author: Newman, J.

text:
    The Elyria Savings & Banking Co. v. Walker Bin Co.

      Negotiable instruments — Checks—Bank’s liability to holder — Acceptance or certification — Section 8294, General Code — Forged indorsement — Check stamped "paid" and drawer's account charged — Not an acceptance — Bank not liable, when.

    1. By force of the provisions of Seotion 8294, General Code, there is no liability on the part of a bank to the holder of a check unless and until it accepts or certifies the check.
    2. Where a check is paid by a bank, which is the drawee thereof, on a forged indorsement, and there is stamped upon the check ‘“Paid,” together with the date of the payment and the name of the bank, and the check is charged to the account of the drawer, this is not an acceptance of thé check within the meaning of Section 8294 and does not create a liability against the bank in favor of the true holder or payee.
    (No. 14664
    Decided July 2, 1915.)
    Error to the Court of Appeals of Lorain county.
    Defendant in error is the successor of the Walker Patent Pivoted Bin Co., and became the owner of all contracts, property and rights of action of that company. One C. W. Smalley purchased from the Walker Patent Pivoted Bin Co. certain store fixtures at the agreed price of $893, and in. part payment thereof issued two checks of $155 each, payable to the order of R. W. McKain, manager of the company, and delivered them to one W. P. Sutherin, a salesman under McKain. These checks were received by plaintiff in error in the regular course of business through other banks and were paid by it and charged to the account of Smalley. One check was paid September 10, 1909, and there was stamped on the face thereof with a rubber stamp the following: “The Elyria Savings & Banking Co. Paid Sep 10 1909 E. M. Rice, Cashier.” The other check was paid September 21, and the stamping on this check is the same with the exception of the date. The balance of the $893 was paid to the defendant in error, but it received no part of the proceeds of the two checks above mentioned, the indorsement of R. W. Mc-Kain, manager, thereon having been forged. Defendant in error brought an action against Smalley to recover this balance of $310 claimed to be due on account of the purchase of the store fixtures, and upon a hearing of this case on its merits judgment was rendered in favor of Smalley, the court holding that Sutherin had authority to receive the two checks and that the delivery thereof to him cancelled Smalley’s obligation to the amount of the checks. Thereupon defendant in error brought this action against the banking company to recover the sum of $310 and interest on account of the payment of these two checks upon a forged indorsement. The case was tried to a jury and at the. conclusion of the plaintiff’s evidence a directed verdict was rendered in favor of plaintiff in error and judgment was entered on this verdict. This judgment was reversed by the court of appeals upon the ground that the court of common pleas erred in directing a verdict for the banking company.

      Messrs. Ingersoll & Vandemark, for plaintiff in error..

      Mr. F. M. Stevens and Mr. D. B. Symons, for defendant in error.
   Newman, J.

The checks in question, bearing the forged signature of McKain, manager, were cashed at Franklin, Pennsylvania, and were transmitted by a bank in that city through several other banks whose indorsements the checks bore when they were paid by plaintiff in error. For the purpose of this case, however, the indorsements of the several banks may be disregarded and the checks treated as though they were presented directly to plaintiff in error by the person who forged the signature of McKain, manager.

In 1902 the legislature of Ohio passed the negotiable instruments act. It follows generally the English bills of exchange act and is substantially like the act adopted by practically all the states of the Union. It is entitled “An act to establish a law uniform with the laws of other states on negotiable instruments.” It is carried into the General Code, Sections 8106 to 8302. The courts of the country being in conflict in their decisions respecting negotiable instruments, the purpose of the passage of the act was to establish certain fixed rules governing negotiable instruments and to bring about a uniform system of laws on the subject and thereby do away with the confusion that had existed. In the adoption of the act the legislature intended to form a complete system of laws relating to negotiable instruments and to cover the whole subject' so far as it could be done by statute. In any case not provided for in the act the rules of the law merchant govern. Section 8300. It follows then that where a case is provided for the statute must govern.

In the case here there is involved the right of the holder of a check to maintain an action against the drawee. If this point is specifically dealt with in the negotiable instruments act, the law on the subject should be ascertained by interpreting the language used in its provisions relating thereto. What the state of the law was previous to the adoption of the act need not be considered. Nor should earlier decisions of the court be resorted to if the provisions of the act are not of doubtful meaning. In fact, the act does not purport to be, nor is it, in every instance, a codification of the then existing law. Some of its provisions are declaratory of the existing law, while others alter and change the law as theretofore declared. In Rockfield v. Bank, 77 Ohio St., 311, it was held that by force of certain provisions of the negotiable instruments act the law on the subject there under consideration was changed.

Section 8294 reads as follows: “A check does not of itself operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder unless and until it accepts or certifies the check.” This we think is intended to. cover the liability of a bank to the holder of a check, and he can recover from the bank only when he brings himself within the provisions of this statute. If a check is neither accepted nor certified there is no liability on the part of the bank to the holder. There is no claim made that the checks in question here were certified. But it is insisted by counsel for defendant in error, and it was the holding of the court of appeals, that when the bank stamped “The Elyria Savings & Banking Co. Paid Sep 10 1909 E. M. Rice, Cashier,” and charged the same to the account of the drawer, there was an acceptance and the banking company thereby became liable to the rightful holder. It is the settled law that a bank is obliged to pay on the order of the drawer to the person named in the check. It must follow the order with the utmost strictness. If it pay upon a forged indorsement, the check cannot be charged against the drawer, unless the bank, upon some principle of estoppel or on account of some negligence chargeable to the drawer, might claim protection. So that as between these two parties, the drawer and drawee, there was no payment. In the negotiable instruments act it is provided that the provisions applicable to a bill of exchange payable on demand apply to a check. Section 8290. Section 8237 provides that the acceptance of a bill of exchange is the signification of the drawee of his assent to the order of the drawer, but it further provides that the acceptance must be in writing and signed by the drawee and it must not express that the drawee will perform his promise by any other means than the payment of the money. Under the negotiable instruments act acceptance means an acceptance completed by delivery or notification. < Section 8295. Did the stamping of the checks in question amount to an acceptance as contemplated by this statute ? Payment is the natural and legitimate end of á check.- Acceptance is essentially different. As has been said, it is the beginning of the active career of the instrument and there is added to its original vitality a new element of force and strength calculated to prolong its existence and widen its sphere of usefulness. Acceptance contemplates a promise on the part of the drawee to do something. Where there is an acceptance a contractual relation arises between the drawee and the holder. The stamping ' of these two checks by the bank and the charging of them to the account of the drawer was certainly not an acceptance within the meaning of these provisions.

Counsel for defendant in error rely upon the case of Dodge v. The Natl. Exchange Bank, 20 Ohio St., 234, and 30 Ohio St., 1, as decisive of the case at bar. In the Dodge case (30 Ohio St., 5) this language is used: “The paymaster, by drawing and delivering the check in question, in payment of plaintiff’s voucher, set apart and appropriated for the plaintiff’s use so much of his funds in defendant’s hands as would be necessary for its payment. This act of. appropriation the plaintiff conclusively ratified by bringing this action. The defendant also assented to this appropriation, by accepting his check, by assuming to pay it, and by claiming and receiving credit fr*si the drawer for its payment.” It was upon the theory that the drawing and delivering of the check operated as an assignment pro tanto of the funds of the drawer in the bank that the Dodge case was decided. This doctrine was not recognized in a later Ohio case, Covert v. Rhodes, 48 Ohio St., 66, where it was held that a check does not of itself operate as an assignment of any part of the funds to the credit of the drawer with the bank. But whether or not that was the law in Ohio prior to the adoption of the negotiable instruments act is unimportant. It is not the law now. The rule announced in the Dodge case has been discarded, and it is expressly provided in Section 8294 that a check does not of itself operate as an assignment of any part of the funds to the credit of the drawer with the bank. In view of the provisions of the negotiable instruments act we cannot adhere to the rule announced in the Dodge case.

Seventh Natl. Bank v. Cook, 73 Pa. St., 483, and Pickle v. Muse, 88 Tenn., 380, are cited by counsel for defendant in error in support of their contention. In these cases it was held that where a bank pays on a forged, indorsement the true payee can maintain an action against the bank. At the time these cases were decided the negotiable instruments act had not been adopted by Pennsylvania or Tennessee, and we doubt very much whether the courts of those two states would follow this holding in the face of its provisions.

In B. & O. Rd. Co. v. First Natl. Bank, 102 Va., 753, the facts were very similar to those in the case here. The court interpreted certain sections of the Virginia code which are identical with Sections 8237, 8290 and 8294, supra. The court used this language, which is in point here:

“Now, if there be any virtue in that law, the checks in question did not assign to the holder the funds, or any part thereof, of their respective drawers on deposit with the defendant; nor could it have that effect unless and until the checks were certified, and section 185 expressly declares that the provisions of that act, with respect to bills of exchange, payable on demand, shall apply with equal force to checks; and turning to section 132, already quoted, we find that the acceptance must be in writing and signed by the drawee in order to constitute a cause of action by the holder against the bank.
“This opinion might be greatly prolonged by citation of conflicting cases, and a discussion of the discordant views entertained by courts and text-writers of the greatest ability upon these questions; but the object, as we understand it, of the codification of the law with respect to negotiable instru-. ments was to relieve the courts of this duty, and to render certain and unambiguous that which had theretofore been doubtful and obscure, so that the business of the commercial world, largely transacted through the agency of negotiable paper, might be conducted in obedience to a written law emanating from a source whose authority admits of no question.”

