author: Crew, J.

text:
    Stacey et al., by Next Friend, etc. v. Cunningham, etc., Executor.

      ■Contest of validity of will—Can be only after probating—Nature of issue to be made up—Sections 5858 and 5861, Revised Statutes— Question of admission to probate not involved, when.

    1. The action authorized by section 5858, Revised Statutes, to contest the validity of a will, can be brought and maintained, only after'such will has been admitted to probate.
    2. In such action the issue to be made up and tried is the one prescribed by section 5861, Revised Statutes, and is: “Whether the writing produced is the last will or codicil of the testator, or not,” and on the trial of this issue the question of whether the will was properly or improperly admitted to probate, by the probate court, is not involved and cannot be inquired into.
    ■'3. By the bringing of an action to contest the validity of a will, under the statute, plaintiffs admit the probate of the will so put in contest, and will not, therefore, on the trial of said cause, be permitted to question or deny either the regularity of the order of probate, or the authority and jurisdiction of the court that made it.
    (No. 8006
    Decided November 17, 1903.)
    Error to the Circuit Court of Hamilton county.
    Frances E. Stacey, whose domicile was in the city of Cincinnati, Ohio, died testate in July, 1894, at Sacramento City, California. She left surviving her, as sole beneficiaries and legatees under her will, her two children, Edward F. Stacey and Edna F. Stacey, the plaintiffs in error, and her brother, Adolphus M. Cunningham, the ■ defendant in error. By her will she gave to her brother, Adolphus M. Cunningham, the sum of $10,000, and the remainder of her property she bequeathed to her two children, Edward and Edna Stacey, in equal proportions. The estate left by said Frances E, Stacey, as shown by the inventory thereof, made February 8, 1895, was $57,883.99. Soon after the death of Mrs. Stacey, Adolphus M. Cunningham, with his niece and nephew, Edna Stacey and Edward Stacey, returned to the city of Cincinnati. Upon his return, he having in his possession the will of Frances E. Stacey, called at the law office of Mr. Howard Douglass and delivered the same to him, with the request that he have it admitted to probate. Thereafter said will Avas filed in the probate court of Hamilton county, Ohio, and application Avas made to said court for its' admission to probate. The subscribing witnesses to said will being residents of the state of California, a commission Avith the Avill annexed to take the testimony of said witnesses Avas issued by said probate court to one J. C. Tubbs, of Sacramento City, California. This commission,- with the testimony of the subscribing witnesses attached thereto, was returned to the probate court of Hamilton county, Ohio, in November, 1894, and on the first day of December, 1894, said will Avas formally offered for probate, and probate thereof Avas then and there refused by said court, and an entry showing such refusal was entered upon the journal of said probate court, of all of which said Adolphus M. Cunningham, at the time, had- notice. Upon the refusal of the probate court to admit said Avill to probate, the Union Savings Bank and Trust Co. Ávas appointed guardian of the property and estate of the two children, Edward and Edna Stacey, and Mr. Howard Douglass aa'us appointed guardian of their persons. No appeal was taken by Adolphus M. Cunningham from the judgment of said probate court refusing to admit said will to probate, and nothing further was done in the, matter of said will until October 5, 1896, at which time said Adolphus M. Cunningham filed his motion in the probate court of Hamilton county, asking for leave to repropound said will of Frances E. Stacey for probate and record. Said motion was allowed by the court and thereafter, to-wit: on March 23, 1897, due'notice of the repropounding and presentation of said will for probate having been given to all of the next of kin of said Frances E. Stacey, residents of Ohio, upon the hearing of said motion and application said will was, by the court, admitted to probate and record.
    On the same day, to-wit: March 23, 1897, said Edward F. Stacey and Edna F. Stacey, by next friend, commenced an action in the court of common pleas of Hamilton county, Ohio, to contest said will of Frances E. Stacey so admitted to probate. In said action, under an order of the court, an issue was duly made up in said court of common pleas as to whether the paper writing produced was the valid last will of Frances E. Stacey, which issue was thereafter submitted to and tried by a jury duly impaneled in said cause. Said jury found, and by their verdict-so returned, that said paper writing was the valid last will and testament of Frances E. Stacey, deceased. A motion for new trial ■ Avas filed by the plaintiffs in error, which motion was overruled and judgment entered on said verdict sustaining the will. On petition in error in the circuit court this judgment of the court of common pleas was affirmed, and thereupon this proceeding in error was instituted in this court to reverse said judgment of affirmance.

      Mr. Howard Douglass and Mr. Geo. W. Harding, for plaintiffs in error, cited and commented upon the following authorities:

      Chapman’s Will, 6 Ohio, 149; Hunter’s Will, 6 Ohio, 499; Feuchter v. Keyl, 48 Ohio St., 357; Mis

      sionary Society v. Ely, 56 Ohio St., 405; Converse v. Starr, 23 Ohio St., 491; Haynes v. Haynes, 33 Ohio St., 598; Mosier v. Harmon, 29 Ohio St., 220; Mears v. Mears, 15 Ohio St., 90; Hollrah v. Lasance, 63 Ohio St., 58; Keyl v. Feuchter, 56 Ohio St., 424; Raudebaugh v. Shelley, 6 Ohio St., 307; Davis v. Guarnieri, 45 Ohio St., 470; Mullen v. McKelvy, 5 Watts, 399; Hock v. Hock, 6 Serg. & R., 47; Lewis v. Maris, 1 Dallas, 278; Weigel v. Weigel, 5 Watts, 486; secs. 5190, 5934, 5935, Rev. Stat.
    ' Hr. Charles W. Baker, for defendant in error, cited and commented upon the following authorities:

      In re Stacey’s Will, 6 Dec., 142; 4 N. P., 143; Feuchter v. Keyl, 48 Ohio St., 357; In re Anthony Chapman, 6 Ohio, 149; Hunter’s Will, 6 Ohio, 499; Swazey’s Heirs v. Blackman, 8 Ohio, 19; Missionary Society v. Ely, 56 Ohio St., 405; Storey v. Storey, 120 Ill., 244; Barr v. Closterman, 2 Circ. Dec., 251; 3 C. C. R., 441; Converse v. Starr, 23 Ohio St, 491; Bolles v. Harris, 34 Ohio St., 38; Mears v. Mears, 15 Ohio St., 96; Shroyer v. Richmond, 16 Ohio St., 455; Hollrah v. Lasance, 63 Ohio St., 58; Trembly v. Trembly, 11 W. L. B., 59; Haynes v. Haynes, 33 Ohio St, 598; Duckwall v. Weaver, 2 Ohio, 13; Abbott’s Trial Practice (2 ed.), 141; Mays v. Mays, 114 Mo., 536; 21 S. W. Rep., 921; Van Houten’s Will, 37 N. Y. St., 39; Morton v. Heidorn, 135 Mo., 608; 37 S. W. Rep., 504; Holmes v. Holloman, 12 Mo., 535; In re Jenkins’ Will, 43 Wis., 610; In re Lewis’ Will, 51 Wis., 101; Barnewall v. Murrell, 108 Ala., 366; Abbott v. Abbott, 41 Mich., 540; Webb v. Dye, 18 W. Va., 376; Cheatham v. Hatcher, 30 Gratt. (Va.), 56; Dean, Exr., v. Heirs of Dean, 27 Vt., 746; Gillis v. Gillis, 96 Ga., 1; 2 Deering’s Codes (Cal.), sec. 1276; Sisters of Charity v.
      Kelly, 67 N. Y., 409; Gwim v. Gwin, 48 Pac. Rep., 295; In re Hathaway, 4 Ohio St., 383; Keyl v. Feuchter, 56 Ohio St., 424; Davis v. Guarniera 45 Ohio St., 470; Raudebaugh v. Shelley, 6 Ohio St., 307; Lake v. Doud, 10 Ohio, 415; Bohart v. Atkinson. 14 Ohio, 228; Schweinfurth v. Railway Co., 60 Ohio St., 215; Railway Co. v. Kelly, 5 Circ. Dec., 662; 12 C. C. R., 341; Railway Co. v. Kelley, 53 Ohio St., 667; secs. 5190, subdivision 7, 5858, 5861, 5862, 5934, Rev. Stat.
   Crew, J.

