author: Williams, J. Shauck, J.

text:
    Schweinfurth, Admr., v. The C., C., C. & St. L. Railway Company.

      Action for wrongful death by railroad company — Refusal to give instructions — Contributory negligence — Evidence — Experiments ■before jury — Section 5201, Revised Statutes — Special findings by jury.

    1. It is error to reverse a judgment for the refusal to give an instruction requested by a party the substance of which is contained in the charge given, or one that contains an inaccurate statement of the law or assumes the existence of a material fact in dispute.
    2. In an action for negligence, it fs not error to refuse an instruction, that the defendant cannot be held liable, though guilty of the negligence charged, if the negligence of the person injured contributed in any degree, or in any way, to the injury of which he complains. Unless the negligence of the person injured.contributed directly to, or' as a proximate cause of the injury, it does not preclude a recovery.
    3. Nor is it error in such case, to refuse an instruction that there can be no recovery if the evidence points as strongly to the negligence of the person injured, as to its absence. The action may be maintained if, upon the whole evidence the negligence of the defendant be established and contributory negligence be not shown by a preponderance of the evidence.
    4. In an action against a railroad company for wrongfully causing the death of a person by the running of a train of its cars at an unusual and dangerous rate of speed, without proper signals, at a crossing over a public and much traveled street in a city, an instruction that if the deceased was misled by the absence of signals or warning, and led to believe, as a reasonable person, that he could cross the tracks in safety, and while attempting to do so, without fault or negligence on his part, he was struck and killed by the running train, solely on account of the negligence of the servants in its charge, his administrator would be entitled to recover, is not error.
    5. Where, on the trial of such action, the defendant was permitted, at its request, with the consent of the plaintiff, and in pursuance of an order of court procured by it, to make experiments in the presence'of the jury, by the running of a train over the crossing where the plaintiff’s intestate was killed, and under conditions practically the same as those which existed when the accident occurred, for the information of the jury as to the nature and cause of the accident, the information so obtained was competent evidence for the consideration of the jury, and an instruction to that effect was not erroneous.
    6. A petition in such an action which states all the material facts of the transaction or occurrence resulting in the person’s death, contains but one cause of action, though they comprise a number of co-operating acts and omissions, some of which were willful or intentional, and others the negligent failure to observe proper care.
    7, It is not the purpose of section 5201, Revised Statutes, which requires the court, when requested by either party, to direct the jury to find specially upon particular questions of fact, to require special findings of merely evidential facts. The “particular questions of fact” contemplated by the statute are those the answers to which will establish ultimate and determinative facts, and not such as are only of a probative character.
    (Decided April 25, 1899.)
    ERROR to the Circuit Court of Marion county.
    The original action was brought under section 6134, of the Revised Statutes, to recover damages for the death of plaintiff's intestate, Robert J. Blum, which it is alleged, was caused by the wrongful acts, neglect and default of the defendant, the Railway Company, on the twenty-third day of November, 1897. The death was caused by the decedent being struck by a passenger train operated by the defendant, while he was driving on Greenwood street, in the city of Marion, where it crosses the defendant’s road. The wrongful acts, neglect and default of the defendant which resulted in the decedent’s death, consisted, as charged in the petition:
    “In willfully wantonly and recklessly running said passenger train, locomotive and cars that killed said Robert J. Blum, over said Greenwood street crossing at a reckless and dangerous rate of speed down grade and beyond control, to wit: at a rate of speed of more than thirty-five miles per hour, when ordinary care and prudence under the circumstances at such time and place would have required a much less rate of speed, tow.it: a rate of speed not to exceed four miles per hour, and in violation of an ordinance of said city of Marion, Ohio, passed April 16, 1894, and duly published, entitled ‘An ordinance to regulate the running of locomotives and cars within the corporate limits of the city of Marion, Ohio, ’ and in full farce and effect on said twenty-third day of November, A. D. 1897, and for a long time prior thereto, prohibiting the running of locomotives and cars in said city at a greater rate of speed than ten miles per hour. In so running said train without giving any signals for said crossing by blowing any whistles or ringing any bells or otherwise, and without any lookout ahead of said train, and without taking any precautions whatever for the safety of the said Robert J. Blum or any one at said crossing. In unlawfully, carelessly, and willfully failing to erect gates or other barriers at said crossing of said railroad track and Greenwood street so as to give warning to travelers on said street at said place of the approach of trains at said obstructed and dangerous crossing; and that, while prior to, and at said time, said defendant had employed a watchman to guard said crossing, and said decedent at the time he was killed had reasonable grounds to believe and did believe that in the absence of notice and signals from the said watchman at said crossing there was no danger in crossing there at said time, the said watchman carelessly failed to give any such notice or signals, and said defendant carelessly failed to provide the said watchman with a lantern or other means to give signals at said crossing, so that, in the darkness, and in the absence of signals of any kind from said watchman or otherwise, the said Robert J. Blum was then and there deceived into believing that he might cross said crossing in safety, the said defendant then and there well knowing at said time that the said decedent was unable to see said train approaching from the east until he had passed said side track, and his horse was already on the main track of said railroad and in front of said train. And in unlawfully, willfully and carelessly obstructing with standing cars said Greenwood street at said crossing, said Greenwood street being then and there a public street of said city of Marion, Ohio, and in completely obstructing the view to the eastward from said Greenwood street with standing cars on said side track, so that said decedent on account of such obstructions to view was wholly unable to discover the approach of said rapidly running mail train coming noiselessly down the grade on the main track of said railroad. ’ ’
    “And the said plaintiff further says that said Cleveland, Cincinnati, Chicago & St. Louis Railway Company, its servants and agents, voluntarily and willfully failed to take said precautions, and any precaution whatever, for the safety of said Robert J. Blum, deceased, and did recklessly, carelessly, wantonly- and willfully strike, wound and kill the said Robert J. Blum at the time and place' aforesaid.”
    The answer denies these allegations, and avers contributory negligence on the part of the deceased, which averments were controverted by reply. On the trial the plaintiff obtained a verdict. At the request of the defendant a large number of interrogatories calling for findings upon nearly every evidential fact to which the testimony had been directed, were submitted to the jury, and answers were returned, with the general verdict. Judgment for the plaintiff was reversed by the circuit court for errors in refusing certain instructions requested by the defendant, and in certain instructions given to the jury. A statement of these alleged errors, and of others upon which it is claimed the circuit court should have based its judgment of reversal, together with such facts as may be deemed material in their consideration, will be found in the opinion.
    Schofield, Durfee da Schofield, for plaintiff in error.

      W. Z. Davis and S. D. Bayless, for defendant in error.
   Williams, J.

The instructions requested by the defendant, the refusal to give which was held by the circuit court to be error, constituting a ground of its judgment of reversal, are as follows:

1. “If you find that the railroad company ran the train which killed Blum over the Greenwood street crossing at a rate of speed greater than that allowed by an ordinance of the city of Marion, and that said crossing was within said city, the railroad company will, nevertheless, not be liable for the death of Blum, if you also find that Blum was guilty of negligence contributing in any degree to his injury.”