Counsel for defendant in error say that in the Virginia case it does-not appear that the chécks there were stamped as they were in the case at bar, and had they been a different conclusion might have been reached by the court. It does appear, however, that the amounts of the checks, were charged to the account of the drawers and the same returned on settlement of their accounts with the bank. The stamping of the two checks in the present case was simply a method adopted by the bank for cancelling or extinguishing the checks. See also Clark & Co. v. Warren Sav. Bank, 31 Pa. Super. Ct., 647.

We call attention to Section 11225-1, General Code. This section was passed in 1911, several years after the adoption of the negotiable instruments act. It fixes the time within which an action may be brought against a bank ©n account of the payment on a forged or raised check. This language is used: “No bank which has paid and charged to the account of a depositor any money on a forged or raised check issued in the name of said depositor shall be liable to said depositor for the amount paid thereon unless,” etc.

It is to be observed that the only liability mentioned is the liability of the bank to the depositor. No mention is made of the holder or payee of the forged check.

We are of the opinion that when the legislature enacted Section 8294 it intended to cover the subject of the liability of a bank to the holder of a check. It prescribed when and when only there is a liability to the holder. In the absence of the conditions therein prescribed no right of action exists in favor of the holder. In the present case, the checks in question not having been certified or accepted within the meaning of Section 8294, there was no right of action on the part of the defendant in error against the banking company, and the court of common pleas was correct in directing a verdict in favor of the latter company.

Judgment of the court of appeals reversed and that of the common pleas affirmed.

Johnson, Donahue and Matthias, JJ., concur.


source: Caselaw Access Project

author: Donahue, J. Nichols, C. J.,

license: Public Domain

text:
    The Cincinnati Polyclinic v. Balch.

      Court of appeals — Appeal and error — Jurisdiction—Controlled by Section 6, Article IV, Constitution, 1912 — Municipal court of Cincinnati — Section 1558-26, General Code (104 O. L., 188)— Limiting error proceedings, unconstitutional.

    1. Section 6, ArtYie IV of the Constitution of Ohio as amended September 3, 1912, confers jurisdiction upon the courts of appeals to review, affirm, modify or reverse the judgments of the court of common pleas, superior courts, and other courts of record within the district. The general assembly has no power to enlarge or limit the jurisdiction conferred by the constitution of the state, but may provide by law for the method of exercising that jurisdiction.
    2. Section 26 of the act of April 17, 1913 (103 O. L., 279), as amended February 6, 1914 (104 O. L., 187), in so far as it purports to limit the appellate jurisdiction of the court of appeals to review, affirm, modify or reverse the judgment of the courts of common pleas within its district, is unconstitutional and void.
    (No. 14779
    Decided July 2, 1915.)
    Error to the Court of Appeals of Hamilton county.
    The defendant in error, Edith W. Balch, commenced an action in forcible detainer, in the muncipal court of Cincinnati, to oust plaintiff in error from the possession of real estate in the city of Cincinnati, Ohio.
    The case was tried to the court without the intervention of a jury, resulting in a judgment for the plaintiff in error. Error proceedings were-then prosecuted in the court of common pleas to the judgment of the municipal court by the defendant in error, which court reversed the judgment of the municipal court and entered judgment for this defendant in error.
    This plaintiff in error then filed a petition in error in the court of appeals to reverse the judgment of ■ the common pleas court, which petition in error, on motion of defendant in error, was dismissed and stricken from the files for the reason stated in the journal entry of that court, that it “had no jurisdiction in error of the judgment of the common pleas court in this cause.”
    This proceeding in error is prosecuted to reverse the judgment of the court of appeals in sustaining the motion of defendant in error to strike the petition in error from its files.

      Mr. Starbuck Smith and Mr. Oliver S. Bryant, for plaintiff in error.
    . Messrs. Bruce & Bruce, for defendant in error.
   Donahue, J.

The sole question for determination here is whether the court of appeals has jurisdiction to review the judgment of the court of common pleas in an error proceeding in a forcible detainer case originating in the municipal court of Cincinnati.

Prior to the amendment of September 3, 1912, the following language relating to the jurisdiction of the circuit court was contained in Section 6, Article IV of the Constitution: “The circuit court shall have like original jurisdiction with the supreme court, and such appellate jurisdiction as may be provided by law.”

On September 3, 1912, Section 6, Article IV of the Constitution, was amended, and now confers appellate jurisdiction on the court of appeals, the successor of the circuit court, in the following language: “The courts of appeals shall have * * * appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other- courts of record within the district as may be provided by law * * *.”

This amended section of the constitution of the state does not authorize the legislature to grant any jurisdiction, original or appellate, to the courts of appeals, but on the contrary specifically confers on these courts appellate jurisdiction in the trial of chancery cases, and jurisdiction to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district. The legislature under this amended section has authority to provide the method for perfecting an appeal and the procedure in error cases, but it has no power to enlarge or limit the appellate jurisdiction of courts of appeals.

On April 17, 1913 (103 O. L., 279), the general assembly of Ohio created a municipal court in and for the city of Cincinnati; Section 26 of the act (Section 1558-26, General Code) relates to proceedings in error from the judgments of the municipal court. On February 6, 1914, this section was amended, and there appears this additional language: “In civil cases in which a judgment of more than three hundred dollars has been granted, or being prayed for has not been granted, proceedings in error from a final judgment or order of the court of common pleas of Hamilton County, upon a petition in error from such final judgment or order of the municipal court to the court of common pleas of Hamilton County, may be had as in other cases originating in said court of common pleas, to the court of appeals of Hamilton county.”

It is claimed that this section limits the appellate jurisdiction of the court of appeals to review a judgment of a court of common pleas upon a petition in error to the judgment of a municipal court to civil cases in which a judgment of more than three hundred dollars has been' asked for or granted.

If Section 26 of this act is to be so construed, then it is in direct conflict with the provision of Section 6, Article IV, as amended, which confers upon the courts of appeals jurisdiction to review, affirm, modify, or reverse all judgments of the courts of common pleas. There is no authority on the part of the legislature to limit the jurisdiction of the courts of appeals to any particular class of judgments. It cannot add to or take from the appellate jurisdiction of the courts of appeals now conferred by the constitution.

Under this constitutional amendment the court of appeals has jurisdiction to review the judgment of the court of common pleas in this case, and that court erred in dismissing the petition in error.

Judgment reversed and cause remanded to the court of appeals.

Johnson, Wanamaker, Newman, Jones and Matthias, JJ., concur.

Nichols, C. J.,

dissenting. I am unable to agree with my associates relative to the construction to be given to the qualifying clause “as may be provided by law,” found in Section 6 of Article IV of the Constitution of Ohio, as amended September 3, 1912, having to do with the jurisdiction on error of the courts of appeals, and the importance of the subject justifies a statement of the conclusions which lead me to dissent from the judgment.

It is the holding of the court that the jurisdiction in error so conferred on the courts of appeals is absolutely fixed by the constitution, with the same degree of certainty and unalterability as that of the supreme court, and that the general assembly is wholly without power or authority to either qualify, diminish or enlarge it. It is my opinion that this jurisdiction is subject to such limitations and qualifications as the general assembly may fix; in other words, that the jurisdiction of the court of appeals as to proceedings in error is to be fixed exactly as was that of its immediate predecessor, the circuit court, and it follows therefore that the general assembly might give finality to the jurisdiction of the court of common pleas in any cause or proceeding.

In the original Constitution of Ohio, adopted in 1802, it is provided, in Section 2 of Article III thereof, that the supreme court shall have appellate jurisdiction, both in common law and chancery, in such cases as shall be directed by lazv.

In Section 4 of the same Article it is provided that the supreme and common pleas courts shall have complete criminal jurisdiction in such cases and in such manner as may be pointed out by lazv. Section 5 of the same Article provides that the courts of common pleas shall have jurisdiction of all probate and testamentary matters and such other cases as shall be prescribed by lazv.

Thus we find employed the three terms, “directed,” “pointed out” and “prescribed by law.”

Unquestionably the jurisdiction of all the courts of the state of Ohio from 1802 to 1851, except in the specific instances mentioned,, was essentially of legislative and not of constitutional creation.

Following this history under the Constitution of 1851, we find that original Section 2 of Article IV reads: “It [the supreme court] shall have * * * such appellate jurisdiction as may be provided by lazv.” We come into contact with this phrase now for the first time, and from 1851 down to and including the latest word of the people in the formation of our organic law, we find the same phrase employed and no other, excepting in the provision for the jurisdiction of the court of common pleas (see Section 4 of Article IV), where it is directed that its jurisdiction shall be fixed by law.

In the amendment to Section 2 of Article IV, of date October 9, 1883, the appellate jurisdiction of the supreme court was defined as being such “as may be provided by law.”

When the circuit court was created by amendment to the Constitution, October 9, 1883, being Section 6 of Article IV, its appellate jurisdiction was defined as being such “as may be provided by law.”

Section 8 of Article IV, which formed the probate court, provided that the probate court shall have jurisdiction in probate and testamentary matters, etc., and such other jurisdiction, in any county or counties, “as may be provided by law.”

