author: Bradbury, J.

text:
    State v. Stout.

      Witnesses — Section 1/287, Revised Statutes, construed — Constitutional law — Malice—Assault with intent'to kill — Section 6821, Revised Statutes, construed — Duty of court under, in charging jury.

    1. While the provision of section 7287, Revised Statutes, limiting to ten, the number of witnesses who may be examined as to character and reputation on the trial of any criminal case, other than those for offences specially excepted by said section, unless the payment of the fees of those in excess of ten is provided for by the party calling them, according to the provisions of the section, is constitutional and valid; yet it is directory only, and the action of the court of common pleas in refusing to enforce tlie statute in this respect is not subject to review by this court on error.
    2. While malice is an essential ingredient, under section 6821, Revised Statutes, to constitute the offence of assault with intent to kill, as it also is to that of murder in either degree under the statutes of this state, nevertheless a court, in charging a jury on the trial of a defendant under an indictment charging an assault with intent to kill, is not bound, at the request of counsel, to instruct the jury that they should not convict the accused of an assault with intent to kill, if, in case death had resulted to the party assaulted, the homicide would have been manslaughter only, and that they could only so convict him if, in case of death, the homicide would have been murder.
    The court in such case may employ any form of .words that correctly defines malice, and instruct the jury that its existence is essential to convict the defendant-. -
    (Decided March 22, 1892.)
    EXCEPTIONS to the Court ‘of Common Pleas of Brown county.
    Tbe defendant bad been indicted by the grand jury of Brown county, and was put upon trial for the offence of assault with intent to kill, under section 6821, Revised Statutes.
    The other facts necessary to the decision of the questions raised by the exceptions, will be found in the opinion of the court.

      David Tarbell, prosecuting- attorney, for the state.
    Section 7287, Revised Statutes, is in accord with public policy. It is demanded in the interest of a speedy and economical administration of justice. No party should have the right to prolong a trial, embarrass the court with a multitude of witnesses, thus delaying other cases, and unnecessarily depleting the county treasury by their fees, to establish a single fact that may not 'be seriously contested by his adversary. If a limitation, may be placed anywhere the limit fixed by the statute is certainly reasonable. The statute is not directory merely but mandatory and ought to be enforced. It is not within the discretion of the court to enforce it, or not, at will. The language is imperative. Upon wbat theory of justicé should the amount of compensation for the additional witnesses over ten be taken from the county treasury? How will the clerk be protected by such unlawful appropriation of public money? It will not do to say that the legislature intended to confer upon the court the discretion of interposing to stop unnecessary multiplication of witnesses, for such a power was inherent in the court before. 1 Phillips on Ev. 712, (marginal page); Beckman v. Bemis, 7 Cowen R. 29; Nocholas v. Goldsmith, 7 Wendell, 160; Moore v. Green, 39 Ohio St., 661.
    II. To authorize' a conviction of an assault with intent to kill, under sec. 6821, Revised Statutes, is it requited that the evidence should be such as would warrant a verdict of guilty of murder in the first degree or murder in the second degree if death had been the result of the assault? I maintain not. This indictment charges much that is not necessary and might well have been omitted, mere surplusage that does not however tend to the prejudice of the substantial rights of the defendant upon the merits, sec. 7215 Revised Statutes, and does not require proof upon the trial to support. It is drawn after the old form to support a charge of assault with intent to commit a murder. But I respectfully submit that the state is not required to assume the extra burden of proof' to establish more than the statute requires to constitute the crime, simply because of an unnecessary averment in the indictment. The old statute providing against an assault with intent to commit a murder is repealed, or rather has been amended, and is supplied by sec. 6821, Revised Statutes, that provides against certain felonious assaults. The only elements of the offence of assault with intent to kill are: 1. An unlawful assault. 2. An intention to kill. Malice is not made an ingredient of the offence. In giving this section the correct construction, the confusion grows out of confounding it with the 17th section of the old Crimes act, Swan’s Revised Statutes 271. There are but two grades of murder in Ohio, viz: Murder in the first degree and murder in the second degree. Manslaughter is a distinct offence embracing every unlawful killing that does not come within the definition of murder in sections 6808, 6809,6810, Revised Statutes. The 17th section was amended March 31, 1865 — Swan & Sayler’s Supplement 262, and this continued to be the law until the act of May 5th, 1877 — Ohio Raws, vol. 74, page 240 — consolidating the statutes relating to crimes, when it was repealed and supplied by sec. 14 of that act, which is now carried into our Revised Statutes as sec. 6821. It will also be observed that sec. 24 of the Crimes act, Swan’s Revised Statutes, page 272, is carried into our present statute with some change, as sec. 6820, to which I shall presently refer.
    If the same language as in the 17th section was still employed in sec. 6821,1 would not controvert the proposition that to convict of an assault with intent to commit murder, the circumstances of the assault should be such as that if death had ensued it would have been murder, and if in case of death it would only have been manslaughter, then the offence would only be assault and battery.
    But there is a material change of language in the statute; it has been broadened and a new crime defined. It is not now “An assault with intent to commit a murder,” but simply “An assault with intent to kill” with all that that implies.
    When a statute has been amended by a change of words a new meaning should be given to the amendment. Stur¿Le-vant v. Tuttle, 22 Ohio St. Ill; Change of phraseology implies a change of meaning. Bloom v. Richards, 2 Ohio St., 887. The legislative intention is to be derived from the words used. Bower v. Hunt, 18 Ohio St., 811-341. And the ordinary and natural meaning must be given to the language. Allen v. Little, 5 Ohio, 65; State v. Peck, 25 Ohio St., 26; Bishop on Statutory Crimes, sec. 503; The State v. Btitman, 42 N. H., 490; Hall V. The State, 9 Fla., 203; The States;. Reed, 40 Vt., 603; The- State v. Calligan, 17 N. H., 253; 4 Mo. 618; The People v. Shaw, 1 Parker Crim. Rep., 327; State v. Parmlee, 9 Conn., 259; State v. Waters, 39 Me., 54; Bishop on Stat. Crimes, section 97; Brice v. Myers, 5 Ohio, 121-124; Pancoat v. Ruffin, 1 Ohio, 381; Ex

      parte Wagener, U D., 10, 12, 15; Bishop on Stat. Crimes, section 507.

