 471; Toledo v. Sheill, 53 Ohio St., 447.
    To avoid these decisions in the cities of Cincinnati, Toledo and Springfield, the legislature enacted the statute, under which the assessment in this case was levied, and which, the plaintiffs in error contend is unconstitutional. Section 2264b, Revised, Statutes.

      (a) Section 2264b, Revised Statutes, applies to three classes of cities, each of which contains only one city. The doctrine of classification of cities has never been sustained in this state except as applied only to the organization and form of government of cities. It has never been sustained when applied to matters existing in such cities, and in cities generally, and of a general nature. When any statute treated not of “all cities of a certain class,” but of “matters of a general nature in all cities of a certain class,” it has invariably been held unconstitutional. Hixson v. Burson, 54 Ohio St., 470; Ampt v. Cincinnati, 56 Ohio St., 47; Cincinnati v. Longworth, 61 Ohio St., 659; Cincinnati v. Steinkamp, 54 Ohio St., 284; State v. Brewster, 39 Ohio St., 653; Falk, Ex parte, 42 Ohio St., 638.
    This doctrine of classification of cities, even as applied to matters of organization, and a fortiori in all its other applications, was strongly condemned by this court in State v. Cowles, 64 Ohio St., 162, and very recently repudiated entirely by this court, and the classification of cities was held unconstitutional and void in Jones v. State, 66 Ohio St., 75; State v. Beacom, 66 Ohio St., 491.
    Section 2264b, Revised Statutes, therefore does not operate uniformly throughout the state, and it remains to consider whether it is a law of a general nature.
    (b) The law is of a general nature if it deals with a subject of a general nature. Kelley v. State, 6 Ohio St., 269; State v. Ellet, 47 Ohio St., 90; State v. Bargus, 53 Ohio St., 94; Campbell v. State, 56 Ohio St., 794; State v. Spellmire, 67 Ohio St., 77.

      The subject of taxes and assessments is a subject of a general nature. Commissioners v. Rosche, 50 Ohio St., 103; Gaylord v. Hubbard, 56 Ohio St., 25; Grove v. Leidy, 6 Circ. Dec., 116; 9 C. C. R., 272; Andrews v. Settles, 9 Circ. Dec., 191; 16 C. C. R., 638.
    The subject of streets, roads and highways is a subject of a general nature. State v. Davis, 55 Ohio St., 15; Mott v. Hubbard, 59 Ohio St., 199; State v. Bader, 5 Circ. Dec., 703; 12 C. C. R., 659.
    Section 22615, Revised Statutes, is therefore a law of a general nature, and it does not have' a uniform operation throughout the state. Hence it is~ in conflict with Ohio constitution, article 2, section 26, and is void. And as the assessment in this case was levied solely under the authority of this statute, it was levied under no authority at 'all, and is void.
    The fact that the assessment of the property of the plaintiff, and on each abutting foot thereof is in proportion to special benefits, and does not exceed special benefits, will not validate a void assessment either as a whole or in part.
    The right to enjoin an illegal tax or assessment is conferred by statute (section 5818, Revised Statutes) ; it is not a creature of equity, and is not dependent upon the rules of equity. Hannewinkle v. Georgetown, 15 Wall., 547; Bank v. Hines, 3 Ohio St., 1, 36; Bank v. Debolt, 1 Ohio St., 591; McCoy v. Chillicothe, 3 Ohio, 370.
    The legislature of Ohio,, however, conferred on the courts the jurisdiction thus denied to them. Section 5818, Rev. Stat.; Tone v. Columbus, 39 Ohio St., 281, citing Stephan v. Daniels, 27 Ohio St., 536, and Steese v. Oviatt, 21 Ohio St., 253.
    These citations show conclusively that the sole question in the case is this: Is the assessment illegal? If it is illegal, it must be enjoined; and all questions of equity or of moral obligation are irrelevant.

      Mr. Charles J. Hunt and Mr. Albert H. Morrill, city solicitors, for defendants in error.
    A court of equity will not grant relief by injunction against the collection of an assessment, the amount of which has been ascertained according to a rule prescribed by a statute, which, it is claimed, is illegal, unless the petitioner shows that the assessment so made affects him to his prejudice, and in a manner different from that in which an assessment made under a rule prescribed in an admittedly legal statute would have done. Voght v. Buffalo, 133 N. Y., 463.
    The theory of all special assessments is that the property assessed has received special benefits by reason of the improvement, equal to or in excess of the amount of the assessment.
    If this result, viz.: That the assessment does not exceed the special benefits conferred, has been obtained, it. is immaterial what method the assessing board used to determine the amount of the assessment. The assessment is nevertheless valid.
    This court has in its former decisions refused to grant relief to a petitioner when it appeared from an examination of the record that such petitioner was suffering no injury, even though the act which the petitioner complained of was, technically speaking, illegal. The court will recall that after the decision by. the Supreme Court of the United States in Norwood v. Baker, 12 O. F. D., 228; 172 U. S., 269, it was supposed that assessments by the front foot rule had been declared illegal by the United States Supreme Court. After this decision, and previous to the decisión by the same court in French v. The Barbour Asphalt Paving Co., the case of Schroder v. Overman, 61 Ohio St., 1, was submitted to this court. In that case the record showed that the “benefits conferred by the improvement for which the assessment was levied equalled or exceeded the amount of the assessment.” In that case the court sustained the assessment, basing its decision on the ground that the improvement of the street was a benefit to the plaintiff’s property, and that the amount of the benefits to said property was more than the amount of said assessment against the same, and inferentially on the ground that the cost and expense of the improvement had been properly apportioned among the lots and lands benefited thereby.
    The assessment “per abutting foot” even if unauthorized expressly by statute is, when it is also in fact, according to benefits, a “technical error.”
    Proceedings in the improvement of a street are proceedings within the scope of section 79, Revised Statutes. Raymond v. Cleveland, 42 Ohio St., 522; Cincinnati v. Seasongood, 46 Ohio St., 296.
    The jurisdictional steps having been had in the improvement proceedings and expense having been incurred which is a proper .charge against the property, the right to a judgment therefor in favor of the City is given by section 2289. Walsh v. Sims, 65 Ohio St., 211.
   Speak, J.

Plaintiff’s action was based upon section 5848, Revised Statutes, which confers jurisdiction to enjoin the illegal levy or collection of taxes and assessments, and the grounds on which this assessment is claimed to be illegal are two. One that the statute under which the assessment was made, being section 2264b, Revised Statutes, is unconstitutional in that it deals with a subject of a general nature and has not a uniform operation throughout the state; in other words that it applies only to Cincinnati. The other, that the method of assessment, being by the abutting foot instead of according to benefits, renders the assessment void; but no claim is made that there is any want of notice of intention to improve, nor any irregularity in the passage of the resolutions or ordinances providing for the improvement.

We think neither proposition can be maintained. It is true that the section referred to is obnoxious to the late rulings of this court condemnatory of special legislation, but that conclusion by no means concludes the inquiry. The section, or the act of which it is a part, repeals former laws upon the subject, and if the act in the particular complained of be unconstitutional the repealing clause, by a well understood rule, would also fall with it. It cannot be important to pursue this inquiry in detail and thus settle upon the next preceding act which would meet the present view as to uniform operation. It is enough to say that the original municipal code, in its provision for special assessments, 66 O. L., 245-247, provides generally for street improvements “by any city or incorporated village;” and while the specific steps there provided are not precisely the same as those enjoined by the later acts including the act in question, yet the substance is the same. The later ones equally protect the rights of the landowner; and in this inquiry we are to be controlled by substantial considerations and not by mere technicalities. Sections 2289 and 2327, Revised Statutes.

But another consideration sufficiently answers the proposition. This improvement was made in the year 1897. Prior to that date legislation in its essential features identical with that which is here assailed had been distinctly sustained by the courts upon a full consideration of the precise objection which is here urged. The case of Scheer v. Cincinnati, brought to enjoin a street assessment, decided by the superior court of Cincinnati in 1885, involved an inquiry into the validity of the act of April 25, 1885 (82 O. L., 156), which was supplementary to section 2293, Revised Statutes. The act authorized the improvement by paving with granite blocks, etc., streets in cities of the first grade, first class, and the holding was (opinion by Harmon, J.), that it was not invalid by reason of section 1, article 13, or of section. 26, article 2, of the constitution; and the assessment was sustained. That case was prosecuted by plaintiff to this court, and the judgment of the superior court affirmed January 19, 1886, 15 L. B., 66. This holding was cited approvingly and the principle involved affirmed in State v. Hudson, 44 Ohio St., 137, and repeatedly reaffirmed by decisons of this court, and remained the law of the state until the decisions involving the government of the cities of Toledo and Cleveland, announced June 26, 1902, State v. Jones, 66 Ohio St., 453; State ex rel. v. Beacom, 66 Ohio St., 491. So that the inquiry comes finally to this: Is the owner of property which has been assessed for the improvement of a street entitled to an injunction restraining the collection of such assessment where a statute in all material respects the same as the statute under which the improvement was made and the assessment levied, and the bonds of the municipality to pay the cost issued, had been theretofore adjudged valid by the highest court of the state, simply because similar legislation was held by the same court long afterwards to be in violation of the constitution? We answer the question unhesitatingly in the negative.

