author: Donahue, J.

text:
    Erie Railroad Company v. Welsh.

      Conflict of laws — Law of forum controls, when — Federal and state laws — Facts to■ be pleaded, when — Judicial notice of federal laws —State and federal laws to be pleaded, when — Existence of facts question for jury, when — Application - of federal employers’ liability act of igo8 — Personal injury — Master and servant.

    1. In the courts of this state the presumption obtains that the law of the forum controls the rights of the parties to the litigation.
    2. .Where it is claimed by either party that the law of another state or of the United States applies to the exclusion of the law of the forum, the facts upon which such claim is based must be pleaded.
    3. Our state courts will take judicial notice of all. federal laws. Therefore, it is not necessary that these laws should be pleaded, but only the facts that bring the case within their operation. If it be claimed that the law of another state controls, then the law of that state must be pleaded.
    4. The determination of the existence of such facts when denied by answer or reply is a question for the jury, and when no such issue is joined in the pleadings evidence will not be received either to prove or disprove the same, but the presumption will obtain that the law of the forum applies.. ,,
    5. Where in a suit by an employe of a railroad company to recover damages for injury sustained while in the service of such company it is averred and-admitted or proven' that the servant was engaged in interstate commerce at the time-he received, the injury complained .of, the provisions of the federal employers’ liability act of 1908 fixes, limits and controls thé rights and liabilities of the parties, to the exclusion of the statute of the state. .. . .
    (No. 13986 —
    Decided November 11, 1913.)
    Error to-the Circuit Court of Mahoning county.
    The defendant in error, James. T. Welsh, recovered a judgment, in the common pleas court of Ma-honing county for damages on account of personal injuries received by him while working as a. yard conductor in the Brier Hill yards at Youngstown, Ohio. This judgment was affirmed by the circuit court, and this proceeding in error is here prosecuted to reverse the judgments of the circuit and common pleas courts.
    The petition avers that the Erie Railroad Company maintained switches, operated by means of wires running along through the yards under and about the tracks to a tower, which switches were operated by means of a lever; that said wires and pulley wheels were wholly without protection or covering, and were so placed as to make the place, where the plaintiff was obliged to work, unsafe and dangerous; that the same could not be seen in the darkness; that no signal lights were placed thereon to warn workmen of the danger; and plaintiff avers' that the defendant was unlawfully careless and negligent in not properly guarding said wires and pulley wheels in and about said runway, and thus protect its employes from danger of being entrapped in the darkness and thrown under moving cars, and that by reason of such negligence on the part of the defendant, the plaintiff, while in the discharge of his duties and without fault on his part, was injured.
    ‘ The defendant admits that the plaintiff sustained injuries while in its employ at the place and at the time named in the petition, but denies the nature, character and extent of the injuries, as in the petition described; denies that they were produced by the causes therein set forth, and denies each and every allegation, statement and averment in the petition of plaintiff, except those admitted to be true.
    The answer further avers that the plaintiff was guilty of negligence, inattention and lack of care directly contributing to produce such injury, in failing to keep a proper lookout, and failing to exercise his senses to look where and how he was going, and where he was stepping, and in carelessly stepping and falling in such place in a manner to cause his injuries.
    The plaintiff by reply denied that he was guilty of negligence, inattention and lack of care directly contributing to produce said accident and injuries. The plaintiff in error claims that under the evidence the case was governed by the federal employers’ liability act of 1908, under the provisions of which the defendant in error, knowing of the construction of the interlocking system and being perfectly familiar with the yards, assumed the risk. The defendant in error claims that at the time of the injury he was engaged in intrastate commerce, and that the federal employers’ liability act relating to persons engaged in interstate commerce does not apply, and the trial court took this view of the case and instructed the jury accordingly.

      Messrs. Hine, Kennedy & Manchester, for plaintiff in error.

      Mr. William R. Stewart, for defendant in error.
   Donahue, J.

An act of congress, in so far as it covers any subject-matter upon which congress has the right to legislate, supersedes the statutes of a state, and, therefore, if the defendant in error was at the time he sustained the injuries described in his petition engaged in interstate commerce, then the federal employers’ liability act of 1908 applies to this case, and the provisions of that act entirely supersede the state statutes in relation to the rights and liabilities of the parties to this suit.

The principal question presented by this record is a question of fact rather than law. It is claimed on the part of the plaintiff in error that the record shows that the defendant in error was employed in handling cars engaged in interstate commerce at the time of his injury. This is disputed by the defendant in error, and the determination of that question is a final solution of this' case.

This issue of fact was not joined by the pleadings. The trial court refused to give in charge to the jury the provisions of the federal employers’ liability act of 1908, but, on the contrary, instructed the jury in accordance with the law of this state.

It appears from the evidence that the plaintiff was in the employ of the defendant as a yard conductor working about its Brier Hill yards at Mosier, Ohio, that his duties were confined to that locality and wholly within the state. These facts being undisputed, the presumption arises that the law of the state in which he was employed and in which the accident occurred and in- the courts of which state this'action is pending, control the rights and liabilities of employer and employe. Where it is claimed by either party to a suit that the laws of another' state or the laws, of the United States apply to the exclusion of the law of the forum, the facts upon which such claim is based must be pleaded, and when denied by answer or reply it becomes an issué of fact for the determination of the jury. If the claim is that the law of another state controls, then the law of that state must be pleaded. Our state courts, however, take judicial notice of the laws of the United States, and, therefore, it is never necessary to plead such laws. L. & N. Rd. Co. v. Scott, 133 Ky., 724.

In the case of St. L., I. M. & S. Ry. Co. v. Hesterly, 98 Ark., 240, it is held, in the second paragraph of the syllabus of that case, that “While it is not necessary to plead a federal statute, yet allegations constituting a cause of action or defense thereunder must be made in order to have the benefit thereof.”

In the case of Brinkmeier v. Mo. Pac. Ry. Co., 81 Kans., 101, at page 104, the court said: “There was nothing in the petition to suggest even remotely that the car the defective equipment of which caused the plaintiff’s injury was so used. Therefore, as decided at the former hearing, the petition stated no cause of action under the federal statute. It is urged, however, that the court should have allowed an amendment. The statute of limitation had barred an action based upon an act of congress before leave to amend was asked. It was then too late for such an amendment.”

In the case of Allen v. Tuscarora Valley Rd. Co., 229 Pa. St., 97, the same doctrine was announced, and it was there held that an amendment to an original pleading by a plaintiff after the statute of limitations had expired, seeking to bring his cause within the operation of the federal statute, introduced a new and different cause of action, subject to the statute of limitations.

In the case of K. C., M. & B. Rd. Co. v. Flippo, 138 Ala., 487, it was held that “it is not necessary for the complainant to set out specially said statute and aver its violation, but it is sufficient if the complaint avers a state of facts which show a failure on the part of the railroad company to comply with the requirements of the statute.”

In the case of Chicago & Erie Rd. Co. v. Hamerick, Admr., 50 Ind. App., 425, it was held that “where a pleader seeks to state a cause of action under the'statute,"facts must be averred which bring the case within the provision of the statute.”

To the same effect is the holding in the case of C., I. & L. Ry. Co. v. Barnes, 164 Ind., 143.

It follows, therefore, that if the plaintiff in error desired to avail itself of the benefit of the federal act, it should have pleaded such facts as would bring the transaction within the operation of that act. It is, of' course, not necessary that it should plead the terms and provisions of the federal act. It is only necessary that it • aver the facts that show that the federal act, and not the state law, applies. This tenders an issue of fact, which if denied by the reply must be determined as any other issue of fact in the case.' If the defendant below should fail to plead facts that would take the transaction out of the law of the forum and bring it within the operation of federal law,’then it could not be'permitted over the objection of plaintiff to introduce any evidence in proof of such facts, because no such issue is^presented by the pleadings. If, however, the defendant does not plead facts that, if proven, would bring the transaction within the operation of federal law, yet if the evidence introduced by plaintiff in support of the allegations of his petition shows that he was engaged in interstate commerce, or If the defendant, without objection on the part of plaintiff, introduced evidence of such facts, then it is the duty of the court to charge the provisions of the federal act instead of the provisions of the state statutes, unless there should be a conflict of evidence, in which event an amendment should be permitted and the issue of fact submitted to the jury with proper instructions to apply the state or federal law as the jury may determine the fact to be.