      Young & McBeth, for defendant.
    The common law right of each litigant to subpoena as many witnesses as he may think proper — modified only by such interference as the court may make to prevent an abuse of its process — is abridged by this statute, to the extent that requires the party to pay all in excess of ten. If however we give this statute a strict construction, the language “character or reputation,” may extend the privilege to ten for each purpose. Now it is not shown by the record that the provisions of this statute were violated. We claim it only relates to the question of costs, and, so far as it requires the defendant to pay or deposit fees for witnesses, is trenching upon the rights of the citizen as secured by the constitution. Art. 1, sec. 10, provides that the accused shall have compulsory process to secure the attendance of witnesses on his behalf — “without money and without price.” Tittle will it avail him if either the attendance of his witnesses or their examination depends upon his paying the fees or securing the payment by deposit of money.
    If the accused be to indigent to pay his witnesses he must suffer, not for his guilt but for his poverty.
    Suppose he has called ten to testify as to his character and but eight know what it is, and he desires to call others who do know. He cannot do so unless he produce the shekels. This he cannot do. Often character is the most potent factor in his defence. He must meet the accusation by all means in his power. If it be a civil action he is unrestricted in the number of witnesses, but when his liberty is involved he is handicapped by legislative interference. He is unrestricted as to the number of witnesses he may call to prove or disprove any other matter necessary to his defence.
    The court has given expression as to the value of character and reputation in a criminal case. Tappen, 92; 11 Ohio St... 114; 19 Ohio St., 264; 12 Ohio St., 433; 16 Ohio St., 124.
    The instructions asked are not the law. Must we ignore the law' as stated by this court in Fuller v. State, 12 Ohio St., 433? This was asked before the argument commenced, and refused, and we think it could not properly have been given without modification.
    Now, in Cline v. State, 43 Ohio St., 335, we are told by this court that to “ convict of manslaughter it is not necessary to show * * * an intent to kill.”
    Therefore we have this instruction in substance. “You may find the defendant guilty, upon a bare preponderance of evidence, upon the charge in the indictment of shooting with intent to kill, -although .the grade of crime in case death had resulted would have been no higher than manslaughter, where it is not necessary to show an intent to kill.” This seems to ignore the law. '
    The second instruction asked and refused is an amplification of the first, and is an unmeaning abstraction, ladened with every element of misleading and mischievous uncertainty. Of course the court refused to give both instructions asked.
    As to the charge given. It is presumed that it had application to the peculiar case being tried. The court explained to the jury the different grades of criminal homicide and the character and amount of proof required to establish either., and each of such grades, as. well as the offense of assault and battery. What the court said in explanation of these several matters we do not know, but may presume the explanation was ^ correct, -as- it does not appear that it was not. Heller v. State, 23 Ohio St.,' 582; Howard v. State, 25 Ohio St., 399. r '
    The court first instructed the jury as to the degrees of proof necessary to convict, and avoided the features so objectionable in the charges asked on behalf of the state.
    We now have, however, another difference between the prosecutor and the court. The one asked in manner aforesaid, that if the offense would have been manslaughter only had death ensued, and not a higher grade of offense, they should convict under sec. 6821, as charged; the court however instructed the jury that it the offense were not murder in the first degree or in the second degree, but manslaughter only they should return a verdict of guilty only of assault and battery.
    Now we have in Ohio no crimes except such as are declared so by statute. Our own legislation is peculiar — sui generis —reference to our criminal laws. In our statutes both civil and criminal words are to be understood in their common acceptation. As to the first above proposition, we cite: Winn v. State, 10 Ohio St., 345; Key v. Vattier, 1 Ohio 132; Allen v. State, 10 Ohio St., 287; Smith v. State, 12 Ohio St., 466; Bloom v. Richards, 2 Ohio St., 887. As to the second; Bowress’ Raw Die. words; 9 Wheaton, 188; 1 Bla. Com., 58. The words kill and murder are synonomous —Webster.
    Our statute defining criminal homicide classifies as follows: Murder in the first degree, murder in the second degree, and manslaughter. Heretofore the definitions were different. They are not the same as at common law. Under the 17 th section of the old act to unlawfully assault another with intent to commit a murder was made criminal. Under the present act if the assault is made unlawfully with intent to kill it is an offence. Revised Statutes, 6821.
    Now our courts gave interpretation to this section 17 as far back as 1842, at least. See. 1, W. E. J., 118, State v. Shields <SfJohnson.

    Now the above interpretation has been followed in every case arising under the 17th section. Here is not a case of interpolation, but of construction. These things were required to constitute the offense. The assault, — that it was unlawful and the intent to murder. Under the present act the only difference is in the use of the word kill instead of murder. What construction shall be given?
    The indictment charges that the assault was unlawful, purposely, and of deliberate and premeditated malice. In making this charge the state gave construction to this statute, to-wit: that the act should be such that had death followed, it would at least have been murder in the second degree.
    Under the old Crimes act, section 17, purpose and malice, were necessary and should be averred and proved. Yet in manslaughter malice may be an element. Nicholas v. Slaie, 8 Ohio St., 435.
   Bradbury, J.

The prosecuting attorney, on the trial of the cause in the court of common pleas, excepted to two rulings of the court. By the first exception he seeks to obtain a construction of section 7287, Revised Statutes, which reads:

“Sec. 7287. In all criminal cases the clerk, upon a precipe being filed, shall issue writs of subpoena for all witnesses named therein, directed to the. sheriff of his county, or of any county' where the witnesses reside or are found, which shall be served and returned as in other cases; and the sheriff, by writing indorsed on the writs, may depute any disinterested person to serve and return the same; provided, that the number of .witnesses, who are expected to testify upon the subject of character or reputation, for which subpoenas may be issued, shall be designated upon the precipe, and shall not exceed ten upon each side, unless a deposit shall first be made with the clerk of at least one per diem and mileage fee for each additional witness, except in the case of murder in the first or second degree, manslaughter, rape, assault with intent to commit rape, or selling intoxicating liquors to a person in the habit of becoming intoxicated. No witness in addition to the number of ten upon each side shall be permitted to testify upon the question of character or reputation, in any criminal case with the exceptions aforesaid, unless his full per diem and mileage fee has been deposited as aforesaid, or paid by the party in whose behalf he is sworn, and the clerk shall not issue a certificate for compensation to be paid out of the county treasury to any witness in - addition to the number of ten, who has testified upon the subject of character or reputation, except as aforesaid.”

On the trial of the cause, as appears from the bill of exceptions taken by the prosecuting attorney, the state had introduced its testimony and rested; and the defendant in the course of introducing his testimonj’', after examining thirteen witnesses, who testified only respecting his character and reputation for peace and quietness, called another witness, and was proceeding to examine him upon the same subject, when the state interposed an objection upon the ground that there had been already examined more than ten witnesses who had testified upon that subject only, and no money had been deposited, as required by the section just quoted, to pay the fees of the witness being examined; the objection was overruled, and the witness was examined and testified touching the character and reputation of the defendant for peace and quietness, and on no other subject; to which ruling of the court the prosecuting attorney excepted, and this action of the court being embodied in a bill of exceptions, pursuant to the statute providing for the same, we are called upon to review it.

The legislative objects sought to be accomplished by the section under consideration, are, evidently, to prevent the squandering of the public revenue and a waste of the time of the courts to the delay of other business. These are appropriate subjects of legislation, and the legislative discretion relating thereto cannot be controlled by the judicial tribunals of the state, unless, where, in some particular instance of its exercise the legislature transcends its constitutional powers, as it is claimed to have done in the present instance.

Section 10 of article I, of the Constitution of 1851, provides that, in prosecutions for ofFences of the kind the defendant was charged with committing, the accused shall “have compulsory process to procure the attendance of witnesses in his behalf” * *. And it is contended that the defendant’s rights in this particular cannot be limited, even by the legislature. This extreme view we do not think can be maintained. The constitution should not receive a construction that would place in the hands of the accused persons an unlimited power to create expense and prolong trials indefinitely; nor, on the other hand, can a power be conceded to the legislature or the courts to unreasonably limit the witnesses an accused person may subpoena to maintain his defense. To concede such authority would be to concede a power, the exercise of which might substantially defeat the constitutional guaranty alluded to. The true rule, we think, will allow to the legislature the power to prescribe reasonable limits to this right, to have, at the public expense, witnesses to maintain'his defence.

The legislature having the power to confine, within reasonable limits, the rights of an accused person in this respect, an act regulating the subject should not be declared unconstitutional unless clearly unreasonable in its restrictions; which cannot be fairly said of the section under consideration. It allows to the defendant, at public expense, ten witnesses to establish his character, or reputation; a reasonable number it would seem; but if he desires more, it does not deny them, if they are produced at his own expense. It does not follow, however, that because the legislature has power to place a reasonable limitation upon the number of witnesses a defendant may be allowed to examine to any one fact, that, in the case under consideration, it was error in the court'to refuse to comply with the statute.

The evident purpose of the statute is to prevent an abuse of the privilege of compulsory process, secured by the constitution, to procure the attendance of witnesses in their behalf. The command of the statute in this respect is that “No witness in addition to the number of ten upon each side shall be permitted to testify * * * * unless his full per diem and mileage fee has been deposited * * * or paid by the party.” If the accused is able and willing to pay for additional witnesses to his character or reputation the statute does not deny them. The burden of paying for them is regarded as a sufficient guaranty that none not reasonably necessary will be subpoenaed. In other instances where the accused is not able, or not willing, to pay the fees of those in excess of the statutory number, the section under consideration should be regarded as clothing the court with power, if it did not possess such power before, to prevent that abuse of the privilege of compulsory process' which, as is well known, prevails at times throughout the state.

The statute only excludes the witness if his fees are not secured or paid, and we are not disposed to hold that the admission of evidence, regular and lawful if the party producing it has paid or secured the fees of the witness testifying, should be regarded erroneous if his fees are not paid or secured, when such intent is not clearly discernable upon the face of the statute. The court may violate the express provisions of the statute, and the statute may be designed to effect a wise public purpose; but there is a wide distinction between the refusal of a court to execute, in the course of a trial, the provisions of such a statute, and an error of law affecting the rights of the parties as between themselves; and it is only respecting questions of the latter character that this court may review the actions of the other courts of the state. In other respects they are not answerable to this court for their conduct, but to their own conscience and sense of duty.