It is a principle of universal application that a cause of action once finally determined between parties by a competent tribunal cannot afterward be litigated between the parties or their privies by a new proceeding. It is the principle of res judicata. It rests not only on the private rights of the parties, but is a principle of public policy, having been characterized as a “fundamental concept in the organization of civil society.” Jeter v. Hewitt, 22 How., 352. It is equally well settled as a general proposition, admitting, however, of exceptions, that courts will adhere to and follow decisions of the highest court of the jurisdiction where the same points come again in litigation; and the rule is of universal application where the law has become settled as a rule of property, by reason of such earlier decisions, and rights have become vested on the faith of them. This is the doctrine of stare decisis. The broad principle lying at the base of both of these rules is embraced in the translation of the term res judicata, viz.: “That the matter has been decided.” So that if a matter or point in issue has been decided in such a way as to bind the parties to the new action, whether they were parties to the former suit or not, and whether, where the validity of a statute is involved, the precise statute was in question or not,-the former decision will control. Such is the case we have. The City’s bonds have been issued to pay for the improvement, and such as have not been paid are held by innocent investors, and thus property rights and liabilities have grown up and become fixed beyond change on the faith of the decisions of this court upon the precise question which is involved in this inquiry; and the decisions do, for the reasons stated, bind all persons affected by the street improvement thus made. It would be glaring injustice to the City and its general taxpayers to now hold that the acts of public agencies which carried on governmental functions by the authority and upon the faith of those decisions were invalid, even though, were the question presented in a way to affect only new conditions, a contrary holding would be imperative.

The underlying principle presented is not dissimilar from that involved in the City of Cincinnati v. Taft, 63 Ohio St., 141. There was present in that case a question as to the constitutionality of an act supplementary to that which authorized the issue of bonds for the construction of the Cincinnati Southern Railway. This act, if it were new legislation, would be now condemned as unconstitutional; but it having been sustained by the decision in Walker v. Cincinnati, 21 Ohio St., 14, the court held in the Taft case, without regard to the constitutional question, that: “An act of the general assembly to authorize a municipality to issue bonds for the construction of a public improvement having been adjudged by this court to be constitutionally valid, and the bonds having been thereafter sold and the improvement made, the court will follow the former decision as to the validity of supplementary acts relating to the renewal or extension of such bonds.” It would appear that this branch of the present case might be disposed of on the authority of that case.

Nor is the assessment invalid because made in terms by the abutting foot instead of in terms according to benefits, the record showing that the assessment did not exceed tbe special benefit to the land. Schroder v. Overman, 61 Ohio St., 1; Walsh v. Barron, same volume, 15; Walsh v. Sims, 65 Ohio St., 211.

Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


source: Caselaw Access Project

author: Burket, C. J..

license: Public Domain

text:
    Metropolitan Life Insurance Co. v. Howle.

      Life insurance — Section 3623, Revised Statutes — Copies of application to accompany policies issued — Where copy not returned with policy — Insurance company estopped from denying truth of application — Physician may testify to facts independent of privileged communication — Testimony as to state of health of person — Condition of policy that insured he in sound health at date of policy — Instructions to fury.

    1. Where under Section 3623, Revised Statutes, a full and complete copy of the application for insurance has not been returned with the policy, the insurance company while so in default is estopped from denying the truth of such application, but to make such estoppel available the facts constituting the estoppel must be plead by the plaintiff.
    '2. It is not competent to prove by a physician the communications made to him by his patient in that relation, but such physician may testify as to facts which are within his knowledge independent of such communications. He may testify as to the condition and state of health of his patient, as well as the treatment by him prescribed for his patient.
    3. Where the state of health of a person is in question, and one side introduces evidence showing that such person could and did, about the time in question, walk about the house and on the streets and in other places, it is competent for the other side to prove that about the same time the person in question walked but little.
    4. Where a policy of life insurance has a condition to the effect that the company assumes no obligation unless the insured is at the date of the policy alive and in sound health, and there is an issue as to whether at that time the insured was in sound health, the insurance company is entitled upon the trial to have the jury instructed unconditionally to find for the company in case they find that the insured was not in sound health at the date of the policy.
    (Decided June 23, 1903.)
    Error to the Circuit Court of Cuyahoga county.
    This same cause was here once before, and is reported in Life Ins. Co. v. Howle, 62 Ohio St., 204; the cause now here being the one brought upon the two small policies, one for $126, dated September 25, 1893, and the other for $500, dated November 12, 1894. The policies were on the life of Sarah Howie, and ran in favor of her husband, said Henry Howie. She died September 5, 1895.
    The petition is in the usual form, and avers that he and she duly performed all of the conditions of said policies on their part to be performed, made proofs of death and demanded payment which was refused, followed by a prayer for judgment.
    The amended answer is as follows:
    “First ground of defense. Now comes the Metropolitan Life Insurance Co., defendant in thi& action, and for its first ground of defense, admits its corporate existence under the laws of the state of New York; the execution of two policies of insurance upon the life of Sarah Howie, in the sums and for the considerations stated in the petition in this case; the payment of the premiums, the death of said life; and denies each and every other allegation in said petition. '
    “Second ground of defense. For its second ground of defense, this defendant says, said policies were issued in consideration of the warranties, answers, statements and agreements in the applications therefor, by said deceased, made to defendant on September 9, 1893, and October 24, 1894, respectively, copies of which are hereto attached, marked respectively ‘Exhibit C,’ and ‘Exhibit D,’ and made part hereof, in which said deceased declared and warranted that the representations and answers therein made were strictly correct and wholly true; that any untrue answer would render the policy issued thereunder hull and void; and that neither of said contracts of insurance should bind the defendant, unless, upon their dates and delivery, she was in sound health.
    “And defendant says, the following answers, warranties and statements in the application, ‘Exhibit C,’ were wilfully false and fraudulently made, to-wit: That the deceased never had pneumonia, or disease of the heart or kidneys; never been under any treatment in any dispensary, hospital or asylum; and was on the said September 9,1893, in sound health.
    “And that the following answers, warranties and statements in said application, ‘Exhibit D,’ were wilfully false and fraudulently made, to-wit: ■ That the deceased on said October 24, 1894, was not insured in any other company except this defendant’s; never had pneumonia or disease of the heart or kidneys; never had been under treatment in any dispensary, hospital or asylum; never been seriously ill; was on said day in sound health; and that no application for insurance on her life had been prior to said day rejected or declined by any other company.
    “And defendant says, that prior to said respective days in September, 1893, and October, 1894, said insured had pneumonia and disease of the heart and kidneys; had a miscarriage; had been under treatment in the Wooster University Dispensary or Hospital at Cleveland, Ohio; had been seriously ill; and an application for insurance on her life had been rejected or declined by an insurance company. And that on neither of said days, nor on the respective days and dates of delivery of said policies was said insured in sound health. All of which was well known to plaintiff and said insured.
    “Defendant further says that- said answers in said application were material and induced it to issue said policies; that but for such answers and warranties, neither of said policies would have been issued; and that the defendant’s agent had no knowledge of the falsity or fraud of said answers or any of them.
    “Wherefore this defendant prays to be hence dismissed with its costs.” ^
    The reply is a general denial of the answer.
    Upon trial to a jury there was a verdict for the plaintiff for the full amount claimed on both policies. A motion for a new trial was overruled, and judgment-entered on the verdict. Proper exceptions were taken and saved throughout. The circuit court affirmed the judgment, and thereupon the insurance company came to this court, seeking to reverse the judgments of the courts below. The grounds of error will be stated in the opinion.

      Mr. C. L. Holtze, for plaintiff in error.

      Messrs. Hart & Canfield and Mr. W. S. Kerruish, for defendants in error.
   Burket, C. J..

Upon the trial the defendant, insurance company, had a witness upon the stand with one of the applications for insurance in his hand, and was proceeding to prove that the answers to the several questions therein were made by said Sarah Howie, and that said answers were false, when counsel for plaintiff below objected on tbe ground that said defendant had failed to prove in open court that it bad returned with said policy a complete copy of said application as required by Section 3623, Revised Statutes. Tbe court sustained tbe objection, and excluded both of said applications, to wbicb tbe defendant excepted. Said section 3623 is as follows:

“Every company doing business in tbis state shall return with, and as part of any policy issued by it, to any person taking sucb policy a full and complete copy of each application or other document held by, it wbicb is intended in any manner to affect tbe force, or validity of sucb policy, and any company wbicb neglects so to do shall, so long as it is in default for sucb copy, be estopped from denying tbe truth of any sucb application or other document; and in case sucb company neglect, for thirty days after demand made therefor, to furnish sucb copies, it shall be forever barred from setting up, as a defense to any suit on such policy, any incorrectness or want of truth of sucb application or other document.”

Under tbe provisions of tbis section a failure to return a full and complete copy of tbe application with tbe policy, works an estoppel, so long as tbe company shall be in default, and in case of neglect to furnish sucb copy for thirty days after demand made therefor, sucb neglect shall be a bar to any and all defenses growing out of sucb applications and tbe answers to questions therein contained. Tbe bar here provided for is a permanent estoppel. To make an estoppel or sucb bar available tbe facts constituting tbe same must be plead in all cases where tbe same is practicable.

In tbis case tbe plaintiff below should have plead tbe estoppel in bis reply, but instead of so doing be contented himself with a general denial, and thereby denied the existence of such applications. As the applications in this case in fact existed, he should have admitted that fact in his reply, and avoided their effect by pleading the failure to return copies, and thereby made the estoppel available. The defendant company was not required in its answer to say whether a full and complete copy of the application had been returned with each policy or not. The denial of the existence of the applications might be taken as an argumentative denial of their return with the policies, but pleadings should be direct and not argumentative. As the pleadings stood the court erred in excluding the evidence.

In the court’s charge as to expert testimony the word plaintiff’s was used when the word deceased’s was evidently intended. The intention was so clear that it would seem that the jury could not have been misled thereby. The real meaning of the court in other regards as to expert testimony was not so clear as the above mistake, and is not approved, and should not be followed.