In this case, however, it does noc appear that there is any conflict of evidence, at least no material conflict. If we are correct in the proposition that the presumption obtains that the law of the forum applies to the transaction, then it is necessary in order to overcome this presumption to show that the plaintiff at the time of the injury was actually employed in moving or handling cars engaged in interstate traffic. Notwithstanding his employment may have been entirely local and wholly within the state, yet, if in the course of his service it became his duty to handle or assist in handling cars engaged in interstate commerce, either by taking them out of or putting them into trains, or shifting them about the various parts of the railway yards, he must be held to have been engaged in interstate commerce, while actually so engaged in this service, and the federal laws upon that subject would apply to any transaction occurring while he was actually so employed. There is some evidence in this record that shortly before his injury he was assisting in shifting a car containing interstate traffic en route for Meadville, Pennsylvania, but it also appears that after that service had been performed he had handled a caboose and placed it in “Fitch’s Pocket,” and there is no evidence whatever tending to show that this caboose was engaged in interstate commerce. There is also some evidence tending to show that the next service he would be required to perform would be in relation to cars engaged in interstate commerce, but what he had been doing before the time of the accident or what he might have done shortly thereafter, if the accident had not happened, is not very important in determining this question. The important inquiry is as to what he was doing at the time the accident occurred, and it appears without dispute in this record that he had finished the duties required of him by prior orders of the master, and was at the time of the injury proceeding to the master’s office for further orders and direction as to his service, so that he was not then and there employed in moving or handling cars engaged in interstate commerce. That service had been fully completed and ended, and he had not reengaged in any similar employment, so there is no evidence in this record tending to prove that at the time the accident actually happened this plaintiff was then and there engaged in interstate commerce, and the mere fact that shortly before that time he had been so engaged, or that the next service his master would require would be of interstate character, cannot and does not establish the fact that at the time of the injury he was so engaged. The facts in this case having wholly failed to show that plaintiff was engaged in interstate commerce at the time of the accident and injury, the law of the forum applies, and the trial court properly gave in charge to the jury the law of this state.

Judgment affirmed, and cause remanded for execution.

Nichols, C. J., Johnson, Wanamaker and Wilkin, JJ., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The Independent Brewing Company of Pittsburgh v. Stewart et al.

      Suit by plaintiff on promissory note — And for foreclosure of mortgage — Answer of accord and satisfaction — Question of appeal to circuit court — Question whether cause was one in law or equity.

    (No. 13337 —
    Decided November 11, 1913.)
    Error to the Circuit Court of Trumbull county.

      Mr. I. T. Siddall and Messrs. Leonard & Temple-ton, for plaintiff in error.

      Mr. G. P. Gilmer and Mr. T. I. Gilmer, for defendants in error.
   By the Court.

Suit was brought by The Independent Brewing Company against Stewart and others on a certain promissory note secured by mortgage. The defendants admitted the execution of the note and mortgage and answered setting up an accord and satisfaction through a separate contract by deed conveying to the brewing company the mortgaged premises in satisfaction of the debt.

The case was tried in the court of common pleas, before the judge presiding, without any suggestion of a jury from either party. Upon the pleadings and evidence the court rendered judgment for the plaintiff for the full amount claimed.

The defense thereupon gave notice of its appeal, had the bond fixed and did appeal the case to the circuit court. The entry in the circuit court is as follows: “This cause came on for trial on appeal from the court of commón pleas, and was submitted to the court upon the pleadings, exhibits and testimony, and was argued by counsel. On consideration whereof, the court finds the issues in favor of the defendant.”

The plaintiff thereupon filed his motion for a new trial, complaining among other things that the case was not appealable. The motion for a new trial was overruled, judgment rendered and bill of exceptions taken.

The decisive question in this case is whether or not the brewing company could, by this motion for a new trial, raise the question as to whether or not the cause was one in law or equity; or, had the course of both parties up to that time foreclosed that issue.

In Drake et al., Trustees, v. Tucker et al., 83 Ohio St., 97, this question is squarely decided:

“Whether a cause in which an appeal has been taken to the circuit court from the judgment of the court of common pleas is appealable, is a question which cannot be effectively made except by a motion to dismiss the appeal interposed in the circuit court before the trial in that court.”

The other questions involve the weighing of the evidence, and this court will not interfere with the judgment of the court below upon the facts of the case.

Judgment of the circuit court affirmed.

Nichols, C. J., Shauck,'Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    Baltimore & Ohio Railroad Co. v. Bing et al.

      Actions — Contract—Bill of lading — Reformation—Damages—Pleading*

    (No. 13594 —
    Decided November 18, 1913.)
    Error to the Circuit Court of Cuyahoga county.

      Mr. J. M. Lessick and Mr. Charles Lessick, for plaintiff in error.

      Mr. Max P. Goodman, for defendants in error.
   By the Court.

There was but one cause of action in this case, and that was the action on the contract for damages. There was no instrument that required reformation, nor was there any ground for such reformation. The only grounds for reforming an instrument are those of fraud or mutual mistake. In this case there was neither, because of the full knowledge on the part of both parties of all the facts and circumstances surrounding the execution of the bill of lading. All the other questions grow out of the alleged first cause of action, to-wit, an action to reform the bill of lading. There being no sugh cause of action, it is unnecessary to pass upon these other questions.

The judgment of the circuit court reversing the judgment of the court of common pleas affirmed.

Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilicin, JJ., concur.


author: Donahue, J. Wanamaker, J.,

text:
    The State, ex rel. Donahey, Auditor of State, v. Edmondson, County Auditor, et al.

      Taxation — Power of general assembly to provide for state roads— Budget commissioners cannot change state levies — Ordinance of 1787 superseded by state constitution — Constitutionality of acts providing levy for state roads.

    1. Under the provisions of Section 4, Article XII of the Constitution of this state, and of Section 5626, General Code, which conforms to the section of the constitution above named, the general assembly of Ohio is the only authority that can levy taxes for state purposes and provide by law the sum or sums to be raised therefor.
    2. The budget commissioners of a county have no authority to fix, reduce, increase or in any manner change the sum or sums levied by law for state purposes.
    3. The Ordinance of 1787 was entirely superseded by the constitution of this state when it was admitted into the Union. Ohio then became a sovereign state with as full and complete rights of sovereignty and as free from the operation of the articles of the Ordinance of 1787 as any of the original states, party to the federal compact.
    4. The act of the general assembly passed April 8, 1913, and approved April 15, 1913 (103 O. L., 155-158), providing for a levy and to create a fund for the purposes provided in the act passed May 31, 1911, entitled "An act creating a state highway department, defining the duties thereof and providing aid in construction and maintenance of highways and to repeal certain sections of the General Code (approved June 9, 1911, 102 Ohio Laws, pages 333-349), and for other purposes defined therein,” together with the act of the general assembly, passed April 16, 1913, and approved May 9, to amend Section 1 of the above-named act, are valid and constitutional exercise of the authority of the general assembly of this state to levy taxes for state purposes.
    (No. 14406 —
    Decided November 19, 1913.)
    In Mandamus.
    This action in mandamus was commenced in this court by the auditor of state against the auditor and budget commissioners of Hamilton county, asking that a peremptory writ issue against the defendants to compel the placing upon the tax lists ot that county the levy of the one-half of one mill provided for in Section 1 of the act of the general assembly of Ohio, passed April 8, 1913, 103 O. L., 155-158, and the act amending the same passed April 16, 1913, 103 O. L., 863.
    The auditor of state certified to. the auditor of Hamilton county the rate to be levied for the year 1913 provided for by this act. The auditor of Hamilton county laid before the budget commissioners of that county at its session, commencing the first day of June, 1913, the annual budget submitted to him by the boards and officers named in Section 5649-3a, together with an estimate prepared by him of the amount of money to be raised for state purposes in each taxing district in the county. The budget commissioners refused to include this levy or any part thereof within the levy of taxes for Hamilton county or any of the taxing districts therein.
    The total of the budgets and estimates submitted to the commissioners at the June, 1913, session for state, county and other purposes exceeded ten mills on the dollar exclusive of levies for interest and sinking fund purposes, and in many taxing districts in the county exceeded the tax raised in 1910 plus nine per cent. Thereupon the budget commissioners proceeded to revise these estimates and budgets, and in so doing reduced the levy for state purposes by striking therefrom the one-half mill levied by the general assembly of this state for road purposes, and refused and still refuse To ’in-' elude the same in their certificate to tne county! auditor, who also refused and still refuses to place' this levy upon the tax lists of that county.

      Mr. Timothy S. Hogan, attorney general; Mr.' Clarence D. Laylin and Mr. Smith W. Bennett, for relator.

      Mr. Thomas L. Pogue, prosecuting attorney; Mr. John V. Campbell and Mr. Charles A. Groom, assistant prosecuting attorneys, and Mr. Alfred Bettman, city solicitor, for respondents.
   Donahue, J.