After the testimony was all in the prosecuting attorney requested the court to instruct the jury as follows:

“If you should find from the evidence in this case that, at the time and place' mentioned in this indictment, the defendant, Alfred Stout, unlawfully assaulted William R. Tatman, with intent to kill him, your verdict should be that you find him guilty as charged in the indictment; and this, is so even though the evidence would not support a verdict of guilty of a higher grade of offence than manslaughter against the defendant, Alfred Stout, if his said assault had resulted in the death of the said William R. Tatman.
“To authorize a verdict of guilty of an unlawful assault with intent to kill, upon an indictment found under section 6821, of the Revised Statutes of Ohio, it is not required that the evidence should be such as would authorize a verdict of guilty of murder in the first degree, or murder in the second degree, if death had resulted to the party assaulted through and by reason of the unlawful assault; it will be sufficient if the evidence should show that, in the event of his death, the offence would only be manslaughter.”

The court refused to give to the jury the propositions of law requested, and, instead, gave in charge to them the converse proposition as follows':

“If you should find from-the evidence that had death resulted from the assault, the killing would have been manslaughter only, then you should' find him, the defendant, guilty of assault and battery only and not guilty of assault with intent to kill. But if you should find that such killing, had death resulted, would have been murder in the first degree or murder in the second degree, then you should find the defendant guilty as charged in the indictment.”

To which refusal to charge, and to the charge as given, the prosecutor excepted.

The form of the charge as requested, and the form adopted by the court in giving the converse proposition, probably had its origin’ in the charge given by that eminent .jurist, Judge Timothy Walker, in 1842, while presiding at the trial, in Hamilton county, of certain persons for assault with intent to murder. It was strictly applicable to the evidence in that case, and is a model of brevity and clearness, as a quotation from it of all thatpertains to this subject shows: “You will inquire whether there was an assault with intent to murder. An assault is an attempt or offer, with force and violence, to do some corporal hurt to another. If the attempt or offer be carried into effect, there is more than an assault; there is battery also, and the only question is as to the intent. Was it to commit murder? In other words, if Marsh had been killed, would the prisoners be guilty of murder? If they were attempting to commit a burglary, it would have been murder in the first degree. If not, and they had yet killed him maliciously, it would have been murder in the second degree. Either will satisfy the statute. ' But if you think the killing would have been manslaughter only, you cannot convict. And this must be the case, if you believe, either that there was no intention to kill, or, if an intention, that it was the effect of passions, roused in a sudden quarrel, and that there was no malice, that is, no culpable disregard of another’s rights * * Ohio v. Shields and Robinson, 1 Western Law Journal, 118.

Tbis form, so well adapted to the facts of that case, and so appropriate to the simple and concise sentences of that-master of pure English, may, and often does, especially when presented in a special charge, at the close of the general charge, have the effect to obscure the definitions of malice given by the court in its own words, and instead of enlightening the jury, only contributes to their confusion.

The object sought in charging a jury is its enlightenment. To have charged the propositions requested by the state would not have had that effect, if they had been left unexplained, unless the jury knew, in advance, what elements constituted the crime of manslaughter, and also those which distinguished that clegree of homicide from murder in the first or second degree. The court may, rightfully, refuse to give a correct proposition to a jury where it wquld tend to confuse them, or not contribute to their enlightenment, unless amplified and explained.

If the court had adopted the propositions requested by the state, its duty would have been to proceed further and explain to the jury what constituted the crime of manslaughter, and what distinguished it from the higher grades of homicide.

If it was true as a legal proposition that malice, under sec. 6821, Revised Statutes, is not an essential attribute of the crime of assault with intent to kill, then as matter of course one may be convicted therefor, although, if his victim had died, he would only have been guilty of manslaughter; but this would be so, only, because malice is not an essential ingredient of either offence. The only proper office, therefore, that the propositions requested and refused could have served, was to tell the jury, in an indirect and obscure way, that the state was not bound to prove malice in order to obtain a verdict of guilty of an assault with intent to kill; information that might be given directly and concisely without burdening the minds of the jury with distinctions respecting the several grades of homicide.

Further, if this proposition contained a correct exposition of the law, the court was not bound to give it to the jury in the form requested, but had a right to select for itself the language with which it should be clothed. A judge is not bound to adopt the language of counsel, but may choose his own words and form of arrangement, so that the proposition, if correct and applicable, is fairly presented to the jury. McHugh v. The State, 42 Ohio St. 154.

It was not error, therefore, in the court refusing to adopt the propositions in the form in which they were presented. The main contention, however, is over their correctness as legal propositions.

The contention of the prosecuting attorney is, and he sought, by the proposition requested and rejected, to have the jury instructed that malice is not made an essential ingredient of the crime of assault with intent to kill, by section 6821, Revised Statutes, which creates the offence. That section, in so far as it affects this crime, reads, “Section 6821. Whoever assaults another with intent to kill * * * * shall be imprisoned.” * * * The section does not contain the word malice, nor any equivalent word or phrase. If the section had been originally enacted in that form, a doubtful question- might have arisen whether the legislature intended malice to be essential to the commission of the crime. The terna malice does not necessarily mean ill-will or hatred toward the victim. Revel v. State, 26 Ga., 275; State v. Decklotts, 19 Iowa, 447; State v. Turner, Wright, 20; State v. Gardiner, Wright, 392. It is defined by different courts and authors in varying forms of words, but in substance, with nearly uniform results. Bou-vier gives the results of the authors as follows: “The doing a wrongful act intentionally, without just cause or excuse.” “That state of mind which prompts a conscious violation of the law to the prejudice of another,” 2 Bouv., 139. Keeping steadily in mind a correct notion of what constitutes malice, it may well be doubted, that the section, even if an original act, should receive the construction urged by the state. If the “intent to kill,” under all the circumstances of the transaction, was justifiable and lawful, for example, if in lawful self-defence, the legislature could not be held, reasonably, to intend to .declare it an offence. It is only where the intent to kill was unlawful and wrongful that it should be held to constitute a crime, and to assault another to kill him wrongfully and unlawfully, makes the act malicious.

But, however this may he, the law as originally enacted, employed the word “murder,” instead of the word “kill.” The act reading, “That if any person shall assault another with intent to commit a murder” * * * Section 17, S. & C. (S. & S., 262). When the statutes of the state were revised, under and pursuant to the act of March 27, 1875, (72 Ohio E-, 87,) the commissioners adopted the word “kill” in the place of “murder,” in describing the offense under consideration.

Malice is a necessary ingredient of either grade of murder under the statutes of this state; and therefore an assault with intent to commit “murder” necessarily involved malice. If the legislature itself had amended the section in that particular only by deliberately discarding the word murder and substituting for it the word kill, the inference might have been irresistable, that their purpose was to eliminate the element of malice from the offence; for as it could produce no other effect, that must be held to have been intended, or the amendment would have produced no result whatever. It was not the province, however, of the commissioners to amend the statutes so as to change their meaning, but to reduce them into a concise and comprehensive • form. Changes of phraseology, therefore, thus introduced, do not carry the weight to which they would be entitled had it been the direct act of the legislature itself. We are of opinion, therefore, that notwithstanding the substitution of the word kill for that of murder in the statute, in the revision, no alteration in the meaning of the statute was intended, and therefore, the ingredient of malice is still essential to the offense of an assault with intent to kill.

The exceptions are overruled.


source: Caselaw Access Project

author: Spear, C. J.

license: Public Domain

text:
    Rider v. Fritchey, Adm’r.

      Corporations — Liability of stockholders — Pleadings—Section 3, article 13, of the constitution, consti*ued — Meaning of the word “ dues," defined.