2. “Inability to stop after seeing his danger, because the train was running faster than was permitted by a city ordinance, would not clear Blum from the consequences of his own contributory negligencein recklessly driving in front of the train.” •

3. “You are instructed, that if the evidence and circumstances point just as strongly to the negligence of the deceased as to its absence, the plaintiff cannot recover and you should return a verdict for the defendant.”

4. “You are instructed that if the evidence shows that the deceased, Robert J. Blum, was guilty of negligence in attempting to cross the railroad track, the plaintiff is not entitled to recover in this action, however slight the negligence of the deceased was, if it in any way contributed to his injury, and your verdict must be for the defendant.

Neither of these instructions is entirely free from objection. The first' and fourth wouLd preclude a recovery if, in their language, the negligence of the deceased contributed “in any degree, or in any way,” however remotely, to the injury which caused his death, and, without regard to the other circumstances of the case; while the rule is, that a party is only required to use ordinary care, and his failure to do so must, to defeat his recovery, contribute directly or as a proximate cause to the injury of which he complains. In Beach on Cont. Neg., section 4, contributory negligence, in its legal signification, is defined to be “such an act or omission on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or co-operating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of. To constitute contributory negligence there must be a want of ordinary care on the part of the plaintiff, and a proximate connection between that and the injury.’’ And in section 24, it is stated by that author, that: “The essence of contributory negligence is, as has been shown, a want of ordinary care on the part of a plaintiff, which is a proximate cause, an occasion of the injury. We have considered, in the preceding section, the law affecting ordinary care. It remains to set forth the rules of law in regard to that lack of ordinary care as a proximate cause of the injury of which the plaintiff complains. The courts declare, and it is a settled rule of law, that, not only must the negligence of one injured by another’s culpable neglect contribute to produce the injury, but that, if it is to constitute contributory negligence, it must contribute as a proximate cause, and not as a remote cause or mere condition. ”

In 1 Sherman & Redfield on Neg., section 94, it is declared to be the rule that: “The plaintiff’s fault does not affect his right of action, unless it proximately contributed to his injury. It must be a proximate cause, in the same sense in which the defendant’s negligence must have been a proximate cause in order to give any right of action.” And in section 99, it is said: “It is. now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant’s negligence, notwithstanding the plaintiff’s own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant’s omission, after becoming aware of the plaintiff’s danger, to use ordinary care for the purpose of avoiding injury to him. We know of no court of last resort in which this rule is any longer disputed. ” * * * “But, furthermore, the plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains was more immediately caused by the omission of the defendant, after having such notice of the plaintiff’s danger as would put a prudent man upon his guard, to use ordinary care for the purpose of avoiding such injury. It is not necessary that the defendant should actually know of the danger to which the plaintiff is exposed. It is enough if, having sufficient notice to put a prudent man on the alert, he does not take such precautions as a prudent man would take under similar notice. This rule is almost universally accepted. ”

In 2 Thomp. on Neg., page 1151, the' rule is stated as follows: “The negligence of the plaintiff, in order to bar a recovery, must have been a proximate cause of the injury complained of. If the negligence of the plaintiff was only remotely connected with the injury, the plaintiff may recover damages, if notwithstanding such remote negligence of the plaintiff the defendant might have avoided the injury by the exercise of ordinary care. ” Again on page 1152, that author says: “But the negligence of the plaintiff, in order to bar his recovery, must have been so far an efficient cause of the injury that unless be had been negligent, the injury would not have happened; or, as the rule is often expressed, although there may have been negligence on the part of tbe plaintiff, yet unless he could by the exercise of ordinary care have avoided the consequences of the defendant's negligence,, he is entitled to recover.” And in note 2, on page 1151, it is said: “In early cases at nisiprius in England, the rule was laid down that if the plaintiff’s negligence in any toay concurred in producing the injury, he could not

recover. Pluckwell v. Wilson, 5 Car. & P., 375; Hawkins v. Cooper, 8 Car. & P., 473. But this, without more, is now regarded as an inaccurate statement of the law; and, as we have seen (Radley v. London, etc., R. Co., ante, p. 1108), the House of Lords has lately held it error to charge a jury in this or similar language without qualification.” This well settled doctrine as maintained by the foregoing authorities was followed and applied by this court in the case of Railroad Company v. Kassen, 49 Ohio St., 230, and had been recognized and approved in several cases before that.

The second instruction refused is objectionable for the further reason that it assumes the deceased recklessly drove in front of the defendant’s rapidly moving train; while, whether he was negligent in that respect was one of the questions of fact for the determination of the jury upon the evidence. And the third is at variance with the well established rule in this state, that the burden is upon the defendant to make out the defense of contributory negligence, unless the plaintiff’s evidence raises the presumption of such negligence, when he is required to overcome that presumption. If upon the whole evidence contributory negligence, such as would defeat a recovery, be not shown by a preponderance of the evidence, and the negligence. of the defendant be so shown, the action may be maintained. Each party starts in the trial with the presumption that he is free from negligence, and each, therefore, primarily assumes the burden of proving the negligence of the other. This instruction is not less erroneous than would be a charge that if the whole evidence pointed as strongly, but not more so, to the negligence of the defendant, as to the absence of such negligence, the plaintiff would be entitled to recover, there being no contributory negligence shown.

But it is sufficient to say with respect to all of these instructions that the substance of them was embodied in others that were given in the charge at the request of the defendant, some of them in language more compreheiisiveand favorable to the defendant. For instance, the first, and fourth of the instructions refused are, in substance, comprised, in appropriate language, in the following which the court gave at defendant’s request: “You are instructed that, although’ you may find from the evidence that the defendant’s train of cars was running at a high or excessive rate of speed, that would not excuse or overcome the negligence of the deceased, if he was negligent, in attempting to cross the railroad track in front of a rapidly approaching train, without first looking and listening. ” The second is fully covered by the following instruction given at defendant’s request: “The duty of a person to look and listen before crossing a railroad includes the duty to do that which will make looking and listening reasonably effective. If there is a permanent obstruction to sight that will make danger invisible, and a transient noise that would make ib inaudible, it is negligence to go forward at once from a place of safety to a possible danger. Prudence requires delay until the transient noise has abated and hearing again becomes efficient for protection. You are instructed that if the deceased was familiar with the Greenwood street railroad crossing- and drove toward it at a rate of speed such as he was unable to check and stop his vehicle in time to escape a collision with a passing train, after arriving at a point where he must have seen it if he had looked, and where he could have avoided it, he will be guilty of contributory negligence, and the plaintiff cannot recover. ” And the third was given in the following, and equally erroneous charge, also, at the request of the defendant: “Before the plaintiff is entitled to recover in this action, he must establish two propositions: First, that his injury was caused by the negligence of the defendant company, and secondly, that his own negligence did not contribute to his own injury. When a person crossing a railroad track is killed by a collision with a train, the fault is prima facie his own, and his administrator must show affirmatively, that decedent’s fault or negligence did not contribute to the injury, before he is entitled to recover, and this presumption is at least sufficient to require from him an affirmative showing that the circumstances, and decedent’s conduct were such that he was not in fault.”