On the trial of this action in the court of common pleas the plaintiffs in that court, who are plaintiffs in error here, among other things attempted to show that the paper writing in contest purporting to be the last will and testament of Frances E. Stacey, deceased, Avas in December, 1894, presented to the probate court of Hamilton county, Ohio, for probate, and that probate thereof was refused by that court on the ground that said will had not been properly and legally executed in conformity with the laws of Ohio. By Avay of establishing the fact of such presentation and rejection, the plaintiffs offered in evidence a journal entry of the probate court of Hamilton county, bearing date of December 1, 1894, and shoAving that on that date said court had refused to admit said will to probate and record, on the ground, as appeared from said entry, that said will Avas not duly and legally attested. Objection was made by defendant to the introduction of this journal entry, which objection Avas sustained by the court, and said entry Avas not permitted to be given in evidence to the jury. Plaintiffs, on said trial, also offered evidence for the purpose of showing that no appeal was ever taken by Adolphus M. Cunningham from the order and judgment of said probate court refusing to admit said will to probate ; this evidence was also objected-' to' by defendant and excluded by tbe court. Tbe rulings of the court of common pleas in the exclusion of .this evidence are here assigned as error.

Whether the action of the court of common pleas in this behalf was erroneous is to be determined from a consideration of the nature and character of the issue involved in an action to contest a will; and if, from the nature of such issue, the evidence offered by the plaintiffs below was incapable of affording any legitimate presumption or inference as to the only fact or matter in issue, it would be, and was, irrelevant and incompetent, and therefore properly excluded. In Ohio, in an action to contest a will, the issue involved and to be submitted' to the jury, is fixed and determined by statute. Section 5861, of Revised Statutes, provides as follows: “An issue shall be made up, either in the pleadings or by an order on the journal, whether the writing produced is the. last will or codicil of the testator, or not, which shall be tried by a jury, and the verdict therein shall be conclusive, unless a new trial be granted, or the judgment be reversed or vacated.” While the . issue prescribed by this section may be made up either by the pleadings, or by an order entered upon the journal of the court, yet whichever mode be adopted, the issue presented for determination must be the same, and the one prescribed and designated by statute, viz.: “Whether the writing produced is the last will or codicil of the testator, or not.” Dew et al. v. Reid et al., 52 Ohio St., 519. And upon the trial of this issue, only such evidence as tends either to establish or disprove the validity, as a will7 of. the paper , writing in controversy, is relevant and competent. Considering, then, the' nature of the issue and the character of the evidence offered by the plaintiffs, the only office or effect such evidence could have had if the same had been admitted by the trial court, would have been to show that the probate court of Hamilton county, having once refused to admit the will of Frances E. Stacey to probate, for the reason that it was not legally executed and attested, and no appeal having been taken therefrom, was thereafter, and because of such former adjudication, without jurisdiction or authority upon the repropounding of said will to admit the same to probate and record. In other words it was sought by plaintiffs, in this way and by this means, to challenge the validity of said •order of probate. And such is admitted in argument to have been their purpose in tendering this evidence, and such it is conceded Avould have been its only office and effect if it had been admitted. But the question of the regularity and validity of the order of probate, or the jurisdiction of the court to make such order, is not in issue, or involved in an action of this character, an action to contest the validity of a will, and is not therefore in such action the proper subject of inquiry or revieAV. This court has said in the case •of Converse et al. v. Starr, Admr., et al., 23 Ohio St., 491, that: “On the trial of the issue, in a suit to contest the validity of a will, errors or irregularities •of the probate court in admitting the will to probate •cannot be inquired into. The prima facie effect which the statute gives to the order of probate, can only be overcome by showing that the will is, in fact, invalid.” In this case one of the points made in argument for plaintiffs in error Avas: “That the errors and irregularities of the probate court in admitting a will to probate may be inquired into, on the trial of the issue in a suit contesting such will, for the purpose of invalidating the order of probate.” In considering and disposing of this contention, White, C.' J., in the opinion, at page 498, says: “In regard to the second proposition, it is to be remarked that it is founded upon a misconception of the jurisdiction of the court in trying the contest of a will. In such case the court does not sit as a court of error to revise the action of the court of probate, but is in the exercise of the powers and jurisdiction of a court of probate charged with the duty of finally establishing or rejecting the will. On the trial of the issue in such case, the errors or irregularities of the probate court in admitting the will to probate, are immaterial, and cannot be inquired into. The prima facie effect which the statute gives to the order of probate can only be overcome by showing that the will is, in fact, invalid.” The doctrine of this case would seem to control and to be decisive of the question we are now considering, and to sustain the action of the court below in excluding the evidence offered. But there is, we think, a further and cogent reason, why the testimony offered'by the plaintiffs in error-was properly, excluded, and as to why, in this case, they should not have been permitted to challenge or dispute the order of probate, and that is, that by the filing of their petition to contest this will they impliedly admit the regularity and sufficiency of its probate. If, as plaintiffs in error sought to show, the probate court of Hamilton countyj at the time it admitted this will to . probate, was'then without jurisdiction or authority so to do, then ,'such order of probate was void and’a mere nullity, and if a nullity it could afford plaintiffs no ground on which to predicate their action to contest said, will, and their action must fail. In this state, until admitted to probate, a .will cannot, under our statute, be made the subject of contest. Therefore, however irregular or erroneous the order admitting the'will of-Francis E. Stacey to probate may have been, the plaintiffs in error in an action by them to contest said will, founded upon such order of probate, cannot be heard to deny its validity, or be permitted to question the jurisdiction of the court making such order. It follows, therefore, that the trial court was right in excluding the evidence offered by .plaintiffs.

There are other assignments of error in this record, but we do not deem it important to enter upon a discussion of them. We have carefully examined and considered each and all of these assignments and find no error in the record.

■Judgment affirmed.

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


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    The Northern Ohio Railway Co. v. Rigby.

      Special charge to jury based on disputed facts—Properly refused., when—Explosion of car heater in railway coach—Employe injured—Explosion resulted from act done by direction of foreman—Superior directs inferior to perform duty—Discretion of inferior as to method of performance—Question of prudence-on part of inferior—Contributory negligence—-Law of master- and servant.