    1. An averment in a petition to enforce against stockholders, liability for a judgment rendered December 24, 1882, against an insolvent street railroad company, upon a cause of action accruing April 7,1872,.which charges thatthe “company is a corporation duly incorporated under the laws 'of the state of Ohio, * * * and was such corporation prior to the indebtedness hereinafter described,” is a sufficient averment that the corporation was organized under a law which provided for a liability on the part of stockholders, at least to the extent required by the constitution.
    2. Section 3, of article 13, of the constitution which provides that “dues from corporations shall be secured by such individual liability of the stockholders, and other means, as may be prescribed by law; but, in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock,” is a remedial provision intended to afford a remedy to those who have just claim's upon insolvent corporations, and will, therefore, receive a beneficial construction for the purpose of extending the benefit to all who may fairly come within the meaning of its terms. Giving to the word “dues” such construction, it will include, not-only a claim for a debt arising upon contract, but a demand -for unliquidated damages arising from a tort.
    (Decided March 22, 1892.)
    Error to the Circuit Court of Franklin county.
    The action in the common pleas court was brought by defendant in error, a judgment creditor of The Fairwood Street Railroad Company, a corporation, to enforce on behalf of himself and all other creditors of the company, the statutory liability of stockholders.
    It was alleged in the petition that the “railroad company, is a corporation duly incorporated under the laws of Ohio, * * * and was such cornoration orior to the indebtedness hereinaiter described.” The petition further alleged the recovery, December 26, 1882, of a judgment by the plaintiff against the company, for $1263.64; the insolvency of the company at the time and since, and that the companjr had no property subject to execution. Also, that the judgment was in full force and unsatisfied save a payment thereon of $211.40, June 19, 1883. It was further averred that plaintiff’s cause of action upon which the judgment was rendered, was a claim for damages for negligently causing the death of plaintiff’s intestate, April 1,1872. The names of those claimed to be stockholders were set out with the amount of stock claimed to be held by each. In this list was the name of Fannie Peck, who, it was alleged, was the owner of fifty-five shares. The usual prayer followed. '
    By an amended petition filed October 25,1886, the plaintiff in error was made a party, and as to him it was therein alleged that he was the assignor of the shares of stock standing in the name of Fannie Peck, (who was at the beginning of the suit, and still is, insolvent), the assignment having been made between the years 1878 and 1880. Answer was interposed by plaintiff in error setting up the statute of limitations of six years, to which a reply was filed denying the same.
    Such further proceedings were had, that at the April term, 1887, final judgment was rendered, in which the court found the names of the creditors and amounts due each, the names of the stockholders liable, the amount of stock held by each, and the amount each solvent stockholder should be assessed in order to pay the debts, costs, etc. This amount assessed was a little less than 50-per cent, of the full statutory liability of each solvent stockholder. The plaintiff in error was one of those so assessed, the judgment against him being for $1269.00.
    Error was prosecuted to the circuit court where the sole ground urged was that the petition did not set forth a cause of action and the judgment was erroneous because the individual liability of stockholders is incident only to such demands against the corporation as arise out of its contracts, not extending to such as sound in tort. The judgment of the common pleas was affirmed by the circuit court.

      J. M. •Swartz, J. V. Lee, and O. W. Aldrich, for plaintiff in error.
    I. Are the stockholders in all corporations of Ohio, bound for its debts, or liabilities?
    This must be answered in the affirmative, in order to uphold the judgment, because the petition does not state the date of the organization of the defendant corporation, further than to say, that it was a corporation prior to the date of the death of the defendant in error’s intestate, which was April 17, 1872.
    If there is such a liability, upon the stockholders of all Ohio corporations, it must be either a statutory or constitutional liability, or a common law.liability. That there is no such common law liability, 'see, Carr v. Iglekart, 3 Ohio St., 458.
    Is there such a liability imposed by the constitution, or statutes, upon all Ohio corporations, regardless of the date ot organization?
    There was no such obligation imposed by the constitution of 1802, and no general statute imposing such a liability upon stockholders generally, until after the adoption of the constitution of 1851.
    While section 8, of art. 13, of the present constitution in providing for the liability of stockholders of corporations, does not in terms, distinguish between existing ones, and those to be created thereafter, yet as it did not show by affirmative language that it wás intended to apply to existing corporations, it will not be deemed to be retroactive. This question has been decided in accordance with this view in the case of Citizens Bank of Steubenville v. Wright, 6 Ohio St., 319.
    That the constitution was not to be construed as retroactive where the language would admit of another construction, see also, State v. Roosa, 11 Ohio St., 17; Ohio v. Union Township, 8 Ohio St., 400; Cormrirs of K?iox Co. v. Nichols, 14 Ohio St., 260.
    That stockholders in corporations organized before the constitution of 1851 was adopted, are not subject to the individual liability imposed by that instrument, was decided, in Palestine, etc., Co. v. Wooden, 13 Ohio St., 395.
    If any act passed since that time should attempt to impose a liability upon the stockholders of corporations organized under the old constitution, greater than that imposed by the law under which it was organized, such a law would be unconstitutional. Ireland y. Palestine, etc., Co., 19 Ohio St., 360.
    From those decisions we claim that the proposition of law upon which the petition is necessarily based is, not that the stockholders of all corporations, incorporated under the laws of Ohio, are liable for the debts, or liabilities of the corporation; but that the true proposition, logically expressed, is, "The stockholders of some such corporations are liable.” The “some” are those organized since the adoption of the present constitution, and any shown to have been organized before that time, under laws, whether general or special, in which the liability was imposed.
    We think it is a principle of pleading, too plain to be disputed, that where a statutory liability is imposed upon a particular class of persons, in any action to enforce such liability, the pleading must show that the persons against whom the remedy is sought, were embraced within the class against which the liability is declared, or it fails to show a cause of action.
    II. Upon the point as to the liability of any of the stockholders of a corporation for damages for a tort, we think the weight of authorities is, to the effect that such liability is limited to the creditors of the corporation, and that no person is deemed to be a creditor by reason of a claim for damages for a tort of the corporation. Bohn v. Brown, 33 Mich; Cabe v. Me Cune, 26 Mo., 371; Doolittles. March, 11 Neb., 248; Heacock v. Sherman, 14 Wend., 59; Archer v. Ross, 3 Brewster (Pa.) 264; Child v. Boston and Fair Haven Iron Works, 137 Mass., 516; Cook’s Stock and Stockholders, 220; Morawetz Cor., 608, 613; Act of 1861, S. and S., 136; Mamón v. Jacob, 6 S. W. Rep., 251; Wright v. McCormack, 17 Ohio St., 86 ; Brown v. Hitchcock, 36 Ohio St., 667; Hawthorn v. Calif, 2 Wall., 10.

      It is shown by the record that plaintiff in error assigned and transferred his stock sometime between the years 1878 and 1880, and that the judgment against the company was recovered in 1882. We contend that, whatever view may be taken of the stockholders’ liability, the plaintiff below did not become a creditor of the corporation until the recovery of the judgment. Evans'v. Lewis^80 Ohio St., 14; Crouch v. Gredles, 6 Hill, 250; Kellogg v. Schayler, 2 Denio, 73; Zimmer v. Schlespatif, 115 Mass., 52.

      Charles E. Burr and T.- M. Livesay, for defendant in error.
    We take it that the expression “the law of the state of Ohio” will be understood by the court, as the expression is understood in common usage, to mean the general laws of the state of which courts take judicial notice, and not a private enactment which in the “ordinary language” mentioned in the code is not a law at all. Brown v. State, 11 Ohio, 276.
    If this be so the court will take judicial notice of the fact that The Fairwood Street Railroad Company was not incorporated by any act under which the stockholders were not liable for the dues of the company..
    When this case was before the circuit court no objection was made to the petition in the respect now under consideration; but, on the contrary, it was conceded that The Fair-wood Street Railroad Company was incorporated under the act of 1861, (S. & S. 136), Cir. Ct. Rep., vol. 3, 89.
    When the amendment to the petition was filed, making Rider a defendant, he did not demur; but answered, and went to trial upon the evidence.' After the trial, he filed no motion for a new trial; took no bill of exceptions, nor did he otherwise bring the defect complained of to the attention of the court. The alleged defect in the petition was one which could readily have been cured by amendment if attention had been called to it. Under these circumstances, it would seem that the plaintiff has effectually waived the objection. Davis v. Hines, 6 Ohio St., 473; Ohio Life Ins. <5f Trust Co. v. Goodin, 10 Ohio .St., 557.