The first question presented by the pleadings and briefs of counsel, while one of very great importance, is perhaps easier of solution than any other question in the case. It is claimed on behalf of defendants that a levy of taxes by the general assembly of Ohio for state purposes is subject to the control of the budget commissioners of the several counties of the state. If this be the proper construction of Section 5649-3c, General Code, then it conflicts not only with the provisions of Sections 5625 and 5626, General Code, but it is also in direct conflict with Section 4 of Article XII of the Constitution of the state. Under such construction the state would be dependent upon the various local budget commissioners of the several counties for sufficient revenues to meet its needs. In the very nature of things these local budget commissioners will differ in their judgment, and the tax levy for state purposes will not be uniform throughout the state. Certainly such an absurd condition of affairs was not intended by the general assembly of Ohio, and even if it did so intend, Section 4 of Article XII of the Constitution directs that the general assembly shall provide for the revenues of the state. While it is true that it is the duty of courts to interpret the law as they find it, without reference to whether its provisions be wise or unwise, yet it is also a canon of construction that courts will seek to give to statutes not only a construction that is consistent with the provisions of the constitution (of the state but also such construction as will result in the accomplishment of an intelligent and reasonable purpose rather than a ridiculous and absurd one.

In endeavoring to arrive at a correct interpretation of the language used in Section 5649-3c, we must keep in mind this constitutional provision as well as the legislation in relation to the same subject-matter. Section 4 of Article XII .of the Constitution declares that “The general assembly shall provide for raising revenue, sufficient to defray the expenses of the state.” Section 5625, General Code, provides that “Taxes, for state purposes, shall be levied, annually, on each dollar of valuation of taxable property, in the sum or sums, provided by law.” When the general assembly of the state has provided by lavo for the sum or sums to be levied for state purposes, arid that law has been approved by the governor of this state, no other authority has the power to change or alter the sum or sums provided by law. If the budget commissioners were authorized to change the amount of the levy, either by increasing or decreasing the same, then the levy would not be “in the sum or sums, provided by law,” but in the “sum or sums” provided by the budget commissioners of the several counties. Such a construction would authorize the budget commissioners of a county to repeal an act of the general assembly of the state. The language of Section 5649-3c does not admit of such construction. Section 5626, General Code, provides that the auditor of state shall give notice to each county auditor of the rate required by law for state purposes, and further provides that such rate shall be placed by the county auditor on the tax lists of the county, to be entered by him in one column and denominated by him “state taxes.” The duties of the auditor of state in relation to levies for state purposes provided by law are merely ministerial. The county auditor has no more power or authority in relation to these levies than the auditor of state. Section 5649-3c provides that “The auditor shall lay before the budget commissioners the annual budgets submitted to him by the boards and officers named in Section 5649-3a of this act, together with an estimate to be prepared by the auditor of the amount of money to be raised for state purposes in each taxing district in the county.” By the plain, unambiguous language of this statute the annual budgets submitted by the boards and officers named in Section 5649-3o are something separate and apart from the estimate prepared by the auditor of the amount of money tc be raised for state purposes, and this distinction must be borne in mind; otherwise confusion is likely to arise in the further consideration of this section. When it becomes necessary to do so the budget commissioners “shall reduce the estimates contained in any or all such budgets by such amount or amounts as will bring the total for each township, city * * * or other taxing district, within the limits provided by law.” When the budget commissioners have completed their work they shall certify their action to the county auditor, who shall ascertain the rate of taxes necessary to be levied upon the taxable property of each of the taxing districts and place the same on the tax lists of the county.

Keeping in mind the distinction made in the earlier provisions of this section between “annual budgets” and “estimates * * * for state purposes” it clearly appears that the budget commissioners are authorized to reduce the items in the annual budgets submitted by the boards and officers named in Section 5649-3a, and that they have no authority to reduce the levy certified for state purposes. The reason for requiring the county auditor to inform the budget commissioners as to the amount cff the levy for state purposes is obvious. With this information at hand they are in position to keep the total levy within the limitations provided by law, but the budget commissioners have nothing to do with any state levy, except for the purpose of computation. With this levy for state purposes, provided by Section 1 of the act of the general assembly, passed April 8, 1913 (103 O. L., 155-158), and the amendatory act of April 16, 1913 (103 O. L., 863), which is specifically exempted from the operation of the statutes limiting the amount of taxes that may be levied in any taxing district, these budget commissioners have nothing to do. It does not even enter into their computation. The certifying of this levy to the budget commissioners by the county auditor was an idle performance.

The auditor of Hamilton county should have placed this tax levied by the lawmaking power of the state on the tax lists of that county, unless the law levying the tax is unconstitutional.

It is claimed that this law is unconstitutional because it purports to levy a tax prior to the creation of the object for which the levy is made. It is clearly evident, however, that this act conforms to the provisions of Section 5 of Article XII of the Constitution, which provides that “Every law imposing a tax, shall state, distinctly, the object of the same, to which only, it shall be applied.” The law in question obeys this positive mandate of the constitution of the state and distinctly states the object for which the tax is levied. When that is done the provisions of this section are satisfied. If other provisions of the constitution prevent the sections of an act which distinctly states the object of the tax from going into immediate effect with the sections imposing the tax, that fact cannot be urged against the constitutionality of the law. This section must be construed in relation to all the other provisions of the constitution on the same subject-matter, and, if possible, such a construction given as will further all the intents and purposes of the constitution instead of defeating them.

This question, however, is no longer of serious importance in this case. No petitions were filed with the secretary of state, as provided by Section lc of Article II of the Constitution, requesting the submission of this law, or any part of it, to the electors of the state for their approval or rejection. While some parts of this law were subject to this provision of the constitution, yet after the expiration of ninety days it became a valid and existing law of the state. The law in its entirety was in full force and effect in all its parts at the time the budget commissioners of. Hamilton county filed their report with the auditor and before the auditor had placed or caused to be placed the tax levied for state or local purposes upon the tax lists of the county. It was not necessary to certify this particular levy to the budget commissioners, as they were not required to take this into account in the calculation of the amount of taxes that might be levied for local purposes in any taxing district in the county. It is important that the auditor of state should certify the levy for state purposes coming within the limitations prescribed by law within the time specified in Section 5626, General Code, for the reason that the budget commissioners should be notified at the very beginning of their session of this: amount. His failure to do so, however, would not defeat the tax. It would merely delay the work of the budget commissioners. The neglect of the auditor of state to notify all county auditors of a levy for state purposes, expressly exempt from the limitation prescribed by law, could work no such inconvenience or delay. That is a matter with which the budget commissioners have no concern, and the county auditor is not now required to place this levy upon the tax lists of the county until the report of the budget commissioners is filed in his office. Therefore, if this levy is certified at any time before the report of the budget commissioners is filed in the office of the county auditor, or at any time before the auditor completed his tax lists, it would be in ample time to serve every purpose for which it is intended, and it would be the duty of the county auditor to place the same on the tax lists of the county. It is conceded that this law in all its parts went into effect long before the report of the budget commissioners was filed with the county auditor. Therefore this objection to this levy cannot be sustained.

It is claimed that this act is in conflict with the provisions of Section 22 of Article II, in that it purports to appropriate money for a period longer than two years. This act does nothing of the kind. Like all other laws imposing a tax, it declares the object of the tax, and this is required by Section 5 of Article XII of the Constitution. The duty of appropriating funds so raised to the object declared in the law imposing the tax, and to none other, still devolves upon the general assembly of the state. This fully appears by Section' 7 of the act in question, which provides for the disbursement of the fund “from an appropriation made to carry out the provisions of this chapter.” Without such appropriation the funds cannot be disbursed.

It is the further claim of defendants that this act is unconstitutional because it is contrary to the fundamental principles of local self-government vested in the counties and townships. In support of this claim, counsel invoke the provisions of the Ordinance of 1787, which ordinance recognized counties and townships as existing organizations prior to the creation of the state. Our attention is also called to the fact that the territorial legislature committed to the local authorities the duty of establishing and maintaining public highways. While there is nothing in the provisions of this ordinance with which this legislation in anywise conflicts, yet if there were it would be sufficient to say that' when the constitution of the state of Ohio was adopted and our state admitted by the congress of the United States into the Union, the provisions of the Ordinance of 1787 ceased to be operative in the territory comprised within the limits of this state.

This ordinance provided for the government of this territory while it remained a territory, and it also provided that whenever any of the states included in the territory should have 60,000 free inhabitants, it should be admitted into the Union of the states on an equal footing with the original states in all respects whatever, and should be at liberty to form a permanent constitution and state government. ■

Ohio. did adopt a permanent constitution and state government, and was admitted into the Union. Its relation to the Union then became the same as that of New York, Pennsylvania or any other of the original states. . This ordinance was the product of a wise and masterful statesmanship, and will forever stand as a monument in the march of human progress, but its purposes' were fully accomplished when Ohio adopted a constitution and was admitted into the Union, and this appears by the terms and provisions of the ordinance itself. Each state in the Union stands equal with every other state. All are subject to the constitution of the United States, and no state can claim more privilege nor be denied less than any other of its sister states. The contrary of this proposition would destroy the fundamental principles upon which the federal government is based. However, when Ohio did adopt a constitution, it wrote into that constitution practically every provision of the Ordinance of 1787 applicable to a' state government, particularly all the parts and portions thereof protecting the rights of citizens, guaranteeing civil and religious liberty, providing against special privilege, preserving the right to petition, the right of trial by jury and the right to the writ of habeas corpus, and the prohibition of slavery and involuntary servitude. This Ordinance of 1787 blazed the way for the creation of a state constitution which not only reaffirmed but amplified the declaration of human rights contained in this ordinance. These principles have been maintained and preserved to the present time and are still in force and effect, not because the Ordinance of 1787 is still in force and effect but because these provisions have been rewritten into the constitution of the state, which was designed to and did take its place. If the Ordinance of 1787 were to remain in force after the adoption of this constitution and the admission of Ohio into the Union, then the rewriting of these provisions of the ordinance into the constitution of the state was a useless and unnecessary performance.