Up until the decision of the majority of the court in the instant case, no one ever contended that this phrase had the limited meaning now given it. No court in the state, nisi prius, intermediate or supreme, ¿ver held that “as may be provided by law” meant “may provide by law for the method of the exercise of that jurisdiction.” It was ever and always held to mean just that which on its face it purports to mean — such jurisdiction as may be provided by law; that is, by the general assembly.

Under the constitution as it existed up to the amendments of 1912, it was universally understood that the general assembly had the authority to limit, cripple and even utterly wipe out the appellate jurisdiction of either or both the circuit and supreme courts, since this jurisdiction was only such as might be provided by law, and of course the granting of such jurisdiction carried with it the right of limitation or even abrogation.

When the constitutional convention of 1912 reached the question of the jurisdiction of the court of appeals, it sought to and did separate the jurisdiction as to appeal and error, although following the precedent set in our former constitutions of defining both classes of proceedings as appellate jurisdiction. In the first place it gives the court of appeals appellate jurisdiction (jurisdiction on appeal) in the trial of chancery cases, thereby limiting and not enlarging the jurisdiction on appeal as theretofore provided for the circuit court by the legislature, and limits this class of cases most decisively. The supreme court, in the case of Snyder et al. v. Deeds et al., 91 Ohio St., 407, in construing this provision, held in effect that the general assembly no longer had the power to provide generally for the appeal of a cause or proceeding.

Reaching the error side of the court’s jurisdiction, and to distinguish from proceedings by way of appeal, it provides that it shall have jurisdiction to review, affirm, modify, or reverse (being all inclusive of error proceedings) the judgments of the courts of common pleas, superior courts and other courts of. record within the district as may be provided by law.

We see that the same old time-honored expression was used — the phrase that for more than sixty years had come to have a generally accepted meaning — not in any sense describing the method of exercising the jurisdiction (that is mere procedure) as never had been done before, but rather providing the forum by which the jurisdiction should be fixed, as always had been done before.

Had it been the purpose of the framers of this amendment, in the employment of this phrase, to limit its application to the mere method of the exercise of its jurisdiction, how easy it would have been to have added to the phrase “as may be provided by law” the words “for the exercise of such jurisdiction,” and how natural to do so, if it were desired to employ this phrase in a different sense from that in which it had so long been understood.

The classification of the several inferior courts by name meant nothing in this respect, nor did the words “within the district.” When the constitution ceased to employ the general term “appellate jurisdiction,” and substituted jurisdiction “to review, affirm, modify, or reverse the judgments,” etc., it was of course necessary to specify the courts whose judgments might be reviewed, etc. For the purpose of this case it is as if the provision read: “Jurisdiction to review, affirm, modify, or reverse judgments,” etc., “as may be provided by law.”

The construction given by the majority makes the phrase unnecessary, if not meaningless:

It would certainly riot be necessary, after having definitely fixed the jurisdiction of the court of appeals beyond any possibility of legislative interference, to further provide that the method of the exercise of that jurisdiction should be provided for by law. The court to which the constitutional jurisdiction has been attached would have the inherent power to provide by rule of court all the methods and means by which the jurisdiction should be exercised. Examples of this character can be found in the certiorari jurisdiction of the supreme court in cases of public or great general interest, and the jurisdiction of the court of appeals, where it is directed to certify to the supreme court cases in which the judgment upon which they have agreed is in conflict with the judgment pronounced upon the same question, by another court of appeals of the' state.

In neither case is there a method provided for the exercise of this jurisdiction, either by the constitution or the general assembly. Yet the jurisdiction is not defeated on this account, but fhe same is exercised entirely through rules promulgated by the court.

I feel, too, that the spirit of the new judicial amendment has been lost sight of by my associates. Its object, chiefly, was to put an end to the vexatious and burdensome delays attendant on the settling of such disputes between our citizens that might ripen into suits at law. It was not its purpose to alter the jurisdiction of the old circuit court but to give finality to it.

The construction now given this section has quite the contrary effect. It absolutely destroys the finality of the jurisdiction of the court of common pleas in a variety of cases — for example, divorce cases and the many cases coming into the court of common pleas from the several municipal courts of the state — and likewise disenables the general assembly to confer final jurisdiction on common pleas courts as to cases properly triable in juvenile courts, cases arising under the various humane laws of the state and those arising from the violation of the laws restricting the illegal sale of intoxicating liquors and the sale of adulterated food products.

The municipal courts have been organized in the larger cities of the state to facilitate the prompt and efficient administration of justice in the smaller affairs of our people, and they are being resorted to by litigants generally. It has been regarded that the slogan of “one trial, one review” was being fulfilled by stopping the litigation in the common pleas courts, at least as to some of the actions in which the municipal court has original jurisdiction.

Another matter of evil to be apprehended from the judgment in this case is the possibility of the practice coming into use of going on error direct from the municipal courts to the court of appeals, thereby unduly enlarging the work of that court and wrecking in a large measure the evident purpose of the people to put an end to the wearisome delay in the hearing of cases. The municipal courts of the state are all declared to be courts of record. How, then, can we 'escape the conclusion that a litigant, aggrieved by the decision of a municipal court, may not go direct on error to the court of appeals ?

It is true that under Section 4 of Article IV the jurisdiction of the court of common pleas is “to be fixed”' by the general assembly, and it may provide for error proceedings from the municipal courts to the court of common pleas, but with the interpretation given the “as may be provided by law” clause, then, under the constitution, the litigant has a right to prosecute error direct from the municipal court to the court of appeals, and it is a right that cannot be denied by the general assembly. He has the choice of two forums wherein to prosecute his error, neither one exclusive but both permissive.

It may be argued with plausibility that under the guise of established procedure the constitutional jurisdiction of the court of appeals is not impinged upon, in this regard, since by legislatively provided procedure the litigant may find his way to the court of appeals by first invoking the appellate jurisdiction of the common pleas, thence to the court of appeals. But I gravely doubt the soundness of that proposition, for after all it operates to deny to a party the privilege, constitutionally conferred, of going directly from a certain court of record to the court of appeals.

A careful and painstaking review of the debates in the constitutional convention fails to reveal a word to the effect that “as may be provided by law” was to be given any other or different meaning than its simple language suggests, and it is incredible that this term would be employed in so vitally a distinguishing sense without passing comment or debate.

This convention was intent on taking no chances on the legislature undoing its work in the way of limiting the jurisdiction of the supreme court, and to that end removed from the constitution its “as may be provided by law” appellate jurisdiction and. provided for its limitation in express terms; but when it reached the subject of the appellate jurisdiction of the court of appeals it employed the same old term, thereby leaving it to the wisdom of the lawmaking branch of the government to provide not for the method of the exercise of the jurisdiction but for the jurisdiction itself.

It was said by Ranney, J., in the course of his opinion in the case of Hill v. Higdon, 5 Ohio St., 243, at page 248: “It is our duty to give a construction to the constitution as will make it consistent with itself, and will harmonize and give effect to all its various provisions. To do this, we have only to suppose that the convention used language with reference to its popular and received signification; and applied it as it had been practically applied for a long series of years.”

Again, Day, J., in the opinion in Wolf v. The State, 19 Ohio St., 248, at page 255, says: .“This clause in the old constitution having received a judicial construction before it was adopted in the one now in force, it is but reasonable to presume that the framers of the present constitution understood and used it in the sense that had been thus given to it in the instrument from which it was substantially copied.”

When we stop to consider that the supreme court of Ohio, in the many cases to be found in its reports relative to the scope of the jurisdiction of the several courts, has ever held that by reason of the employment of the clause “as may be provided by law” these several jurisdictions were the subject of legislative and not constitutional creation and abrogation, then the observations of the two eminent jurists quoted from are to be regarded as illuminating in the instant case.


author: Johnson, J.

text:
    The State, ex rel. Heer, v. Butterfield et al.

      Quo warranto — Title to public office — Facts necessary to maintain action — Section 12307, General Code — Municipal corporations —Charters—Action to annul — Who may bring same.

    1. In order that a private relator may be entitled to maintain an action in quo warranto under Section 12307, General Code, to recover a public office, he must show not only that he is entitled to the office, but also that it is unlawfully held and exercised by the defendant in the action.
    2. An action to annul the charter of a municipality on the ground that it was illegally adopted or that it violates the constitution must be brought in the name of the state by an officer duly authorized in that behalf.
    (No. 14724
    Decided July 2, 1915.)
    Error to the Court of Appeals of Butler county.
    Jacob F. Heer brought an action in quo zvarranto in the court of appeals of Butler county against the defendants in error here.
    In his petition he alleges that he is the duly elected mayor of the municipality of Middletown, Butler county, a duly organized city under the laws of Ohio, and a municipal corporation; that he was elected such mayor at the general election in November, 1911, and qualified as such, and since the first Monday of January, 1912, has been in the discharge of his duties as mayor, as provided by law.
    He further says that no election for mayor was held in that city at the general election in November, 1913, and that by law he holds over and continues in office as such mayor, and that it is .his privilege to do so until his successor has been duly elected and qualified. He says that the defendants, without right or warrant of law, have usurped his said office and intruded themselves into the same, and are attempting to exercise the functions, power • and authority of the relator, together with the privileges and duties of said office, and are now carrying on the executive, administrative and judicial functions heretofore and now devolving on him as mayor.
    The defendants, Wendel P. Butterfield, C. Ed. Sebald, John T. Fay, Thomas A. Scully and James A. Pierce, five of the six defendants, by their answer say that the city of Middletown is a municipality under the constitution and laws of the state. The answer then proceeds to set out that the city of Middletown duly and legally adopted a charter pursuant to the provisions of Section 7 of Article XVIII of the Constitution; that they were duly elected and qualified as city commissioners under the charter so adopted and that ever since January 1, 1914, have exercised the executive, legislative and administrative functions of the government of the city of Middletown, under and by virtue of .the charter so adopted by the electors of the city of Middletown.