      It is claimed by counsel on the other side that the stockholders of this street railroad company were not liable for obligations growing out of torts
    In Ohio the constitutional provision for the protection of those having demands against corporations, and the statutes passed in pursuance thereof, are purely remedial in their nature, and ought, by the ordinary rules, to receive a liberal interpretation. Thompson on Eiability of Stockholders, sec. 52 et seq.\ Saterlee v. Stevens, 11 Ohio, 420; Tracy v. Card, 2 Ohio St., 431; Stale v. Harrison, 31 Ohio St., 250,264; Sedgwick on Construction of Statutes, 2nd ed. 308; Dwarris on Statutes, 231.
    The constitution uses the word “dues.” No word of broader import could have been chosen. The codifiers of 1880 paraphrased the word into “debts and liabilities.” Revised Statutes, 3258. The legislature is powerless to authorize the organization of a corporation in which the liability of the stockholders shall be less than that prescribed by the constitution. State ex rel. v. Sherman, 22 Ohio St., 411.
    The question, therefore, is reduced to this, viz: What does the word “dues” used in the constitution mean?
    Counsel on the other side has not been able to cite any case where the word “dues” has been held not to include an obligation arising out of tort. The word as a noun substantive is not one ordinarily used in such statutes, and this may be one reason why it has not received more frequent judicial construction. However this may be, this court is free to give the word such construction as is most conformable to justice, good-sense and the intent of the constitution. Carver v. Braintree Man. Co., 2 Story, 432; Milldam Foundry v. Hovey, 21 Pick., 417, 455; Smith v. Omans, 17-Wis., 395; Whiter. Hzmt, 6 N. J. E., 418; Cable v. McCzme, 26 Mo., 371; Morawetz on Corp., sec. 880, et seq.

   Spear, C. J.

A preliminary question arises upon an objection made by defendant in error that because the plaintiff in error has brought into this court as defendant, only the pa-intiff below, the court cannot have jurisdiction for want of necessary parties. If a reversal of the judgment would deprive defendant in error of any right as to parties below not present here, there would be force in this objection. But if the petition does not make a case against any of the alleged stockholders, it cannot prejudice the defendant in error that the other parties below are not parties in this court.

The petition is attacked here on two grounds. 1. That it is insufficient for want of an averment that the street railroad company was incorporated since the adoption of the constitution of 1851. 2. That there can be no liability in the present case against stockholders because stockholders are not liable for obligations of the corporation growing out of torts.

In support of the first proposition the argument is that in order to maintain the petition’ it must be held that stockholders in all corporations incorporated under the laws of Ohio are liable for the debts or liabilities of the corporation, which cannot be, for the reason that as to many, if not all. corporations organized prior to the adoption of the present constitution, no statutory liability whatever was imposed on stockholders. Hence an allegation such as is contained in the petition in this case that the “company is a corporation duly incorporated under the laws of the state of Ohio,” is not an allegation of organization under a law which imposes liability upon stockholders.

The point is one of some nicety, but We are hot impressed with its sufficiency. It will be noted that no demurrer was interposed by the plaintiff in error to the petition. On the contrary, he answered and went to trial. He filed no motion for new trial, took no bill of exceptions, nor did he ask a special finding of facts. The attention of the trial, court was not called to this alleged defect in the petition, nor does it appear to have been urged in the circuit court. Indeed it is stated in defendant’s brief, and not denied, that, upon the argument in the last named court, it was con-ceeded that the company was incorporated under the act of April 10, 1861, which act imposes liat hity in the identical terms of the constitution. It would appear that the party is rather late in making this objection,'especially as he has apparently suffered no prejudice. However, waiving this, we think it proper to judicially notice that no statute existed prior to the adoption of the present constitution authorizing the incorporation of a street railroad company, and, having in mind the duty enjoined by our code, to construe pleadings liberally in order to assist the parties in obtaining justice, we are of opinion that the allegation that the “company is a corporation duly incorporated under the laws of the state of Ohio,” is a sufficient averment that it was incorporated under a law enacted since the adoption of the present constitution. And as no such statute would have been valid which did not impose the constitutional liability, (State ex rel. v. Shermau, 22 Ohio St. 411), and as it is not to be assumed that the legislature would enact an invalid statute, the further conclusion would follow that the company was incorporated under a law which did subject stockholders to liability for obligations of the corporation.

A more serious question arises with respect to the second point. Can the stockholders of an Ohio corporation be held for obligations of the corporation growing out of torts? It follows from'what has already been stated, that we must assume that this street railroad company was organized under a law which imposed upon stockholders just such liability as the constitutional provision requires. We look, therefore, to the constitution as our guide. The provision, section 3, of article 13, is: “Dues from corporations shall be secured, by such individual liability of the stockholders, and other means, as may be prescribed by law; but, in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to. a further sum, at least equal in amount to such stock.” The question turns upon the import of the word “dues.”

It has been contended that provisions creating individual liability on the part of the stockholders are in derogation of the common law, and are, therefore, to be construed strictly. Authorities in support of this rule are not wanting, and, in so far as such liability is attached by way of penalty for the omission of some act required by the statute, as in some of the states, it is probable that_the weight of authority favors the proposition. But all concede that this is a remedial provision, and to hold that there must be applied to it the same test as if it were a penal law, is to hold that all remedial laws must be so construed, for every remedial law must of necessity be in derogation of the common law. Where the provision is simply remedial, though it does impose an obligation which did not attach at common law, we see no reason to insist Upon what is called a strict construction, but believe that the ordinary rule which requires the court to inquire simply as-to the intent ot the law-makers, reading the provisions as they were intended to be read, will best attain the ends of justice. This leads us to look to the intent of the section quote& Speaking in general terms, it must be manifest that the intent was to provide that those who derive advantage from the authority of the state, given by our incorporation laws, shall, at the same time, assume responsibility .for the acts of the artificial creature which they have called into legal being, affecting the rights of others. Having in mind this general intent, and the provision being remedial, it should, we think, be construed with a view to remove the evil and extend the benefit proposed.

It is conceded that if a cause of action for a tort can be treated as a “debt,” the liability of the stockholders for it would follow. The affirmative of this is asserted, and the following authorities are cited in its support. Carver v. Manufacturing Company, 2 Story, 432; Milldam Foundry v. Hovey, 21 Pick. 417; Grey v. Bennett, 8 Met. 522; Smith v. Omans, 17 Wis. 395, and White v. Hunt, 6 N. J. R. 418. To the contrary of this, counsel for plaintiff in error cite: Bohn v. Brown, 33 Mich. 257; Cable v. McCune, 26 Mo, 371; Doolittle v. Marsh, 11 Neb. 248; Heacock v. Sherman, 14 Wend. 59; Archer v. Rose, 3 Brewster, 264; Child v. Iron Works, 137 Mass. 516; Cook’s Stock and Stockholders, §220; Morawetz, §§ 608, 613; Nanson v. Jacobs, 6 S. W, Rep. 246 (Mo.); Evans v. Lewis, 30 Ohio St. 14; Crouch v. Gridley, 6 Hill, 250; Kellogg v. Schayler, 2 Denio, 73, and Zimmer v. Schleehauf, 115 Mass. 52. A review of these authorities would be important if a holding upon the proposition were necessary to a decision of the case before us. "We think it is not.

It would seem to be the undoubted duty of the court to ‘.give the word “dues,” as found in the section quoted, such construction as will secure the apparent object of the constitution-makers in its adoption. Constitutions are neces-.sárily couched in terse language, and we look there for the use of words in a broad, comprehensive sense. This term ’“dues” is of extended import. Among other definitions Ratham .gives the singular: owed; capable of being justly demanded; that which may be justly claimed. Worcester: that which any one has a right to demand. Webster: that ought to be paid or done to or for another; justly claimed as a right or property; fulfilling obligation; that which belongs or may be claimed as a right; whatever custom, law, or morality requires to be done; right, just title or claim. Bouvier defines it as what ought to be paid; what may be •demanded. It seems natural to say that where one is injured by the negligence of another, reparation is due. This implies a legal demand for reparation, and in Heacock v. Sherman, supra, Justice NERSON admits that the word '“demand,” found in the New York statute, if it stood alone, would be broad enough to include a cause of action for a tort.