Indeed it appears from the record that the charge of the court was made up in a great measure of instructions given at the instance of the defendant, on the subject of contributory negligence, covering every phase of the case, repeated in different forms of expression; and there is, in no view, any substantial ground of complaint on the part of the defendant with respect to the instructions which the court declined to give in the charge.

The following is one of the instructions, the giving of which was made a ground for reversing the judgment of the trial court:

‘ ‘If the jury find from the evidence, that the defendant’s servants in charge of the train that killed said Robert J. Blum, gave signals by whistling once and no more, at such distance, if it exceeded 100 rods from Greenwood street, that said Robert J. Blum would naturally think that he could safely cross before the train arrived at Greenwood street if he heard such a whistle, and that he did hear it and should further find that no bell was rung, and that said train was going at a greater rate of speed than men of ordinary care and prudence in like employment would have run it under like circumstances and conditions, and that said Robert J. Blum as a reasonable man was thereby deceived and led to believe that he could cross the tracks of said defendant’s railroad in safety, and that if attempting under these circumstances to cross said tracks, without fault or negligence on his part, he was on account of careless^ness upon the part of the servants of said defendant in operating said train at an unusual and dangerous rate of speed, struck and killed, then plaintiff would be entitled to recover if such carelessness was the sole cause of his injuries.”

The objection urged to the charge is, that it makes the defendant liable for the mistake or miscalculation of the person injured. But that, we think, is not its effect. It does no more than hold the defendant responsible for the proximate consequences resulting from the position in which the deceased was induced to place himself by its negligent omission to give the required signals of the approaching train where they might be reasonably expected by persons about to use the crossing, and upon the absence of which they might reasonably rely as an assurance that it was safe to cross over; and, from the running of the train without such signals at an unusual and forbidden rate of speed, whereby persons, who otherwise might cross in safety would be placed in a position of extraordinary peril. To give the instruction application to the case it was necessary for the jury to find, and they were so told, the existence of the facts thus calculated to mislead the deceased, and further, that he exercised the care of a person of ordinary prudence in forming his conclusion that he could safely cross under the circumstances, and that the injury he received was caused wholly by the negligent acts and omissions of the defendant. If the facts stated were established to the satisfaction of the jury, the deceased was not guilty of contributory negligence which precluded a recovery by his administrator.

The only other instruction given on which the judgment of reversal was predicated, is as follows: “The jury has been taken out to view the scene of this accident twice, the first time for the purpose of being able to understand the testimony, and the second time to witness certain experiments by agreement of both parties. I charge you that you are not to consider as evidence what you saw on the first view; but what jrou saw on the second view that was shown to you by the parties under their agreement you should take and consider as evidence in this case. ’ ’ The record shows that during the progress of the trial, and before the conclusion of the evidence, counsel for defendant moved the court for an order directing the jury to be taken to the crossing where the deceased was killed, at about the same time in the evening, for the purpose of witnessing certain experiments which the defendant proposed to have made in the running of a train of cars there, under circumstances like those present at the accident, for the purpose of informing the jury in regard to the cause and manner of its occurrence. No objection was made by plaintiff’s counsel, “and thereupon, ’ ’ as stated in the record, ‘ ‘it is agreed that the jury shall go to said crossing at 7 o’clock this evening, April 14, 1898, in charge of the sheriff to witness certain experiments made with the engine and train there. And thereupon the jury reported at the court house at said hour, and in charge of the sheriff went to the scene of the accident and witnessed certain experiments made with said engine and train, horse and buggy, men seated in the buggy, etc.”

The question made on this charge is whether the jury might properly consider the information obtained from these experiments as evidence in the case; and is, in this form, a new question in this state. We are not aware of any reported decision of this court, in which a like question was involved. It was held in Machader v. Williams, 54 Ohio St., 344, that the preliminary view, authorized by section 5191 of the Revised Statutes, of the property or place involved in a litigation, is merety for the purpose of enabling the jury to apply the evidence offered on the trial. But experiments made in the presence of the jury, with a view of reproducing to their senses, as nearly as may be, the transaction or occurrence, in whole, or in part, which is the subject-matter of investigation by them, would seem to have a different purpose. They serve to put the jury in possession of knowledge important in the determination of the issues on trial, that they could not obtain so readily or accurately from the testimony of witnesses. They are, in a measure, a substitute for oral testimony, and often may áfford evidence more satisfactory and reliable.

In Smith v. State, 2 Ohio St., 511, where the prosecuting witness on a trial of an indictment for malicions shooting, had testified that he saw and identified the defendant, through a glass window after dark, from the flash of the pistol which he fired, it was held competent for the defendant to prove experiments made by witnesses under similar circumstances, and, as a result of them, that a person could not be so identified. ’ If the testimony of witnesses relating to such experiments, and the information obtained from them furnish competent evidence which the jury may consider in making up their verdict, it is difficult to assign any satisfactory reason wh_y such experiments, when made in the presence of the jury for their information, and by which the results are made obvious to their senses, should not afford evidence of equal, or even greater, force and certainty. Witnesses observing the experiments, when called upon to testify, may imperfectly describe them, or fail to make themselves fully understood; while these imperfections are removed when the jury is placed in the position of the observing witnesses, with all the opportunities of observation. As said in 2 Jones on Evidence, section 395: “For obvious reasons there is no class of evidence so convincing and satisfactory to a court or jury as that which is addressed directly to the senses of the court or jury. ” In patent cases experiments before the court and jury are constantly resorted to as a means of proving novelty of inventions and the principles of their construction and operation. And in the American notes to Taylor on Evidence, page 365,'. it is said that: “A particularly cogent method of proving a fact is to test its existence by experiments in open court.” True, the experiments in this case were not made in court; it was impractical to do so. Nor, without the consent of the parties, could they have been ordered to be made elsewhere. But they were made out of court at the request of the defendant, in pursuance of an order procured by it, and under conditions which, to its satisfaction, constituted a sufficiently accurate representation of the occurrence that resulted in the death of the plaintiff’s intestate; and they were necessarily of the same probative character as if made in open court. They were intended to furnish information which the jury might use in determining the issues in the case, and which, indeed, might conclusively settle them in the minds of the jury. It would be a vain thing to attempt to require the jury to disregard the evidence so made manifest to their own senses.