      H. L. Dell, defendant, by separate answer, sets out the same matter as to the adoption of the charter, and alleges that by virtue of the charter he was elected to the office of judge of the municipal court, and as such was exercising the judicial functions of the said city, under and by virtue of that election.
    The answers of all of the defendants set out that the charter adopted by the people abolished the office of mayor. The reply of the plaintiff avers that it is true, as set forth in the answers, that the city of Middletown undertook in the manner and form set out to adopt a charter as alleged. The reply sets forth certain allegations as to the steps by which this was done, and alleges that certain provisions of the charter are unconstitutional, illegal and void in that they violate Section 1 of Article IV, Section 2 of Article XVII, Section 13 of Article IV, Section 16 of Article IV, Section 18 of Article IV and Section 15 of the Schedule, all of which are referable to the provisions of the charter with reference to said municipal judge and the clerk of his court; also that the charter violates Section If, Article II of the Constitution, and Sections 3, 9 and 13 of Article XVIII of the Constitution.
    The judgment of the court of appeals was in favor of the defendants, and this proceeding is brought to reverse that judgment.
    An agreed statement of facts, duly authenticated, shows the steps by which the charter was adopted and the provisions of the charter.

      Mr. Charles W. Baker; Mr. Albert S. Fensel and Messrs. Giffen & Haines, for plaintiff in error.

      Mr. W. G. Palmer; Mr. B. F. Harwitz and Mr. W. C. Shepherd, for defendants in error.
   Johnson, J.

In support of the judgment below it is contended that the relator has no legal capacity to maintain this action. The pleadings and the agreed statement show that the defendants are not claiming to hold the office of mayor, either as individuals or as a commission. It is not claimed by counsel for the relator that they hold that office. The case of the relator rests on the claim that all of the functions formerly exercised by the mayor are now assumed by the defendants, part of them being performed by the commission, the judicial functions formerly exercised by the mayor being performed by the defendant Dell, as municipal judge. However, an examination of- the charter discloses that the powers of the city commission are entirely different from those formerly exercised by the mayor, and that while much of the executive authority of the mayor is now exercised by the commission still the two offices are not in anywise identical. The relator does not show such a state of facts as would authorize him as a private individual to maintain the proceeding.

In State, ex rel. Wasson, v. Taylor, 50 Ohio St., 120, it was held that a private person cannot maintain quo warranto except under the authority conferred by what is now Section 12307, General Code, viz.: “A person claiming to be entitled to a public office unlawfully held and exercised by another, may, by himself or an attorney at law * * * bring an action therefor.” The court held that other actions in quo zvarranto must be commenced by and on relation of the attorney general or a prosecuting attorney, who is required to commence such action only when directed by the governor, supreme court, .etc., as provided by law. Moreover, in this case the defendant Dell holds a different office by a different title than any of the others hold and cannot be properly joined in an action against them.

In discussing quo zvarranto proceedings it is stated in 32 Cyc., 1447: “No joinder of defendants is proper which unites separate causes of action against several defendants. Thus, if the defendants claim title to different offices by distinct titles, they are improperly joined.” Before a party is entitled to maintain an action in quo warranto to recover a public office, he must show not only that he is entitled to the public office, but also that the identical office is unlawfully held and exercised by another. It is insisted that the right of the relator to hold the office of mayor ás a hold-over official depends upon the validity of the charter, and that if the charter is invalid the office of mayor has not been abolished and he would be entitled still to exercise its functions. Even if this be conceded it would not entitle the relator to maintain this suit against these defendants. It would still be necessary for him to show not only that he was entitled to exercise the office of mayor, but that these defendants were unlawfully holding that office and exercising its functions. A private person cannot use the name of the state in an action to annul the charter of an incorporated city on the ground that it contravenes the constitution. Such an action must be brought in the name of the state by some officer authorized to represent the interest of the public, as the attorney general.

4 Dillon on Municipal Corporations (5 ed.), Section 1560, says: “The right to file an information in the nature of a quo warranto, or to institute a civil action or proceeding to arrest a usurpation of such a franchise, does not belong to the individual citizen; the right to institute such proceedings against an existing de facto municipal corporation is in the state, and the institution of the action is a matter in the discretion of the attorney general.”

This proposition is also sustained by The State, ex rel., v. Shufford et al., 77 Kans., 263.

For these reasons the judgment of the court of appeals will be affirmed.

Judgment affirmed.

Nichols, C. J., Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


author: Nichols, C. J.

text:
    The State, ex rel. Munding, Admr., v. The Industrial Commission of Ohio.

      Workmen’s compensation — Injury results in death — Section 1463-82, General Code (103 O. L., 86) — Award vests in dependent, when —Personal representative entitled to balance, when.

    An award of compensation from the state insurance fund, under Section 35 of the workmen’s compensation act (103 O. L., 72), to a wholly dependent person vests in the dependent when the . award is made; so that, in case of the death of such dependent, his or her personal representative is entitled to the balance, if any, remaining unpaid.
    (No. 14911
    Decided July 2, 1915.)
    In Mandamus.
    The facts are stated in opinion.

      Messrs. McGhee, Davis & Boulger and Mr. Walter L. Connors, for relator-.

      Mr. Edward C. Turner, attorney general; Mr. Freeman T. Eagleson and Mr. John G. Price, for respondent.
   Nichols, C. J.

The petition in this case and demurrer thereto present the question whether an award of compensation from the state insurance fund, under Section 35 of the workmen’s compensation act (103 O. L., 72), to a wholly dependent person vests in the dependent when the award is made, so that, in case of the death of such dependent, his or her personal representative is entitled to the balance, if any, remaining unpaid.

The original Ohio workmen’s compensation act was passed May 31, 1911 (102 O. L., 524). Its purpose, well expressed in its title, was: “To create a state insurance fund for the benefit of injured, and the dependents of killed employes, and to provide for the administration of such fund by a state liability board of awards.”

This act was optional or elective in principle. On February 6, 1912, its constitutionality was upheld by this court in the case of State, ex rel., v. Creamer, 85 Ohio St., 349. On September 3, 1912, a constitutional amendment was adopted by the people of Ohio (Section 35, Article II) authorizing the passage of laws providing for a state fund to be created by compulsory contribution thereto by employers and administered by the state.

Pursuant to this authority the legislature passed the present act (103 O. L., 72). This act is in effect an amendment to the act of 1911, the principal changes being that it is compulsory as to all employers employing five or more workmen, and optional as to those employing less.

Section 35 of the act, so far as the question before ■the court in this case is concerned, may be said to be identical with Section 28 of the old law.

The present act was the result of much thought and careful consideration of the operation of workmen’s compensation laws of other states and foreign countries and of the administration of the plan in Ohio under the original law. It made the compensation plan more workable and efficient and provided fully for the administration of the act in all its features by the state liability board of awards, and may be said to be a model of legislative expression in clarity and comprehension.

For convenience the board in charge of the administration of the fund will be referred to in this opinion as the board of. awards rather than as the industrial commission of Ohio, for the commission, in matters pertaining to its administration of the workmen’s compensation fund, acts as the state liability board of awards.

Section 14 of the act defines the terms “employe,” “workman” and “operative” as used in the act.

Section 21 provides in part: “Every employe mentioned in subdivision one of section fourteen hereof, who is injured, and the dependents of such as are killed in the course of employment, * * * provided the same was not purposely self-inflicted, * * * shall be entitled to receive * * * from the state insurance fund, such compensation for loss sustained on account of such injury or death, * * .* as is provided by sections thirty-two to forty inclusive.”

Section 35 provides for compensation in case of death, and is as follows:

“In case the injury causes death within the period of two years, the benefits shall be in the amounts and to the persons following:
“1. If there be no dependents, the disbursements from the state insurance fund shall be limited to the expenses provided for in section forty-two hereof.
“2, If there are wholly dependent persons at the time of the death, the payment shall be sixty-six and two-thirds per cent, of the average weekly wages, and to continue for the remainder of the period between the date of the death, and six years after the date of the injury, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars, nor less than a minimum of one thousand five hundred dollars.
“3. If there are partly dependent persons at the time of the death, the payment shall be sixty-six and two thirds per cent, of the average weekly wages, and to continue for all or such portion of the period of six years after the date of the injury, as the board in each case may determine, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars.
“4. The following persons shall be presumed to be wholly dependent for support upon a deceased employe:
“(A) A wife upon a husband with whom she lives at the time of his death.
“(B) A child or children under the age of sixteen years (or over said age if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the death of such parent.
“In all other cases, question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employe, but no person shall be considered as dependent unless a member of the family of the deceased employe, or bears to him the relation of husband or widow, lineal descendant, ancestor or brother or sister. The word ‘child’ as used in this act, shall include a posthumous child, and a child legally adopted prior to the injury.”