It is difficult to see any reason why the framers of the ■constitution' should intend to afford one who gives credit for goods or money to a corporation a right to demand compensation of the stockholders in case of insolvency, and deny a like right to one who intrusts it with the care of his person, as in the case of a passenger, or to one even a stranger who, without fault on his part, is injured by the negligence of the corporation’s agents. It may well be asked: are the rights of things more sacred than the rights of persons? Is there any rule of public policy which would justify the protection of rights arising ex contractu, which would not equally call for protection of rights arising ex delicto, or any claim for unliquidated damages? Suppose, as is suggested by Mr. Justice Story, in illustrating his propositions in Carver v. Manufacturing Company, supra, a contract by a corporation to manufacture goods of a particular quality or character, or to emplóy workmen, to be wholly broken, so that the right of the injured party would be, not to money, but to unliquidated damages; if these would be without the purview of the statute, it would have a very narrow and inadequate range. Or, suppose a manufacturing corporation to obstruct its neighbor’s mill privilege, or stop his works by back flowage, we see, at once, that an insolvent corporation might do irreparable mischief without any just redress. Or, suppose an insolvent corporation should unlawfully convert 1000 bales of cotton belonging to a third person, the mischief could be redressed only by an action of trover for unliquidated damages,-and'.if the individual operators were not liable, after an unsatisfied judgment, the statute would be little more than a delusion. A narrow construction would exclude recovery in all these -cases; a broad, liberal construction, .such as should be given to a remedial provision, would afford relief, and thus attain the objects which, it would seem, was in the contemplation of 'the lawmakers.

As conclusion, we are of the opinion that the word “dues” should receive a beneficial construction, one which will include within its scope as well a demand for unliquid-ated damages for a tort, as a claim for a debt, arising upon Contract.

The plaintiff in error was the owner of stock in this insolvent corporation while the action was pending against it; Being a claim for which liability attached to the stockholders, as we have found, it rested upon him to an amount equal to his stock. Before the judgment was rendered he assigned his stock to'one who, at the beginning of, the present suit, and at the time of trial, was insolvent. He could not thus shift the responsibility.

The question involved in this case, as to the meaning of term “dues,” was not before the court in either Evans v. Lewis, 30 Ohio St. 14, or Brown v. Hitchcock, 36 Ohio St. 667, and we do not understand our conclusion to be inconsistent with the decision in either of those cases.

In the court of common pleas a counsel fee was taxed for plaintiff below, and the same was included in the judgment as part of the costs. This was manifest error, but inasmuch as defendant in error has, since the argument, ■remitted the amount, no farther notice need be given it.

Other grounds of error are alleged. An inspection of the record fails to satisfy us that either is well taken.

Judgment affirmed.


author: By the Court.

text:
    Wilmot v. Lyon et al.

      <iContracts — Purchase of goods by insolvent vendee— When fraudulent ■ — Intentional fraud — Remedy of vendor.

    ERROR to the Circuit Court of Cuyahoga county.

      Estep, Dickey, Carr & Goff, for plaintiff in error.

      Everett, Dellenbaugh & Weed, for defendant in error.
   By the Court.

The Chagrin Falls Paper Company, ■purchased on credit of John H. Eyon & Co., a quantity of merchandise which, after its delivery, was mortgaged by the company to various parties, and possession thereof delivered to the mortgagees; and while the same was in the possession of E. P. Wilmot as agent of the mortgagees, Eyon & Co., replevied the property, claiming it had been obtained from them by fraud. On the trial the evidence tended to prove that The Chagrin Falls Paper Company, at the time of the purchase, was indebted to an amount largely in excess of the value of its property and assets, and that it did not intend or expect to pay for the property so purchased, and had no reasonable expectation of paying for the same.

The court among other things charged the jury, that “a contract for the purchase of goods on credit, made with intent on the part of the purchaser not to pay for them, is fraudulent; and if the purchaser has no reasonable expectations of being able to pay, it is equivalent to an intention-not to pay.”

Held: The charge given was a correct statement of the law applicable to the case, and is approved. Talcott v. Henderson, 31 Ohio St., 162.

Judgment affirmed.


author: By The Court.

text:
    Heddleson v. Hendricks.

      Bill of exceptions — Due allowance, signing and filing of, imports, absolute verity.

    Where the record of the trial court shows the allowance of forty days after the term at which judgment was rendered for the presentation and filing of a bill of exceptions, and the due allowance, signing and filing of the same within the forty days is also shown by the record and by the bill itself, evidence will not be heard in this court to show that the bill was not presented to-the opposite counsel ten days before the expiration of the forty-days, or to the judges five days prior thereto.
    (Decided April 2, 1892.)
    Motion to strike bill of exceptions from the files in cause No. 3085 on the General Docket.

      W. B. Loomis, for the motion.

      Nye & Follet, contra.
   By The Court.

The ground of the motion is that the bill of exceptions was not presented to opposite counsel for examination ten days before- the expiration of the forty days after term, nor to the judges for their signature five days prior thereto, as required by section 5302, Revised. Statutes, which facts are sought to be shown by affidavit.

It appears by the record that the cause was tried at the-September term, 1891, of the circuit court, and judgment entered September 24, 1891. It was then ordered that the journal remain open for the period of forty days from the. close of tile term for the presentation, signing and filing of defendant’s bill of exceptions, and when so allowed, signed and filed, shall be a part of the record. Also, that on November 2, 1891, came the defendant and presented his bill of exceptions, which, being examined and found to be true and correct, is allowed, signed, filed and ordered to be made part of the record herein, all of which is done and this entry made as of the September term, 1891. The bill of exceptions appears, on its face, to have been allowed, and signed by the judges within the statutory time.

Held: The record imports verity, and cannot be impeached by evidence aliunde tending to show that the requirements of the statute were not complied witíi.

Motion overruled.


author: By the CoukT:

text:
    Ralston et al v. Wells.

      Judgments — When fraudulently procured, how vacated — Practice.
    1. Representations made to the court by counsel of a party asking the entering of a judgment in the absence of counsel for the party against whom judgment is asked, to the effect that such counsel has consented to the entry of judgment, if false, do not constitute a mere irregularity, but a fraud.
    2. Where judgment has been obtained by reason of such representations, claimed to be false, the proper proceeding to procure a vacation of it is by petition under section 5358, Revised Statutes, and not by motion under section 5357.
    (Decided April 19, 1892.)
    Error to the Circuit Court of Defiance county.
    In an action brought in the court of common pleas by John Wells against Joseph Ralston and Christian P. Seibert, to recover damages for selling Wells’ property by Seibert, as constable, on an execution in favor of Ralston, by consent, at the February term, 1886, the issues were ordered referred to a referee. A trial was had before the referee, wbo filed his report, finding defendant Seibert liable to-Wells in the sum of $209.80, and that judgment should be rendered against Seibert and in favor of Wells for that sum; and that Ralston was not liable to Wells, and should be dismissed. A motion was soon thereafter filed by ■Wells for confirmation of. and judgment on the report, and, at the February term, 1887, of the court, no exception to the report having been filed, a judgment was entered confirming the report of the referee and rendering judgment in favor of Wells as against Seibert. No finding was had or judgment rendered against Ralston.
    During the vacation following a motion was filed to set aside and vacate the judgment as irregularly obtained and inadvertently rendered, the grounds being: 1. The judge was interested in the event of the suit and rendered judgment by reason of the statement of plaintiffs counsel made to him in the absence of defendants’ attorney, to the effect that rendition of such judgment was assented to by defendants’ attorney, which statement was not true, and but for which judgment would not have been rendered. 2. The report of the referee in law required judgment for defendants instead of for plaintiff, and the judgment was rendered inadvertently, and without having read, or having heard read, the report.
    At the May term, 1887, (held by the same judge who entered the judgment), the motion was heard upon affidavits, to the reading of which Wells objected and excepted. After which affidavits were offered by Wells and read in evidence. The court found that the judgment of the February term was inadvertently rendered by the court, the judge not being competent to try the cause, because he had been consulted by one of the parties as an attorney for him, and acting under the mistaken impression that there was no controversy between the parties, and that all of said parties consented and were willing that the said judgment should be entered on the report of the referee. And the court finding that the parties have a right to a hearing on the report by an impartial and disinterested judge, it was ordered that the judgment be set aside and vacated, and the clerk ordered to reinstate the cause upon the' trial docket for hearing upon the referee’s report. Motion for new trial by Wells was overruled.
    To all of which Wells, by counsel, excepted, and a bill of exceptions was duly taken setting out all the evidence. The bill shows that some time after the report was filed counsel for Wells called up the case and asked judgment on’ the report. The judge asked counsel if opposite counsel was willing and satisfied, to which counsel made answer that he had seen counsel and that he was willing and satisfied, and that it- was fully understood that the report should be confirmed. Thereupon the court confirmed and entered up judgment on the report. The bill further shows the introduction ot evidence by defendants, by affidavits, tending to.prove that no consent was given by defendants or their attorney, to the rendition of the judgment, and of evidence by Wells, by affidavits, tending to prove that consent was given to such judgment. But no evidence was offered tending to show that the judgment was rendered by inadvertence, nor any evidence tending to show that it was obtained in any way other than as stated above.
    On error to the circuit court by Wells, the judgment of the May term, vacating the previous judgment, was held erroneous, and was reversed.