    1. A special charge to the jury requested by a party to an action,. which is based on the assumption that a material fact exists in the case, but which fact is in dispute between the parties, is. properly refused.
    2. In the trial of an action brought by an employe, against a railway company, to recover for injuries sustained by the explosion of a car heater on a passenger coach, while he was attempting to thaw out the frozen water pipes .while the car was standing' in the yards of the company; and where the evidence tends to> prove that the heater was without a steam gauge to the knowledge of the employe, and that the explosion was caused by the use of a solid plug in the drum of the heater instead of a safety» valve, which plug was put in.by the employe a few days before-the explosion by direction of his superior; and where the evidence further tends to prove that the employe was an experienced foreman of car repairers, and familiar with the sys- . tern of heating used on said car, and with the proper method, and means of thawing out the water pipes when frozen; and. where the only order from the superior was a telegram to get. the car ready for use; to charge the jury without further explanation, that: “If you find at the time of the explosion and for several days prior thereto, there was no safety valve in the drum of the Baker heater in car 22; that said safety valve had. been removed and replaced by a solid plug, and that Rigbyknew of these facts when he attempted to thaw out said heater-at the time of the explosion complained of; and further, if you. find that said explosion resulted wholly from the fact that said, drum had a solid plug instead of a safety valve, then Rigbywould nevertheless be entitled to recover in this action if yow find by a preponderance of the evidence that in attempting to. thaw out said heater, as he did, he was acting in obedience to> a positive order of his- superior, that a person of ordinary prudence would, under-the circumstances, have obeyed such order,, atid that in obeying such order he used ordinary care,” is misleading and erroneous.
    3. Where, the superior, while absent, sends an order to an employe-t'o perform certain work or duty, but leaves to such employethé selection of the means -and manner of performing the service,, the doctrine of The Van Dusen Gas and Gasoline Engine Co. Schelies, 61 Ohio St., 298, does not apply.
    (No. 8125
    Decided November 17, 1903.)
    Error to the Circuit Court of Summit county.
    On or about the fourth day of December, 1895, the-defendant in error was severely injured in the yards, of the plaintiff in error, at Delphos, Ohio, by the explosion of what is commonly known as the Baker Car-Heater, which was in passenger coach No. 22, owned and operated by the railway company.
    The plaintiff below wms an employe of the plaintiff" in. error, as he alleges, in the capacity of foreman of ■car repairers at the shop of the company, on its line of railroad at Delphos, and that his duty was to make and cause to be made such repairs of the cars of the -defendant, as he might be ordered to make from time to time.
    The evidence tends to prove that Rigby, plaintiff below, had several years’ experience as foreman, of car repairers on the line of defendant company, and on ■other railroads, before engaging with the defendant, gnd .that he also had considerable knowledge of, and experience with, the Baker Car Heater, and as a mechanic, possessed a fair knowledge of its construction .and mode of operation. The evidence further tends to ■show, that in the discharge of his duties he had experience as to the proper method of thawing out the pipes ■of this system of heating cars, when the water circulating therein from the heater had become frozen. 'This heating system when in proper condition was furnished not only with a pressure gauge, but also a •safety or pop valve. The safety or pop valve is connected with the drum of the heater on the roof of the car, and its purpose is to furnish relief from excessive pressure.
    There is evidence tending to prove, and it is not •seriously in dispute, that on or about November 25th, preceding the explosion, and vhile this car No. 22 was standing in the Delphos yards, Rigby was directed to get it ready to go out upon the road, and it was found that the drum of the heater wms without the safety or pop valve. The master mechanic, Marshall, was informed of this fact, and after some discussion, Rigby was told by the master mechanic to putin a plug where the safety valve should be, until valves which had befen ordered, should arrive. This was done by Rigby, and a solid plug was put in the vent of the drum. The heater was then filled with water and fired up ready for the road. It turned out that the ear was not needed at once, and the fire was drawn from the heater. The car then stood for several 'days out of doors in the open yard, in severe cold weather, and such water as remained in the pipes froze.
    On the day of the explosion, December Jth, it became necessary'to get car No. 22 ready for use on the road the next morning. The evidence shows that Marshall, as master mechanic, telegraphed to Rigby, “Get car 22 ready.”
    In pursuance of this direction or order, Rigby set about to .thaw out the pipes, while the pressure gauge was absent and the plug was in the vent of the drum instead of a safety or pop valve; and in so doing the explosion occurred, and he was seriously injured.
    The negligence complained of in the plaintiff’s petition, in. substance, consists in the.company failing to furnish the safety or pop valve as its master mechanic had promised should be put in, and in ordering plaintiff to proceed with the plug in, which, with the weak and defective condition of the heater, caused the explosion and his injuries.
    The answer of the company denies any defective or weakened condition of the heater, and all negligence on its part, and charges that the plaintiff had full knowledge of the danger of attempting to thaw out the pipes without a safety valve, and negligently proceeded ' with the work under the circumstances, well knowing the dangers to be encountered, and thus contributed to his injuries.
    The defendant company requested the court to give the jury certain instructions, some of which were substantially embraced in the general charge, and others were given in the language requested. The seventh, request was not so given, and for this, error is assigned. The request is as follows:

      “7. If you find from the evidence that the talk between Marshall and Rigby about putting in the plug in the heater was merely determining the best mode of" putting the same in condition for use, until the ‘pop-valves’ came, they having equal knowledge of the defect, and the safety of using the same in that condition; and that Marshall telegraphed Rigby to get car No. 22 ready for use; and under Marshall’s order Rigby went ahead and used the heaters, assuming all. the direction as to its use in that condition, the mode of building the fire, and thawing out of the pipes, and had sole charge of the work, then I say to you that the-doctrine of promise to repair defective machinery,,, would not apply to him. Under such a state pf facts,, and in that case, he should be held to assume the risk, of the use of such defective heater, and he cannot recover in this case.
    “The promise to repair the defective heater claimed in this case, must have been made for the benefit of the plaintiff, and to induce him to continue work and not simply in the interest of the defendant.. And if you find from the evidence that it was merely a talk: between Marshall and Rigby, as to the best.way to-prepare the car for use, to put a plug in until the ‘pop-valves’ came; both having equal knowledge of" the safety valve and its use, and was not intended for an' order to Rigby to use it against his-judgment, then I say to you that the doctrine of promise to repair defective machinery and continued use-by an employe, does not apply, and Rigby .would beheld to have assumed the risk of the use of the heater.in such condition, and he cannot under such circuin- ; stances recover in this case.”
    ■ Exception was taken to the refusal to give this in- ; struction, as well as to others not given. After argu- : irient, the court charged the jury, and special and gen- < eral exceptions were taken. The jury found for the plaintiff. Defendant’s motion for new trial was overruled, and judgment entered on the verdict, which ■ was affirmed by the circuit court, and error is prosecuted here to reverse the judgments of both courts.
    The questions raised on the general charge are -¡stated in fhe opinion.

      Messrs. Tibbals ct Frank, for plaintiff in error.

      Mr. K. F. Voris and Mr. Charles Baird, for defendant in error.
   Price, J.

It is disclosed by the record- that this ‘ case has been thrice tried to a jury, each trial resulting in a verdict and judgment for the plaintiff.. The . judgments rendered on the first and second verdicts were reversed by the circuit court, but it affirmed the last, judgment, and we have the controversies of the last trial before us on the petition in error and a bill ■ of exceptions, which contains all the evidence and the numerous questions of law which arose during the trial.

The assignments of error are many, and they have ■ received our careful consideration. We discover no substantial error in the admission or exclusion of -evidence, and all proper instructions asked by the railway company were either given in terms, or in sub- •• stance in the general. charge. They were not asked • to be given before argument to the jury commenced. and. therefore no legal right of plaintiff, in error in. that respect has been violated. .

Defendant’s special instructions four and seven were not given as requested, nor can it be said that, their substance is embraced in the general charge. But the omission is not error,, because the principle sought to be impressed by each request seems to be: predicated upon the assumption of an important fact which was in dispute between the parties. . This prominently appears in request seven, found in the statement of this case, it opens as follows: “If you find from the evidence that the talk between Marshall (the master mechanic) and Rigby about putting in the plug in the heater, was merely determining the-best mode of putting the same in condition for use,, until the ‘pop valves’ came, they having equal-lmowledge of the defect, and the safety of using the samoin that condition; and that Marshall telegraphed Rigby to get car No. 22 ready for use; and under Marshall’s order Rigby went ahead and used the-heaters, assuming all the direction-as to-its tose in that condition, the -mode of building the fire, and- thawing ■ out of the pipes, and had sole charge of the work, then I say to you that the doctrine of promise to repair defective machinery, would not apply to him. * ■ *. *”

The railway company introduced evidence tending-to prove that Rigby had skill and knowledge concerning the system of heating, equal and even superior to that of Marshall, the master mechanic, and that he-was able to act, and in this case, did act, on his own knowledge, skill, and judgment. However the plaintiff denied this, and asserts that his knowledge and skill are inferior, and that he relied on the judgment: and directions of Marshall. Hence, it would have-been error for the court to assume that they had equal. knowledge on the subject, and on that assumption, base an instruction calculated to materially affect the-, verdict. ; .