Under this section, in case of an injury resulting in death, the essential facts to be determined by the board of awards are: (1) That the employe was injured in the course of his employment; (2) that the injury was not self-inflicted; (3) that it resulted in death within the period of two years; and (4) the question of dependency at the time of death.

The last question is determined by the statute in the case of a wife living with her husband at the time of his death, and children under the age of sixteen living with the parent at the time of death of such parent. Such persons must be presumed to be wholly dependent for support on the deceased employe. All other questions of dependency must be determined by the board of awards. If it be found that there were dependents at the time of death, then the board must determine the average weekly wage of the deceased. If it is found that there were wholly dependent persons at the time of death (as in the instant case, the award having been made to relatrix’s intestate as sole dependent), then the board can make no determination or finding as to the amount of the compensation which must be awarded; that is fixed by law in a sum certain. See Section 35, paragraph 2. The payment shall be two-thirds of the average weekly wage, and to continue for a period of six years, and not to exceed $3,750, nor is it to be less than $1,500. There are no qualifying words whatever. The board’s duty, after finding the existence of dependents, is but to make a calculation. It is entirely without discretion in the premises.

The statute, in fact, orders that in the case of wholly dependent persons the payment, subject to the fixed maximum and minimum, must be a certain definite sum (two-thirds of the average weekly wage) multiplied by a certain definite figure (six times fifty-two weeks).

Thus, in the case now before the court the board awarded the defendant $1,872, to be paid in biweekly installments of $6 a week, and to continue for a period of six years from the date of the death of the employe.

This paragraph of Section 35 is practically conclusive of the case, as it has every element necessary to confer a vested right. A fixed amount is awarded to a definite person as a matter of right, with no language suggesting in anyway an abatement of the award on the death of the person to whom it is made prior to the payment of the same in full, and we must hold that it speaks for itself, unless some other section or sections of the act condition or limit the right to this compensation.

Section 36 is not applicable to the instant case. It only has application where there are plural dependents, and while it provides for the determination by the board as to the manner in which the benefits or compensation may be apportioned among the several dependents and to which one the payments shall be made for the benefit of all, it gives no discretion whatever to alter the amount of the award so fixed nor to abate any part of the same.

Sections 39, 40 and 41 of the act provide as follows:

“Section 39. The powers and jurisdiction of the board over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings or orders with respect thereto, as, in its. opinion may be justified.
“Section 40. The board, under special circumstances, and when the same is deemed advisable, may commute periodical benefits to one or more lump sum payments.
“Section 41. Compensation before payment shall be exempt from all claims or creditors and fr@m any attachment or execution, and shall be paid only to such employes or their dependents.”

It is urged by. the attorney general that Secti®n 39 must be construed as giving the board continuing power and jurisdiction over the compensation when awarded, so that in case of the death of dependent it can abate the balance due under the award, if any, and revert the same to the state insurance fund.

That such was the intention of the legislature is not apparent from the section. We do not think findings and orders which may be changed mean findings and orders which are definitely fixed by law and as to which the board of awards has no discretion.

If the deceased employe left a widow who was living with him at the time of his death, the board must find that she was wholly dependent upon her deceased husband and must make a certain award of compensation to her. The questions of dependency and amount of award in such case are both determined absolutely by the statute. The board can only act formally and must so act. If Section 39 gave power to modify, alter or amend the finding as to the amount of the compensation or its payment, it would do so likewise as to the question of dependency. There are many findings and orders of the board to which Section 39 is plainly applicable and for which it was no doubt intended — thus, in Section 32, in cases of temporary disability; Section 33, in cases of partial disability; Section 34, in cases of permanent total disability; Section 35, in the matter of commuting periodical payments to one or more lump-sum payments; Section 36, in the matter of the apportionment of compensation, etc.

Section 34, providing for compensation in case of permanent total disability, presents a very strong, if not conclusive, indication that the amount awarded under paragraph 2 of Section 35 vests in the dependent, and that Section 39 is without application. Section 34 provides in part that in cases of permanent total disability the award shall be two-thirds of the average weekly wage, and shall continué until the death of such person so totally disabled.

In paragraph 2 of Section 35 the words “until the death of such person” (dependent) are omitted, and substituted therefor, after the words “to continue,” appears the phrase, “for the remainder of the period between the date of the death, and six years after the date of the injury.”

As both of these sections were enacted by the same legislature, at the same time, as part of the same act and upon the same subject, it must be conceded that the legislature had before it the question of the abatement of an award upon the death of a dependent, and as it provided for such abatement in one instance and failed to do so in another, its action must be deemed intentional and that Section 39 cannot be construed to be equivalent to the words “until the death of such person,” or similar words, omitted after the phrase “to continue” in paragraph 2 of Section 35, or to vest in the board of awards the power to read in such words.

If Section 39 could be construed as giving the board power to abate an award made under paragraph 2 of Section 35, in case of the death of' dependent prior to completion of payments, it necessarily follows that it could be construed also as giving the board power and jurisdiction to determine dependency at any time during the period covered by the payments, instead of having its determination expressly limited by the statute, as it is, to dependency at time of death, and, although the statute is inflexible as to amount of award, abate the award at any time the person to whom the compensation was granted ceased to be a dependent. This construction would be directly contrary to the statutory requirements.

If this construction were possible, the board, having power to abate compensation, must necessarily keep a strict watch over each case, numbering many thousands, so as to discontinue payments as soon as dependency ceases to exist. Such construction would render Section 40 of very doubtful, if any, value, for in each case there would be the possibility of the death of the dependent during the period and the consequent reversion to the insurance fund of all unpaid installments, and the board would certainly hesitate to commute periodical payments to a lump sum and thus lose the increment to the fund in case of death of dependent. This would be a distinct backward step toward the old system which resulted in passage of the act. In fact, it is difficult to conceive the theory on which periodical payments can be commuted if the right to the entire award does not vest when made in the dependent. The word “commute” in this section must mean that the,board by commuting the payments pays the dependent something less than he otherwise would receive. So, if the construction contended for by the state were adopted, it would mean that the board, when it made a lump-sum-award, not only gave .dependent something to which he was not entitled and might never be entitled, but also, instead of commuting the award, actually increased it. Section 41 exempts “compensation before payment” from attachment and execution. If compensation were not vested, then there could be neither attachment nor execution, and this section would be. without meaning, unless we should, add after the word “compensation” the words “and each installment thereof after it has become due and payable.”.

Since Section 35 is entirely clear and unambiguous and is consistent with Sections 39, 40 and 41, the court is not authorized to legislate under the guise of statutory construction and upon the theory that the legislature intended, or should have intended, that the compensation awarded under paragraph 2 of Section 35 should abate at the death of dependent, thus changing the plain wording of the statute.

The language' of this part of the section, as we have pointed out, is that the payment shall be two-thirds of the weekly wage and to continue for the remainder of the period between date of death and six years after the injury. As stated by Donahue, J., in Sipe, Auditor, v. State, ex rel., 86 Ohio St., 80, 87, “That intent [of the legislature] must be ascertained first, if possible, from the language used and where that language is clear and unambiguous courts have no authority to change it.” Citing King v. Greenwood Cemetery Assn., 67 Ohio St., 244; Hough v. Dayton Mfg. Co., 66 Ohio St., 427; Slingluff v. Weaver, 66 Ohio St., 621.

In the last-cited case, Spear, J., uses language applicable here, when he says: “To endeavor to make this plainer would be like an effort to reason upon a sum in simple addition. * * * The province of construction is to arrive at the true sense of the language of the act, not to supply language to help out a conjectured intent, not to be gathered from the words used. * * * The words asked to be incorporated would be the words of the expounders and not of the lawmakers.'”

The only construction that can justifiably be given paragraph 2 of Section 35, in the case of a sole dependent, is the plain meaning of the words used. There is no authority under any rule of statutory construction to add to, omit or change the words used. Compensation is awarded in a definite sum, with no conditions attached except that the payments are to be periodical.

There seems to be no decision of an American court upon this question arising under workmen’s compensation statutes, but long ago this court decided a question which in principle is quite similar. The case of Dorah’s Admr. v. Dorah’s Exr., 4 Ohio St., 292, presented the question whether the allowance made by the appraisers to a widow for her year’s support conferred a vested right of property in such widow, so that, in case of her death before the expiration of the year and before the entire allowance had been paid, her personal representative could recover the balance. The court held that the entire amount vested, when the allowance was made, and the balance remaining unpaid, though, on account of the death of the widow, impossible of application for which it was intended, could be recovered. Ranney, J., in his opinion used language and reason applicable to the case we are considering. He says, after pointing out that if the amount ■allowed did not vest then, if it had been paid, part could be recovered back by the estate upon the death of the widow prior to the expiration of the year, or a proportionate amount in case of the death of a child when the allowance had been made to a widow and minor children:

“We can see no reason to suppose, that it was ever intended to allow a recovery back of any part of the amount, upon the happening of such a contingency [death of a child]; * * * To allow such a deduction, either by giving an action to the administrator to recover it back where it has been paid, or by permitting him to withhold it where it has not, is to introduce the most perplexing uncertainty as to the rights of the widow and the duties of the administrator, * * * With the 'construction we adopt, the rights and duties of all concerned are clear, definite, and fixed. It gives to the widow and children a paramount claim upon enough of the estate to support them for one year, over creditors and distributees; and where it has been fixed or set apart by the appraisers, or by the court on review, effectually withdraws it from the balance of the estate, and has all the force and effect of an adjudication in their favor. It confers a vested right of property, conclusively disposes of so much of the estate, and leaves no discretion to the administrator as to complying with it.”