It would be just as reasonable to claim that the Articles of Confederation- survived the constitution of the United States as to claim that the provisions of this Ordinance of 1787 for the government of the Northwest Territory survived the adoption of a constitution by the several states within the territory.

The claim that the articles of this ordinance in all its parts, whether applicable to state government or not, must remain binding and obligatory upon the people of this state is in direct conflict with the provisions of Section 1 of Article VIII of the Constitution of 1802 and Section 2 of Article I of the present Constitution, in both of which it is declared that the people of the state shall have at all times a complete power to alter, reform or abolish their government, whenever they may deem it necessary. If this ordinance is a binding and subsisting contract, then these sections of the state constitutions are meaningless, and the people of this state have no such power. The provisions of this ordinance, that the articles therein contained “shall be considered as articles of compact, between the original states and the people and states in the said territory, and forever remain unalterable, unless by common consent,” were fully satisfied by the adoption of a constitution by the people of this state and the acceptance of that constitution by the congress of the United States.

It has been said, however, that the congress of the United States could not give the consent of the original states to the alteration of this, contract, but this contention cannot be sustained by any method of right reasoning. The Articles of Confederation between the thirteen original states were entered into July 9, 1778. On July 13, 1787, the confederate congress passed this ordinance for the government of the territory of the United States northwest of the river Ohio. The constitution of the United States went into effect in March, 1789, and entirely superseded the Articles of Confederation.

When the confederate congress passed this ordinance it was acting for and on behalf of the United States under the authority conferred upon it by the Articles of Confederation, and not for the separate and individual states then constituting the Union. It must be conceded that the confederate congress that adopted this ordinance had full power and authority to enter into this compact on the part of the United States. If it had not ¿such authority then there never was any existing contract between the United States and the people and states of the Northwest Territory. It must also be conceded that the federal congress, after the adoption of the constitution, succeeded to all the power, right and authority vested in the confederate congress, as well as such further authority as was granted by the constitution itself. Among other things, the constitution provided in Section 3 of Article IV that “New states may be admitted by the congress into this Union.” This grant o£ power of course extended to the new states to be formed out of the Northwest Territory, and the original compact provided that these states should be admitted into the Union on equal footing with the original states in all respects whatever. The power given to congress by Section 3 of Article IV of the Constitution did not authorize it to impose any conditions upon the states so admitted other than the conditions of the federal constitution, operating alike on all the states. The confederate congress having full power and authority to adopt this ordinance and enter into this compact on the part of the United States, as then constituted, and the federal congress succeeding to all the rights and authority of the confederate congress and being specifically authorized by the constitution itself to admit states into the Union, it follows that the congress of the United States had full, ample and complete power to act on behalf of the federal government, and it was not requisite to the alteration of this compact that the separate and several original states should separately and severally consent thereto.

If, however, it were conceded that this language means that the consent of the several original states must first be obtained directly from the states themselves before any alteration could be made in this compact, that provision would have no application beyond the life of the contract itself; that is to say, that if during the territorial government established under this ordinance a change of contract was desired, then all parties thereto must consent before any alterations thereof could be made, but the further articles of this ordinance provide for the termination of the contract itself, and when these conditions for its termination were complied with, the contract determined and all parties thereto were released from the obligations thereof. This provision for the termination of the ordinance is found in the article providing for the admission of the states carved out of this territory into the ‘Union on an equal footing with the original states in all respects whatever. This provision does not relate to a mere alteration in the terms of the contract, but to the final and complete termination of it. It would be idle to insist that some other provision of the contract, having application only to the time the contract is in existence, could in any way hinder, delay or defeat this provision for its termination.

In some of the earlier cases in this state members of this court have expressed a contrary opinion. In fact, as late as the case of the State of Ohio v. Boone, 84 Ohio St., 346, the judge writing the opinion expressed views in conflict with' the conclusion here announced. That case, however, was decided solely on the question of the constitutionality of the act then under consideration. ' That fact is clearly expressed in the syllabus. It has long been the rule of this court that the syllabus contains the law of the case. It is the only part of the opinion requiring the approval of all the members concurring in the judgment. Where the judge writing an opinion discusses maE ters or gives expression to his views on questions not contained in the syllabus, it is merely the personal opinion of that judge. The judges concurring in the judgment and the law as announced in the syllabus are not required or expected to express their concurrence in or their dissent from matters merely obiter.

I do not know whether or not a majority of this court as then constituted concurred in the view expressed in the opinion in that case in relation to this subject, for the very good reason that the question was not presented by counsel either in oral argument or by briefs. Nor was it considered by the court in consultation prior to reaching, a decision of the case. I do happen to know, however, that some of the members'of this court did not concur therein, but as the law was held inválid because certain provisions of it were in conflict with the constitution of this state, and that fact clearly appearing in the syllabus, and there being no reference whatever in the syllabus to the Ordinance of 1787, it was not thought necessary to dissent from that portion of the opinion having no application whatever to the disposition of the case or to the law of the case announced in the syllabus.

This question is now presented by the record and briefs in this case, and must be determined one way or the other. It appears, however, that, not only the courts of every other state comprised within the Northwest Territory, but also the supréme court of the United States, have fully disposed of this controversy. In the case of Escanaba Co. v. Chicago, 107 U. S., 678-688, it was. held by the supreme court of the United States in. reference to Illinois that “Whatever the limitation upon her powers as a government whilst in a territorial condition, whether from the Ordinance of 1787 or the legislation of congress, it ceased to have any operative force, except as voluntarily adopted by her after she became a state of the Union.”

In the case of Coyle v. Oklahoma, 221 U. S., 559, Mr. Justice Lurton referred with approval to the doctrine announced by Mr, Justice Field in the case of Escanaba Co. v. Chicago, supra, and cited in support thereof the case of Pollard’s Lessee v. Hagan, 3 How., 212; Permoli v. First Municipality, 3 How., 589; Strader v. Graham, 10 How., 82. However, the most important part of the decision in the case of Coyle v. Oklahoma is found in the second, third and fourth paragraphs of the syllabus, the effect of which is that congress has no power to admit a state to the Union under restrictions which render it unequal to other states, or to deprive a state, when admitted, of any attribute of power essential to its equality with the other states.

In the case of Pollard’s Lessee v. Hagan, 3 How., 212, it was held in substance that “When a new state is admitted into the Union it is so admitted with all the powers of sovereignty and jurisdiction which pertain to the original states, and that equality of constitutional right and power is the condition of all the states of the Union, old and new.”

In the case of La Plaisance Harbor Co. v. City of Monroe, Walker’s Ch., 155, it was held by the supreme court of Michigan that “The Ordinance of 1787, for the government of the Territory of the United States northwest of the river Ohio, is no part of the fundamental law of the state, since its admission into the Union. It was then superseded by the state constitution; and such parts of it as are not to be found in the federal or state constitution, were then annulled by mutual consent.”

The same conclusion is reached in the cases of Van Brocklin v. Tennessee, 117 U. S., 151-159; Sands v. Manistee River Improvement Co., 123 U. S., 288, 295-296; Willamette Iron Bridge Co. v. Hatch, 125 U. S., 1, 9-10; People, ex rel., v. Thompson, 155 Ill., 451; Depew v. Canal Trustees, 5 Ind.; 8; Conn. Mutl. Life Ins. Co. v. Cross, 18 Wis., 109.

It appears after diligent search that upon this question there is no conflict of authority, either state or federal. Ohio is the only state affected thereby in which the courts have even intimated a doubt in reference thereto. Elsewhere the authorities are uniform in support of the proposition that the Ordinance of 1787 was entirely superseded by the respective constitutions of the several states, carved out of this territory, when such states were admitted into the Union. Any other construction would lead to the conclusion that the states of the Northwest Territory are restricted and limited by provisions other than those contained in the federal constitution and thereby deprived of power essential to their equality with the other states.