We find ourselves unable to sustain either of the grounds on which the circuit court placed its judgment reversal.

It is urged, however, with much earnestness, that the correct judgment was rendered, because several other errors assigned required the reversal. We will notice but two of them, as they seem to be most relied uDon. One is, that the court erred in overruling a motion made by the defendant to compel plaintiff to elect between inconsistent causes of action. This motion appears to be based upon the evident misconception that the petition states two causes of action — one for purposely causing the death of Blum, and the other for causing it by negligence. The statute, (section 6134), gives the right of action against one who, (in its language) ‘ ‘by wrongful act, neglect or default,” causes the death of another, etc. The transaction or occurrence resulting m the death may consist of a number of co-operating acts and omissions, some of which may be willful or intentional, and others merely failures to observe the necessary care; and a plaintiff cannot be required to arrange the facts into these different classes, and plead each as a separate cause of action. Good pleading requires that he shall state as one cause of action all of the material facts of such wrongful act, neglect and default, whether they were willful, or negligent only, or whether they consist in part of wrongful acts purposely done, and in part in the neglect or default of the defendant; and he may recover upon sufficient proof of either, or of all combined.

Counsel for defendant in error devote a considerable portion of their brief to the discussion of their claim that the defendant is entitled to judgment on the special findings made by the jury in response to the interrogatories submitted at its request, and that the circuit court should not only have reversed the common pleas for that reason, but should have rendered final judgment for the defendant. There were a number of these interrogatories, thirty-six in all, relating mostly to the details of the location and surroundings of the crossing where the accident occurred, the number, width of, and distance between the tracks of the railroad, the presence or absence of obstructions and their proximity to the crossing, the conduct of the watchman in charge, at the time of the accident, and many other similar facts tending to show the manner of the accident and conduct of the parties; and it is the contention of counsel that the answers to these interrogatories conclusively established such negligence of the deceased contributing to his death as entitled the defendant to judgment, notwithstanding the general verdict. Without referring more particularly to the interrogatories or answers, it may be said of them generally, that they are merely evidential, with pi-obably two exceptions, and none of them, nor all together are sufficient to raise a conclusion of contributory negligence, as matter of law. Some of them tend to prove contributory negligence on the part of the deceased, some tend to disprove it, and there was other material evidence on the subject, in regard to which no interrogatory was submitted, or finding made except as included in the general verdict.

The statute, (section 5201), which requires the court, when requested by either party to direct the jury to find specially upon particular questions of fact, seems to have been misunderstood. The “particular questions of fact” contemplated by the statute are such that the answers to them will establish ultimate and determinative facts, and not those which are only of a probative character; such facts as will enable the court in the application of the law, to determine the rights of the parties, and not those which simply tend to prove them. In arriving at their verdict the jury presumably agree upon the ultimate facts on which it is founded; and these the jury may be required to find specially in answer to pertinent interrogatories, in order that the court may determine whether they are sufficient to sustain the verdict. Anything beyond that is practically but a means of enforcing a disclosure of the process by which the jury arrive at their conclusions upon the ultimate facts, and is not within the purpose of the statute. In Railway Co. v. Dunleavy, 129 Ill., 132, 145, it is pertinently remarked by the court in discussing a statute not substantially different from ours, that the parties “ha ve no right, under the guise of submitting questions to be found specially by the jury, to require them to give their view upon each item of evidence, and thus practically subject them to a cross examination of the entire case. Such practice would subserve no useful purpose, ■and would only tend to embarrass and obstruct the administration of justice; and we may further say such practice finds no warrant in our statute.”

By the general verdict the jury found the deceased was free from negligence contributing to his death, and there is no special finding which conclusively establishes the contrary.

We have considered all of the other questions argued by counsel, but deem it -unnecessary to notice them in the report of the case; Upon the whole record no errors are discovered which authorized the judgment of reversal by the circuit court; and its judgment is reversed, and that of the common pLeas affirmed.

Shauck, J.

(dissenting). The fifth proposition of the syllabus is not reconcilable with Machader v. Williams, 54 Ohio St., 344, which was recently decided with the concurrence of all the .members of the court, and, as is admitted, decided correctly.

The cases, with respect to the view, present but two points of difference. In that case there was but one view, while here there were two, and upon the second more objects were brought to the view of the jury to enable them to apply the evidence offered in court. The impracticability of a distinction founded upon such différences has already been made sufficiently apparent.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Burgunder et al. v. Weil et al.

      Fraud in sales of wearing apparel — By itinerant vendors — Act of April US, 1894 — Interpretation of law.

    Section 9 of the act of April 23, 1894 (91 O. L., 173), entitled “ An act to prevent and punish fraud in sales of wearing- apparel at public or private sale by itinerant vendors, and to regulate all such sales,” does not apply to the claim of a wholesale dealer arising out of a sale of goods to a licensee to be by the latter resold in the course of the business licensed under the act, and no right to, or lien on the deposit of $500 required by the act to be placed with the secretary of state, can be asserted under that section in behalf of such claim, the claim not being one that arose 1 ‘ in connection with the business done in this state,” within the meaning of that section.
    (Decided April 25, 1899.)
    Error to the Circuit Court of Franklin county.
    This action was brought to determine the rights of different claimants of a fund deposited with the secretary of state under the act of April 23, 1894, (91 O. L., 173) entitled “An act to prevent and punish fraud in sales of wearing apparel at public or private sale by itinerant vendors, and to regulate all such sales.” After the cause had been tried in the court of common pleas it was appealed to the circuit court and there again tried upon its merits, and the fund awarded to the defendants in error, whereupon proceedings were brought in this court to reverse the judgment of the circuit court. The facts will be stated in the opinion of the court.
    Booth, EeoMng <& Peten'S, for plaintiffs in error.
    The court will bear in mind in considering this alleged assignment to Henry Giershofer & Company and its legal effect, that the claim of that company is not of the class of claims covered by the statute. That is, it does not appear by the agreed statement of facts as contained in the bill of exceptions, that their claim was incurred by Weil & Gugenheim in connection with their business of itinerant vendors within the state of Ohio. The existence of this fact is necessary before_ they can claim any rights under the statute. It is only this kind of a claim that can be liquidated in the manner described in section 9 of this act.
    Does the statute under consideration include a claim for goods sold to an itinerant vendor, to be by him used in his business in this state? Counsel for the contesting defendant will contend that it does not, and a majority of the circuit court seemed to. be of the same opinion. Their contention in the court below was, that the provisions of the statute only extend to claims which arose from a purchase of g-oods from the itinerant vendor, and did not include claim sarising out of a sale of goods to the itinerant vendor.
    The court will observe that no such limitation as is contended for by the other side is found in the language used by the legislature. The wording of the statute is broad and comprehensive, and includes all claims which arose in connection with the business of the itinerant vendor transacted within the state. The terms used are so clear and unambiguous that there is no room for construction.
    The constitutional rule “that no bill shall contain more than one subject, which shall be clearly expressed in its title,” is only a permanent rule of the legislature, and is only applicable to bills on their passage, and has no application in determining the validity of the enactment. Pim v. Nicholson, 6 Ohio St., 176; State ex rel. v. Covington, 29 Ohio St., 102; Seeley v. Thomas, 31 Ohio St., 304; Weil v. The State, 46 Ohio St., 450. The ordinary and natural import of words consistent with the common sense of the community, is to be adopted in arriving at the legislative intent in construing statutes. Allen v. Little, 5 Ohio, 71; State v. Peck, 25 Ohio St., 28. Plain and explicit language cannot be construed contrary to the express words, on conjecture. Last will, etc., of Hathaway, 4 Ohio St., 385; Smith Bridge Co. v. Bowman, 41 Ohio St., 37. Nor can the obvious meaning of a statute be abandoned or disregarded though the court is convinced the legislature intended differently, and omitted words by mistake. Woodbury v. Berry, 18 Ohio St., 456. Words or phrases that have acquired a fixed meaning, are presumed to be used- in the legal sense. Turney v. Yoeman, 14 Ohio, 218; Grogan v. Garrison, 27 Ohio St., 63; Gray v. Askew, 3 Ohio, 480. The title of an act, though no part of it, may be considered to explain its object and solve what is doubtful. Burgett v. Burgett, 1 Ohio, 480. The title of an act will not limit its scope or operation if the language used in the act is clear, unambiguous and comprehensive. Seeley v. Thomas, 31 Ohio St., 301. Neither the title, nor the preamble are part of the statute, and cannot be resorted to when the act itself is clear and comprehensive in its terms, but only to remove ambiguities where the intent is not plain. LaFayette Society v. Lewis, 7 Ohio, part 1, 86.