The right of the dependent to whom an award has been made under paragraph 2 of Section-35 is clearer than that of a widow to whom an allowance has been made on her year’s support. The compensation is awarded to the dependent in a fixed sum out of an insurance fund provided wholly for the purpose of paying such compensation. This award effectually withdraws the amount awarded from the fund and makes it exempt from execution and attachment. Any other holding would introduce ' into the administration of the workmen’s compensation act most perplexing uncertainty both as to the rights of dependents and the duties of the board of awards.

The precise question involved in this case has been before the courts of England, and it is the holding there, not only that an award of compensation to a dependent vests on allowance, but that the right to claim an award vests in the dependent at the time of death of the employe, and if dependent dies before presenting such claim the personal representative of a dependent may make the claim and recover upon it. While the English acts are different from ours in many respects, an examination of the cases to which we now refer and to the statutes will show that the same question was before the English courts as is presented by the instant case, and that practically the same reasons were advanced in opposition to the theory which the court adopted as are now advanced by counsel for the state.

In the case of The United Collieries v. Simpson, Appeal Cases (1909), 383, the House of Lords held that where a workman has been killed by an accident arising out of and in the course of his employment, and his dependent dies without making a claim, the dependent’s legal personal representative is entitled to compensation under the workmen’s compensation act of 1906.

At page 389, Lord Loreburn says: “The eighth paragraph also contemplates payment to a dependent. And though the ninth [similar to Section 39 of the Ohio act as to apportionment of benefits] reserves a power to vary the apportionment, neither it nor any other paragraph proceeds upon any other view than that there is a definite right on the part of dependents as a class to the money, subject to a parental power of the court in dividing and applying it for their advantage.” The dissenting opinion of Lord Dunedin is interesting because it shows that the court had before it the objection that payments to a personal representative were not authorized because the law provides only for payment to dependents. This case expressly approves the case of Darlington v. Roscoe & Sons, 1 K. B. (1907), 219, where it was held that if a notice of claim under the workmen’s compensation act of 1897 has been given by a sole dependent, who. dies before a request for arbitration is made or other proceedings are taken, the right to claim survives to such dependent’s legal personal representative and the maxim actio personalis moritur cum persona does not apply.

The only case we have been able to find advancing a contrary view is that of In re O’Donovan & Cameron, Swan & Co., 2 Ir. R. (1901), 633, where it was held: “The sole total dependent of a workman, who was killed by an accident arising out of his employment, died before she had filed or served a claim for compensation under the Workmen’s Compensation Act, 1897. Had she had lived, and taken the necessary steps to recover it, she would have been entitled to £150 compensation. The personal representative of the deceased workman subsequently took proceedings * * * to recover compensation, to be applied for the benefit of the dependent, and in payment of her debts: Held, that neither her personal representative nor the personal representative of the deceased workman was entitled to recover the amount.”

•This case was distinctly disapproved by the tíottse of'Lords in The United Collieries v. Simpson, supra.

Thus in England the authority is all in favor of the view that the right to compensation vests in the dependent at the time of the death of the employe and is transmitted to his personal representative even though the dependent has died without having made a claim for compensation. And this is a much more doubtful question than that before us, where the claim has been filed, compensation awarded and part payment made before death of dependent.

The English cases emphasize the fact that a fixed sum is provided by the act and no provision made for a refund of any part of the award, and that in the case of a dependent dying before the compensation is exhausted the absence of such a provision shows that when once the compensation is fixed there is to be no refund.

The question here, by the application of the most elementary rule of statutory construction, is settled by the statute. It speaks for itself, and there is no ambiguity. It is also settled by all the adjudicated cases on the subject-

But were it necessary to go outside of the statute to sources which we may consider, the result is even more conclusive.

Let us start at the beginning of workmen’s compensation in Ohio. On May 10, 1910, the general assembly passed an act (101 O. L., 231) authorizing the governor to appoint a commission of five persons, representative of both employers and employes, to investigate the subject of a direct-compensation law and to- report to the next session of the general assembly the result of their investigation, together with a bill or bills providing for the speedy remedy for employes for injuries received in the course of their employment. This commission, of which Mr. J. Harrington Boyd was chairman, filed its report with the legislature in January, 1911.

This report is a remarkable document, probably ■the most valuable report ever submitted by an investigating committee or commission to the general assembly. It goes into the subject of workmen’s compensation from every conceivable angle, gives the result of investigations with the greatest detail, together with a complete statement of the causes which' have brought about workmen’s compensation, and a full explanation of the laws of other states and countries, and produces an array of facts in regard to industrial accidents which is appalling.

The conclusions of this commission were admirably summed up by Johnson, J., in his opinion in State, ex rel., v. Creamer, supra, at page 389. And the theory upon which the compensation law is based (which is now generally accepted) is that each time an employe is killed or injured there is an economic loss which must be made up or compensated in some way, that most accidents are attributable to the inherent risk of employment — that is, no one is directly at fault — that the burden of this economic loss should be borne by the industry rather than by society as a whole, that a fund should be provided by the industry from which a fixed sum should be set apart as every accident occurs to compensate the person injured, or his dependents, for his or their loss.

The commission recommended that a compensa-. tion plan of this kind be adopted not as “in any sense charity but only simple justice.”

The commission filed with its report, for the consideration of the general assembly, two tentative acts, one suggested by a majority of the commission and the other by a minority member. Section 8 of the majority bill provides for compensation in case of death, and is in substance the same as Section 35 of the present act. Section 13, paragraph b, provided: “The compensation awarded shall never be vested except subject to such changes as the provision of this code allow.”

Section 20 (the section on which present Section 39 is based) provided:

“The said state board of compensation awards shall have entire jurisdiction of the disbursement of the insurance fund provided for in this code, and of determining the validity of all applications for compensation out of said fund, and of fixing the amount of the award in each instance; but so long as the award or any part of it remains unpaid their jurisdiction as to the amount of such award and as to the person in any particular class of beneficiaries to which the same shall be payable shall be continuing so that they may have power to make such changes therein as the circumstances may warrant, and as right and justice may require.”

This proposed section reads, it is to be presumed, about as the state would have us now read Section 39.

In the bill submitted by the minority, the following sections appeared: Section 28, providing compensation in case of death, is practically similar to present Section 35; Section 33, providing that “The power and jurisdiction of the board over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion, may be justified.”

Both bills were before the legislature, and at the same session at which the report was submitted the original compensation act was passed, Sections 28 and 33 of which (except for the maximum and minimum amounts) are identical with Sections 35 and 39 of the present act.

It is thus apparent that the legislature, having before it the proposition of limiting payments to the lifetime of dependents and of granting power to the board to change awards so long as any part of- it remained unpaid, by rejecting Section 20 of the act proposed by the majority and by accepting Section 33 of the minority measure, clearly indicated its intention as to this matter, and in rejecting Section 13 (paragraph b of the majority measure) it refused to provide that “compensation awarded shall never be vested.”

The only fair inference to be drawn is that the legislature intended that compensation, under paragraph 2 of Section 35, should be vested in the dependent when awarded. Again, this law was passed not in a spirit of “charity” but only 'simple justice. The fund it provides is called, and is in fact, an “insurance” fund, from which payments are to be made, and is in no sense a pension fund, and never, so far as we are aware, has it been contended that injured employes and their dependents were not entitled to compensation as a matter of right.

The right to be compensated for an injury has no element of bounty or charity about it. No part of the fund (except such part as it pays for the protection of its own employes) is contributed by the state.

As we have before stated, the theory is that when an employe is injured or killed in course of his employment, a sum fixed by law is set off from the fund to compensate him for his injuries, or his dependents for his death, to compensate for taking away the man’s right to earn a livelihood, which, but for the accident, he would have earned. A fixed sum goes out from the fund to compensate for the loss which has occurred.

In case of death with no dependents, there is no loss to anyone except the employe other than the expenses provided for by the statute, which would otherwise fall on society. In case of dependents, the sum is likewise fixed by law and ordered paid to the dependent. There is nothing to indicate that this loss is to be compensated in part by the death of dependents and the part thus compensated to be returned to the state. On the contrary, the only situation considered is that existing at the date of death. At that time the amount is fixed, not by the board but by the statute; it is set apart from the general fund, may be paid in lump sums and there is no provision whatever for rebate.

Thus, the payments being fixed in amount, ordered paid from a certain fund and awarded to a .definite person, every element of a vested right is present and no element or suggestion of a pension that is to cease at the death of the pensioner.

The report of the investigating commission, as well as all of our compensation laws and reports, shows that the provision for periodical payments is solely for the benefit of the injured employe or dependents, for the reason that experience teaches that in a very great many cases a lump sum, if allowed, is dissipated, while small payments, on the other hand, are carefully husbanded.

It may also be noted that the words “insurance fund,” “compensation,” “award” and “commutation,” all negative the idea of a pension or rebate of any kind.