The right of the general assembly to levy this tax for state purposes depends upon whether the purposes of' the levy are state purposes. That the state has the power to build and maintain highways seems never to have been doubted in Ohio. Early in the history of this state the legislature provided by law for the establishment of state roads, and by law appointed commissioners or viewers to select the routes and award damages. Numerous statutes of this character were passed, but it is sufficient to call’attention to one as showing the nature of this legislation. In the twenty-ninth volume of Ohio Laws, page 115 of the appendix, is an act that provides for the opening up and establishment of several state roads, one passing through Brown, Adams and Highland counties; another in Stark county; another through Gallia and Jackson counties; another through Hancock and Hardin counties; another through Wayne and Holmes counties; another through Sandusky and Hancock counties; another through Huron and Seneca counties; another through Monroe and Washington counties.

On the 4th day of February, 1831, the general assembly of Ohio passed an act providing that, with the consent of congress, Ohio would take under its care that portion of the National Pike within the limits of the state. It was held in the case of C., W. & Z. Rd. Co. v. Commissioners, 1 Ohio St., 77, 96, that the state having the power, to provide for the construction of such work directly it has the power to attain the same end through the subordinate agencies. That the state has the right, the power and authority to construct highways, canals and other internal improvements is no longer an open question in Ohio. It follows that if the construction and maintenance of highways come within the scope of legislative authority, then the legislature has the right to choose the means and methods it will employ to accomplish such purposes. It cannot be doubted that it is a wise public policy to commit to local control all matters .purely local, but the highways of the state are of more than local concern, and the state has too long delayed an effective supervision over them. That the important highways cannot be uniformly maintained by local authorities, under the old order of things, is apparent to every observing individual. Local authorities differ in their judgment as to the character and quality of roads required for public travel. It avails but little to the people of the state if main highways or main market roads are constructed and improved by patchwork. New and more rapid means of travel have emphasized the importance of proper highways and created a demand for uniform and intelligent construction and maintenance of roads.

Judge Ranney in the case of Railroad Co. v. Commissioners, supra, uses language that is peculiarly appropriate to the present condition of affairs. Among other things, he said: “It is true that in early times only wagon and turnpike roads were constructed; but it would be strange imbecility to fasten upon government, to deny it, in the attainment of the same ends, the use of such improvements as science and discovery have brought within its reach.” At this particular time science and discovery have placed new, rapid and practical means of travel and transportation within our reach, but the advantages and efficiency of these discoveries depend largely upon the condition of our highways. When travel by highways was slow and laborious at best, the condition of our highways may not have been of such grave concern to the state at large, but with the ¿dvent of vehicles driven by mechanical power, capable of bearing heavy burdens at a rapid speed, came the necessity of providing roads for such vehicles; otherwise they are practically useless. Heretofore market roads meant no more than the carrying of the products of farms to the nearest market. With the development of motor trucks came not only the possibility but the probability of transportation of all character of products to the consumer, not only from the farms but from the factories of our state. As a means of transporting passengers gas-motor vehicles are now competing with steam and electric railroads, and beyond all question they have already become the favorite pleasure vehicle of our people. This necessity for good roads must be met and mastered by some means and methods other than those employed in the past; otherwise the language of Judge Ranney becomes a prophesy and the time has arrived when a “strange imbecility” would deny to our people “the use of such improvements as science and discovery have brought within our reach.”

The right of the state to grant to corporations organized for rapid transportation of passengers and freight the power of eminent domain rests upon the basic principle that these lines of transportation are quasi-public highways for the use, advantage and convenience of the public. It follows, therefore, that the state has the inherent power not only to build and maintain highways, but the right of eminent domain to appropriate private property to this public use; otherwise it could not confer such authority upon private corporations. We are of the opinion therefore that there are no constitutional objections to the state of Ohio constructing and maintaining highways of this state, either directly or with the aid of the local political subdivisions of the state. The right to choose the methods by which this important purpose shall be accomplished is vested in the legislative authority of the state.

It is further claimed that this act is not of uniform operation throughout the state, but it is apparent from the language of the act itself that this contention cannot be sustained. It provides a uniform levy upon all property in the state for the purpose named in the act itself. The argument of counsel, however, proceeds rather upon the question of the constitutionaity of other laws relating t® the distribution and expenditure of this money.

If perchance other laws in relation to the disbursement of the fund so raised, for the purpose for which it was levied, are unconstitutional, nevertheless the levy must stand, leaving it to the legislature to provide constitutional ways and means by which the fund may be applied to the object named in the statutes. The act of the general assembly levying this tax is a valid and constitutional exercise of the authority of the general assembly of Ohio to provide revenue for state purposes.

Peremptory writ allowed.

Nichols, C. J., Johnson, Newman and Wilkin, JJ., concur.

Wanamaker, J.,

dissenting. I assent to the judgment in this case but dissent from the third paragraph of the syllabus dealing with the Ordinance of 1787, for the following reasons:

1. The Ordinance of 1787 has absolutely no relevancy in this case, and is even more inapplicable and foreign to it than was this same ordinance in the case of State of Ohio v. Boone, 84 Ohio St., 346.

The question in each one of these cases was: Is a certain act passed by the general assembly of this state contrary to the constitution of this state?

The question is not: Is the act in question contrary to the Ordinance of 1787, or is it contrary to the Ten Commandments or the Lord’s Prayer? One inquiry is about as relevant as the other.

2. This court can no more abolish or eliminate the Ordinance of 1787 than it can abolish or eliminate the American Declaration of Independence or the. English Magna Charta. > The Turkish pasha with equal propriety might issue a decree repealing our federal constitution, and the Russian czar a similar edict nullifying our American democracy.

3. A careful reading of this ordinance line by line shows that it was intended only as a temporary government of the territory. It served that purpose wisely and well, and became one of the nation’s landmarks in the cause of liberty and democracy.

The author of the first draft in 1784 was none other than the immortal Thomas Jefferson, who was chairman of the committee reporting the same. It dedicated the first national territory to freedom. In interpreting the constitutions of the several states framed from this territory, the old ordinance is still invaluable as ■ showing the social, political and governmental condition that obtained among the people at the time they became states.

It is an old rule of construction, followed uniformly by our courts, that, in construing the new constitution, regard must be had to the old order of things before the new constitution, so as to more clearly understand what changes were intended by the new constitution, and in this respect the old ordinance is still of great value.

4. The words of the syllabus specially objectionable are “entirely superseded.” Now who would say that the federal constitution “entirely superseded” the Declaration of Independence? That was the national bill of rights. It would be equally incorrect to say that our state constitution entirely superseded the Ordinance of 1787; that was really our territorial bill of rights.

Where one thing is intended as a substitute for another, it well may supersede that other. But where the instruments have an entirely different purpose, the one succeeds the other; but it is most illogical to say that it entirely supersedes the other.

5. The only possible relevancy this ordinance could have to the present case, are its references, directly or indirectly, to the doctrine of local self-government.

Now there is absolutely no allusion or reference whatsoever, directly or indirectly, to local self-govérnment in this entire ordinance. It neither created the right, modified the right, abolished the right nor attempted so to do. These rights were coextensive with the first American settlements along the Atlantic seaboard, and gradually enlarged as westward the star of democracy took its way.

6. It is not enough to justify this court in considering a question of law that some counsel may raise the question in some brief.

If this court were to consider and determine every question raised by every attorney in every case its work would be interminable, and it would be ten times as far behind in the dispatch of its public business as it now is.

This ordinance has no more to do with the pivotal questions in this case than the determination of the question as to whether or not there is a man in the moon.

The able arguments sustaining the other propo-' sitions of the syllabus are abundantly sufficient to justify this judgment.

I can conceive no greater harm that can come to the court than the importation of irrelevant and foreign matter into its written opinions. No better illustration of this can be found than in the famous or infamous Dred Scott decision of threescore years ago.


author: Newman, J.

text:
    Eberle et al. v. Gaier, Jr., et al.

      Partition^ — Remainderman not entitled to same, when — Sale of real estate incidental to partition — Sale cannot be had, when — Effect of consent of life tenant — To partition and sale — Waiver of life . estate.