We now come to the general charge of the court. To this charge counsel for the railway company have devoted much criticism,. and urge that the. law applicable to the issues and facts of the case was not-given the jury, and that improper rules were submitted for its consideration, bearing on the risks assumed by Rigby; the duties of the railway company touching-the same subject; the charge of contributory negligence made in its answer, and the promise, of the superior to the employe to replace the plug with a safety valve.

We are of- the opinion, however, that the, charge does not justly deserve all that has been said about it; and if the court had left it with the jury when it-seems to have reached a proper close, we could find no sufficient reason for a reversal of the judgment. But the court did not stop where the charge, properly ended. This language follows: “Now, gentlemen, this case has occupied a number of days and the evidence covers a wide field of inquiry, and, as you see from the somewhat lengthy instruction I have given you, that numerous questions of law arise. , I have endeavored to give you them as clearly as I possibly could, but in view of their length, it is possible that men not familiar with the examination of legal questions might not readily apprehend them; therefore, in connection I will summarize what I have thus said, and make it as near as I can applicable to the particular case before you.”

The summary was made, and after being introduced by the foregoing language, it would be quite natural for the jury to lose sight of much that had been said •during the progress of the long charge, and look to the attempted summing up of the whole matter within a ¡much smaller compass, and which it would more readily grasp and remember. If the summary was free from fault this would be well. On the other hand, if it embraces the virus of serious error the same became tfche more conspicuous and controlling with the jury. Less than two pages of the printed record contain the -summary, of which we find the following on page 531:

“If you find at the time of the explosion and for sev•;ral days prior thereto, there was no safety valve in the drum of the Baker Heater in car 22; that said ¡safety valve had been removed and replaced by a solid plug, and that Rigby knew of these facts Avhen he attempted to thaw out said heater at the time of the explosion complained of; and further if you find that the said explosion resulted Avholly from the fact that ¡said drum had a solid plug instead of a safety Aalve, then Rigby would, nevertheless, be entitled to recover in this action if you find by a preponderance of the •evidence either, that in attempting to thaw out said heater, as he did, he was acting in obedience to a positive order of his superior, that a person of ordinary prudence Avould, under the circumstances, have obeyed such' order, and that in obeying such order he used ordinary care; or that Rigby informed his superior of the want of a safety valve in said drum and that ¡said superior ordered him to put in a solid plug and ho use said drum Avith a solid plug, and then promised Rigby to have said solid plug promptly replaced by a proper safety valve, and that Rigby, in reliance upon ■such promise, continued in the employ of The North-tern Ohio Railway Co., and that a reasonable timé to replace- said plug, had not elapsed between said promise and said explosion, and that in getting said cár 22 ready for the road at the time of the explosion, he used reasonable and ordinary care, unless you find that no ordinary prudent man would, under all the circumstances have continued in such employment and •obeyed such order.”

To say the least of this paragraph, it is very much involved, and if there was any confusion in the preceding instructions, it became worse confounded in this summary. The jury was told, that if there had been no safety valve in the drum of the heater for several days, that it had been removed and replaced by a solid plug of which facts Rigby had knowledge when he attempted to thaw out the heaters, and if the explosion resulted wholly from the fact that the drum had a solid plug instead of a safety valve, “then Rigby would nevertheless be entitled to recover,” if the jury ■should find from a preponderance of the evidence, either, that in attempting to thaw out the heater, he was acting in obedience to a positive order of his superior, which a prudent person, under the circumstances would have obeyed; or, that if the jury find that Rigby had informed his superior of the want of a safety valve, who informed him to put in the solid plug and so use the heater until the plug could be replaced by a safety valve, and Rigby relied on the promise and continued in the employ of the railway •company, and a reasonable time in which to replace the safety valve had not elapsed at the time of the explosion, provided he used ordinary care; unless the jury found that no ordinarily prudent man would have continued in the service and obeyed such order.

We have endeavored to analyze this paragraph, and place the component parts in such juxta-position with each other, as to convey a cleár meaning, but without succéss. It starts abruptly and as it is unfolded it becomes more complex. The premises for the principle inculcated, are laid after its assertion, and the paragraph ends with a qualification which reflects no-light on what, precedes it.

The evidence at least tends to prove, that Rigby had taken the safety valve from car *22 and put it on the drum of the heater of another car, and this too,, several days prior to the explosion. True,, it was done after consultation with Marshall, and by his directions. Another fact which the evidence tends to-prove, is that there was no steam pressure gauge on the heater in car 22, and had not been for several days, which fact was well known to Rigby. The evidence further tends to prove that Rigby, beside the knowledge of this condition of the heater, possessed large experience as foreman of car repairers, and also had considerable experience with the Baker system of heating and the method of thawing out the pipes' when frozen.

Such being the state of the evidence, the court, in its; summary, in effect says, that although Rigby knew of the absence of the valve, he might “nevertheless recover, if he was acting in obedience to a positive order of his superior,” where a person of ordinary care would have obeyed such order. The order relied on as inducing Rigby’s conduct on the day of the explosion, came by wire from Marshall—“Get car 22 ready.” We are not directed to any other order, and we discover none other in the record. It seems to be conceded that such was at least the substance of the order. The court speaks of this as a positive order, obedience to which enters into one of the conditions of recovery. It may be a positive order to get the car ready, but it is Silent as to the means to be used in that behalf. It prescribes no means or method, and it may be quite true that Marshall, at the time the message was sent, was not aware that the pipes were frozen. The order may have implied thawing out of the pipes, if necessary to get the car ready, hut Rigby was left to use his own judgment as to the manner of performing the duty.

The natural tendency of the instruction was, that the order to get the car ready, implied the use of the means which Rigby adopted in thawing out the pipes. To prevent such misunderstanding on the part of the jury, the court should have been more explicit on the vital and perhaps turning point in the case.

The balance of the paragraph stating the other condition of recovery is equally unfortunate in its language, and we think as a whole it is erroneous and misleading.

Without further comment, we very reluctantly conclude, that for this error, the judgment must be reversed, and the cause remanded for another trial.

Judgment reversed.

Bürket, C. J., Spear, Davis, Shauck and Crew, JJ., concur.


author: Shauck, J.

text:
    The State of Ohio on the Relation of Smith v. Smith.

      Sale of milk—Act of April 10, 1889—Regulating sale—Affidavit as to nature of food—Penalty for violation of law—Jurisdiction of justice of peace—Right of jury—Mandamus will lie, when.