      Qumble da Qumble, for defendants in error.
    The whole claim of plaintiffs in error in this case is based upon section 9 of said act and we are content to submit this case upon the construction and interpretation of said section in its relation to the remainder of the act, for upon the construction and interpretation of the whole act rests the legal •status of both plaintiffs and defendants in error.
    The legislature passed an act (91 O. L., p. 173), which clearly and unmistakably was intended as a protection for persons who were deceived by making purchases from such vendors.
    The title of said act should be first looked to as to what the legislature intended to do.
    In this connection we desire to call the attention of the court to the rule that in determining what a law is and what its purpose, the very first thing to do is to look at and examine its title. Bates v. Nelson, 49 Mich., 455.
    True the title of an act does not constitute any part of the act itself; but it must be referred to in order to explain what is doubtful in the body of the act. Southerland on Statutory Construction, section 87; State ex rel. Belford v. Hueston, 44 Ohio St., 5.
    "We cite the foregoing because plaintiffs in error insist that the word “creditor, ” as used in one section of the statute, is intended to govern the whole act in so far as to persons who are to receive the benefits of the act.
    This court will certainly look to the causes that without doubt moved the legislature in enacting the law in question and upon the slightest reflection must conclude that it was the innocent public who patronized these traveling fire-sale merchants that the law-making body were attempting to give .some remedy. Medical College of Ohio v. Ziegler et al., 17 Ohio St., 65.
    The act itself does not in any manner infer that business men who sell goods to itinerant vendors should be protected, because it is a well known fact that persons that sell their goods and wares to itinerant vendors do so with the full knowledge and understanding of their transactions. In many instances these vendors are provided with goods to be used by them in such advertised sales, etc., and surely there could be no fraud or deceit whereby the seller to the itinerant vendor could be jeopardized.
    Could it he successfully maintained that because an itinerant vendor was unfortunate in not being able to meet his obligations that he was practicing fraud? If such was the judicial determination many an unfortunate honest man would he branded a fraud. The fraud that the legislature had in mind was the fraudulent representations made by the vendor in the sales of his merchandise, etc.; and if this court concludes that such was and is the purpose of the act, then as Burgunder Bros. & Co. admit that they sold their goods to Weil & Gugenheim to he used in such sales as said Weil & Gugenheim were engaged in, therefore could hardly come under the head of defrauded and deceived persons. Beaver & Butt v. Trustees, 19 Ohio St., 108; Doyle v. Doyle, 50 Ohio St., 341.
    If the legislature intended to protect such persons as sold goods and merchandise to itinerant vendors they could very easily have expressed such intention in plain and clear language.
    This act in question was declared constitutional by the circuit court of Hancock county, Ohio, as appears in volume 8 O. C. C. R., 324; 4 Circ. Dec., 82.
    The court is certainly of the opinion in that case that the act is to protect unsuspecting purchasers from such sellers and not the keen, shrewd and adroit seller to such itinerant vendors. Could an itinerant vendor deceive or defraud in the general acceptation of such terms, men who sell the vendor Ms goods for the purpose of his smoke, fire and clearance sales? Most assuredly not. And the legislature never intended that they should be considered in the enforcement of this .law. 3 Ohio, 107; 2 Ohio St., 431.
    While in the body of the statute in question the word “creditors” is used in several instances to make clear the class of persons that are to be protected, still in looking- to the meaning of the word in connection with the law in which it appears, recourse should be had to the true intent of the legislature. 48 Ohio St., 671; 31 Ohio St., 201; 34 Ohio St., 280; 2 Ohio, 74; 1 Ohio, 469.
    It is true that remedial statutes are to be so construed as to embrace all cases that come within the letter, provided that such construction and interpretation does no violence to the true intention of the legislature. Wilbur v. Paine, 1 Ohio, 265; Burgett v. Burgett, 1 Ohio, 469; Southerland on Statutory Construction at section 411.
   By the Court.

On May 16, 1895, Max Gugenheim obtained from the secretary of state a license to enter upon the business of an itinerant vendor of wearing apparel in the state of Ohio; and pursuant to the statute (91 Ohio Laws, 173) which provides for licensing that occupation, defendant deposited with the secretary of state the sum of five hundred dollars. Thereupon Gugenheim and his partner, Weil, entered upon the business, for conducting which the license was obtained, and conducted it until July 25, 1895, a period of about two months, when on the last named day he executed and delivered to Henry Giershofer & Go., defendant in error, the following instrument:

“Columbus, Ohio, July 29, 1895.
“I, Max M. Gugenheim, o.f the firm of Weil & Gugenheim, do hereby assign the within license to Henry Giershofer & Co. of Cincinnati, Ohio, in payment of debt, and do authorize the said Henry Giershofer & Co. to draw the amount deposited with the secretary of State, as set forth in said license after the expiration of sixty days from date, as authorized by law.
Max M. Gugenheim, of Weil & Gugenheim.
Jacob Weil,
Weil & Gugenheim. ”,