The defendant company introduced Dr. Steiner as a witness in its behalf, and asked him the following question: “Now Doctor, what, if anything, did Mrs. Sarah Howie say to you during the times that she came to you for examination and treatment as to the length of time of her disease?” Objection being made the witness was not allowed to answer. Under Section 5241, Revised Statuses, this ruling was correct. That section provides as follows: “The following persons shall not testify in certain respects: A physician concerning a communication made to him by his patient in that relation, or his advice to his patient.” This question clearly sought to have the physician disclose a communicalion made by his patient to him in the relation as patient, and was therefore incompetent.

Each policy had this condition: “Provided however that no obligation is assumed by this company prior to the date hereof, nor unless on said date the insured is alive and in sound health.”

In view of this condition the defendant company, introduced Dr. Crooks as a witness, and the record discloses the following: “Q. From your treatment of Mrs. Sarah Howie, and the facts you have testified to, what do you say was her state of health on November 12, 1894? A. She was not in sound health on that day. Q. You may state what was her condition on that day. Objected to; objection sustained. Q. What, if anything, did you prescribe for her, if you remember, in November, 1894? Objected to; objection sustained.”

In each instance the defendant company by its counsel excepted, and stated what the answer would be, and the same was in each instance pertinent and competent.

The evidence so offered was not a communication by the patient to the physician, but was as to the independent knowledge of the physician, and was clearly competent, and the court erred in excluding the same.

The plaintiff offered evidence to the effect that his wife, during the dates in question, walked around the house and to market, and walked as naturally as anybody. To contradict this the defendant company introduced a Mrs. Kendall, a neighbor, and asked her the following question: “Did the woman walk a great deal or very little? What do you know of your own knowledge as to her going out much or little in those days, if you know?” Objection being made she was not allowed to answer. She would have answered, if permitted, that in those days Mrs. Howie walked out but little. The insurance company was clearly entitled to this evidence, because it had a direct bearing as to whether or not she was in sound health. As an element to show sound health the plaintiff attempted to prove that she did much walking, and the defendant had a clear right to show that the statements as to the walking were not true.

The insurance company by its counsel requested the court to give the following charges to the jury:

“2. If you find from the evidence that Mrs. Sarah Howie was not in sound health on the 12th day of November, 1894, and on the 25th day of September, 1893, the respective dates of the two policies upon which this suit is brought, you must find in favor of the defendant company.
“3. ■ If you find from the evidence that Mrs. Sarah Howie was not in sound health on the 12th day of November, 1894, the date of one of the policies, you must find for the defendant upon that particular policy.
“4. If you find from the evidence that Mrs. Sarah Howie was not in sound health on the 12th day of November, 1894, and on the 25th day of September, 1893, or on either of said days, you must find for the defendant, and it makes no difference whether she knew or did not know that she was not in sound health.”

The court refused to give either of said requests, and said to the jury:

“I have been asked by the defendant to make certain charges. Except as Í have given the matter in a qualified way in the general charge I decline to give these requests.”

The charge as given on the subject, and which the court conceded to the jury to be in a “qualified way” was as follows:

“I say to you, gentlemen, that if you find Mrs. Howie was not in sound health, within the meaning of the definition I have given you, if she was not thus in sound health on September 25,1893, and November 12, 1891, under such circumstances, it would be your duty to render a verdict for the defendant If you find that the plaintiff has complied with the terms of the policy in question, and if Sarah Howie was in sound health at the time of the issuance of these policies in question, under such circumstances the plaintiff would be entitled to recover.”

The charges as requested are direct and to the point, and should have been given, while the charge as given referred*to the circumstances, and was well calculated, if not intended, to furnish a suggestion to^ the jury by which they might ease their. consciences and bring in a verdict against the insurance company. A court in charging a jury should so evenly balance the scales of justice as not to indicate by a wink, look, shake of the head, or* peculiar emphasis, as to his notions as to which way the verdict should go. When a case is*to be submitted to a jury at all, it should be impartially submitted, and if the court feels that the case* is so clear as to require an indication from him, he should direct a verdict, and then his action can be easily reviewed in a higher court; but if he gives a charge which looks fair on paper, bui which is in fact distorted by his looks, attitudes, emphasis, winks, and rolling of the eyes, an unjust result is often attained which cannot be corrected in a higher court.

There is not much difference between the charge as requested and as given, yet there is enough to disclose to any good trial lawyer that a jury would understand that the court felt that the plaintiff ought to recover, and therefore the insurance company did not have a fair trial.

The judgments of the lower courts will be reversed and the cause remanded for a new trial.

Judgments reversed, and cause remanded.

Spear, Davis, Shauck, Price and Crew, JJ., concur.


author: Price, J.

text:
    American Cigar Co. v. Mayer, and The Havana-American Co.

      Attachment and garnishment — Section 5545, Revised Statutes— Attachment may be discharged by undertaking — Joint action against several defendants — Answer by garnishee that he holds property of one defendant — Other defendant may not discharge attachment and give undertaking, when — Error for court to discharge such garnishee.

    1. In a joint action against several defendants for the recovery of a money judgment against them, in which an affidavit for attachment and garnishment is filed which charges that the garnishee has in his possession property, money, etc., belonging to the defendants, and is indebted to them in a certain sum for goods purchased of them, and the garnishee in response to the writ, answers that he is indebted to one of said defendants in a certain sum, which he is -ordered to pay into court and does so, it is incompetent for the other defendant, without establishing that the sum so due from the garnishee is his own separate property, to procure a discharge of the attachment and of the garnishee, by giving an undertaking that the obligors therein will perform the judgment of the court against him.

      2. Under the provisions of Section 5545, Revised Statutes, the undertaking in such case must contain the condition that the obligors will perform the judgment which the court may render in the action; and it is error for the court to approve nn undertaking for such discharge, and discharge the garnishee from further liability if said latter and statutory condition is not contained in said undertaking.
    (Decided June 25, 1903.)
    Error to the Circuit Court of Franklin county.
    On August 10,1901, Jacob I. Mayer, a defendant in error, filed his petition in the court of common pleas of Franklin county, against the plaintiff in error, The American Cigar Co., and The Havana-American Co., to recover the sum of $5,000 with interest from June 17, 1901.
    As grounds for recovery, the petition, in substance alleges, that the two companies named are foreign corporations, and that on or about May 11, 1900, The Havana-American Co. entered into a written contract with the plaintiff, by the terms of which the plaintiff was to give his services to the said company for a period of one year from July 1, 1900, to June 30, 1901, as salesman in selling cigars made by said Havana-American Co., in most of the principal cities of the United States, between Portland, Maine, and Denver, Colorado, upon an average commission of about one and one-half per cent.; that the written contract pro-1 vided, that if the said Havana-American Co., should cancel or terminate the said contract with the plaintiff at any time between January 1, 1901, and June 30,1901, the said company would pay the plaintiff the sum of $5,000 in cash in lieu of his commission, for the termination or cancellation of the contract before the expiration thereof.
    It is further alleged that the plaintiff entered upon his duties under the contract on July 1,1900, and continued to carry out all its terms on his part until the contract was terminated by the Havana-American Co., on June 17,1901, during which time plaintiff had built up a very large and extensive trade for said company, the sales made by him aggregating more than half of a million dollars; and that on June 17, 1901, the Havana-American Co. sold, assigned, and transferred all its property, assets and business of every kind, to its codefendant, the American Cigar Co., and ceased business, terminated and cancelled said written contract, whereby there became due the plaintiff $5,000 as provided by the terms of the contract.
    The plaintiff further alleges, that at the time of the said sale and transfer, as part of the consideration for1 the same, the American Cigar Co. agreed and assumed in writing to pay all debts and liabilities of the Havana-American Co., and especially agreed to pay all the indebtedness of the latter company to the plaintiff, under its contract with him before stated; and that neither company has paid- him any part thereof, and judgment is prayed for $5,000.
    An affidavit for attachment was filed with the petition which is as follows: -
    “Jacob I. Mayer, the above named plaintiff, being duly sworn, says that the claim sued unon in the above entitled and foregoing petition is for a debt and demand arising upon a written contract for the employment and services of the said plaintiff, and that the said claim is just, and affiant believes he ought to recover thereon the sum of five thousand dollars ($5,-000), with interest thereon from" June 17, 1901, and that the said defendants, the. Havana-American Co. and-the American Cigar Co., are both foreign corporations and non-residents of the state of Ohio, and that the said Jacob I. Mayer has good reason to believe, and does believe, that George W. Poor, of the city of Columbus, Ohio, has property of said defendants, consisting of money due the said companies from the said George W. Poor, on account of goods sold and delivered to him by the said companies, and that the same is subject to attachment and garnishment in this action.
    “Jacob I. Mayer.
    “Sworn to before me and subscribed in my presence by the said Jacob I. Mayer, this tenth day of August, A. D. 1901.
    “C. C. Snyder,
    “Notary public in and for said county.”
    Summons for each defendant issued on the petition, and was returned not served because neither party named therein could be found within Franklin county. An order of attachment was issued on the affidavit; also, a writ of garnishment for George W. Poor, named in the affidavit. The sheriff was unable to find any real or personal property whereon to levy the attachment, but on the same day, August 10,1901, he served said George W. Poor with a certified copy of the order of garnishment, which was returnable on August 19,1901.
    The garnishee appeared in court, and his examination is as follows:
    “Examination of George W. Poor as garnishee in this case.
    “Question 1. State i'f you have any property or effects of the said defendant, the Havana-American Go. - and the American .Cigar Co. in your possession or under your control. If so, describe it; and state where it is. Answer. No.