    1. The sale of milk containing 10.61 per cent, of solids, and no more, is punishable under the act of April 10, 1889, to regulate the sale of milk, and the affidavit need not allege that milk is an article of human food.
    2. Unless such affidavit charges the particular sale to be a second or subsequent offense, imprisonment cannot be imposed as a part of the punishment, and a justice of the peace with whom the affidavit is filed, has jurisdiction to try the accused without the intervention of a jury. Inivood v. The State, 42 Ohio St., 186, approved and followed.
    3. Mandamus will lie to compel the exercise of such jurisdiction, In re Turner, 5 Ohio, 542; State ex rel. v. McCarty, Judge, 52 Ohio St., 363, approved and followed.
    (No. 8643
    Decided November 17, 1903.)
    In Mandamus.
    An alternative writ of mandamus lias been allowed upon a petition of which, the following is a copy: “The relator says that he is an inspector of the dairy and food department of the state of Ohio; that the defendant, Roger Y. Smith, is a duly elected, qualified and acting justice of the peace, within and for Springfield township, Clark county, Ohio.
    “On the eleventh day of August, A. D. 1903, this relator filed his affidavit with the said justice of the peace, charging one Oliver M. Townsley with selling-adulterated milk under the provisions of an act entitled ‘An act to regulate the sale of milk,’ passed April 10,1889, which said affidavit was in words and figures as follows, to wit:

      “State of Ohio, Clark County, ss.:
    “Before me, Roger Y. Smith, a justice of the peace in and for Springfield township, Clark county, Ohio, personally appeared J. A. Smith, an inspector of the Ohio dairy and food department, who being first duly sworn, says that on or about the fifth day of August, A. D. 1903, one Oliver M. Townsley did, at the county of Clark aforesaid, sell unto him, the said J. A. Smith, a certain quantity of milk, to-wit, one-half pint, which said milk was adulterated in this to-wit, that said milk did then and there contain 10.61 per cent, of solids and no more, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.
    “(Signed) J. A. Smith.
    “Signed and sworn to before me this, the eleventh day of August, A. D. 1903.
    “(Signed) Roger V. Smith, “Justice of the Peace.
    “Thereafter, to-wit, on the fourth day of September, the said Oliver M. Townsley appeared before the said Roger V. Smith and waived examination and asked to be recognized to be and appear before the next term of the court of common pleas to be holden in and for Clark county, Ohio, but said defendant refused to so bind over and recognize the said Townsley. Thereupon the said Oliver M. Townsley was arraigned upon said affidavit and to the charge therein entered his plea of not guilty. This relator thereupon demanded that said defendant as such justice of the peace as aforesaid, proceed to hear and finally determine the cause presented by said affidavit between the state of Ohio and the said Oliver M. Townsley without the intervention of a jury, with which demand the said defendant, Roger V. Smith, refused and still refuses! to comply.
    “Your relator has no other adequate remedy, and therefore prays that a writ of mandamus issue compelling the said Roger V. Smith to proceed to hear and finally determine without the intervention of a jury, the questions at issue between the state of Ohio and the said Oliver M. Townsley on the affidavit of the relator, and the said plea of not guilty interposed by said Townsley,, and your relator prays for all such orders, decrees and judgments he may be entitled to.” The defendant demurs to the petition generally.

      Mr. Roscoe J. Maude, for the plaintiff, cited and commented upon the following authorities:
    95 O. L., 102; 13 Enc. Pl. & Pr., 535; In re Turner, 5 Ohio, 512; Martindale v. State, 1 Circ. Dec., 328; 2 C. C. R., 2; 12 Enc. Pl. & Pr., 151; Brown v. State, 105 Ala., 117; Thomm v. State, 35 Ark., 327; State v. Devers, 31 Ark., 188; State v. Ruedy, 57 Ohio St., 221; Const. of Ohio, art. 1, secs. 5, 10; Kimball v. Connor, 3 Kas., 4114; Profatt on Jury Trials, secs. 81, 87; Inwood v. State, 12 Ohio St., 186; Markle v. Town, Council, 11 Ohio, 586; Peters v. State, 11 Dec., 555; 8 N. P., 598 (affirmed 67 Ohio St., 191); State v. Smith, 14 R. I., 100; secs. 156, 193, 518-9, 518-25, 3718a, 6712, 7117, Rev. Stat.

      Mr. ■ Roger V. Smith; Mr. M. T. Burnham and Messrs. Stafford & Arthur, for defendant, cited- and commented upon the following authorities:

      State v. Kelly, 51 Ohio St., 166; Hagar v. State, 35 Ohio St., 269; Chase v. Blackstone Canal, 10 Pick., 211; United States v. Judge Lawrence, 3 Dallas, 12; People ex rel. v. Judge of Oneida, 21 Wend., 22;
      Judges of Oneida v. People, 18 Wend., 79; People ex rel. v. Common Council, 78 N. Y., 39; People ex rel. v. Judges of Dutchess, 20 Wend., 657; Henry Beguhl v. Swan, 39 Cal., 411; 95 O. L., 517; Hanaghan v. State, 51 Ohio St., 24; State v. Ritty, 23 Ohio St., 562; Looker v. Holcomb, 4 Bing., 183; Black on Interpretation of Laws, 305; State v. Peck, 25 Ohio St., 28; Bloom v. Richards, 2 Ohio St., 402; State ex rel. v. Hamilton, 2 Circ. Dec., 6; 3 C. C. R., 10; 4 Blackstone, secs. 5, 12; 2 East Pl. Cr., 822; 6 East, 133-141; Ohio v. Lafferty, Tap., 113; 2 Arch. Crim. Pr. & Pl., 999 (Waterman’s notes); 1 Russ. on Crimes, 115; Maxwell Criminal Law, 462; 91 O. L., 412; Peters v. State, 11 Dec., 555; 8 N. P., 595 (affirmed, State v. Peters, 67 Ohio St., 494); Ickes v. State, 8 Circ. Dec., 442; 16 C. C. R., 31 (affirmed, Ickes v. State, 63 Ohio St., 549); secs. 610, 1826, 1827, 1828, 3140-2, 3718a, 4200-3, 6560, 6795, 6966, 6966-1, 6966-2, 7147, 7301, Rev. Stat.
   Shauck, J.

It is said that the defendant properly refused to proceed with the trial of Townsley because the affidavit before him did not charge an offense. If this point were well taken it might not be available to the defendant in the present action. But very clearly the point is not well taken. The act under which the affidavit is filed, being the act of April 10, 1889, “To regulate the sale of milk,” provides: “Whoever * * * sells * * * adulterated milk, * * * shall, for a first offense, be punished by a fine of not less than fifty nor more than two hundred dollars; for a second offense by a fine of not less than one hundred nor more than three hundred dollars, or by imprisonment-in the workhouse for not less than thirty nor more than sixty days; and for a subsequent offense, by a fine of fifty dollars, and by imprisonment in the •workhouse of not less than sixty days nor more than ninety days.” The fourth section of the act provides that milk which contains less than twelve per cent, solids shall be deemed to be adulterated. Counsel for the defendant do not demonstrate, nor does it appear to be demonstrable, that the act charged, to-wit: selling milk which contained 10.61 per cent, of solids, and no more, is not a violation of the statute.

It is further urged that the defendant, as justice of the peace, is without jurisdiction to try the accused without the intervention of a jury. The affidavit does not charge the sale as other than a first offense and, therefore, imprisonment could not, under the provisions of the statute above quoted, be a part of the punishment. Not only would this conclusion follow the rule applicable to' such cases, that every fact relied upon to increase a penalty or punishment must be charged, but it is required by the express terms of section 3718a-, Revised-Statutes: “And provided further, that where, in any such laws, after the first offense, a different punishment is provided for subsequent offenses, the information or affidavit, in order to avail the state of the benefit of such additional punishment, shall so charge that it is the second or subsequent offense, and unless such special charge is so made, the punishment shall in all cases be as of the first offense.” Since Inwood v. The State, 42 Ohio St., 186, it has not been disputable in this state that the general assembly may provide for the trial without the intervention of a jury of offenses of the character of this, where imprisonment is not a part of the punishment. By section 3718a-, Revised Statutes, jurisdiction of these cases has been conferred upon justices of the peace. The State of Ohio v. Ruedy, 57 Ohio St., 224. There is no provision of the statute for summoning a jury except upon the condition prescribed in the section referred to: “In any such prosecution. where imprisonment may be a part of the punishment,, if a trial by jury be not waived.” Since the defendant, as a justice of the peace, was vested with jurisdiction to try the accused, and was without authority to call a jury for the trial of the charge preferred by this affidavit, his refusal to try the accused without a jury is a refusal to exercise his jurisdiction.