The intent apparent and expressed throughout the act that compensation is to be paid only to dependents, was not for the purpose of securing an abatement of unpaid compensation upon the death of a dependent. The purpose is to insure that compensation shall go intact to the injured employe or his dependents without any shrinkage by passing through' or into the hands of assigns, agents, attorneys, friends or relatives, it being common knowledge that if a sum of money on its journey from the one from whom to the one to whom it is due passes through the hands of others it is inevitable that it suffer diminution, sometimes almost to the vanishing point.

We hold that when the award is once made to a sole dependent the right to the compensation vests, and once vested there can be no condition attached except as to the time of payment, and it is equally immaterial whether the dependent subsequently dies or becomes independent.

As to the argument that unless a rebate or refund is allowed in case of death of dependent a great wrong is done the injured and dependents of killed employes, it is perhaps sufficient to say that the assumption upon which this argument is based is utterly opposed to the theory on which the fund is established, maintained and administered. It is so plain as to be beyond all argument that the fund is provided to compensate in the manner and amount fixed by law for all losses which it covers; that it was never intended that the fund should be enhanced by lapses; that there.is no conception of .profit in the plan, and no one entitled to an award can have his right affected at all, either as to amount or in any other manner, by the allowance or denial of the claim of any other person to compensation. A study of the act will show that it is the duty of the board to provide an adequate fund .to pay all the compensation provided by the act. What amount will be necessary is calculated by the board, the theory being that all losses will be and must be paid in full; the methods of establishing the fund and the sources from which the money is to come are specified, and nowhere, even by inference, is the board authorized to speculate that a greater or less sum will be needed on account of unpaid or partly unpaid awards.

Both the letter and spirit of the law show that the right to compensation vests when the same is awarded under paragraph 2 of Section 30, and the demurrer to the petition is therefore overruled.

As the board in this case awarded the dependent the sum of $1,872 and ordered the same paid in biweekly installments at the rate of $6 per week, to continue for six years from the date of the death of the employe, it has, in making the award, fully complied with the law, and the court is without power to require it to commute the balance remaining due to one lump sum. That is a matter, under Sections 39 and 40, wholly within the discretion of the board, but the petition shows that the board has refused to pay to relator any part of the award since the death of the dependent or to continue the bi-weekly payments. The writ therefore must order the board to pay to relator the sum of the bi-weekly payments which have accrued since dependent’s death and to continue such payments until the full amount originally awarded is fully paid unless commutation is ordered by the board.

Demurrer overruled and writ awarded.

Johnson, Wanamaker and Newman, JJ., con-


author: By the Court.

text:
    The State, ex rel. Hoskins et al., v. The Ohio Board of Administration et al.

      Civil service — Competitive promotional examinations — Superintendent of state school for blind — Physical qualifications of applicants — Determined by civil service commission, when — Section 486-11, General Code — Rules of commission — Section 486-7, General Code (103 O. L., 700) — Eligibility for promotion.

    (No. 14933
    Decided July 2, 1915.)
    In Mandam:us.
    On the 11th day of June, 1915, the state of Ohio on the relation of Samuel A. Hoskins, Charles H. Bryson and Charles I. Brown, as members of and constituting the state civil service commission of Ohio, filed in this court a petition against the Ohio board of administration and A. F. Sheperd, T. E. Davey, Starr Cadwallader and D. S. Creamer, as members of and constituting said board, in which petition relators prayed for a peremptory writ of mandamus, commanding the defendant, the Ohio board of administration, and each of the defendants personally, to appoint J. Frank Lumb to the position of superintendent of the state school for the blind.
    The petition, among other things, averred that on or about the 1st day of September, 1914, a vacancy occurred in said position of superintendent of the state school for the blind, by the resignation of the then incumbent of that position; that the state board of administration, by its president, forthwith notified the said civil service commission of that fact, and made requisition upon the relators as members of the state civil service commission of Ohio for a.list of persons eligible for appointment after a competitive examination; that thereupon the relators caused to be held a competitive promotional examination at the city of Columbus, on the 18th day of November, 1914.- Two persons applied for admission to this examination and were examined, and marks were given to those taking the examination upon the partial basis of efficiency and seniority in service. In this examination J. Frank Lumb received the highest grade, and that fact was certified to the defendant board of administration. The board refused, and does still refuse, to appoint him to this position.
    The respondents, for answer to the petition of relators, admit the allegations of plaintiffs’ petition substantially as pleaded, but deny that it is practicable or legal to hold a competitive promotional examination for that position.
    For a second defense they aver that J. Frank Lumb has been totally blind since he was eleven years old, and that therefore he is not physically capable of discharging the duties of this position.
    For a third defense respondents aver that J. Frank Lumb was not eligible to take a promotional examination for this position, for the reason that the position in which he was then employed, at the time of the examination, was not in the same line and character of work as the position to be filled.
    For a fourth defense respondents say that it is not practicable to determine the merit and fitness of applicants for the position of superintendent- of the state school for the blind by competitive examination.
    To this answer the relators filed a general demurrer to each and every defense contained therein.

      Mr. Charles Follett and Mr. Clarence D. Laylin, for relators.

      Mr. John G. Price and Mr. Freeman T. Eagle-son, for respondents.
   By the Court.

The state board of administration, having requested the state civil service commission of Ohio to furnish it a list of names of persons eligible for appointment to the position of superintendent of the state school for the blind, cannot, in this case, be heard to claim that it is not practicable to determine the merit and fitness of applicants for that position by competitive examination.

The question of whether an applicant is so disabled physically as to be rendered unfit for the performance of the duties of the position he seeks, is a question to be determined by the civil service commission of Ohio (Section 486-11, General Code). As a matter of course, the board of administration would have the right to take into consideration the physical condition of the applicants in making its selection from the certified list.

Section 486-7, General Code, provides that the rules of the state civil service commission “shall have the force and effect of law.”

Section 2 of Rule VIII, adopted by the state civil service commission, provides that “No person shall be eligible for promotion from a position in any grade to fill a vacancy in the next higher grade unless the position in which he is employed at the time of the examination is in the same line ■ and character of work as the position to be filled.”

The demurrer to the first and third defenses admits, for the purposes of the demurrer, the truth of all the allegations contained therein that are well pleaded. Under the averments of the first defense it would appear that the state civil service commission was not authorized to hold a competitive promotional examination for the position of superintendent of the state school for the blind, and under the averments of the third defense it appears, from the facts pleaded therein, that J. Frank Lumb was not, at the time of this examination, employed in a position in the state school for the blind in the same line and character of work as the position to be filled, and, therefore, this demurrer is sustained as to the second and fourth and overruled as to the first and third defenses. The relators not desiring to plead further, the petition is dismissed.

Petition dismissed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Jones and Matthias, JJ., concur.


text:
    Doan v. The Cleveland Short Line Ry. Co.

      Real property — Uniform allotment restrictions — Superseded by power of eminent domain — Acquisition for public purposes— Other lot owners have no damage, claim, when.

    1. Where an allotter adopts a plan for the improvement of his allotment whereby the use of the lots is restricted exclusively for residence purposes, such restriction cannot be construed as applying to the state or any of its agencies vested with the right of eminent domain in the use of the lots for public purposes.
    2. Where a company or any agency of the state vested with the right of eminent domain has acquired lots in such an allotment and is using the same for public purposes no claim for damages arises in favor of the owners of the other lots on account of such use.
    (No. 14622
    Decided July 2, 1915.)
    Error to the Court of Appeals of Cuyahoga county.
    Plaintiff filed'her statement of claim or petition in the municipal court in the city of Cleveland, of which the following is a copy:
    “The plaintiff for cause of action against defendant says that the defendant is a corporation, duly organized and existing under the laws of the state of Ohio and authorized by law to make ap-. propriation of private property and is engaged in the business of constructing, maintaining and operating a freight railroad around the city of Cleveland.
    “Plaintiff is the owner of a certain parcel of land, which fronts 35 feet on Eddy Road, in the city of East Cleveland, Ohio, and has a depth of 103 feet. Said parcel of land being sublot No. 363, in an allotment in said city, known as The Frisbie Company’s Windemere Allotment No. 2, which is shown and recorded in Volume 27, at page 18 of maps of Cuyahoga county.
    “Plaintiff says that the title to the tract of land of about 6-J acres covered by said allotment, was on and prior to the 30th day of July, 1901, in The Frisbie Company, an Ohio corporation, and that said tract was surveyed and platted and divided into sublots and streets and after said plat had been duly approved by the council of the then village of East Cleveland, it was filed for record with the recorder of Cuyahoga county on the 3rd day of July, 1901, and was recorded onAug. 1, 1901, in Volume 27, of maps, page 18.
    “Said allotment contains about 58 sublots numbered consecutively from 316 to 373, inclusive, and is divided by two streets, each 40 feet in width; one, Pontiac street, running lengthwise in a southeasterly and northwesterly direction, through said allotment and upon which are fronting sublots No. 316 to 356, inclusive. The other street, Hayden avenue, is at right angles with Pontiac street, running in a northeasterly and southwesterly direction and passes through about the middle part of said allotment. On the south or southeast of said allotment and parallel with Pontiac street, there is a street 60 feet in width, known as Eddy Road, upon which are fronting sublots Nos. 357 to 373, inclusive. This street is the main thoroughfare in that vicinity.