      “Question 2. State if you are indebted to tbe said defendant, tbe Havana-Ameriean Co. and tbe American Cigar Co. in any sum or sums of money, for any cause or causes of action whatever. If so, state the amount of it, how evidenced, and when payable. Answer. Yes, I am; prior to June 17th last, I had placed orders for cigars with the Havana-Ameriean Co., and the cigars so ordered have been delivered to me. The bills for these cigars as rendered, less freights, allowances and discounts, amount to sixteen hundred fifty-five dollars and thirty-six cents ($1,-655.36), and this amount is subject to certain set-offs in my favor, but the amount of said set-offs have not yet been settled or adjusted between us.”
    Notices for defendants by publication were given.
    On, October 16, 1901, the court ordered the garnishee to pay into court the sum of $1,200, which he admitted he owed as garnishee. On his application this order was modified, reducing the amount to be paid into court to $923.21, which amount was paid into court.
    Thereupon the American Cigar Co., plaintiff in error, entered into the following undertaking to discharge the attachment and garnishment:
    “The State of Ohio, Franklin County, ss. Court of Common Pleas. Jacob I. Mayer, plaintiff, v. The Havana-Ameriean Co. and The American Cigar Co., defendants.
    “Whereas, Jacob I. Mayer has commenced a civil action against the Havana-Ameriean Co. and the American Cigar Co. in the court of common pleas of Franklin county, Ohio, to recover the sum of five thousand dollars, with six per cent, interest from June 17, 1901, and whereas an order of attachment and garnishment has been issued in said action and the property of said The American Cigar Co. has been attached and is now bound therefor, and money of said The American Cigar Co. has been garnisheed in the hands of George W. Poor, garnishee; and whereas Charles O. Benbow, on behalf of said American Cigar Co., desires to have the said property discharged from said attachment, and said garnishee released from liability for money or property of said American Cigar Co.
    “Now, therefore, we hereby undertake and bind ourselves to the said plaintiff, Jacob I. Mayer, in the sum of ten thousand two hundred dollars that the said defendant, the American Cigar Co. shall perform the judgment of the court in this action against it, said American Cigar Co.
    “Columbus, Ohio, October 2, A. I>. 1901.
    “Charles C. Benbow,
    “Arch S. Hammond.”
    The record shows that the undertaking was presented to the court on October 29, 1901, for approval. The plaintiff objected to the undertaking, because it was a bond in behalf of one, and not both of the defendants, and that it is not conditioned according to law. The court disregarded the objections, and ordered “that the attachment heretofore issued herein against the said The American Cigar Co. be discharged, and that George W. Poor, garnishee herein, be also discharged from further liability herein as to any property or money of said American Cigar Co. in his possession.” To this action of the court plaintiff excepted.
    To the order approving the undertaking and so discharging the attachment and the garnishee, the plaintiff prosecuted error in the circuit court, where the orders of the court of common pleas were reversed and set aside.
    The proceeding here is to reverse the judgment of the circuit court.

      Messrs. Arnold, Morton & Irvine, for plaintiff in error.

      Mr. T. E. Powell, for defendant in error.
   Price, J.

By the judgment of reversal, the circuit court declared that the undertaking for the discharge of the attachment and the garnishee, is not in compliance with the statute, and for that reason the court of common pleas erred in approving it and ordering the discharge of the garnishee.

The provision for the discharge is Section 5545, Revised Statutes, which reads:

“If the defendant, or other person on his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff, by sufficient surety resident in the county, to be approved by the court, in double the amount of the plaintiff’s claim as stated in his affidavit, to the effect that the defendant shall perform the judgment of the court, the attachment shall be discharged, and restitution made of any property taken under it, or the proceeds thereof; and such undertaking shall also discharge the liability of a. garnishee in the action, for any property of the defendant in his hands; * *

It is the claim of the plaintiff in error that the undertaking is not required to be conditioned strictly according to the language used, and that while the statute provides that such undertaking shall be “to the efect that the defendant shall perform the judgment of the court,” it means only, that the defendant giving, or on whose behalf, the undertaking is given, will perform the judgment of the court against Mm or it, if one should be rendered.

This must have been the view taken by the court of common pleas when it approved the undertaking in this case, because, it is not conditioned as the words-of the statute require, but binds the obligors, that the American Cigar Co., on whose behalf it Avas executed, will “perform the judgment of the court in this action against it, said American Cigar Co.”

To determine which of the lower courts is right in its construction of the statute, requires attention to the nature of the suit brought, but more especially to the affidavit upon which the attachment issued.,

The defendants were sued jointly by the plaintiff, and if we look into his petition, we may find that the liability of the defendants as asserted, is not strictly a joint liability; yet the averments are such that he might have a joint recovery, or a recovery against one of the defendants, as the facts may warrant on trial of the case. v

However, we do not determine questions arising on attachment proceedings by the allegations of the petition alone; but we look to the affidavit filed upon which the attachment is ordered, or garnishment made.

This is in accordance with the language of the statute quoted, because the undertaking shall be “in double the amount of the plaintiff’s claim as stated in his affidavit,” etc.

When we turn to the affidavit filed in this case, we see that it asserts a claim against both defendants who are foreign corporations and non-residents of Ohio, and “that George W. Poor has property of said defendants, consisting of money due the said com- parties from the said George W. Poor, on account of goods sold and delivered to him by the said companies, and that the same is subject to attachment and garnishment in this action.”

Another important feature of the case deserves attention here. The garnishee, Poor, answered in substance that he purchased the goods from the Havana-American Co. who delivered them to him and that he owed therefor the sum stated in his answers. He said nothing about the American Cigar Co. as his creditor, and the Havana-American Co. is not a party to the undertaking nor did it give one of its own.

On this condition of the case and at this stage of the proceedings, what right had the American Cigar ‘Co. to give the undertaking in question and have the garnishee discharged?

The general effect of the undertaking is, to restore to the party giving it, the property attached or its proceeds, if it had been sold, and that the garnishee be discharged from further liability.

It is true that in this case, when the undertaking on behalf of the American Cigar Co. was approved, the order of discharge Avas made as to that company, and that Poor, as garnishee was discharged “from further liability herein as to any. property or money of said American Cigar Co. in his possession.” But who had determined to whom his indebtedness runs? He owed but one debt, and it Avas not due to both. He is not liable to both companies.

As we understand the record and statements of counsel, the case has not yet been heard on the merits, and it has not been decided by either court or jury, whether the plaintiff has a right to recover jointly of the defendants, or of either of them. And the question recurs; what right had the American Cigar Co., in advance of such decision, to gain possession of the money owing by the garnishee, to one or the other of the defendants, and take it out of court, on the giving of the undertaking under consideration?

It is apparent from the record, that while the 'American Cigar Co. submitted itself to the jurisdiction of the court of common pleas, by a motion and perhaps otherwise, the other defendant has not done so, and that service by publication alone has been obtained over it. And that form or kind of jurisdiction depends on the seizing or garnisheeing of property, moneys, etc., within the jurisdiction of the court from which the writ issued. With the subject matter of the attachment or garnishment discharged by the undertaking for that purpose, there is nothing left upon which to acquire and hold jurisdiction over the Havana-American Co., unless it is contemplated by the order of the common pleas, that the garnishee may be compelled to pay his indebtedness twice; once to the American Cigar Co. which has been done, and again to the Havana-American Co., in case the plaintiff should recover against it.

The scene is not improbable, that on trial of the merits of the action the finding may be only against the Havana-American Co. How could the court enforce it? It could render no personal judgment beyond the amount due from the garnishee. He has been discharged from further liability as to what he owed the American Cigar Co., but under guise of that proceeding he has paid all he owes on his purchases into court and by virtue of the undertaking, the American Cigar Co. has taken, or can take the money. Shall he pay again, in case the plaintiff shall recover of the other company? That would be high-handed injustice; but just such a paradox is probable, if the order of the court of common pleas is to stand. The court would undermine its own jurisdiction, and become powerless to enforce any judgment against the Havana-American' Co. Can the court order the 'American Cigar Co. to pay hack into court the money garnisheed? No; because it obtained possession under the order of that court, which would be a good answer to such an order. The statute intends to prevent such probable complications, and keep the way clear for the court to enforce the judgment it may finally render.

We do not intend to say, that in a proper case and on a proper showing, one of-several defendants may not have an attachment discharged from his separate property by giving the statutory bond. But no such case is present in the record. No separate interest in the funds garnisheed was disclosed; no showing was made of a right to any part of it.. The American Cigar Co. constituted itself sole arbiter, and obtained practically and in effect the entire subject matter of garnishment.

If the defendants, or one of them, in advance of any determination of their joint or several liability; and in advance of any determination as to whose property ought to remain under the lien, desire to step in and procure a discharge of the attachment, or of the garnishee, it is but fair that the undertaking shall be as the law requires, — to perform the judgment of the court when the case has been heard on its merits.

Where property has been seized or garnisheed, in order to avoid and prevent possible, and probable complications in carrying into execution, a judgment against one or more defendants, if one should be obtained, and to continue the jurisdiction of the court first acquired, until the rights of all the parties are adjusted, our statute has in very plain language provided that the undertaking shall bind the obligors to perform the judgment of the court. If they fear to do this, the defendant, or defendants can await the final judgment.

There is no argument in the fact that the statute uses the words “the defendant or any one on his behalf,” etc., and, “defendant shall perform the judgment of the court,” etc.

By virtue of Section 4947 of Revised Statutes, it is said — “and words in the plural include the singular, and in the singular include the plural number,” etc.; and the section authorizing the discharge of an attachment, is to be construed in reference to this rule established for the “interpretation of words.”

A majority of the court concur in the judgment of the circuit court and it is affirmed.

Judgment affirmed.

Burket, C. J., Spear and Davis, JJ., concur.


author: By the Court:

text:
    State of Ohio ex rel. Guilbert, Auditor of State, v. Kauffman, Auditor of Montgomery County.