In support of the demurrer it is further insisted that-mandamus will not lie to compel the performance of the suggested duty because the defendant has decided that he is without jurisdiction and that decision, if erroneous, can be corrected only by a proceeding in error. No statute authorizing a proceeding in error for the reversal of such a decision has been pointed out, nor does this view of the subject admit the well recognized office of the writ of mandamus. Formerly the writ of procedendo ad judicium was awarded by a court of superior jurisdiction to compel an inferior-tribunal to proceed in cases where it refused to act-because doubtful of- its jurisdiction, or satisfied that, it had none. It was, in substance, a writ of mandamus though having a peculiar name because of its office in the particular case. But in modern practice the distinction in name has disappeared and mandamus is allowed, not to control discretion, but to compel its exercise. In re Turner, 5 Ohio, 542; State ex rel. v. McCarty, Judge, 52 Ohio St., 363.

Demurrer overruled and peremptory lorit allowed-

Btjrket, O. J., Spear, Davis, Price and Crew, JJ.? concur.


author: Davis, J.

text:
    The State of Ohio ex rel. Guilbert, Auditor of State v. Lewis, Auditor of Hamilton County.

      Stare decisis—Not allowed to interfere with overruling of former decision—On constitutional question, when—Effect of property rights on principle of stare decisis—Constitutional law.

    1. The doctrine stare decisis will not be allowed to interfere with the overruling of a former decision upon a constitutional question when such former decision is clearly erroneous and it does not appear that such decision has been acted upon as a rule of property, or that rights have vested under it so that more injury would follow if it were overruled than if it were allowed to stand.
    2. State ex rel. Guilbert v. Yates, 66 Ohio St., 546, is approved and followed, and State ex rel. Attorney General v. The Judges et al., 21 Ohio St., 1, is overruled.
    (No. 8102
    Decided November 17, 1903.)
    Mandamus.
    The relator filed his petition in the circuit court of Hamilton county, praying for a writ of mandamus to issue against the defendant, as auditor of Hamilton county, commanding him to proceed forthwith, according to law, to make the reports required under the said statute and to collect for his fee, perquisites and Compensation and his said salary, as is provided for under sections 1070,1071,1072,1073,1074,1075,1076, 1077, 1078, 1334, 1335, 1336, 1365, 1345, 2620, 2774, 2775, 2785, 2908, 4064, 4903, 6909, 7382, 7387, Revised Statutes, and that he be ordered to cease to draw from the treasury of the said county, any salary, fees or compensation or perquisites provided for in said alleged statutes, governing and controlling said Hamilton county only, and to treat such acts as nullities, and to observe the forms prescribed by the relator, and to observe the aforesaid instructions and constructions of the general statutes so designated, and to report to the relator by a certified statement of the amount of moneys and fees received or due the county treasurer, recorder, sheriff, prosecuting attorney, probate judge, commissioners, clerk of the court •of common pleas, and also a like statement verified by defendant’s affidavit and to comply with said general statutes as aforesaid.
    The defendant for answer says, that as county auditor of Hamilton county, in the matter of the administration of such office, and the employment of all • deputies, bookkeepers, clerks and other assistants in the office of said county auditor, he has been, and is ..governed and controlled by the provisions of the act ■ of April 6, 1870, as found in 67 O. L., 36, and as supplemented and amended by the act of April 12, 1871, found in 68 O. L., 58; and the act of April 18, 1872, . found in 69 O. L., 75; and the act of February 14,1873, found in 70 O. L., 26; and the act of April 16, 1874, found in 71 O. L., 81; and the act of May 14, 1878, found in. 75 O. L., 556; and the act of June 3, 1879, found in 76 O. L., 117 to 130; and the act of April 8, 1880, found in 77 O. L., 137 to 139, which acts were revised and codified in the Revised Statutes of 1880, as ; sections 1341 to 1365, inclusive. And he says that in a ■ case brought by the state of Ohio on the relation of the attorney general against the judges of the court of common pleas of the first judicial district of Ohio, that the question of the validity and effect of said statutes, and especially the act of April 6, 1870, and the . act of April 12, 1871, supplemental thereto, were brought in issue before the Supreme Court of the state of Ohio, and said acts were held by said court to be constitutional, valid and binding laws, which decision of the Supreme Court is reported in State v.. Judges, 21 Ohio St., 1, and has not been reversed, or set aside and is still in full force and effect.
    Defendant further says that such changes as have-been made in said original acts in 67 O. L., 36, and 68 O. L., 58, and as have been made in the acts above cited, from time to time, by the Revised Statutes of' Ohio, have not affected their validity, or changed their-effect, and that by reason of said judgment, the relator is now concluded and estopped from re-litigating-the question' decided by the Supreme Court in said case, or from obtaining the-relief sought in his petition herein.
    The relator demurred to the answer upon the-ground that said answer does not state a defense to-the relator’s petition. The demurrer was-' overruled,. and the relator not desiring to plead further, judgment was rendered for the defendant, and to reverse-this judgment of the circuit court he files his petition in error in this court.

      Mr. J. P. Bradbury and Mr. F. S. Monnett, for-plaintiff in error, cited and commented upon the following authorities:
    Constitution, art. 2, sec. 26; art. 1, secs. 1 and 2; art. 12, secs. 2 and 5; art. 10, sec. 5; art. 13, sec. 1; State ex rel. v. Yates, 66 Ohio St., 546; State ex rel. v. Garver, 66 Ohio St., 555; State ex rel. v. Mackey, 66 Ohio St., 555; State ex rel. v. The Judges, 21 Ohio St., 1; Spoors v. Coen, 44 Ohio St., 497; Fouts v. The State, 8 Ohio St., 98; State v. Pugh, 43 Ohio St., 121; Wambaugh’s Study of Cases, sec. 17; Black on Judgments, sec. 609; Thomas v. Musical Union, 8 L. R. A., 175; 23 Am. & Eng. Ency. Law, 36; Kimball v. Grantsville City, 45 L. R. A., 628; 39 L. R. A., 58; Paul v. Davis,
      100 Ind., 422; 6 Am. Dec., 290; 1 Kent’s Com., 477; Bright v. Hutton, 12 Eng. L. & Eq., 15; State ex rel. v. Cappeller, 39 Ohio St., 207; State ex rel. v. Halliday, 63 Ohio St., 165; Kneeland v. Milwaukee, 15 Wis., 692; Hixson v. Burson, 54 Ohio St., 470; Cincinnati v. Taft, 63 Ohio St., 141; Gobrecht v. Cincinnati, 51 Ohio St., 69; Attorney General v.. Jochim, 23 L. R. A., 699; Moore v. Strickling, 50 L. R. A., 279.
    Mi-. Gideon C. Wilson, county solicitor; Mr. Ottoa'y J. Gosgrave and Mr. Oliver B. Jones, assistant county solicitors, for defendant in error, cited and commented upon the following authorities:

      State ex rel. v. Cappeller, 39 Ohio St., 207; State ex rel. v. Halliday, 61 Ohio St., 352; State v. Yeatman, 22 Ohio St., 546; sec. 6741-44, Rev. Stat.; State ex rel. v. Yates, 66 Ohio St., 546; Hixson v. Burson, 54 Ohio St., 470; State ex rel. v. Jones, 66 Ohio St., 453; State ex rel. v. Beacom, 66 Ohio St., 491; State ex rel. v. Shelby County, 36 Ohio St., 326; State ex rel. v. Buckley, 60 Ohio St., 273; City of Warren v. Davis, 43 Ohio St., 447; State ex rel. v. Stockley, 45 Ohio St., 304; State v. Vanderbilt, 37 Ohio St., 640; Williams v. State, 35 Ohio St., 175; Reed v. Evans, 17 Ohio, 128; Slater v. Cave, 3 Ohio St., 80; Allen v. Russell, 39 Ohio St, 336; State v. Stout, 49 Ohio St., 270; Collins, Exr., v. Millen, 57 Ohio St., 289; Wells Res Adj. & Stare Dec., sec. 604; Kneeland v. Milwaukee, 15 Wis., 692; Robb v. Irwin’s Lessee, 15 Ohio, 689; Cincinnati v. Taft, 63 Ohio St., 141; Walker v. Cincinnati, 21 Ohio St., 14.
   Davis, J.