      Henry Newbegin, for plaintiff in érror.

      Harris & Cameron, for defendant in error.
   By the CoukT:

The judgment of reversal by the circuit court was right for several reasons.

The case made upon trial of the motion to vacate showed that the judge was incapacitated to hear the motion. He had been of counsel for Ralston in the matter involved. True, he entered the judgment sought to be vacated, acting on the belief that it was by consent. But his power as trial judge to correct the journal ended with the term, and the judgment then remaining was valid until set aside, in a proper proceeding, by a court competent to try the question whether the judgment had been entered by consent or not, and any further questions which might arise.

If the statement of the counsel for Wells to the court, which induced the judgment, was untrue, it was not a mere “irregularity,” not “the want of adherence to some prescribed rule or mode of proceeding,” but was a fraud upon the court as well as upon justice, a “fraud practiced by the successful party in obtaining judgment.” Hence, the proper proceeding to procure a vacation of the judgment so obtained was not by motion under section 5357, Revised Statutes, but was by petition, verified by affidavit, under section 5358. To a charge of fraud thus made the 'opposite party could have an opportunity to raise an issue by answer, and have that issue tried in a manner which would give a fit and convenient time to cross-examine witnesses, and for a full trial. This could not be accorded on the hearing of a motion supported by affidavits only.

In any event, if defendant showed ground to vacate, the court should have adjudicated no further than to determine that question, for there still remained to be heard and passed upon the further question whether the right judgment had not, after all, been rendered. And, until that should be determined adversely to the plaintiff, the judgment would stand. Sections 5359 and 5360, Revised Statutes, and Braden v. Hoffman, 46 Ohio St., 639.

Judgment affirmed.


author: By the; Coub.T:

text:
    State, ex rel. v. Commissioners.

      Mandamus — County commissioners — Construction or repair of bridges by — Expediency of, a matter of discretion — Cannot be controlled by mandamus.

    The expediency of the construction or repair of a bridge, under section 4938, Revised Statutes, rests in the administrative discretion of the countj' commissioners, and such discretion cannot be controlled by mandamus.
    (Decided April 19, 1892.)

      ERROR, to the Circuit Court of Hamilton county.
    The case was appealed from the common pleas to the circuit court, and sought to compel the commissioners of Hamilton county by mandamus, to repair a certain bridge within the corporate limits of the village of College Hill. It was tried upon an agreed statement of facts, which is as follows:
    “(1.) The Rinden avenue in College Hill referred to in the petition is a part of what was originally called Groes-beck road, a county road in Hamilton county, running into and» through said village of College Hill, of general and public utility.
    “(2.) At the place where the bridge in question now is, the road descended into a ravine, at the bottom of which and under the road was a culvert through which ran the drainage of a considerable area of land to the north of the road, and through which there was frequently, but not constantly, a small stream of water.
    ■‘(3.) About 1872, the village of College Hill made a fill of several feet over the culvert, and reduced the steepness of the grade of the road on each side of it.
    “ (4.) While the road was in this condition, early in 1876, the College Hill railroad cut through it, and laid its track a number of feet below the surface of the road. The cutting for the railroad necessitated the destruction of the culvert and the construction of a bridge or a grading of the approaches, and the water which had flowed through the culvert, now flows on each side of the track. After cutting across the road, the railroad built a wooden bridge over this track wide enough for wagons to pass, not of the full width of the county road. There was a fill of several feet made by the village corporation on Rinden avenue from each side of the wooden bridge to raise the level of the road to the level of the wooden bridge.
    “(5.) In 1882, the county commissioners removed the wooden bridge, and in its place constructed an iron bridge, the one now in question, of the full width of the avenue, and raised it so high that when the approaches were filled, tbe avenue was almost level, and paid for such bridge out of the county bridge fund.
    “(6.) The railroad company in 1888 or ’89, without any authority from the said commissioners so to do, raised the superstructure of the bridge a few inches, not more than a foot at one end, and propped up the same with timbers.
    “(7.) That the abutments of said bridge, as a result of defective construction, had become cracked, and that the action of said company in raising said bridge, added to the original defect of the construction of said abutments, had caused the bridge to become unsafe and dangerous to public travel, in which condition it now is, and will.have to be rebuilt.
    “(8.) That said bridge is a necessary bridge.
    “ (9.) That the village of College Hill is a village of the second class; is not entitled to demand or receive any of the bridge fund levied on its property; has not received any portion thereof; and has no bridge fund of its own.
    “ (10.) That the attention of the commissioners was called to the unsafe condition of the bridge, and demand made on several occasions to replace or repair it, and that they had caused their engineer to prepare plans for a new structure, which the commissioners claimed should be erected by said railroad company, but which has not been so erected, by said railroad company; and in order-to protect the traveling public, .said commissioners also caused a danger sign to be ■ placed on said bridge.
    “ (11.) The relator is a citizen, resident, tax-payer, householder and property owner of College Hill, and a user of said bridge in question, and is compelled with other travelers to pass over said bridge.”
    The court found as a matter of law that the relator was not entited to any relief, and dismissed the petition.

      C. Hammond Avery, and Mathews <Sf Cleveland, for plaintiff in error.

      Spiegel & Bromwell, county solicitors, for defendants in error.
   By the; Coub.T:

We see no error in the judgment of the court upon the agreed statement of facts. The relator founds his rights to a mandamus against the commissioners upon the provisions of section 4938, Revised Statutes, which provides that:

“The commissioners of the several counties shall cause to-be constructed and kept in repair, in the manner prescribed by law all necessary bridges in villages and cities not having the right to demand and receive any portion of the bridge fund levied upon property within such corporations, on all state and county roads, free turnpikes, improved roads, transferred and abandoned turnpikes and plank-roads, which are of general and public utility, running into or through any such village or city.”

The duty here imposed is a part of the general duty to-“construct and keep in repair all necessary bridges over' streams and public canals on all state and county roads,”' imposed on county commissioners by section 860, Revised Statutes, and became necessary as a .limitation of section 2640, Revised Statutes, giving to cities and villages the supervision and control of all public highways and bridges-within their corporate limits, and requiring them “to keep-the same in repair and free from nuisances.” These sections all relate to the same subject, and must be construed together. As an effect of these provisions it became the duty of county commissioners to construct and keep in repair all bridges on the public highways of the county,, except such bridges as are within cities and villages that have the right to demand and receive a portion of the bridge fund.

The language, “shall construct all necessary bridges,” though imperative in form, cannot be construed to require the construction of any bridge irrespective of questions of expediency. The necessity for a bridge, requiring its immediate construction, must, in the prudent administration of the affairs of a county, be relative to many considerations — such as time, means, and the number of other bridges required by public convenience at other places in the county; and, all these things being considered, whether the bridge should be constructed at once, is for the determination of the commissioners in the exercise of their administrative functions; and their determination in the matter cannot be controlled by mandamus. A bridge may' be necessary, but whether it should be constructed, or repaired, before others of equal or more pressing importance, cannot be determined by a court in opposition to the views of a board of commissioners, familiar not only with the resources, but with the wants of each and every part of the county. The expediency of building or repairing a bridge, however necessary, is an administrative and not a judicial question. Hence the “agreed fact” that the bridge is necessary, is immaterial upon the question whether the commissioners should be compelled by mandamus to repair it. The power to compel the construction or repair of a particular bridge) provided for by a special act, is not' involved in this case.