On the third day following they voluntarily surrendered to the secretary of state the license in question. Afterwards 'on August 29th following, the plaintiffs in error obtained a judgment against Weil & Gugenheim, the licensees, for $1,334.98, which judgment was founded on a claim for goods sold to the licensees to be again sold by them in the course of the business which they were conducting under the license. On the day the judgment was recovered the judgment creditors caused an execution to issue thereon which was at once levied on the $500 that had been deposited with the secretary of state when the license was obtained. Prom some other source the sum of $525 on September 1, 1895,. was paid on this judgment, and thereupon the judgment creditors brought an action to have the $500 so deposited with the secretary of state applied in payment of the balance due thereon. Henry Giershofer & Co., to whom the deposit had been assigned by the instrument before set forth, were made parties and set up by way of answer and cross petition a claim to the fund by virtue of that instrument. The assignment is inartificially drawn, but as it discloses that the intention of the parties, was to transfer to Henry Giershofer & Go. the fund in question in payment of a debt it is sufficient to accomplish that purpose and should be deemed to have transferred to the assignee whatever interest the assignors had in the fund. This assignment was made before the execution in question was issued, and even before the judgment itself had been recovered— and thus being prior in time to the claim made under the execution and levy it should prevail unless the plaintiffs in error can show that they had some claim or lien against the deposit to which the assignment at the time it was made was subject. It is at this point that the vital contention between the claimants arose. The plaintiff in error contends that section 9 of the act “to prevent and punish fraud in the sale of wearing apparel, etc.” before referred to, made the deposit subject to their judgment, because that judgment was on a claim for goods sold to the licensees to be by them re-sold in the business they were licensed to conduct. That section reads as follows:

“Section 9. Each deposit made with the secretary of state shall be subject, so long as it remains in his hands, to attachment and execution in behalf of creditors whose claims arise in connection with business done in the state, and to the payment of any and all fines and penalties incurred by the license through violation of this act. Claims under civil process shall be enforced against the secretary of state as garnishee or trustee by action in the usual form, and claims for satisfaction of fines and penalties shall be enforced by the prosecuting attorney serving notice of pendency of action (and judgment when obtained) upon the secretary of state. All claims upon each deposit shall be satisfied after judgment in the order in which notice of the claim is received by the secretary of state, until all such claims are satisfied, or the deposit exhausted;-but notices filed after the expiration of the sixty days’ limit aforesaid shall be valid. No deposits shall be paid over by the secretary of state to licensees so long as there are any outstanding claims or notices of claims against them respectively, unless he shall find that there is unreasonable delay in enforcing the same.”

We think the contention of plaintiff in error cannot be maintained. To afford a remedy to persons who should supply by sale to licensees goods to be used by the latter in their business is not an object contemplated by the act in question. On ■ the contrary, we think the deposit is required for the purpose of protecting such persons as may have claims that arise out of the particular business licensed, that is, out of the business the licensees themselves are- conducting. This construction is strongly supported by the title of the act. Doubtless the statute would include rents of the premises in which the business was conducted, wages of clerks and salesmen, claims for damages growing out of misrepresentation of the quality of the goods sold, etc. If the wholesale dealers or jobbers who furnish such licensees goods for carrying on the business licensed should be deemed to be within the statute, a deposit of only $500 would be wholly inadequate to attain the end intended. That is demonstrated by the fact that in the case before us the aggregate amount of the claims of the two firms now contending over the deposit in question exceed $8,000, or more than sixteen fold greater than the deposit. If the legislature had intended to protect wholesale dealers who furnish goods to the licensees to be sold by them, the deposit required would have been much greater.

The circuit court adopted this view awarded the fund to the firm to which it had been assigned; its judgment will be affirmed. There is no inteñtion to deny to any creditor of a licensee the right to proceed against the deposit of such licensee, but simply to deny to wholesale dealers who sell to licensees goods to be re-sold and to other general creditors of the licensees the protection of a statute that we think is designed to protect a special class of the creditors of such licensees, i. e. those whose claims arise out of the local business conducted by them under the licensees.

Judgment affi/rmed.


author: Burket, J.

text:
    Village of St. Bernard et al. v. Kemper et al.

      Taxes and assessments levied upon corpus of realty — And not on title, when — Lessee of realty authorised to subscribe for improvements, when — Section 2272, Revised Statutes.

    1. In this state taxes and assessments are levied upon the corpus of real property, and not upon the titles by which the same may be held, unless otherwise provided by statute.
    2. The lessee in possession under a lease of real property for ninety-nine years, renewable forever, the property standing in his name for taxation, is so far the owner of such property as to authorize him to subscribe a petition for street improvements under section 2272, Revised Statutes ; and in such case the signature of the lessor to such petition is not required in order to authorize an assessment against the corpus of such property.
    (Decided May 9, 1899.)
    Error to the Circuit Court of Hamilton county.
    On the twenty-third day of September, 1893, the defendants in error leased a certain tract of land adjoining the village of St. Bernard, in Hamilton county, to one Henry Bostwick, by a written lease duly executed, for ninety-nine years renewable forever, upon a consideration of a ground rent to be paid from time to time, and in default the lien for rent to be foreclosed and leasehold interest be sold. The lease was duly recorded, and the lands transferred to said Henry Bostwick, and the same stood in his name for taxation, and possession was delivered to him, and by him retained therafter. The lease contained a privilege of purchase at any time during the term thereof and contained the further provision that the lessee should pay all taxes and assessments that might thereafter be levied, charged or rated against said premises.
    Said Henry Bostwick caused said lands to be laid out into village lots, and dedicated certain streets to the public, and the village accepted the plat, and the streets were duly opened and used as public streets.
    Afterward, and while said lessee was still the holder of many lots bounding4 and abutting upon the said streets, he, with other owners of property bounding and abutting on said streets, signed petitions directed to the council of said village as provided in section 2272, Revised Statutes, for the improvement of the streets and avenues in said petition mentioned and described, by grading the road-bed, setting the necessary- curbs and gutters along the entire length thereof,' and constructing the necessary culverts and drains, macadamizing and graveling the 'roadway, and building necessary retaining walls; and further that the whole cost of such improvement be assessed per front foot upon the lots bounding and abutting on said streets, and to be collected in ten annual install* ments. In said petition said Henry Bostwick represented himself as the owner of said lots so bounding and abutting on said streets.
    Said petitions having been regularly presented to the council, it duly acted upon the same and passed the proper resolutions and ordinances and caused the said streets to be improved, as asked for in the said petitions, and assessed the cost and expenses thereof against the abutting property by the foot front, pajmble in ten annual installments.
    After the said streets had been improved and the assessments made, said lessee all the while being the holder of said lots under his said lease, the defendants in error instituted proceedings in the court of common pleas to sell said leasehold estate for the payment of arrearages of ground rent reserved in said lease, and said leasehold estate was duly sold at sheriff’s sale, bid in by said defendants in error, sale confirmed and deed made and delivered by the sheriff.
    . Thereupon the defendants in error commenced their action in the court of common pleas against said village, the county auditor and the county treasurer, seeking to enjoin the collection of so much of said assessment as exceeded one-fourth of the value of said lots after the completion of said improvements, and averred in their petition that they did not sign the petition for said improvements, which fact was conceded.
    . To the said petition the said village filed its answer, and in the second and third defenses averred the facts aforesaid, to which the defendants in error demurred, and the circuit court sustained the demurrer, to which the village excepted. There were also defenses numbered four and five, to which demurrers were sustained, but in the view taken by the court upon the main question, they become immaterial.
    The áction was tried on appeal in the circuit court upon the petition and first defense, which raised issues as to the petitions signed by some of the defendants in e.rror as to certain lots, and as to certain other irregularities in the case, and a judgment was rendered in favor of the defendants in error, reducing the assessment, except as to a few lots, to twenty-five per cent, of the value of the ]ots after the improvements were made. The circuit court found its conclusions of fact separate from its conclusions of law, and a motion for a new trial having been overruled and exceptions taken, the plaintiffs in error filed their petition in this court seeking to reverse the judgment of the circuit court.