It seems to be conceded that the ruling in State ex rel. v. Yates, 66 Ohio St., 546, is broad enough in its terms to include Hamilton county and to dispose of the issues in this case; but the circuit court regarded State ex rel. v. Yates as not overruling the judgment of this court in State ex rel. v. The Judges, 21 Ohio St., 1, which the circuit court seemed to think is-made venerable and unimpeachable by the frosts of thirty winters. The doctrine of stare decisis is interposed formally and with some heat, to sustain the legislation which is now attacked as being-in conflict, with the constitution, as interpreted in State ex rel. v. Yates. Counsel for the defendant in error advance a step further and claim that Cincinnati v. Taft, 63 Ohio' St., 141, is conclusive in favor of the judgment-rendered by the circuit court in the case at bar. The-last mentioned case may be put aside at once, because it is not based on the precedent of a former decision as to the constitutionality of the statute there drawn in question, but upon an overwhelming principle of public policy. “The bonds having been thereafter sold and the improvement made,” property had been, acquired and immensely valuable rights had vested upon the faith of the former decision, and therefore vastly more harm would ensue from the court reversing itself than to allow its judgment in that case to stand. Cincinnati v. Taft is in line with numerous-decisions by this court. Arrowsmith v. Harmoning, 42 Ohio St., 254, 261.

In the present controversy we are concerned not so-much with the propriety of the rule of stare decisis as with the limitations upon the rule; for, as was said by Bartley, O. J., in Leavitt v. Morrow, 6 Ohio St., 78: “Mere precedent alone is not sufficient to settle and establish forever a legal principle. Infallibility is to be conceded to no human tribunal. A legal principle,, to be well settled, must be founded on sound reason,. and tend to the purposes of justice. * * * Precedents are to be regarded as tbe great storehouse of experience; not always to be followed, but to be looked to as beacon lights in the progress of judicial investigation, which, although at times they may be liable to-conduct us to the paths of error, yet may be important, aids in lighting our footsteps in the road to truth.”' The court in that case refused to be governed by a rule: which had been recognized and acquiesced in for-nearly two hundred years. In Mead et al. v. McGraw, 19 Ohio St., 55, 62, the principle of stare decisis was. reviewed, and.it was held that where a rule of property is not involved, if the former decision is erroneous; and affects only the practical administration of justice, it ought to be corrected at the earliest opportunity. If this is a sound principle in the general administration of justice, it must be especially so in the administration of the fundamental law of the constitution ; for the integrity of the constitution is of supreme importance in every free government, and every departure therefrom should be closely scrutinized and rigidly restrained. It cannot be tolerated that those-whose duty it is to support the constitution may subvert it by a construction, inadvertent or deliberately formed, which shall be forever after binding upon their successors and the people.

In a comparatively recent case in which this subject seems to have been fully considered, the Supreme-Court of Utah, in the opinion by Bartch, C. J., said: “When a point has once been decided by an appellate court, the decision forms a precedent which should not. ordinarily be departed from, and never on any slight, grounds; but courts occasionally find it necessary to overrule decisions which have been made contrary to-principle and the law of the land as -established by statute, judicial decision, and the constitution. * *'

'* Where, however, there has been but a single decision, which is clearly erroneous, and important private or public rights are concerned, or where the questionable matter was not necessarily involved in the •case or cases, or where the points involved were decided contrary to the well established legal principles which ought to have governed, and injustice or hardship would result, or where it appears that the facts which impelled the former decisions and the conditions under which they were made were materially •different from those in the case under consideration, •or where it is manifest that the law has been erroneously decided, and no material property rights or business rules have been established thereunder, the doctrine of stare decisis ought not to be applied, so as to prevent a reconsideration of the former action of the court.” Kimball v. Grantsville City, 19 Utah, 368, 394-395. See also Ellison v. Georgia Railroad Co., 87 Ga., 691, 695-696; 1 Kent’s Com., 476, 477; 23 Am. & Eng. Ency. Law (1 ed.), 36-37, cited in argument; Paul et al. v. Davis, 100 Ind., 422, 426-428; Board of Commissioners v. Allman, 142 Ind., 573.

Two other cases deserve particular attention, because they deal with the precise issue which is raised in the case at bar, viz.: whether a former decision upon a constitutional question may be reviewed and overruled. In Pollock v. Farmers Loan & Trust Co., 157 U. S., 429, Chief Justice Fuller delivering the opinion •of the court, pages 574-576, says: “Doubtless the doctrine of stare decisis is a salutary one, and to be adhered to on all proper occasions, but it only arises in respect of decisions directly upon the points in issue;” and he cites the case of The Genesee Chief v. Fitzhugh, 12 How., 455, in which the case of The Thomas Jefferson, 10 Wheat., 428, was overruled, and he quotes Chief Justice Taney in the case of The Genesee Chief as follows: “It is the decision in the case of The Thomas Jefferson which mainly embarrasses the court in the present inquiry.' We are sensible of the great weight to which it is entitled. But at the same time we are convinced that, if we follow it, we follow an erroneous decision into which the court fell, when the great importance of the question as it now presents itself could not he foreseen; and the subject did not therefore receive that deliberate,consideration which at this time would have been given to it by the eminent men who presided here when that case was decided. For the decision was made in 1825, when the commerce on the rivers of the west and on the lakes was in its infancy, and of little importance, and but little regarded compared with that of the present day. Moreover the nature of the questions concerning the extent of the admiralty jurisdiction, which have arisen in this court, were not calculated to call its attention particularly to the one we are now considering.” And Chief Justice Fuller adds: “Manifestly, as this court is clothed with the power, and entrusted with the duty, to maintain the fundamental law of the constitution, the discharge of that duty requires it not to extend any decision upon a constitutional question if it is convinced that error in principle might supervene.”

Willis v. Owen, 43 Tex., 41, was a case raising the question of the constitutionality of a statute. It had already been sustained by the Supreme Court in several cases. The doctrine of stare decisis was interposed. It is said in the opinion of the court, page 49: “The questions to be considered in these cases have no application whatever to the title or transfer of property, or to matters of contract. They involve the construction and interpretation of the organic law, and present for consideration the structure of the government, the limitations upon legislative and executive power, as safeguards against tyranny and oppression. Certainly it cannot be seriously insisted that questions of this character can be disposed of by the doctrine of stare decisis. The former decisions of the court in such cases are unquestionably entitled to most respectful consideration, and should not' be lightly disregarded or overruled, and in case of doubtful interpretation, or even legislative or executive construction within their respective functions, might be sufficient to turn the balanced scale. But in such case the former decision or previous construction is received and weighed merely as an authority tending to convince the judgment of the correctness of the particular conclusion, and not as a rule to be followed without inquiry into its correctness.”