      “Plaintiff further says that it was the plan and intention of the owners and of The Frisbie Company, that this whole allotment, except a few lots fronting on Eddy Road, should be used exclusively for residence purposes and at the time the allotment was made and the plat recorded and before any of said sublots had been sold, the owners and the Frisbie Company, adopted a general plan or scheme for the use and the improvement of said allotment, which general plan or scheme was, that all of said sublots should be used exclusively for residence purposes, except a few sublots fronting on Eddy Road, which street was the main and business thoroughfare of that vicinity and that it was deemed best and necessary that some of said sub-lots, fronting on Eddy Road, should be used for stores and business purposes and having adopted said general plan and scheme for the use and improvement of said allotment, as to residence purposes, all of said sublots in said allotment were placed upon the market for sale, subject to said restrictions, that they should be used exclusively for residence purposes, as aforesaid.
    “Plaintiff also says that the Frisbie Company then, from time to time, sold said sublots, until they were all sold and that in each and every deed for said sublots from the Frisbie Company to the various purchasers, except in one or two sublots on Eddy Road, there was the following restrictions : ‘As part of the consideration for this deed, it is hereby agreed that the said land shall be used exclusively for residence purposes.’

      “Plaintiff, knowing of said restrictions and uniform plan, purchased her sublot in said allotment for residence purposes and relying upon the performance of said uniform restrictions upon all of said sublots, as aforesaid, which she claims adds great value to her sublot and she says that she has not violated said restriction nor has said restriction upon the other sublots in said allotment been violated, so far as is within her knowledge.
    “The plaintiff also alleges that the defendant purchased some of the said sublots in said allotment, upon which there are the uniform restrictions for residence purposes, as aforesaid and at and before the time of the purchase of said sub-lots by the defendant, the defendant had knowledge of the facts set forth in the foregoing allegations and knew that there was a uniform plan or scheme for the improvement of said allotment as to the use of all of said sublots for residence purposes exclusively and that the defendant had such knowledge' and for some time before the purchase by it of said sublots, the defendant endeavored by various means, to secure a release from, or waiver of, said uniform restriction on the sublots of said allotment and having failed to secure said release or waiver, the defendant, with full knowledge as aforesaid, nevertheless purchased some of said sublots with the purpose and intent of using said sublots for other than residence purposes and in violation of said uniform restriction. The defendant now is and for some time has been, building a railroad on and through the said allotment and having purchased some of the sublots in said allotment, upon which there is a uniform restriction for residence purposes, as aforesaid, it has surveyed and staked out a right of way thereupon for the purpose of constructing, 'maintaining and operating a railroad on and over said sublots and it has constructed and is now constructing on its sublots, within its right of way in said allotment, an embankment 135 feet in width at its base, 25 feet in height and 65 feet in width at its top, on the top of which embankment, the defendant intends to build four parallel tracks, over which it will operate a steam railroad, for the purpose of carrying freight, all of which is in violation of the property rights of the plaintiff and to the plaintiff’s great damage and the same is the taking of private property, without first making compensation therefor.
    “The plaintiff further says that by reason of said uniform plan and scheme of restricting said allotment exclusively to residence purposes, as aforesaid, that there was created a property right in each and every lot in said allotment, on behalf and in favor of each and every other lot in said allotment, to the extent that no lot in said allotment can be used for any other than residence purposes and by virtue of which, this plaintiff, by the ownership of said sublot, has a property right which the defendant has violated and taken, without first making compensation therefor, by using these lots within its right of way, in said allotment, for other than residence purposes and that said property right is claimed by the plaintiff under the Constitution of Ohio and the United States.
    “Plaintiff avers that the defendant has taken possession of and is occupying and using the private property and interest in land of the plaintiff as set forth above and that the private property and interest in land of the plaintiff, as aforesaid, so occupied and used by the defendant, has not been appropriated or paid for by the defendant and is not held by an agreement in writing with the owner thereof.
    “The defendant has taken possession of and is occupying and using the private property and interest in land of plaintiff, as aforesaid and has no right, legal or equitable thereto, all to the damage of the plaintiff, in the sum of One Thousand ($1,000.00) Dollars.
    “Wherefore, the plaintiff prays judgment against the defendant for the sum of One Thousand ($1,000.00) Dollars.”
    Defendant demurred to the statement of claim or petition upon the grounds, first, that there was a defect of parties plaintiff, and, second, that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. The demurrer was sustained, and the plaintiff not desiring to plead further, judgment was rendered in favor of the defendant. This judgment was affirmed by the court of common pleas in an error proceeding to that court, and the judgment of the court of common pleas was affirmed by the court of appeals.

      Messrs. Howell, Roberts & Duncan and Messrs. Ford, Snyder & Tilden, for plaintiff in error.

      Messrs. Tolies, Flogsett, Ginn & Morley, for defendant in error.
   Newman, J.

It is alleged in the petition that it was the plan and intention of the owner of the allotment in question that the lots should be used exclusively for residence purposes and at the time the allotment was made and the plat recorded and before any of the lots had been sold such general plan was adopted. In each of the deeds from the allotter there is contained the following covenant: “As part of the consideration for this deed, it is hereby agreed that the said land shall be used exclusively for residence purposes.” It is the contention of counsel for plaintiff in error that by reason of this general plan and of the covenant in the different deeds there was conferred upon the owner of each lot a property right in each and every other lot in the allotment. Practically all of the cases in which restrictive covenants in deeds and general plans for the improvement of an allotment have been involved, are cases in which the aid of a court of equity has been invoked by the owner of a lot to prevent the owner of another lot from violating a covenant and from defeating the general plan of the improvement. Such restrictions have been recognized and given full force and effect between private owners of lots, and an owner of a lot has been enjoined from using the same for purposes other than the uses to which it was restricted. Wallace v. Clifton Land Co., ante, 349.

The case at bar, however, is one at law, in which plaintiff seeks to recover compensation by way of damages resulting from the taking of an alleged property right which she claims to have had in the lots of the defendant, a railroad company organized under the laws of the state and possessing the right of eminent domain. It is the owner of a number of lots in the allotment and at the time of the commencement of this action was building a railroad on and over its property. It was devoting these lots to a public use. If plaintiff is entitled to compensation by way of damages by reason of the use of this property by the railroad company, a right must grow out of the covenant in the deeds of the allotter and the general plan adopted which restrict the use of the property to residence purposes. If such restriction is not to be construed as preventing the use of the property for public purposes, then of course there is no violation on the part of the defendant, and it follows that no recovery can be had. If, on the other hand, it is to be construed as prohibiting the use of the property for any purpose other than that of residences, it would prevent a public use of the lots and thereby defeat the right of eminent domain. No covenant in a deed restricting the real estate conveyed to certain uses and preventing other uses can operate to prevent the state, or any body politic or corporate having the authority to exercise the right of eminent domain, from devoting such property to a public use. The right of eminent domain rests upon public necessity, and a contract or covenant or plan of allotment which attempts to prevent the exercise of that right is clearly against public policy and is therefore illegal and void. Plaintiff’s right to compensation, if it exists, must be based upon the restrictive covenant in the deeds and the general plan adopted. To give to plaintiff this right we would be compelled to recognize a right existing under what we hold to be an invalid restriction. As was said in United States v. Certain Lands, 112 Fed. Rep., 622: “As each owner of land holds his property subject to the devesting of his title through the action of the state or of the United States, based on public necessity, can he by any means, directly or indirectly, impose upon the-state or the United States the burden of compensating him for damage resulting from that public use which does not directly invade his land? * * * Can it be possible that these owners, by mutual agreements or covenants that they or their successors in title will not do things which may be necessary for national defense, and by agreeing that these things are noxious and offensive to them, compel the United States to pay them for the right to do, upon lands taken, what is necessary for the protection of the nation?

“If such a right can exist against the state or nation, and can be considered property, then only a mere device of conveyancing is necessary to defeat entirely the rule that depreciation of property incidental to a public use does not constitute a ‘taking’; for private deeds may then provide in express terms against such uses as may be necessary in case the government exercises the right of eminent domain. If these private covenants are, as against the government and state, to be recognized as property, then the government, by taking such uses, takes private property, and múst make compensation. * * * While the owners may so contract as to control private business, and thereby increase the values of their estates, they are not entitled so to contract as to control the action of the government, or to increase the values of their lands by any expectation or belief that the government will not carry on public works in their vicinity, or that in case it does it will compensate them for the loss due to the defeat of their expectation that it would not. * * * Each landowner holds his estate subject to the public necessity for the exercise of the right of eminent domain for public purposes. He cannot evade this by any agreement with his neighbor, nor can his neighbor acquire a right from a private individual which imposes a new burden upon the public in the exercise of the right of eminent domain.”

What was said by the court in that case in reference to the state and government applies with equal force to a railroad corporation or any agency of the state which is vested with the right of eminent domain. We are constrained to the conclusion that restrictive covenants in deeds or a general plan for the improvement of an allotment cannot be construed to prevent the use of the lots for public purposes, and as against the state or any of its agencies which are vested with the right of eminent domain are illegal and void, confer no property right and cannot be the basis of a claim for damages.

We are of the opinion that the petition did not state a cause of action, and the judgment of the court of appeals is therefore affirmed.

Judgment affirmed.

Nichols, C. J., Johnson,. Wanamaker, Jones and Matthias, JJ., concur.