      Samuel B. Rommel, for plaintiffs in error.
    In view of the facts presented by the record; and the character of permanent leasehold estates as recognized and determined by the Legislature of- Ohio in the various sections of the Revised Statutes, and bearing in mind the fact that the lessee was bound to pay all taxes and assessments levied and assessed against the lots in question, and the further fact that at the time of signing-said petitions, he was in good standing under his lease, the conclusion that he was the “owner,” within the meaning of said section 2272, both upon principle and sound reason, is irresistible.
    And we are not wanting in authority sustaining the principles which mad to this conclusion. Laird v. Cincinnati, 5 W. L. B., p. 903; 6 Dec. Re., 1006.
    Until the case at bar was decided by the court below, the case above cited stood as the recognized authoritj in this state on the question here involved, for almost seventeen years, and established, as we claim, a rule of property not subject to be lightly overturned. Loring v. Melendy, 11 Ohio, 355; The Northern Bank of Kentucky v. Roosa et al., 13 Ohio, 355; Holland v. Mayor, 11 Maryland Rep., 186 (June Term, 1857).
    As to the resolution to improve and notice being-jurisdictional. Welker v. Potter, 18 Ohio St., 85; Stephan v. Daniels, 27 Ohio St., 527; Cinti. v. Sherike, 47 Ohio St., 217; Green v. Cincinnati, 7 O. C. C., 233; 4 Circ Dec., 573.
    To hold that the petition under section '2272 must be signed by the lessor, when he'has executed a lease for ninety-nine years, renewable forever, and bound the lessee to pay all taxes and assessments, the lessee being in possé'ssion, and the property taxed in his name; and then to hold after such petition has been filed and acted upon, notice of the jurisdictional resolution in the same improvement may be served upon the lessee, or, if you please, upon any other person in whose name the property may be assessed for taxation, is not in accord with “the uniform policy of our legislature,” on the subject of permanent leases, and must lead to absurd consequences.
    The petition for improvement binds from the time action is taken thereon by the council or other legal body. Laylin v. Commrs. of Huron Co. ,3 O. C. C., 338; s. c., 2 Circ. Dec., 193; Grinnell v. Adams, 84 Ohio St., 44 : Columbus v. Sohl, 44 Ohio St., 479; Columbus v. Slyh, 44 Ohio St., 484.
    The petitioner, Bostwick, being- in good standing under his perpetual lease when the petitions were presented to the council and acted upon, the property for which he signed became bound from that moment and any subsequent changes in the title could in no wise operate as a release.
    It has been held that guardians may sign petitions for their minor wards. Campbell v. Park, 32 Ohio St., 545.
    The widow has been held to pay assessments on land held as dower. Whyte v. Mayor and Alderman of Nashville, 2 Swan (Tenn.) 364 ; Worthington v. Hewes et al., 19 Ohio St., 66; Hickey v. Railway Company, 51 Ohio St., 40.
    Are not defendants in error, who were fully informed, and knew that council acted upon said petitions, and made the improvements on the faith o’f the representations of the lessee, Jane Kemper, one of said defendants in error (the others being tenants in common with her in the property in volved herein), joining in one of said petitions for the improvement of Beecher avenue, said defend^ ants in error permitting said improvements to be made without objection, and knowing that the cost and expense thereof was to be levied and assessed upon the lots and lands bounding and abutting upon said avenues, and assenting to the making of said improvements and the levying of said assessments, and whose lots have been benefited by said improvement, now estopped from denying the sufficiency of said petitions, the improvements having been made and the bonds of the village issued to pay the expensé of same? State ex rel v. Mitchell, 31 Ohio St., 592 ; Tone v. Columbus, 39 Ohio St., 281; Columbus v. Sohl, 44 Ohio St., 479.
    We claim—
    . Mrst — The owner of a perpetual lease of lands, bound to pay taxes and assessments, is the owner within the meaning of section 2272.

      Second — The petition for a street improvement signed by such owner, binds the lots and lands from the time same is acted upon by council.

      Third — The defendants in error are estopped from claiming that the petitions signed by their lessee under a perpetual lease are insufficient.

      Ed. M. Spangenberg; John L. Casser and A. C. Kay lor, for defendants in error.
    For the purposes of this case it is not important whether or not a lessee under a perpetual lease is considered such an owner of property abutting on the street to be improved as will entitle him to be counted as one of the three-fourths in interest, provided the limitation clause of twenty-five per cent, applies to the owner of the fee who did not subscribe the petition. It can hardly be presumed that the owner of the fee would be excluded, and that the limitation could have application only to persons or owners having an interest in the property inferior to a fee. It can not be presumed that the limitation had reference to a lesser estate than the fee; for it would be a very precarious claim if it was restricted to twenty-five per cent, of the lessee or tenant’s interest, an interest which may at any time be terminated by the failure to pay rent or perform any other of the covenants usually inserted in such leases. If it has no application to lessees, then it must apply to the owner in fee or to all such persons having an interest in the property and who were not subscribing the petition, which again would extend the benefit of the limitation clause to the defendants in error. It would be absurd to exclude the owner of the fee from the benefit of the twenty-five per cent, limitation clause.
    It would be wrong to give a lessee an unlimited power to create a charge on the fee against the will of its owner, when the object of the law is to protect owners against assessments on more than one-fourth of their property. If such unlimited power was given to lessees; if they could cause assessments to be made to the full value of the property, it would be, in effect, in their power to cause the confiscation of the property of the owner in fee.
    It has alwaj^s been the policy of our legislatures to carry out section 6 of article 13 of the Ohio Constitution restricting the power of taxation and assessments by enacting laws limiting assessments to twenty-five per cent. Of course one who applies for certain improvements shall be permitted to bind his entire interest in the property for it, but the law says he shall not bind, or be instrumental in binding, the interest of- one who does not ask for the improvement except to the extent of twenty-five per cent, of the value of the property. During the years 1875 and 1876, being the only years since the adoption of our new constitution, was the power of assessment unlimited; and it was during 1876 that the case of Laird v. Cincinnati, 5 W. L. B., 903, (6 Dec. Re., 1006) decided by the Hamilton county district court, arose.
   Burket, J.