With the foregoing authorities before us, believing, as we do, that the plain letter of the constitution of Ohio cannot be altered or amended by judicial construction, and believing, for the reasons given in State ex rel. v. Yates, that county offices are not local offices, and that even if they were conceded to be such the matter of their compensation is not necessarily local, and may become, and is, a matter of general public cohcern, as demonstrated in State ex rel. v. Yates; and believing further that the decision in State ex rel. v. The Judges did not lay down a rule of property, and it not appearing that any vested rights have been acquired under it, we are constrained to formally overrule State ex rel. The Attorney General v. Judges, 21 Ohio St., 1. The circuit court should have sustained the demurrer to the answer and should have awarded a peremptory writ of mandamus as prayed in the petition.

The judgment of the circuit court in the case at bar is therefore reversed and

Peremptory writ awarded.

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


author: By the Court.

text:
    The State of Ohio v. Arata.

      An affidavit charging a person with selling oleomargarine—Containing butter yellow—Charges violation of sections 4200-16,-19 and -20, Revised Statutes—P%ire food laws.

    An affidavit which charges a person with selling and delivering oleomargarine, which, when so sold, contained coloring matter, to-wit: butter yellow, sufficiently charges a violation of sections 4200-16',-19 and -20, Revised Statutes, notwithstanding it contains descriptive words which partially, but not wholly, bring the substance sold within the statutory definition of oleomargarine.
    (No. 8068
    Decided November 17, 1903.)
    Exceptions to the Common, Pleas Court of Hamilton county.
    The defendant in error was prosecuted before a justice of the peace of Hamilton county under the pure food laws, and was found guilty by a jury, as charged in the affidavit, of selling oleomargarine containing coloring matter. Thereupon, on the same day, judgment was given on the verdict, and the defendant was fined in the sttm of $50 and costs. The affidavit charged that “on or about the twenty-fifth day of February, A. D. 1901, at the county of Hamilton and state of Ohio, one, Nicholas J. Arata, unlawfully did sell and deliver to the said Anthony Sauer, dairy and food inspector of the state of Ohio, one-half (%) pound of oleomargarine; said oleomargarine being a substance not pure butter and containing only three and seventy-seven hundredths (3.77) per cent, of butter fats, which said oleomargarine, when so sold as aforesaid, contained coloring matter, to-Avit: butter yellOAV, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio.” On petition in error in the court of common pleas the judgment of the justice of the peace was reversed on the ground that the affidavit filed with the justice of the peace, charging the offense* Avas defective, and that the justice of the peace committed error in overruling the demurrer of the defendant thereto. To this the State of Ohio, plaintiff in error here, excepted.

      Mr. Scott Bonham, for the State of Ohio, cited and commented upon the folloAving authorities:

      Harding v. New Haven Twp., 3 Ohio, 227; Austin v. Hayden, 6 Ohio, 388; Barto v. Abbe, 16 Ohio, 408; Scovern v. State, 6 Ohio St., 288; McGarvey v. Puckett, 27 Ohio St., 669; Humiston v. Anderson, 15 Ohio, 556; Root v. Davis, 51 Ohio St., 29; Railway Co. v. Cronin, 38 Ohio St., 122; 10 Enc. Pl. & Pr., 353, 486; People v. Patterson, 3 Wheel. Cr. Cas. (N. Y. Gen. Sess.), 180; Parker v. State, 4 Ohio St., 565; Kingman v. Berry, 40 Kas., 625; Butte v. Peasley, 18 Mont., 303; Ex parte Mansfield, 106 Cal., 400; State v. Wood, 49 Kas., 711; Brazleton v. State, 66 Ala., 96; Louis v. State, 112 Ala., 52; Gibbons v. Sheppard, 2 Brew., (Pa.), 1; State v. Lauver, 26 Neb., 757; State of Maine v. Casey, 45 Me., 435; Commonwealth v. Ashley, 2 Gray, 356; McNamee v. People, 31 Mich., 473;
      Groenland v. State, 6 Dec., 313; 4 N. P., 123; Hagar v. State, 35 Ohio St., 268; Spencer v. State, 13 Ohio, 401; Davis v. State, 32 Ohio St., 28; Harrell v. State, decided February 25, 1890, by Supreme Court (unreported), 23 W. L. B., 149; People v. Le Roy, 65 Cal., 613; People v. Vasalo, 120 Cal., 168; secs. 806, 807, 808 and 1426, Penal Code of California, and sec. 2093 of the Civil Code; State v. Freeman, 59 Vt., 661; Walker v. People, 22 Colo., 416; State v. Mullen, 52 Mo., 430; Const. of Ohio, art. 4, sec. 20; secs. 1, 583, 610, 611, 614; 4200-16,-17,-18,-19,-20; 5107, 5264, 5269, 5614, 5710, 6565, 7106, 7121, 7133, 7134, 7356, 7357, 7358, Rev. Stat.

      Mr. Edward M. Ballard, for defendant, cited and commented upon the following authorities:

      Davis v. State, 19 Ohio St., 270; Carper v. State, 27 Ohio St., 572; Geiger v. State, 3 Circ. Dec., 141; 5 C. C. R., 283; Frank v. Cincinnati, 7 Dec., 544; 5 N. P., 520; Little v. State, 4 Circ. Dec., 285; 8 C. C. R., 51; Groenland v. State, 6 Dec., 313; 4 N. P., 122 (affirmed by Supreme Court without report); Margolius v. State, 4 Dec., 354; 1 N. P., 264; Emery v. State, 5 Dec., 121; 3 N. P., 204 (affirmed State v. Emery, 55 Ohio St., 364); Strong v. State, 3 Dec., 284; 2 N. P., 93; Pope v. City of Cincinnati, 2 Circ. Dec., 285; 3 C. C. R., 497; 10 Ency. Pl. & Pr., 472, 473, 474, 475; Parris v. People, 76 Ill., 274; Larney v. Cleveland, 34 Ohio St., 599; 10 Ency. Pl. & Pr., 4; Commonwealth v. Chase, 125 Mass., 202; Wharton’s Crim. Prac., secs. 220, 221; 10 Ency. Pl. & Pr., 486; 487; note 1, 488; 503; United States v. Brazeau, 78 Fed. Rep., 464; State v. Krueger, 35 S. W. Rep., 604; Peters v. State, 11 Dec., 555; 8 N. P., 595; Lamberton v. State, 11 Ohio, 282; Faris v.
      State, 3 Ohio St., 159; Aylmore v. State, 11 Re., 900; 30 W. L. B., 370; Dillingham v. State, 5 Ohio St., 281; 1 Arch. Crim. Pro., 215; sec. 2, p. 505, Supp. to U. S. Stat., 1874-1891; Commonwealth v. Filburn, 119 Mass., 297; Commonwealth v. Bean, 14 Gray, 52; Commonwealth v. Barrett, 108 Mass., 302; State v. Bierce, 27 Conn., 318; State v. Parker, 43 N. H., 85; State v. Pratt, 14 N. H., 458; People v. Dumar, 106 N. Y., 510; People v. Farrell, 28 N. Y. St., 44; People v. Dunn, 53 Hun, 385; People v. Klock, 48 Hun, 277; People v. Wise, 3 N. Y. Crim. Rep., 305; People v. Littlefield, 5 Cal., 355; Rex v. Stevens, 5 East, 244; State v. Mahan, 2 Ala., 341; State v. Lauver, 26 Neb., 757; State v. Casey, 45 Me., 435; secs. 4200-16, 4200-17, 4200-18, 4200-19, Rev. Stat.
   By the Court.

The affidavit is not defective. It charges Arata with having sold oleomargarine which contained coloring matter, to-wit: butter yellow. This is all that is required, because the meaning of the word “oleomargarine,” as used in the statute, is defined by the statute itself. The descriptive words contained in the affidavit do not wholly describe oleomargarine as defined in the statute, but do not contradict the charge as made. Therefore, whether they completely describe the substance sold or not, these words neither add to nor subtract from the meaning of the charge. They are surplusage.

Exceptions sustained.

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