    1. Where there is an outstanding estate for life vested in a third person in the whole of the premises of which partition is sought, remaindermen cannot have partition. (Tabler v. Wise-man, 2 Ohio St., 207, approved and followed.)
    2. In the statutory proceeding in partition, the sale of the real estate is incidental to the partition thereof, and a sale cannot he had if the right of partition does not exist.
    3. In an action by a remainderman for partition of real estate in which there is an outstanding life estate vested in a third person in the whole of the estate, an order of partition cannot be made over the objection of any of the other remaindermen, although the life tenant consents to the partition or sale of the real estate sought to he partitioned, free from his life estate, agrees to take the value of the same in money and asks the court to fix the value thereof in money and order the same paid to him. This is not a waiver of the life estate.
    (No. 13514 —
    Decided November 25, 1913.)
    Error to the Circuit Court of Clark county.
    Defendant in error, Anton Gaier, Jr., filed his petition in the common pleas court of Clark county, in which he asked that partition be made, among the tenants in common, of a parcel of real estate situate at the southeast corner of Florence and Main streets in the city of Springfield, said parcel being approximately one hundred and eighteen feet on Main street, extending southerly about the same width along the east line of Florence street two hundred and fourteen feet, more or less. He alleged that the real estate was devised, under item fourth of the will of Barbara Gaier, deceased, in equal proportions to him and five defendants named, plaintiffs in error herein, and that they were tenants in common, each being seized in fee in an undivided one-sixth part of the real estate. He further alleged that Anton Gaier, Sr., husband of Barbara Gaier, had or claimed to have an interest in the premises under item fourth of said will.
    Anton Gaier, Sr., a defendant in the case, filed an answer, in which he alleged that he was the husband of Barbara Gaier, deceased, that his age was forty-nine years, that the real estate described in the petition was devised to him for life by item fourth of the will of said Barbara Gaier, which will had been duly admitted to probate, and that he had accepted its provisions. In his answer he “consents to the partition or sale of said real estate free from his life estate therein and agrees to take the value of the same in money.” He asked that the-value in m^ney of his life estate be found and determined by'the court and that the same be ordered paid to hifn.
    A joint answer was filed by the five defendants, plaintiffs in error here, in which they alleged that item four of the will of Barbara Gaier, deceased, provided that Anton Gaier, Sr., should have a life estate in the real estate described in the petition, and that they and Anton Gaier, Jr., were tenants in common and each were seized in fee simple of an undivided one-sixth part of said real estate, subject to the life estate of said Anton Gaier, Sr., who was still living and the owner of the life estate. They alleged further that partition of the real estate could not be made among said tenants in common without great and manifest injury, and they prayed that partition might not be made.
    In a reply filed to this joint answer, Anton Gaier, Jr., admitted that Anton Gaier, Sr., under item four of the last will and testament of Barbara Gaier, held a life estate in the real estate. He alleged further that said Anton Gaier, Sr., the life tenant, had filed an answer to the petition setting up his interest as life tenant and consenting to the partition or sale of the real estate, free from his life estate therein, and agreeing to take the value of the same in money. In the reply there was a denial that partition could not be made without great and manifest injury.
    Upon the hearing of the case, Anton Gaier, Jr., testified that his interest in the real estate was the interest acquired by him under the will of Barbara Gaier, that he had acquired no further interest therein and that his father, Anton Gaier, Sr., owned a life estate in the property. Anton Gaier, Sr., testified that he had filed an answer in the case, in which he had consented to the partition or sale of all the property, free from his life estate, and had agreed to take the value of his interest in money fixed by the court. He further testified that he was still the owner of the life estate in the property acquired by him under the will, that he had not sold his interest and that he had not bought any further interest in the property.
    The common pleas court found that Anton Gaier, Sr., was the owner of a life estate in the premises and that, by his answer, he had agreed to the partition or sale of the real estate, free of his life estate therein, and had consented to take the value of the same in money, to be fixed and ascertained by the court. There was a further finding that the plaintiff was seized and had a legal right to an undivided one-sixth part of the real estate and was entitled to hold the same in severalty, and that the five defendants named were tenants in common with the plaintiff, each being seized of and having a legal right to an undivided one-sixth part of the real estate. It was ordered, adjudged and decreed that partition be made and that the three commissioners named in the order set off to the cotenants their proportion of said real estate in severalty, and if that could not be done without manifest injury to said premises, that the same be appraised at the true value in money. The defendants, other than Anton Gaier, Sr., excepted to this order, and an appeal was taken by them to the circuit court. The circuit court made the same findings, substantially, as those of the common pleas court, and, in addition, found that Anton Gaier, Sr., had waived his life estate in the real estate. The order of partition made by the circuit court is identical with that of the common pleas court.
    Plaintiffs in error are here asking a reversal of the judgments of the lower courts in ordering a partition of the real estate.

      Mr. Frank M. Krapp, for plaintiffs in error.

      Mr. A. C. Link, for defendants in error.
   Newman, J.

There is an averment in the petition that plaintiff and the five defendants named are tenants in common, each being seized in fee of an undivided one-sixth part of the real estate of which partition is asked. Plaintiff proceeds upon the theory that he and the five defendants are the absolute owners of the property, as tenants in common, in equal proportions. There is an allegation that Anton Gaier, Sr., has or claims to have an interest in the premises under item four of the will of Barbara Gaier, deceased.’ This item of the will is the sour.ce of the title of the plaintiff and the five defendants. It does not appear from the petition just what the interest of Anton Gaier, Sr.,' is, but, there being the positive averment that plaintiff and the five defendants are the owners in fee, his outstanding life estate, for some reason, is ignored. In the reply of plaintiff, however, there is an admission that Anton Gaier, Sr., holds a life estate in the real estate under the same item of the will from which plaintiff derives his title, and this fact appears also from the testimony of the plaintiff. We are at a loss to know why plaintiff failed to set out in full the provisions of item four. Had there appeared in the petition the fact which was developed upon •the filing of the subsequent pleadings and upon the hearing of the case, namely, the existence of an outstanding life estate, the court would have been advised of the true situation, and the petition would have been subject to a successful challenge by demurrer, for it is the settled law of this state that remaindermen cannot have partition where there is an outstanding life estate.

The purpose of the statutory proceeding in partition is to have set off and divided to the parties in interest their part and proportion of the estate. It is to secure to each tenant the exclusive possession of his share of the real estate theretofore held in common. Before an order of partition can be made there must be a finding that plaintiff has a legal right to a part of the real estate. If he cannot have the immediate and exclusive possession thereof and enjoy his own share in severalty, he cannot be said to have the legal right thereto. It follows then that if the tenant is prevented by an intervening estate from possessing and enjoying his own share of the common estate in severalty, partition will not lie. To hold otherwise would be in disregard of the law announced in Tabler v. Wiseman, 2 Ohio St., 207, in which case Judge Ranney, delivering the opinion of the court, most clearly and convincingly presents the reasons for the conclusion reached by. the court.

The language of the court in Stevens v. Enders, 13 N. J. Law, 271, is in point: “The objects of a partition are to avoid the inconvenience that results from a joint or common and united possession, and to enable the persons entitled to knpw, take ppssessipn pf, enjoy and improve their respective shares. But this inconvenience is not felt by a remainderman; nor can it as regards him be removed by a petition; for his estate is in futuro and not in presentí.”

Where, however, the intervening estate has been terminated by operation of law, or where the owner of such estate has conveyed his interest to the remainderman, partition will lie. But neither condition exists here, for plaintiff admits that his interest in the property is that acquired by him under the will of his mother, Barbara Gaier. He makes no claim to any other interest and he concedes that his father owns a life estate in the property.

But his contention is that when the life tenant, Anton Gaier, Sr., by his answer, consents to the partition or sale of the real estate, free from his life estate therein, and agrees to take the value of the same in money, the court is then authorized to grant the prayer of his petition. He insists that this act of the life tenant has the same force and effect as though he made a conveyance to the remaindermen by deed, that a merger of both estates has been effected and that the remainder-men no longer occupy the relation to the title that they did prior to the filing of the action. Morgan v. Staley, 11 Ohio, 389, and Elrod v. Bass, 1 C. C., 38, are cited as authorities in support of his contention, and these cases seem to have been considered by the circuit court as having a bearing upon the case at bar, but the question here involved was not before the court for determination in those cases.

We do not think the answer of the life tenant will bear the construction given it by the lower courts. True, he consents to partition or sale of the real estate free from his life estate, but, at the same time, he is insisting* that its value be fixed in money by the court and that he be paid the same. And in his testimony he expressly states that he is still the owner of the life estate. The circuit court made a finding that he had waived his interest in the real estate, and,- in its order of partition, treated the real estate as though it were held in fee simple by plaintiff and the five defendants as tenants in common. As we view the matter, this was error, for there is' nothing in the record to warrant such a finding.

The life tenant evidently assumed that, from the nature of the property sought to be partitioned, the same could not be set off or divided into parts, and that the commissioners appointed by the court would so determine and that a sale would follow. He may have been correct in his assumption in reference to the indivisibility of the property, but, as we construe the statutes relating to partition, a sale of the property cannot be ordered unless the right to partition exists. The sale is merely an incident to partition and can be had only when the commissioners are of the opinion that the estate cannot be divided according to the demand of the writ without manifest injury to its value, and the)'- make that fact known to the court. The right of partition is a condition precedent to the right of sale, and the latter is resorted to in order to prevent a sacrifice of the property.