No question is made by any of the parties as to the constitutionality of that part of section 2272, Revised Statutes, which applies to corporations in counties containing a city of the first or second grade of the first class, and therefore that question has not been considered.

Section 2272 as it was then is as follows :

“In cities of the first grade of the first class when a petition subscribed by any owner or owners of property abutting upon any street or highway, of any description, between designated points, is presented to the board of administration for the purpose, and in other cities of the first class, or in corporations in counties containing a city of the first or second grade of the first class, when a petition subscribed by three-fourths in interest of the owners of property abutting upon any street or highway of any description, between designated points, is reg’ularly presented to the council for the purpose, the costs of any improvement of such street or highway may be assessed and collected in equal annual installments, proportioned to the whole assessment, in a manner to be indicated in the petition, or if not so indicated, then in the manner which may be fixed by council; and the interest on any bonds issued by the corporation for the improvements, together with the annual installments herein provided for, shall be assessed upon the property so improved ; but when lot or land of one who did not subscribe the petition is assessed, such assessment shall, not exceed twenty-five per centum of the value of his lot or land after the improvement is made; provided, that whenever in this title the' petition of the owners of property is required, a married woman shall have the same authority to sign that she would have if unmarried; and the guardians of infants or insane persons may sign such petition on behalf of their wards only when expressly authorized by the probate court on good cause shown.”

(The plaintiffs in error contend that Mr. Bostwick, the lessee for ninety-nine years renewable forever, was the owner of the property abutting on the streets in question, within the meaning- of this section of the statute, while the defendants in error claim that he was not such owner.

If he was not such owner, the judgment of the circuit court is right; but if he was such owner, the judgment is wrong.

In this state taxes and assessments are levied and assessed upon the corpus of real estate, and not upon the title by which the same may be held, unless otherwise provided by statute.

Section 2897 provides that where lands held upon permanent leases are taxed in the name of the lessee and are allowed to become delinquent, and are brought to sale for taxes, the sale shall be confined to the rights of the lessee, if the same shall be sufficient to meet the tax, interest and penalty so assessed and due. This statute undertakes to protect the interests of the owner of the fee, but this protection is given only in case the interest of the lessee shall be sufficient to pay the taxes; If not sufficient, the interests of the owner of the fee must respond to make up the deficiency. This is the only statute on the subject, and it shows the policy of the state to be, that the state0must have its taxes, and while it, will first exhaust the interest of the lessee in the property, the state will require full payment, even though it takes the whole property, including' the interest of the lessor.

While this is the rule as to taxes, the same rule obtains as to assessments, because the statutes provide that when assessments are certified to the auditor, they shall be collected the same as other taxes, which in this case would be by a sale of the leasehold estate, if sufficient to pay the assessment, and if not sufficient, then by a sale of the whole property.

It is urged that to hold the lessee under such a lease to be the owner, would put it in his power to cause an assessment to be put upon the property to an amount greater than the value of the whole property, and. thereby in effect confiscate the estate of the lessor to the public. But this consideration is not of sufficient weight to override the public policy of the state as shown by its statutes.

The rules of taxation are prescribed by the statutes, and persons must make their contracts with reference thereto, and if the power is given to a lessee to deal with property as owner, to have it stand in his name for taxation, the lessor becomes bound by the acts of his lessee, and has no cause for complaint.

A 'mortgagor is regarded as the owner of the real estate, even though' the mortgage is for more than the value of the land, and in such cases the mortgagor may sign a petition as owner for improvements of streets and avenues, even though the assessments should exceed the value of the land, and thereby cause a total loss to the mortgageq. As the lessee in this lease is bound personally for the payment of the taxes and assessments, it must be presumed that he would not sign petitions for improvements recklessly, for the mere purpose of injuring the holder of .the fee, and the same is true of a mortgagor. He is by statute made personally liáble for the assessments in some cases to the amount of the value of the abutting property, and in others to the amount of twenty-five per cent, of such value, and this personal liability is sufficient usually to deter the lessee, as well as the mortgagor, from signing petitions for improvements whose cost would equal or exceed such value of the property.

This personal liability is usually a sufficient protection to the lessor and mortgagee, but cases may arise, as in the case at bar, where unforeseen depressions take place, and shrinkages in value occur, to such an extent as to wipe out all profits, and most if not all of the capital; and in such cases each party attempts to save himself as far as possible from the wreck, and to shift the responsibility upon others, or the public.

In this case it was reasonably expected that Mr. Bostwick, by platting the lands and improving the streets, would not only be able to pay the ground rent, but pay the assessments and make large profits by sales of lots. But by reason of unforeseen causes, all this failed, and there is a loss to be borne by some one. Shall it be by the public, or those who engaged in the speculative ventures The defendants in error accepted the promise of Mr. Bostwick to pay the taxes and assessments, knowing that if he failed to pay the same, the real estate would be held therefor; first the leasehold1 estate, and if that should prove insufficient then the whole property. The defendants in error so drew the lease as to enable the lessee to have the property stand in his name on the duplicate for taxation and assessment, and now when a loss occurs by reason thereof they desire to shirk it themselves, and throw itupon the public. ' We think the loss should fall upon those who engaged in the speculation, and not upon the public'; and if the lots of the defendants in error are assessed for what Mr. Bostwick agreed to pay, defendants must look to him for reimbursement. We think that Mr. Bostwick was so far the owner of the property as to make him the proper person to sign the petition for the improvements, and that the signatures of the lessors were not necessary.

Holding the lessee under such a lease to be the owner of the property under said section 2272, harmonizes the statutes and decisions of this court upon the subject of permanent leases. By section 4181 such leases are subject to the same law of descent as estates in fee simple. By sections5374 and 5375 such leasehold estates are regarded as real estate, and subject to levy and sale upon execution as. such, and are bound by the lien of a judgment the same as other lands. See also the cases of Loring v. Melendy, 11 Ohio Rep., 355, and Northern Bank of Kentucky v. Roosa, 13 Ohio Rep., 335.

The case of Mayor of Baltimore v. John Boyd, 64 Md., 10, does not seem to throw much light upon the question, as in that case the lessee was by statute made the owner for the purposes of signing petitions for street improvements.

The judgment of the circuit court will be reversed, and the cause remanded .to that court with instructions to overrule the demurrer to the second and third defenses, and for further proceedings according to law.

Judgment reversed.