      Doto law — Section Jf36Jf-0, Revised Statutes — Tax laid on liquor business — Law applies to malt liquor.

    Seetion 4364-9, Revised Statutes, applies to the business of selling a malt liquor or beverage which contains less than two per cent, of alcohol and is not intoxicating.
    (Decided June 25, 1903.)
    Mandamus.
    The petition is as follows: “The relator is the duly elected, qualified and acting auditor of state of the state of Ohio. The defendant, Thomas J. Kauffman, is the duly elected, qualified and acting auditor of Montgomery county, Ohio.
    “The relator represents that Clarence W. Brinkle and Leroy L. Reading are engaged as partners, under the firm name of Brinkle & Reading, in the sale of a malt liquor or beverage, commonly known as “Bishop’s Beer,” at No. 134 East Fourth street, in the city of Dayton, Montgomery county, Ohio, which malt liquor or beverage contains less than two per cent, of alcohol, and is not intoxicating.
    “That said relator gave to the said defendant as county auditor aforesaid, information that such business was liable to assessment under the provisions of the act of May 9, 1902 (95 O. L., 463, 464, 465), entitled: ‘An act to amend and supplement section 4364-14 and to amend section 4364-15, and to repeal an act passed April 16, 1900, relating to trafficking in spirituous, vinous, malt and any intoxicating liquors, entitled, an act to supplement section 4364-9 of the Revised Statutes of Ohio, as amended February 20, 1896 (O. L., Yol. 93, page 24), and being sections 4364-9a, 4364-9c (4364-9b, 4364-9c), 4364-9d, 4364-9e of the Revised Statutes of Ohio.’
    “That said business had not been returned by any assessor, as provided by said act, and the said relator ordered and directed the said defendant to forthwith enter the same upon his duplicate, and upon the county treasurer’s copy thereof, so as to subject said business to the tax provided in said act, and the act to which the same is amendatory and supplementary,known as the Dow Law, but which the said defendant failed and has hitherto refused to do.
    “Wherefore the relator prays that a writ of mandamus issue by this court, commanding the said defendant as auditor of Montgomery county, Ohio, to enter the same upon his duplicate, and upon the county treasurer’s copy thereof, as subject to such tax.”
    Defendant demurs t'o the petition for the reason that it does not state facts sufficient to warrant the relief prayed for.

      Mr. J. M. Sheets, attorney general, for plaintiff.
    The averments contained in the petition, that the beverage sold by the firm in question, is a malt liquor or beverage, and contains less than two per cent, of alcohol, and is not intoxicating, are admitted by the demurrer.
    We contend that the tax laid on the liquor business by the Dow law, comprehends just such a business as is here described. The admission that the beverage is not intoxicating, is assumed by the defendant to take it out from under the operation of the Dow law, and the defendant contends that section 8 of the law in question (83 O. L., 159), provides for the laying of a tax upon the business of “trafficking in intoxicating liquors,” alone, and cannot therefore be laid upon the business in question. This we deny.
    By reference to the original act (83 O. L., 157), it will be seen that the tax provided by the original act, was laid upon the business of trafficking in malt liquors, as well as those which were spirituous and vinous. The tax was laid by section 1 of that act.
    This section fixes the amount of the tax upon the different classes of business as follows:
    If the business was that of trafficking in spirituous, vinous and malt liquors, the amount of the tax was to be two hundred dollars annually. If the business was that of trafficking in malt or vinous liquors, or both, the tax would be but one hundred dollars.
    By thus providing for the greater tax to be paid when the person charged, was trafficking in spirituous liquors, and the lesser charge when such person was merely trafficking in malt or vinous liquors, it became apparent to the general assembly that keepers of such places were claiming to be selling malt and vinous liquors alone, and thus would pay but one hundred dollars annually, and escape the greater tax properly chargeable against the business surreptitiously conducted. In order to put an end to the fraud thus practiced, the law was so amended as to require the same tax from a person dealing in malt liquors as though he dealt in all the different classes of liquors named in the act. Section 4364-9, Revised Statutes.
    The relator contends that the imposition of three hundred and fifty dollars per annum, by the latter act, upon the business of trafficking in spirituous, vinous, malt or any intoxicating liquors, is upon the business of selling any or all of the character of liquors described -in the act, as a beverage; and that the terms, “spirituous, vinous, malt,” should not have read in connection therewith, the word “intoxicating,” as descriptive of the kind or character of liquors comprehended in those words; and that the phrase, “or any intoxicating liquors,” is a comprehensive phrase, to include a distinct class or kinds of liquors by themselves, and is not meant to limit or define the three separate classes which precede such phrase.
    The defendant claims that the terms should be read as if written, “spirituous intoxicating,” “vinous intoxicating,” “malt intoxicating” liquors.
    As a foundation for this contention, the relator claims the general assembly has full power to tax any business or occupation by any one of four methods: (1) On the privilege of doing business; (2) On the amount of business done; (3) On the gross profits; (4) On the net profits or dividends; and that this power so to tax is not confined to employments that may be prohibited nor to those that are harmful in and of themselves, nor those which impose any additional burden upon the public, but may be extended to any business or occupation. Cooley on Tax., Secs. 384, 385; Burroughs on Tax., Sec. 6.
    We now, as a state, derive the greater part of our income for general revenue, from a franchise tax imposed on domestic and foreign corporations, which tax is not predicated upon any harm suffered by the public from, the businesses carried on by such corporations.
    Relator contends that the sale of malt liquors, as a beverage, is unlawful, unless the terms of the Dow law are complied with. That this particular malt liquor contains alcohol, is admitted. If such business cannot be included by fair construction within the terms of the Dow law, we thereby sanction the selling of diluted alcohol under some innocent name, and such business would be perfectly legal and free from any tax, so long as the mixture would be kept ¡below the strength of an intoxicant.
    To avoid such results, which are now actually confronting the relator’s office, the construction should be adopted,, contended for, and the absurd consequences avoided. State v. Blake, 2 Ohio St., 147; Moore v. Given, 39 Ohio St., 661; Railway v. Jump, 50 Ohio St., 651.

      Mr. Charles Kinney; Mr. Frank W. Howell and Mr. U. S. Marten, for the defendant.
    If the business upon which the auditor of state ordered the county auditor to levy the assessment is subject to the impost, the auditor of state had the authority to so order, and it was the duty of the county auditor to levy the assessment.
    The article known as “Bishop’s Beer” was placed before the public in 1885, by Chas. F. Ogren, of Chicago, Ill., the renowned brewing scientist, at the special request of Rt. Rev. Samuel Fallows, D. D., LL. D., Bishop of Chicago, one of the leaders of the temperance movement at that time, as well as a powerful advocate of its cause at present.
    At that time Bishop Fallows, established a number of temperance saloons to run in opposition to the saloons selling intoxicating liquors. “Bishop’s Beer” was the beverage which was selected as being* the only substitute for intoxicating liquors and was sold in these temperance saloons. In taste and color or general appearance it cannot be distinguished from the best lager beer on the market, yet it is absolutely nonintoxicating, and its medicinal properties for an exhausted constitution are not excelled by some of the best known tonics.
    It has been indorsed by leading temperance workers everywhere as a great agency in their work, and since it is recognized by the masses of society that men must have places to congregate, and something to drink, this beverage fills all the requirements necessary, and tends to defeat the argument so often advanced, that one class of people have no right to absolutely restrain another of his liberty.
    In “Bishop’s Beer” we have a beverage brewed from pure malt and hops, containing all the food elements found in these two great products of the vegetable kingdom, yet devoid of the evil parts Avhich makes the so-called lager beer so injurious to the'health and such a destroyer of homes. It has become recognized as the “20th Century Beverage.”
    The manufacturers or agents will not permit its use.as a blind for the sale of intoxicants, and offer large rewards for the arrest and conviction of any one imitating or substituting it.
    The ravages upon the physical, intellectual and spiritual condition of our race by the habitual use of intoxicating beverages, together with the labors for the last forty years of benevolent and philanthropic individuals to arrest the scourge by efforts to produce a revolution in the sentiments, practices and habits of the community in respect thereto, have brought about several legislative enactments, among the most, important of which in our state is the Dow law. Section 18 of the Schedule, or section 9, article 15, of the Ohio Constitution, provides‘that: “No license to traffic in intoxicating liquors shall hereafter bu granted in this state; but the general assembly mgy, by law, provide against evils resulting therefrom.”

      Therein is found the furthering authority for all legislation against intoxicating liquors since the Constitution of 1851. Therein.was the key-note to the legislature’s adopting such legislation, a considerable force to be reckoned with in arriving at what they intended to legislate against by such enactments. Pursuant thereto, besides earlier acts of similar purport and hitting at' the same evil, the original “Dow law” was enacted in 1886 (83 O. L., 157), and transformed by successive amendments (84 O. L., 224-; 85 O. L., 117, 260). into Section 4364-9, et seq., Revised Statutes, 92 O. L., 34, the present law, whereby a tax is imposed “upon the business of trafficking in spirituous, vinous, malt or any intoxicating liquors.”
    The act throughout its several amendments above noted has been entitled “An act providing against the evils resulting from the traffic in intoxicating liquors:” Also see 94 O. L., 60; 95 O. L., 564; and invariably has such legislation been included under Title 5, Chapter 1, of the Revised Statutes, entitled “Intoxicating liquors and cigarettes

    Now, to discover the true meaning of the law, we must consider its reason and spirit, the cause which induced the law makers to enact it, and the mischief it seeks to prevent or remedy. However general may be the terms in which it may be expressed it only extends to those things or persons the law-making' power intended it to reach. Richard v. Lazard, 108 La., 540. In order to ascertain what that intention was, the title of the act should be looked to. Bronson v. Oberlin, 41 Ohio St., 483.
    And respondent’s construction thereof, as hereinafter set out, is fully supported by the aforementioned title of the act. Burgunder v. Weil, 60 Ohio St., 242.