Plaintiff, in this case, is a remainderman, holding an undivided one-sixth interest in the real estate, subject to the life estate of Anton Gaier, Sr., therein. Plaintiff did not have the possession of his interest or an immediate right to the possession of the real estate sought to be partitioned. The consent of the life tenant to a partition and sale did not confer this right upon the remainder-men. And again, the five defendants^ plaintiffs in error here, are objecting to a partition of the property in which they are interested, and we know of no provision of the statutes which will authorize a sale of the real estate, during the existence of the life estate, upon the application of one of the remaindermen, acquiesced in by the life tenant, over the objection of the other remaindermen. •

The proceeding below was, in effect, an attempt by the plaintiff and life tenant to force a sale of real estate where the right of partition did not exist. There was no statutory authority to grant the prayer of the petition and make an order of partition.

When it appeared that plaintiff held his interest in the real estate subject to a life estate, the petition and the answer of the life tenant, which was in the nature of a cross-petition, should have been dismissed.

Judgment reversed, and judgment for plaintiffs in error.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


author: Johnson, J.

text:
    Foran, Judge, v. The State, ex rel. Wilson et al.

      Intoxicating liquors — Petition to prohibit sale — Hearing may be conducted — By any one of two or more common pleas judges, when —Section 6140, et seq., General Code.

    Where the court of common pleas of a county has two or more judges, and a petition such as is authorized by Section 6140, et seq., General Code, has been filed with a judge of that court, the hearing provided for by those sections may be conducted by any of the judges who may be selected for that duty, in accordance with the rules of the court.
    (No. 14338 —
    Decided November 25, 1913.)
    Error to the Court of Appeals of Cuyahoga county.
    This was a proceeding in mandamus. The relators, E. G. Wilson and others, filed their petition in the court of appeals of Cuyahoga. Substantially the allegations of the petition are, that the city of Cleveland is a municipal corporation in said county, and that the defendant, Foran, is a duly elected and qualified judge of the common pleas court of said county; that on May 16, 1913, there was presented to and filed with the defendant, who was then the judge sitting in room No. 1, a petition to prohibit the sale of intoxicating liquors as a beverage in a residence district, which is described in the petition; that defendant refused to hear said petition, asserting that the hearing being a judicial proceeding the petition should be given its regular number on the appearance docket by the clerk of the court and then advanced on the trial docket in room No. 1 by the defendant, who was the judge therein presiding, for hearing within the forty days prescribed by law, and that when advanced the case should be referred to the assignment room for assignment; that relators refused to follow that procedure and prayed for the writ.
    The answer of the defendant admits that he is judge of the court of common pleas and that the relators are signers of the petition as alleged; that said petition was presented to him substantially as described in the petition.
    The answer avers that the defendant is one of the twelve judges of the court of common pleas of Cuyahoga county “and is now and will be until the first day of July, 1913, sitting as judge of said court in court room one thereof, and while so sitting is and will be presiding judge of said court of common pleas under the rules thereof; that by the rules of said court of common pleas the judge in room one of said court is required to hear motions, demurrers and preliminary and interlocutory matters only and is authorized to refer judicial proceedings likely to require lengthy or protracted hearings to any other judge of said court; that the hearing of said petition filed by said relators will require a long period of time and said hearing would be inconsistent with the proper discharge of the duties of this defendant as judge in room one of said court; that the statutory period of forty days within which to hear said petition will have expired before said July 1, 1913; that as presiding judge-and pursuant to his authority and duty as such he proposes to send said petition for hearing, the same being a judicial proceeding, before another judge of said court, to which action the relators object and claim the right to have this defendant in his capacity as judge hear said petition, claiming that the same is an administrative function.”
    On the trial of the cause the rules adopted by the court of common pleas of Cuyahoga county were offered in evidence and are included in the bill of exceptions.
    The court of appeals on the issues joined found in favor of the relators and awarded the writ of mandamus. This proceeding is brought to reverse that judgment.

      Mr. A. E.' Powell, for plaintiff in error.

      Mr. Charles M. Earhart, for defendant in error.
   Johnson, J.

The legislation touching the subject involved in this controversy is included in Section 6140, et seq., General Code.

Section 6140 is as follows: “When a majority of the qualified electors of a residence district of a municipal corporation sign a petition in favor of prohibiting the sale of intoxicating liquors as a beverage in such residence district and file such petition with the mayor of the municipal corporation or with a judge of the court of common pleas of the county in which the municipal corporation is situated, the mayor or judge shall examine the petition at a public hearing and decide upon the sufficiency thereof and cause a copy of his decision to be filed with the clerk of the municipal corporation or council.”

The question for determination here is whether the particular judge to whom the petition is presented in the first instance is invested with exclusive and final jurisdiction to hear and determine the matters involved.

The judgment of the court of appeals followed an affirmative answer to that question and followed also its conclusion that the judge was under the imperative obligation to proceed himself with the hearing, and was wholly without authority to cause the matter to be assigned to another “judge of the court of common pleas of the county” notwithstanding the existence of the state of facts set out in the answer. In short, that the petitioners may make an arbitrary and exclusive choice from the judges of the court of common pleas in the county, for the performance of the duty referred to. Our consideration of the subject has led us to a different conclusion.

Section 6151 provides that when the petition is filed, notice of the hearing on such petition shall be published setting forth the time and place thereof, at which time a judge shall hear any electors of the district as to the question of the petitioners being qualified electors in such residence district, or any other matter which may be brought for determination relating to the sufficiency of the petition.

Section 6152 requires that on making his decision the judge shall cause it to be recorded in the records of his court, and Section 6164 permits the prosecution of error proceedings in the circuit court.' The statute is indefinite as to the details of procedure, but it is manifest that the hearing provided for is judicial in character and contemplates a judicial inquiry as to the sufficiency of the petition and all other questions involved under the law. The hearing must obviously be conducted in accordance with established practice and procedure, and the decision must be arrived at in compliance with legal rules.

All of these things are essential attributes of a court, and the proper exercise of the judicial functions described necessarily involves the incidental power of invoking the ministerial arm of the court, in the issuance and service of process and. otherwise.

It is conceded by defendants in error that the judge hearing such a petition, as is here involved, exercises a judicial function, but it is contended that neither this fact nor the requirement that such judge shall make a finding which shall be recorded in the records of the court renders it a court proceeding. It is insisted substantially that it is not a case in which the judge sits as the court, but simply as a designated person with whom the petition may be filed.

And further, that the use of the expression “a judge of the common pleas court” in the statute was intentional; that a different construction must be given to the words “a judge” than if the words used had been “the judge.”

This would seem a doubtful warrant for holding that the statute under investigation works a complete separation of the judge so selected, for the purpose of the hearing, from the court of which he is a judge.

The legislature evidently contemplated that residence districts could and would be carved out in the large cities, in which cities, as a whole, a majority of the electors would not vote to exclude the traffic referred to, and in which there were a number of common pleas judges. Therefore it is at once apparent that, as applied to a county in which there are two or more such judges, the use of the expression “the judge” would be confusing and inapt. It is urged that a judge hearing such a petition acts in a manner analogous to a judge at chambers or in vacation, in which cases he acts out of court. Conceding this, it is to be observed that where an order is made in chambers or in vacation, it has never been supposed that the filing of the application for such order with one judge prevented the assignment of the case to another judge in the further progress of the case.

Nor do we think the case of Atwood et al. v. Whipple, 48 Ohio St., 308, relied on, conflicts with the view we have indicated. In that case it was held that an order of the court of common pleas at chambers, overruling a motion to dissolve a temporary injunction, was not reviewable on error. The case referred to is reviewed in Findlay Rolling Mill Co. v. National Bank of Commerce, 57 Ohio St., 115, in which it was held that the circuit court had jurisdiction to reverse an order discharging an attachment made by a judge of the court of common pleas at chambers because the statute provided for such review. After citing the statutes conferring such authority the court say: “From these provisions of the statute, it is manifest that the legislature intended that an order discharging an attachment made by a judge in chambers, should have the same effect, and be subject to the same provisions for review, as though made by the court at a regular session. In the case of Atwood v. Whipple, 48 Ohio St., 308, it was decided that the circuit court has no jurisdiction to review an order dissolving an injunction made by a judge of the court of common pleas at chambers, but nothing more was held than that the jurisdiction is not conferred by the general provisions of Section 6709 [Revised Statutes], there being no such provisions as to motions to dissolve injunctions.”

So in this .case it may be said that, from the provisions for proceedings in error, it is manifest the legislature intended that the decision of the judge, when recorded in the records of the court, should have the same effect as any other order of the court.

There is but one common pleas court in Cuyahoga county. Under the constitution there can be but one. It is an entity made up of constituent parts, and consists of the entire judicial organization for the conduct of the business within the jurisdiction of the court. The twelve judges are all members of this single body. The authority to exercise the judicial power which is exercised in the trial and disposition of court proceedings rests in the court itself. Under Section 3, Article IV, of the Constitution as amended in September, 1912, any judge of the court of common pleas may temporarily preside and hold court in any county.

In the nature of the situation it is necessary that there shall be some system by which the business of the court shall be apportioned to the several judges. The averments of the answer and the evidence show that the rules adopted by the court of common pleas of Cuyahoga county are such as contribute substantially to the orderly administration of justice.