Judgment affirmed.


author: Dickman, J.

text:
    State v. Simmons.

      Petition in error by the state in a criminal case.

    Where a demurrer to an indictment is sustained, and the defendant discharged by the court of common pleas, the circuit court, under section 7356 of the Revised Statutes, has no jurisdiction, on a petition in error filed in behalf of the state, to review the action of the court of common pleas in sustaining the demurrer.
    (Decided April 19, 1892.)
    MOTION' for leave to file, a petition in error to reverse the judgment of the Circuit Court of Rucas county.

      J. A. Barber, prosecuting, attorney, for plaintiff in error.

      L. W. Morris, for defendant in error.
   Dickman, J.

On November 23, 1891, Foster E. Simmons, the defendant’ in error, was indicted under section 7098, of the Revised Statutes, for unlawfully and falsely forging and altering the date on a railroad ticket. A demurrer to the indictment was sustained by the court of common pleas,' and the defendant was thereupon discharged. The state filed a petition in error in the circuit court, praying for a reversal of the judgment rendered by the court of common pleas, and that .the case might be remanded for trial upon the indictment. The circuit court dismissed the case for want of jurisdiction, the journal entry being in the following words: “The court order that the petition in error be, and it is hereby, dismissed for want of jurisdiction, the court being of the opinion that under section 7356, of the Revised Statutes of Ohio, it has no power to review the action' of the common pleas court in sustaining the demurrer to the indictment, said indictment charging a violation of the criminal statutes of the state of Ohio.” To this ruling of the circuit court the plaintiff in error excepted, and leave is now sought to file a petition in error to reverse the judgment of that court.

Section 7356 of the Revised Statutes, provides as follows: “ In any criminal case, including a conviction for a violation of an ordinance of a municipal corporation, the judgment or final order of a court or officer inferior to the common pleas court ma3^ be reviewed in the common pleas court; a judgment or final order of any court or officer inferior to the circuit court may be reviewed in the circuit court; and a judgment or final order of the circuit.court or the common pleas court in cases of conviction of a felony or a misdemeanor, and the judgment of the circuit court in any other case involving the constitutionality or construction of a statute, may be reviewed by the Supreme Court.”

It is obvious, that under this section, thé defendant in any criminal case may have a review in the court of common pleas, circuit court, or Supreme Court, of a judgment or final order that has been rendered against him. But it is claimed in behalf of the plaintiff in error, that where on ■demurrer to the indictment, judgment is given for the defendant, the state also may prosecute error in the circuit court.

Unless permitted by statute, the weight of authority in this country is against the right of the government to bring error in a criminal case. In Illinois, where the matter had not been regulated by statute, the Supreme Court dismissed a writ of error which had been brought by the state’s attorney, on the ground that a writ of error would not lie in behalf of the people in a criminal case. The People v. Dill, 1 Scam. 257. In the case, Commonwealth v. Harrison, 2 Virg. Cas. 202, the general court of Virginia decided, that a writ of error which had been awarded by a judge in vacation, on the application of the attorney for the commonwealth, had improvidently issued, “because no writ of error lies in a criminal case for the commonwealth.” In The State v. Reynolds, 2 Hay, 110, the Supreme Court of Errors and Appeals, of Tennessee, held, that a writ of error, or appeal in the nature of a writ of error, would not lie for the state in a criminal case. The court said: “A writ of error will lie for the defendant, but not against him. This is a rule of such vital importance to the security of the citizen, that it cannot be impaired but by express words.” In the case, The People v. Corning, 2 N. Y. 1, there was an elaborate review of the authorities on the subject, both English and American, and the court of appeals came to the decision, that a writ of error would not lie in behalf of the people, after a judgment for the defendant. In that case, the defendant was indicted for perjury, in the court of general sessions of the county of Onondaga, and, as in the case at bar, on demurrer to the indictment, judgment was rendered in his favor. Commonwealth v. Cummings and Commonwealth v. McGinnis, 3 Cush. 212, were indictments for violations of the license laws. The judgment was arrested in the first entitled case for certain formal defects in the indictment, and the defendant discharged; and in the second case, the indictment was quashed on the defendant’s motion. The cases came before the Supreme Court, on writs of error brought by the commonwealth, to reverse the judgment in favor of the defendants. Shaw, C. J., said: “This court is of opinion, that the weight of authority is adverse to the right of the commonweálth, to.maintain a writ of error in a criminal case, and that in every view, which we have been able to take of the subject these writs of error must be dismissed. See Wharton’s Cr. Pl. § 773, and cases cited.

It being, therefore, the prevailing doctrine in this country, in the absence of a statutory rule to the contrary, that in a criminal case a writ of error cannot be taken by the prosecution to review an adverse judgment on demurrer or other procedure before the trial court, the question arises, whether such right of review in the circuit court is given to the state, under section 7356 of the Revised Statutes. If the language of that section, “ a judgment or final order of any court or officer inferior to the circuit court may be reviewed in the circuit court,” is to be taken without limitation, then, upon an acquital of the defendant, the state might claim the right of review, in violation of the constitutional rule, that no person shall be twice put in jeopardy for the same offense. But no such interpretation can be given to that language; and when, in the clause immediately following, there is designated what decisions of the circuit court the Supreme Court may be called upon to review, the language is, “a judgment or final order of the circuit court or the common pleas court in cases of conviction of a felony or a misdemeanor,” thus indicating a proceeding in behalf of the defendant, and not for the state that has secured the conviction.

Upon an examination of the sections of the statute regulating proceedings in error in criminal cases — sections 7356 to 7367, inclusive — it will be seen, that no provision has been made for the filing of a petition in error by the state. Section 7358 provides that the proceedings to review a judgment in a criminal case shall be by a petition in error; and by section 7359, when such petition is filed in any court, a summons in error is to be issued, commanding notice to be given to the prosecuting attorney, and if issued from the Supreme Court, a copy thereof is to be forwarded to the attorney-general; and by section 7362, provision is made for suspending the execution of sentence while proceedings in error are pending — thus manifesting that the statute contemplates a review of the judgment or final order, not in behalf of the state, but in behalf of the defendant.

Under section 7305 et seq. of the Revised Statutes, the prosecuting attorney may except to any decision of the court, and tender his bill of exceptions thereto, and have the same signed and made a part of the record; and the prosecuting attorney may present such bill of exceptions to the Supreme Court; and if the Supreme Court be of the opinion that the questions, presented should be decided upon, the bill of exceptions is to be allowed and filed, and a decision rendered thereon. But such procedure is not bj' petition in error. And the provision of the statute — section 7308 — that the judgment of the co'urt in the case in which the bill of exceptions -was taken, shall not be reversed, nor in any manner affected, but that the decision of the Supreme ■Court shall determine the law to govern in any similar case, evidences a legislative intent not to authorize the state to institute proceedings in error to reverse a judgment rendered in favor of the accused in a criminal case.

Our attention has been called to.the cases Van Wert v. Brown and State v. Rouch, 47 Ohio St. 477, in which it was held, that section 7356 conferred upon this court jurisdiction to review the judgment of the circuit court, in a case where the charge was a violation of a municipal ordinance. But the decision in those cases was based upon the distinction, that a violation of the ordinance in question, though immoral and mischievous in its tendency, was not a crime, but at most only quasi criminal.

In State v. Josephs, 43 Ohio St. 457, it was decided, that section 7356 does not authorize this court to review a judgment of the circuit court reversing a judgment of conviction rendered in the court of common pleas in a criminal case. The judgment of the circuit court was in favor of the accused, and this court held, that as against the accused, it had no authority to review that judgment, in behalf of the state.-'

In our opinion, the circuit court 'did not err in dismissing the petition in error for want of jurisdiction, and

Leave to file in this ooiort a petition in error in behalf of the state is refused.