      The entitling of the chapter and title of the Revised Statutes, also aforementioned, under which said section 4364-9 is found, being a part of the statutes, is also to be considered in arriving at the intent of the legislature. Harris v. State, 57 Ohio St., 94.
    Section 16, article 2, of the Constitution, provides that the subject of a law shall be expressed in its title.
    As the presumption is that the legislature has followed the beheSts of the Constitution, the ancillary presumption follows that the subject and purpose of the law are clearly and truly expressed in the title. Newton v. Toledo, 8 Circ. Dec., 607; 18 C. C. R., 765, (affirmed without report, Toledo v. Newton, 52 Ohio St., 649); Nazro v. Insurance Co., 14 Wis., 299; Spiedel Grocery Co. v. Armstrong, 4 Circ. Dec., 498; 8 C. C. R., 489 (affirmed and approved, Armstrong v. Spiedel Grocery Co., 53 Ohio St., 657).
    We find questions of statutory construction where the titles of the acts as indicating the legislative intention have swayed the court completely in the construction given.
    The similarity of these cases to the case at bar makes their reasoning especially applicable. And further, see Field v. Gooding, 106 Mass., 313; Trinity Church v. United States, 143 U. S., 462; Coosaw Mining Co. v. South Carolina, 144 U. S., 563; Burgett v. Burgett, 1 Ohio, 480.
    Also Section 4364-6, Revised Statutes (Sec. 8 of tiie act itself), which says: “The phrase ‘trafficking in intoxicating liquors,’ as used in this act, means the buying or procuring and selling of intowicating liquors otherwise than upon prescription issued in good faith, by reputable physicians in active practice, or for exclusively known mechanical, pharmaceutical or sacramental purposes, but such phrase does not include the manufacture of intoxicating liquors from the raw material, and the sale thereof at the manufactory, by the manufacturer of the same in quantities of one gallon or more at any one time.”
    It is admitted that “Bishop’s Beer” is a malt liquor containing less than two per cent, of alcohol and is not intoxicating. The question is thus sqnarely raised, whether all malt beverages are taxable under the Dow law whether intoxicating or not.
    The defendant’s contention is that the business of Brinkle & Reading is not subject to the Dow tax, as the legislature did not contemplate the taxation of any business, the prosecution of which was not damaging to the public or to third persons; that the object and purpose of the legislature, in enacting the Dow law, was to do just what the title of the act indicates, “To provide against the evils resulting from the traffic in intoxicating liquors ” and that there was no intention by this act to impose a tax upon the business of trafficking in any beverage, except those out of which evil grows, and resulting burdens are thus imposed upon the state. In further support of this we cite Adler v. Whitbeck, 44 Ohio St., 539; State v. Rouch, 47 Ohio St., 478.
    The evils growing out of some occupations or businesses may be such that their suppression can only be -obtained to any appreciable degree by the imposition of a restraint upon such business in the way of a heavy license or tax. Tiedeman’s Limitations of Police Power, Sec. 101.
    The imposition of such taxes necessarily decreases the number of places where such business is carried on, and this was the sole purpose of the legislature in the enactment of the Dow law, as evidenced by its principal features and provisions.
    We do not deny the power of the general assembly to levy assessments in the form of taxes on business or vocations. In fact it has done so in many cases; but as. to this particular business, if the legislature has the power, it has not seen fit or thought it necessary to exercise it.
    The policy of the legislature has been, as will be seen by an examination of the statutes in force, to levy special assessments in the form of taxes or licenses,' upon those vocations only the prosecution of which is injurious or dangerous to the public, or imposes special burdens, or where special benefits are conferred by the public upon those who follow such occupations.
   By the Court:

Section 4364-9, Revised Statutes, imposes a tax on the business of trafficking in any intoxicating liquors, and also on the business of trafficking in spirituous, vinous or malt liquors. The generic term “malt liquors” includes both nonintoxicating and intoxicating malt liquors. The statute was declared to be constitutional in Adler v. Whitbeck, 44 Ohio St., 539, and in Anderson v. Brewster, 44 Ohio St., 576, 581. The petition therefore states facts sufficient to warrant the relief prayed for, and the demurrer is overruled and a peremptory writ of mandamus is awarded as prayed.

Peremptory mandamus awarded.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7536.
    Winkleman v. Board of Trustees.
    (Decided February 17, 1903.)
    Error to the Circuit Court of Putnam county..

      Messrs. Bailey & Bailey, for plaintiff in error.

      Messrs. B traman & Malone, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7607.
    Edis v. Butler, Supt.
    (Decided February 17, 1903.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Hart, Canfield & Callaghan, for plaintiff in error.

      Mr. M. W. Beacom; Mr. Charles Y. Stocker; Mr. W. B. Wheeler; Mr. A. V. Taylor■ and Messrs. Babcock, Payer, Gage & Carey, for defendant in error.
   Judgment affirmed.

Speak, Shauck and Crew, JJ., concur.


text:
    No. 7613.
    In the Matter of the Estate of Higgins et al. v. Holmes, Jr.
    (Decided February 17, 1903.)
    Error to the Circuit Court of Franklin county.

      Mr. Thomas E. Powell, for plaintiffs in error.

      Mr. James T. Holmes, Jr., for defendant in error.
   Judgment vacated on authority of Falconer v. Martin et al., 56 Ohio St., 352, and cause remanded to the circuit court with direction to overrule the motion to dismiss, and to sustain the motion to file perfect transcript, and for further proceedings according to law.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7643.
    Ohio National Smoke Consumer Co. v. Pratt.
    (Decided February 17, 1903.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Hessenmueller & Bemis, for plaintiff in error.

      Mr. Frank O. Phillips, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7650.
    Knowlton v. Pond.
    (Decided February 17, 1903.)
    Error to the Circuit Court of Licking county.

      Mr. A. A. Stasel, for plaintiff in error.

      Messrs. Kibler & Kibler and Mr. David M. Keller, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7674.
    Shaffer v. Fate.
    (Decided February 17, 1903.)
    Error to the Circuit Court of Huron county.

      Messrs. Laser & Huston, for plaintiff in error.

      Messrs-. Donnel & Marriott; Mr. F. D. Gunsaullus. and Messrs. Andrews Bros., for defendant in error.
   Judgment affirmed on the ground that the contract was not part of petition, and not printed in bill of exceptions,. and is therefore not before this court for consideration.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7546.
    Downing v. Railway Co.
    (Decided February 24, 1903.)
    Error to the Circuit Court of Cuyahoga county.

      Mr. William J. Staricweather and Mr. John 3. Smart, for plaintiff in error.

      Mr. A. T. Ihgersoll, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7566.
    Central Trust Co. et al. v. Manhattan Trust Co.
    (Decided February 24, 1903.)
    Error to the Circuit Court of Allen county.

      Messrs. Harmon, Colston, Goldsmith '& Hoadly; Messrs. Doyle A Lewis and Mr. Leopold Wattach, for plaintiffs in error.

      Messrs. Wheeler & Brice; Messrs. Becker & Becker; Messrs. Richie, Leland '& Róby; Mr. G. B. Adgate-and Messrs. Gable & Parmenter, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Price and Crew, JJ., concur.


text:
    No. 7567.
    Central Trust Co. et al. v. Park Brothers et al.
    (Decided February 24, 1903.)
    Error to tbe Circuit Court of Allen county.

      Messrs. Harmon, Golston, Goldsmith & Hoadly; Messrs. Doyle & Lewis. and Mr. Leopold Wallach, for plaintiffs in error.
    ’ Messrs. Wheeler & Brice; Messrs. Becker & Becker; Messrs. Richie, Leland & Roby; Mr. G. B. Adgate and Messrs. Gable é Parmenter, for defendants in error.
   Judgment affirmed.

Bürket, C. J., Spear, Price and Crew, JJ., concur.


text:
    No. 7568.
    Central Trust Co. et al. v. Snyder.
    (Decided February 24, 1903.)
    Error,to tbe Circuit Court of Allen county.
    , Messrs. Harmon, Golston, Goldsmith & Hoadly; Messrs. Doyle & Lewis and Mr. Leopold Wallach, for plaintiffs in error.

      Messrs. Wheeler & Bricej Messrs. Becker é Becker; Messrs. Richie, Leland & Roby; Mr. O. B. Adgate and Messrs. Gable & Parmenter, for defendants in error.
   Judgment affirmed.

Bubket, C. J., Spear, Price and Crew, JJ., concur.


text:
    No. 7569.
    Central Trust Co. et al. v. Spargur & Co.
    (Decided February 24, 1903.)
    Error to the Circuit Court of Allen county.

      Messrs. Harmon, Golston, Goldsmith & Hoadly; Messrs. Doyle & Lewis and Mr. Leopold Wallach, for plaintiffs in error.

      Messrs. Wheeler & Bribe; Messrs. Becker & Becker; Messrs. Richie, Leland & Roby; Mr. G. B. Adgate and Messrs. Gable & Parmenter, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Price and Crew, JJ., concur.


text:
    No. 7570.
    Central Trust Co. et al. v. Cooper.
    (Decided February 24, 1903.)
    Error to the Circuit Court of Allen county.

      Messrs. Harmon, Golston, Goldsmith & Hoadly; Messrs. Doyle & Lewis and Mr. Leopold Wallach, for. plaintiffs in error.

      Messrs. Wheeler & Brice; Messrs. Bécker & Becker; Messrs. Richie, Leland é Roby; Mr. G. B. Adgate and Messrs. Gable & Parmenter, for defendants in eTror.
   Judgment affirmed.