The position of defendants in error necessarily is that, under the statute in question, it is the right of a petitioner to select a certain judge and compel him to hear and determine the matter, to the exclusion of all other judges, without right of substitution and in disregard of its effect on the proper and expeditious disposition of matters before the court. And this, notwithstanding the fact that the judge so selected may be a resident of the district proposed to be established, or otherwise interested, one way or the other, in the questions to be determined, or may himself be aware of reasons which under well-founded and long-accepted principles of judicial propriety forbid the especial service which he is thus requested to perform.

Moreover, it is suggested that it was the idea of the legislature to compel the judge, satisfactory in the eyes of the petitioners, to perform the entire duty enjoined, one with whom the petitioners were willing to entrust their controversy.

There is nothing in the enactment which justifies this novel conception. Such a thing would be contrary to the spirit of our entire system of jurisprudence. There could be no greater mischief than for the legislative branch of the government to so frame its legislation as to invite the citizen to hesitate at the threshold of the courts and question the fitness and courage of the judiciary or any of its members in the performance of its duty.

The judgment below will be reversed and the cause remanded with instructions to refuse the writ.

Judgment reversed.

Nichols, C. J., Shaijck, Wanamaker, Newman and Wilkin, JJ., concur.


author: Shauck, J.

text:
    The Simon Linser Brewing Company v. The Village of New Concord et al. The Indianapolis Brewing Company v. The Village of New Concord et al.

      Intoxicating liquors — Fine for violation of local option law — May be charged upon real estate, when — Knowledge of owner of property — Section 6107, General Code.

    By the authority of Section 6107, General Code, a fine resulting from the violation of a local option law prohibiting the sale of intoxicating liquor may be charged upon the real property where the unlawful act was committed if the owner has knowledge of the violation, although the terms of the section in their unrestricted meaning embrace the real property of one who is without such knowledge.
    (Nos. 13211 and 13219
    — Decided November 25, 1913.)
    Error to the Circuit Court of Muskingum ■county.
    Original actions were brought in the court of common pleas by the village of New Concord, in one case to charge upon real estate owned by The Simon Linser Brewing Company a fine and costs which had been adjudged against William Porter for unlawfully keeping a place where intoxicating liquors were kept for sale as a beverage in violation of the act providing for local option in counties, the offense having been committed on real property owned by the brewing company; and in the other to charge upon real property owned by The Indianapolis Brewing Company a fine and costs adjudged against Fred Simmons for a like offense committed by him on property so owned by it. In the original petition in one case, and in amended petition filed in the other prior to the rendering of the judgment now under review, it was alleged that the owners of the real property had knowledge of the unlawful act for which the fine and costs had been adjudged, and in both cases it was alleged that the fine and costs became a lien upon the real property by virtue of the provisions of Section 6107, General Code. Upon demurrer to these petitions the circuit court held in each case that the petition stated a cause of action and overruled the demurrer.

      Mr. F. A. Durban and Mr. Robert J. King, for the Linser Company.

      Messrs. McDermott & Porter, for the Indianapolis Company.

      Mr. W. J. Massey and Mr. J. A. White, for defendants in error.
   Shauck, J.

Some illumination of the subject discussed by counsel may be derived from a brief review of the history of the state’s dealing with it. It being permitted by the first constitution of the state, a license law was enacted authorizing the sale of intoxicating liquors to be drank on the premises where sold, and such sale by persons not licensed was prohibited. The payment of a license fee was required and such further restrictions were imposed as to limit such traffic to the bars of taverns, then existing in the cities and villages, and, owing to the slow modes of travel then in vogue, in considerable, numbers along the thoroughfares of the state. The practical operation of this system encountered hostility from two widely different sources. Those who manufactured intoxicating liquors, or dealt in them, asserted that it was unjust that their business should be subject to an imposition of that character which was imposed upon no other business; and those who were opposed to the activities and the influence of the tavern bars came to regard the license as the cause of the evil which they contemplated. In time these widely separate opponents, concluding to match wisdom, united in placing in the constitution of 1851 the following provision: “No license to traffic in intoxicating liquors shall hereafter be granted in this state; but the general assembly may, by law, provide against evils resulting therefrom.” Although it may not have been then stated in terms, it is consistent with subsequent legislation and adjudication to say that by this provision the traffic which had been licensed was brought within the police power of the state, and that subsequent legislation upon the subject was restrained only by those limitations of the constitution which apply to the general exercise of the police power. That this view was ;then taken appears from. the fact that promptly upon the official announcement of the ratification of the new constitution, on May 1, 1854, the general assembly passed an act entitled “An act to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio,” the first section entirely prohibiting the sale of intoxicating liquors “to be drank in, upon, or about the building, or premises where sold, or to sell such intoxicating liquors, to be drank in any adjoining room, building or premises, or other place of public resort connected with said building.” Exceptions were subsequently made in favor of the owners of orchards and vineyards, but it is believed that no exception recognized any limitation upon the authority of the general assembly to legislate upon the subject, except the limitations upon the exercise of the police power and the express denial of the power to license. Upon these changes in the organic and statutory law of the state there appeared the saloon — a place not a tavern bar — where intoxicating liquors were sold to be drank upon the premises where sold. A generation saw the prohibited traffic in its development outrun the general activities of the state. Then further attempts were made to restrict saloons by taxation and by local option provisions, the state-wide prohibition being repealed, although its validity had been upheld. The validity of the act of May 1, 1854, and of much of the succeeding legislation has been challenged as being merely sumptuary legislation violating guaranteed personal liberty and rights in property, but all of the legislation has been maintained unless it offended in one of the respects already indicated, it being regarded as coming within the police power because it operated to restrain business which may injuriously affect the public.

One of the laws so passed was that for whose violation the fines and costs involved in the present cases were adjudged against the persons conducting the unlawful business. In these suits to enforce the fines and costs as liens upon the property where the unlawful business was conducted, though owned by others, the petitions expressly ■count on Section 6107, General Code, which provides that “Fines and forfeited bonds resulting from the violation of local option laws prohibiting the sale of intoxicating liquor as a beverage shall attach and operate as a lien upon the real property on or in which such unlawful act was committed.” This section, being in aid of the prohibiting legislation by extending liability so that fines may be actually collected, should be regarded as to its validity and meaning as within the same considerations which affect the prohibiting legislation. Not only do the petitions count upon this section, but its terms seem to exclude the application to fines resulting from the violation of local option laws of all other statutory provisions relating to fines for the violation of other laws.

Counsel for the plaintiff in error deny, the validity of this section upon the ground that although both petitions allege the owner’s knowledge ■of the unlawful conduct of the business on their premises, the terms of the statute in their natural meaning embrace cases in which the owner • is without such knowledge; that in such cases the provision would’ operate as an unreasonable restraint upon the enjoyment of property and that the court may not by construction limit the act and apply it to cases showing knowledge. .

In one of these cases the circuit court sustained a demurrer to an original petition which did. not allege such knowledge, holding that the assessment could not be lawfully made upon property whose owner did not participate in the unlawful business nor acquiesce therein with knowledge. We assume the correctness of that decision.

In support of the conclusion that we may not limit the terms of this statute by rejecting that portion which applies to cases not comprehended in the cases we are considering, and applying that portion in which these cases are comprehended as though the legislature had so limited the section by its terms, it is said that we should be engaged in the forbidden exercise of legislative power. But the legislature has not failed to exercise its power to provide for the lien to the extent of embracing the present cases. Thé basis of counsel’s complaint is that it has legislated too much. The cases cited in support of the contention of counsel admit of two pertinent discriminations. If an act is void because in violation of constitutionally required uniformity, and is made so by its exceptions from the general terms which it employs, the court may not relieve the act of its infirmity by extending its general terms to the excepted cases, and this for the obvious reason that as to the excepted cases the legislature has hot exercised its authority. Nor, if the legislature attempts in the same enactment to exercise authority granted and authority withheld, may a court give partial effect to the enactment if the parts are so related as to indicate that no part of the act would have been passed but for the belief that, it would be effective in its entirety. Rememlering that proper constitutional interpretation regards the substance of legislation, and not its form, we may suppose that this section was enacted as two sections, one providing for enforcing the fine against the real property of an owner' who has knowledge of the unlawful act, and the other for its enforcement against the property of one who is without such knowledge. It would scarcely be thought that the invalidity of the latter section would affect the former. Since the cases of an owner who has the knowledge and one who is without it are entirely separate and distinct as to the reasons prompting legislative action, the section seems clearly to fall within the doctrine of the numerous .cases in which statutes have received a'restricted interpretation in order that they may not exceed constitutional limitations.

Judgments affirmed.

Nichols, C. ]., Johnson, Donahue, Wanamaker, Newmán and Wilkin, JJ., concur.