Bueket, C. J., Bpeab, Peice and Cbew, JJ., concur.


text:
    No. 7575
    Nixon, Admr., v. Railroad Co.
    (Decided February 24, 1903.)
    Ebeoe to the Circuit Court of Cuyahoga county.

      Messrs. Johnson & Hackney, for plaintiff in error.

      Messrs'. Ford, Snyder, Henry cG McGraw, for defendant in error.
   Judgment affirmed.

Bueket, C. J., Davis, Shauck, Peice and Ceew, JJ., concur.


text:
    No. 7578.
    Insurance Co. v. Dunlap.
    (Decided February 24, 1903.)
    Eeeoe to the Circuit Court of Franklin county.

      Mr. Thomas B. Paxton and Mr. J. W. Mooney, for plaintiff in error.

      Messrs. Booth, Keating, Peters & Butler and Mr. M. B. Patterson, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7633.
    Ellis v. Village of Harveysburg.
    (Decided February 24, 1903.)
    Error to the Circuit Court of Warren county.

      Mr. Franlc Brandon and Mr. George A. But r, for plaintiff in error.

      Messrs. Miles <& Clevenger, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7494.
    Railway Co. v. Potter, Admx.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Butler county.

      Messrs. Shotts & Millilcin and Mr. B. D. Marshall, for plaintiff in error.

      Mr. Alex. F. Hume and Mr. G. J. Smith, lov defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7507.
    Trudgen, Admr., v. Day et al.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Hamilton county.

      Mr. Thomas L. Michie and Mr. Joel G. Glore, for «.plaintiff in error.

      Messrs. Goebel & Bettinger, for defendants in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7508.
    Cleveland Co-operative Stove Co. v. Mehling.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Wilcox & Friend and Messrs. Henderson & Quail, for plaintiff in error.

      Messrs. Weed & Meals, for defendant in error.
   Judgment affirmed.

'Spear, Shauck and Crew, JJ., concur.


text:
    No. 7521.
    Edwards et al. v. Avondale Loan & Building Co.
    (Decided March 3, 1903.)
    Error to the Superior Court of Cincinnati.

      Mr. Charles W. Baker, for plaintiffs in error.

      Messrs. Foraker, Outcalt, Granger & Prior and Mr. John D. DeWitt, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJv concur.


text:
    No. 7559.
    Barrett, Admr., v. City of Cleveland.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Ingersoll & Clum, for plaintiff in error.
    Mr. M. W. Beacom and Messrs. Babeoek, Payer, Gage é Carey, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7579.
    Insurance Co. v. Brown.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Ashtabula county.

      Mr. Will G. Gunther and Mr. Theodore Hall & Son, for plaintiff in error.

      Mr. J. T. Herrington and Mr. H. E. Starkey, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Price and Crew, JJ., concur.


text:
    No. 7606.
    Hollenbeck, Guardian, v. Zuck.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Hardin county.

      Messrs. Smiek & Hoge, for plaintiff in error.

      Messrs. Johnson & Johnson, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7610.
    Weatherhead v. Culbertson.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Miami county.

      Messrs. Long & Kyle and Mr. E. E. Williams, for plaintiff in error.

      Mr. John W. Morris and Mr. A. F. Broomhall, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7614
    Anderson v. Railway Co.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Franklin county.

      Mr. Thomas E. Powell, for plaintiff in error.

      Messrs. Watson, Burr & Lives ay, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7618.
    Paddock, Hodge & Co. v. Railway Co.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Lucas county.

      Mr. Porter Paddock, for plaintiffs in error.

      Messrs. Bowman & Boioman and Messrs. Doyle & Letcis, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7622.
    Wasson v. Secor et al.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Lucas county.

      Mr. B. F. Reno, for plaintiff in error.

      Messrs. King & Tracy; Mr. H. C. Rorick; Messrs. Ray & Cordill; Messrs. Delphey & Corbett; Mr. J. R. Colder; Mr. B. F. Reno; Messrs. Southard & Southard; Mr. T. J. McDonnell and Messrs. Smith & Baker, for defendants in error.
   Judgment affirmed as per stipulations in Spear v. Wallridge et al., No. 7621, and order of priority to be same as in that case.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7625.
    Breyman et al. v. Wiltsie
    (Decided March 3, 1903.)
    Error to the Circuit Court of Lucas county.

      Mr. B. A. Hayas, for plaintiffs in error.

      Mr. G. F. Wells, for defendant in error.
   Judgment affirmed.

Burkbt, C. J., Davis and Price, JJ., concur.


text:
    No. 7638.
    Morrison v. Barron, Treas., et al.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Franklin county.

      Messrs. Pugh & Pugh and Mr. F. B. Hoffman, for plaintiff in error.

      Messrs. Dyer, Williams & Stouffer and Messrs. Taylor, Seymour & Wether, for defendants in error.
   Judgment affirmed.

Burket, O. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7646.
    Sharon Savings & Loan Assn. v. Katon et al.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Butler county.

      Mr. J. O. 8mith ancl Messrs. Playback & Harr, for plaintiff in error.

      Mr. M. O. Burns and Messrs. Gorman & Thompson, for defendants in error.
   Judgment affirmed.

Spear, Shauck and Grew, JJ., concur.


text:
    No. 7649.
    Worst et al., Exrs., et al. v. Nicol, Guardian.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Ashland county.

      Mr. Frank Taggart and Mr. Frank 8. Patterson, for plaintiffs in error.

      Mr. John W. Albaugh and Messrs. Nicol & Bojfeñmyer, for defendant in error. •
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7656.
    Wade v. Brown.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Butler county.

      Messrs. Shotts & MilliMn, for plaintiff in error.

      Mr. Edward E. Jones and Messrs. Morey, Andrews & M orey, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7657.
    Mathias v. Willard.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Tuscarawas county.

      Messrs. Richards & McCullough, for plaintiff in error.

      Mr. E. M. Bailey and Mr. E. 8. Douthibt, for defendant in error.
   Judgment modified as per journal entry.

'Burket, C. J., Spear, Davis and Crew, JJ., concur.


text:
    No. 7659.
    Patrick v. Fogle, Trustee.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Weed & Miller, for plaintiff in error.

      Mr. J ohn.O. Winship, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7678.
    Baker v. Lamkin et al.
    (Decided March 3, 1903.)
    Error to tbe Circuit Court of Huron county.

      Mr. 8. M. Young, for plaintiff in error.

      Messrs. Andreios Bros., for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7680.
    Pearson v. Yount et al.
    (Decided March 3, 1903.)
    Error to tbe Circuit Court of Miami county.

      Messrs. Gilbert & Shipman, for plaintiff in error.

      Messrs. Long & Kyle and Mr. B.,F. Hershey, for defendants in error.
   -Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7691.
    Continental Insurance Co. v. Drackett et al.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Cuyahoga county.

      Mr. C. IF. Fuller, for plaintiff in error.

      Messrs. Moffett c£ Hatoley; Mr. J. IF. Taylor and Mr. T. H. Carry, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7972.
    Murray v. City of Cincinnati.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Hamilton county.

      Mr. EcltoardM. Ballard, for plaintiff in error.

      Mr. Charles Hunt; Mr. John V. Campbell and Mr. Albert H. Morrill, corporation counsel, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck and Crew, JJ., concur.


text:
    No. 8016.
    Railroad Co. v. Butler.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Lucas county.

      Mr. E. D. Potter; Mr. Ashley Pond and Mr. Henry Russell, for plaintiff in error.

      Messrs. Hamilton & Kirby and Messrs. Cole, Whit-lock & Cooper, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7611.
    Runyon & Dickseid v. Kirk-Christy Co.
    (Decided March 10, 1903.)
    Error to the Circuit Court of Lawrence county.

      Mr. A. R. Johnson and Mr. E. E. Corn, for plaintiffs in error.

      Messrs. White, Johnson, McCaslin & Cannon; Mr. John Hamilton and Messrs. Phillips & Phillips, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


text:
    No. 7628.
    Howle, Admr., v. Prudential Insurance Co.
    (Decided March 10, 1903.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Hart, Canfield & Callaghan, for plaintiff in error.

      Messrs. Meyer & Mooney, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7640.
    Helvie v. Troy Buggy Works Co.
    (Decided March 10, 1903.)
    Error to the Circuit Court of Miami county.

      Mr. Addison F. Broomhall and Mr. Walter E. Robinson, for piaintiif in error.

      Messrs. Thomas & Thomas and Messrs. Long & Kyle, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7645.
    Braucher et al. v. Braucher.
    (Decided March 10, 1903.)
    Error to the Circuit Court of Stark county.

      Messrs. Day, Lynch & Day and. Mr. A. Pomerene, for plaintiffs in error.

      Messrs. Sterling & Braucher, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7663.
    Pattison et al. v. Taylor.
    (Decided March 10, 1903.)
    Error to the Circuit Court of Hamilton county.

      Mr. O. Hammond Avery and Messrs. Harper & Allen, for plaintiffs in error.

      Mr. R. de V. Carroll, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis and Price, JJ., concur.


text:
    No. 7665.
    Tilton, Admr., v. Kimball.
    (Decided March 10, 1903.)
    Error to tbe Circuit Court of Butler couDty.

      Mr. Alex. F. Hume; Mr. Frank Brandon and Mr. George A. Burr, for plaintiff in error.

      Messrs. Morey, Andrews cG Morey, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7669.
    Cincinnati Union Stock Yards Co. v. Montgomery et al.
    (Decided March 10, 1903.)
    Error to the Superior Court of Cincinnati.

      Mr. William Worthington; Messrs. Follett & Kelley; Messrs. Peck, Shaffer cG Peck and Mr. Dennis F. Cash, for plaintiff in error.

      Messrs. Harmon, Colston, Goldsmith & Hoadly and Mr, John O. Healy, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew., JJ., concur.


text:
    No. 7670.
    Bogen et al. v. Cincinnati Union Stock Yards Co.
    (Decided March 10, 1903.)
    Error to the Superior Court of Cincinnati.

      Mr. John G. Healy, for plaintiffs .in error.

      Mr. William Worthington; Messrs. Follett & Kelley; Messrs. Peck, Shaffer & Peek and Mr. Dennis F. Gash, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Dayis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7671.
    Bogen et al. v. Cincinnati Union Stock Yards Co.
    (Decided March 10, 1903.)
    Error to the Superior Court of Cincinnati.

      Mr. John G. Healy, for plaintiffs in error.

      Mr. William Worthington; Messrs. Follett & Kelley; Messrs. Peek, Shaffer & Peck and Mr. Dennis F. Gash, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Dayis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7685.
    Rannells et al. v. Bentley et al.
    (Decided March 10, 1903.)
    Error to the Circuit Court of Clinton county.

      Mr. James M. Morton and Mr. D. B. YanPelt, for plaintiffs in error.

      Mr. J. M. Kirie and Messrs. Telfair & Telfair, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7698.
    Dr. J. L. Stephens Remedy Co. v. Runyan.
    (Decided March 10, 1903.)
    Error to the Circuit Court of Warren county.

      Messrs. Eltzroth & Maple and Mr. John E. Bruce, for plaintiff in error.

      Messrs. Runyan & Stanley and Messrs. Brandon & Burr, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur..


text:
    No. 7704.
    Luebbert, Receiver, v. Van Pelt et al.
    (Decided March 10, 1903.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Gloss & L'uebbert, for'plaintiff in error.

      Mr. A. J. Cunningham, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7806.
    Pultney Foundry & Engineering Co. et al. v. Bank et al.
    (Decided March 10, 1903.)
    Error to the Circuit Court of Mahoning county.

      Messrs. Arrel, McVey & Robinson and Messrs. J ones & Anderson, for plaintiff sUn error.

      Mr. T. W. Sanderson; Mr. J. P. Wilson; Messrs. Johnston &' Calvin and Messrs. Norris, Jachson & Rose, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7956.
    Collins, Admr., v. Railway Co.
    (Decided March 10, 1903.)
    Error to the Circuit Court of Marion county.

      Mr. Charles F. Garber son, for plaintiff in error.

      Mr. J. T. Dye; Mr. S. O. Bayless and Messrs. Mouser & Quigley, for defendant in error.
   Judgment affirmed.

Burket, C. J., Shauck and Price, JJ., concur.


text:
    No. 7644.
    Village of Mineral City v. Railroad Co.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Tuscarawas county.

      Messrs. Richards & McCullough, for plaintiff in error.

      Messrs. Carey & Mullins, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7653.
    Covington Stone & Marble Co. v. Sawyer, Admr.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Robertson & Buchwalter and Mr. Robert C. Pugh, for plaintiff in error.

      Mr. Edward M. Ballard, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7655.
    Campbell et al., Admrs., v. Conrad.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Licking county.

      Mr. B. 31. Hunter and Mr. A. A. Btasel, for plaintiffs in error.

      Messrs. Kibler & Kibler, for defendant in error.
   Judgment affirmed.

Burket, O. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7667.
    Vinton v. Staut.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Tuscarawas county.

      Messrs. Neely & Patrick, for plaintiff in error.

      •Mr. J. E. Mitchell, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7676.
    Havourd v. Wagner et al.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Hancock county.

      Messrs. Ross & Kinder, for plaintiff iii error.

      Messrs. Blackford & Blackford, for defendants in error.
   Judgment affirmed.

Davis, Shauck and Crew, JJ., concur.


text:
    No. 7687.
    Umbaugh et al. v. Fast.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Ashland county.

      Mr. Clem. P. Wmbigler, for plaintiffs in error.

      Messrs. Niool & Bofenmyer and Messrs. Welty & Albaugh, for defendant in error.
   Judgment reversed and judgment for plaintiffs in error. Grounds stated in journal entry.

Burket, C. J., Spear, Davis, Shauck, Price and Grew, JJ., concur.


text:
    No. 7690.
    Groves v. Selsor.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Eayette county.

      Messrs. VanDeman & Ohaffin, for plaintiff in error.

      Mr. Humphrey J ones, for defendant in error.
   Judgment vacated on the authority of Falconer v. Martin, 66 Ohio St., 352, and cause remanded to the circuit court with direction to overrule the motion to dismiss and sustain the motion for leave to file perfect transcript, and for further proceedings according to law..

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7703.
    Walters v. Keenan et al.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Hancock county.

      Messrs. Phelps & David, for plaintiff in error.

      Mr. John Sheridan, for defendants in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7705.
    Rinehart v. Reed et al., Trustees.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Jefferson county.

      Mr. J. G. Bigger and Mr. D. M. Bruber, for plaintiff in error.

      Messrs. Ershine & Ershine, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7706.
    Gibsonburg Banking Co. v. Lorain County Banking Co.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Sandusky county.

      Messrs. Hunt & DeRan and Mr. Lester Wilson, for plaintiff in error.

      Messrs. Andrews Bros., for defendant in error.
   Judgment affirmed.

Spear, Shatjck: and Crew, JJ., concur. •


text:
    No. 7709.
    Burkart v. Fields.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Lorain county.

      Mr. L. B. Fauver and Mr. A. R. Webber, for plaintiff in error.

      Mr. E. (?. Johnson and Messrs. Thompson & Q-litsch, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7710.
    Jenkins v. Emrich et al.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Ottawa county.

      Mr. Q-eorge E. Reiter and Mr. H. L. Peelce, for plaintiff in error.

      Messrs. King & Guerin, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7713.
    State ex rel. McKinzie v. Hyman, Director.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Cuyahoga county.

      Mr. J. H. Hardy and Messrs..Noble, Pinney & Willard, for plaintiff in error.

      Mr. M. W. Beacom and Messrs. Babcock, Payer, Gage & Garey, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7714.
    Isennagle v. Burke, Admr.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Ross county.

      Mr. John O. Entrekin and Mr. Robert W. Manly, for plaintiff in error.

      Mr. Seymour Cunningham, for defendant in error.
   Judgment affirmed.

Bürket, O. J., Davis and Price, JJ., concur.


text:
    No. 7716.
    Twining, Admx., v. Cusac.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Hancock county.

      Messrs. Phelps cG David and Mr. Marion G. Foster, for plaintiff in error.

      Mr. John Poe, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7725.
    Peoples Building, Loan and Savings Assn. v. Knox.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Sandusky county.

      Mr. Chester M. Elliotty Messrs. Richards cG Seffnery Messi's. Kinney cG O’Farrell and Mr. John B. Stahl, for plaintiff in error.

      Mr. Jesse Vickery, for-defendant in error.
   Judgment affirmed.

Spear, Shauok and Crew, JJ., concur.


text:
    No. 7726.
    Peoples Building, Loan and Savings Assn. v. Zimmerman et al.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Sandusky county.

      Mr. Chester M. Elliott; Messrs. Richards & Heffner; Messrs. Kinney & O’Farrell and Mr. John B. Stahl, for plaintiff in error.

      Messrs. Love & Culbert, for defendants in error.
   Judgment affirmed.

Spear, Shauok and Crew, JJ., concur.


text:
    No. 7727.
    Peoples Building, Loan and Savings Assn. v. Fronizer et al.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Sandusky county.

      Mr. Chester M. Elliott; Messrs. Richards & Heffner; Messrs. Kinney & O’Farrell and Mr. John B. Stahl, for plaintiff in error.

      Messrs. Hunt & DeRan, for defendants in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7728.
    Peoples Building, Loan and Savings Assn. v. Cunningham.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Sandusky county,

      Mr. Chester M. Elliott; Messrs. Richards & Heffner; Messrs. Kinney & O’Farrell and Mr. John B. Stahl, for plaintiff in error.

      Messrs. Hunt & DeRan, for defendants in error.
   Judgment affirmed. Cross-petition in error dismissed for want of 'jurisdiction.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7729.
    Peoples Building, Loan and Savings Assn. v. Maxwell et al.
    (Decided March 17, 1903.)
    Error to the Circuit Court of Sandusky county.

      Mr. Chester M. Elliott; Messrs. Richards & Hefner; Messrs. Kinney & O’Farrell and Mr. John B. Stahl, for plaintiff in error.

      Messrs. Hunt '& DeRan, for defendants in error.
   Judgment affirmed. Cross-petition in error dismissed for want of jurisdiction.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7648.
    King, Receiver, v. Melia.
    (Decided March 24, 1903.)
    Error to the Circuit Court of Mahoning county.

      Messrs. Jones & Anderson, for plaintiff in error.

      Mr. E. H. Moore and Mr. J. P. Wilson, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear and Price, JJ., concur on the ground that there is no error in the judgment below, and all concur in the judgment of affirmance on the ground that there is no compliance with that part of Section 6711, Revised Statutes, which requires so much of the record to be reviewed as will show the error complained of, to be printed.


text:
    No. 7711.
    Straub et al. v. South Zanesville Sewer Pipe and Brick Co.
    (Decided March 24, 1903.)
    Error to the Circuit Court of Seneca county.

      Mr. Alex. Kiskadden, for plaintiffs in error.

      Mr. 8. M. Winn and Messrs. Kelly & Merrill, for defendant in error.
   Judgment affirmed.

Spear, Shauck; and Crew, JJ., concur.