author: Donahue, J.

text:
    The State, ex rel. Hunt et al., v. Hildebrant, Secretary of State. The State, ex rel. Baker et al., v. Hildebrant, Secretary of State.

      Referendum — Constitutional amendment — Argument or explanation against — Who shall prepare and file same — Duty of secretary of state — Section ig, Article II, Constitution, 19x2 — Mandatory and self-executing — Implied powers and authority — Section 5018-1 et seq., General Code (103 O. L., 831), construed — Publicity pamphlets on initiative and referendum measures.

    1. Section lg of Article II peremptorily commands the secretary of state to cause to be printed an argument and explanation, or both, against any proposed amendment to the constitution, and to mail, or otherwise distribute, the same, together with a copy of such proposed amendment and argument and explanation, or both, for such amendment, to each of the electors of the state, as far as may be reasonably possible, and further expressly provides that this, with other previsions found in this section of the constitution, “shall be self-executing.”
    2. These mandatory provisions of the constitution are binding upon the executive officers and the courts of this state alike. It is the duty of the officer to obey. He has no authority to declare that a constitutional provision is not self-executing, when the constitution expressly provides that it is self-executing.
    3. It is the official duty of the secretary of state to obey this constitutional command, regardless of the fact that neither the constitution nor the laws of the state specifically provide in detail the manner and method of selecting the person or persons who shall prepare and'file such argument and explanation, or both.
    4. Where an officer is directed by the constitution or a statute of the state to do a particular thing, in the absence of specific directions covering in detail the manner and method of doing it, the command carries with it the implied power and authority necessary to the performance of the duty imposed.
    5. The act of the general assembly, passed April 18, 1913 (103 O. L., 831), entitled, “An act to provide for the submission of publicity pamphlets by the state, county or municipality, relative to measures submitted to the people through the initiative and referendum,” does not facilitate the operation of the provision of Section 1 g of Article II of the Constitution, in reference to the preparation and mailing, or otherwise distributing, to the electors of the state, as far as may be reasonably possible, an argument or explanation, or both¡ against a proposed amendment to the constitution.
    (Nos. 15031 and 15032
    Decided September 30, 1915.)
    In Mandamus.
    On the 27th day of September, 1915, the state of Ohio, on the relation of Graham P. Hunt, Eugene Heim and John Roehm, filed a petition in mandamus in this court, against Charles Q. Hildebrant, secretary of state, being cause No. 15031, praying that a peremptory writ of mandamus issue out of this court, commanding the defendant, the secretary of state, to cause to be printed and mailed, or otherwise distributed, to the electors of the state an argument and explanation against the proposed amendment to the constitution of Ohio prohibiting the sale and manufacture for sale of intoxicating liquors throughout the state of Ohio, which amendment is to be voted upon by the electors at the forthcoming November election.
    The relators aver, among other things, that they were properly appointed by the governor of Ohio to prepare and present the argument and explanation against this proposed constitutional amendment, and have prepared and presented the same to the secretary of state, who refuses to print and mail, or otherwise distribute, to the electors of the state this or any other argument or explanation against the proposed constitutional amendment.
    The secretary of state, for answer to this petition, substantially admits all the averments contained therein, except that the relators were properly appointed by the governor of the state for the purpose of preparing and filing such argument and explanation.
    This cause was submitted to the court upon the following agreed statement of facts:
    “It is agreed that on the second day of September, 1915, at a very late hour, the governor asked three gentlemen, to-wit: Harry Probasco, of Cincinnati, Nicholas Duttle, of Dayton, and Judge F. H. Kerr, of Steubenville, to serve on a committee to prepare an explanation of a prohibition amendment to the constitution, to be voted on in November next, on the negative side of the question.
    “These gentlemen verbally declined to serve, and their written declinations reached the governor not later than the following day, September 3, 1915.
    “On September 3d, 1915, Eugene Pleim, representing a committee requested 'of the governor by the Ohio Home Rule Association,' together with that committee’s attorney, Otto Renner, appeared in the governor’s office with an argument against said proposed constitutional amendment already written out and signed by the committee requested of the governor, to-wit, Eugene Heim, Graham P. Hunt, and John Roehm.
    “The governor then and there on September 3, verbally appointed the committee requested. The governor thereupon told Mr. Heim to file the document on September 3d with the secretary of state, which was accordingly done. The governor then remarked that he would like to have a written declination of the original committee so as to keep his records straight. It was then agreed that he should have these written declinations as promptly as possible.
    “It is further agreed that on September 4, 1915, the governor of Ohio wrote to the secretary of state the following letter, to-wit:

      “ ‘Columbus, Ohio,
    “ ‘September 4, 1915.
    “ ‘To the Secretary of State, of the State of Ohio:
    “ ‘On September 2, 1915, I duly appointed F. H. Kerr, of Jefferson county, Ohio, Nicholas Duttle, of Montgomery county, Ohio, and H. R. Probasco, of Hamilton county, Ohio, a committee of three electors of the state of Ohio to prepare and file an explanation with the secretary of state of Ohio against the constitutional amendment for state-wide prohibition; that on September 2, 1915, the members before named received notice of their appointment and met together and subsequently two members thereof informed me that they would not file an explanation against the prohibition amendment; that on this date, September 6th, 1915, having received the written resignation of all the members of that committee as heretofore appointed, and having received the request of the Ohio Home Rule Association, through its secretary, J. M. Kammeron, to appoint Graham P. Hunt, of Hamilton county, Ohio, Eugene Heim of Hamilton county, Ohio, and John Roehm, of Montgomery county, Ohio, as a committee of three electors of the state of Ohio to prepare and file an explanation with the secretary of state of Ohio against the constitutional amendment for statewide prohibition, I therefore, in accordance with this request and without expressing any opinion as to when the time for the appointment of that committee and the filing of the explanation expired, hereby designate Graham P. Hunt, of Hamilton county, Ohio, Eugene Heim, of Hamilton county, Ohio, and John Roehm, of Montgomery county, Ohio, a committee of three electors of the state of Ohio to prepare and file an explanation with the secretary of state of Ohio against the constitutional amendment for state-wide prohibition.
    “ ‘Frank B. Willis,
    “ ‘Governor of Ohio.’

    “It is further agreed that the secretary of state refuses to print and mail the argument aforesaid filed by Graham P. Hunt, et al., and will continue so to refuse unless otherwise ordered by this court.
    “It is further agreed that the secretary of state has been requested to print and mail to the electors of the state an argument or explanation, or both, against said proposed constitutional amendment, but that the said secretary of state refuses and will continue to refuse to print and mail to the electors of the state any argument or explanation, or both, against said proposed constitutional amendment whatever.
    “It is agreed that the proposed constitutional amendment to prohibit the sale and manufacture for sale of intoxicating liquors throughout the state is a constitutional amendment which has been proposed by initiative petition, within the meaning of the constitution.”
    On the 28th day of September, 1915, the state of Ohio, on relation of Newton D. Baker, L. J. Tabor and Percy Tetlow, filed a similar petition in mandamus in this court against Charles Q'. Hildebrant, secretary of state, being cause No. 15032 on the docket of this court.
    This petition contains substantially the same averments as the petition filed in cause No. 15031, except that it relates to the proposed amendment to the constitution to limit elections on twice-rejected constitutional amendments.
    To this petition the respondent filed a general demurrer, and this cause is submitted to this court upon the petition and demurrer thereto with cause No. 15031.

      Mr. A. J. Freiberg, for relators in No. 15031.

      Mr. Nevuton D. Baker and Mr. Timothy S. Flogan, for relators in No. Í5032.

      Mr. Echvard C. Turner, attorney general, for respondent in both cases.
   Donahue, J.

The above-entitled cases were heard and submitted together. They involve the question of the duty of the secretary of state to. print and mail, or otherwise distribute, as far as may be reasonably possible, the arguments and explanations against the proposed constitutional amendments named in the petitions and presented to him by the relators, respectively.

The language found in Section \g of Article II of the Constitution, is too plain, positive and direct to require construction by this or any other court.

By this section the secretary of state is peremptorily commanded to print the law, or. proposed law, or proposed amendment to the constitution, together with the arguments and explanations, not exceeding a total of three hundred words for each, and also the arguments and explanations, not exceeding a total of three hundred words against each, and to mail, or otherwise distribute, a copy of such law, or proposed law, or proposed amendment to the constitution, together with such arguments and explanations for and against the same, to each of the electors of the state, as far as may be reasonably possible.

There can be no reasonable doubt as to the intent and purpose of this provision. The words used exhaust the possibilities of the English language to make the meaning clear.

This same section further provides that this and other provisions of this section of the constitution shall be self-executing; that laws may be passed to facilitate their operation, but not to limit or restrict the same.

In view of the positive language found in this section of the constitution, declaring that this provision shall be self-executing, it is hardly within the province of the secretary of state, or of the supreme court, or any other court, to say that it is not. That it may be difficult of operation is not a sufficient reason for refusing to obey the mandate of the constitution of the state. Language could not have been used by the members of the constitutional convention or by the electors of the state that would give clearer expression to their intention and' purpose in reference to this subject-matter. They undoubtedly had in mind the practical impossibility of covering every detail of the operation of the provisions of the organic law of the state; that some difficulties might arise in relation thereto that could be obviated by laws that would facilitate but not limit or restrict their application, and for that reason and to this extent, but no further, the general assembly is authorized to act. This constitutional provision is a limitation upon the power of the general assembly, and for that reason, if for no other, its framers and the electors of the state who adopted it did not propose or intend that its operation should be left to the pleasure of the general assembly, for, in that case, the failure of that body to act would defeat the will of the people as expressed in the constitution of the state. Nor should the intent and purpose of any provision of the state constitution be defeated by any technical construction of its terms. On the contrary, if the language is sufficiently plain to disclose that intent and purpose, then such construction must obtain as will give full force and effect thereto, even though it be attended with some difficulties.

The justice of the provision requiring that the argument against any proposed constitutional amendment should be distributed in like manner with the argument in its favor, is too apparent to admit of discussion. Any construction of this amendment to the constitution that would deny to the people of the state who may be honestly opposed to a proposed constitutional amendment the same means and method of giving publicity to their argument against it as is provided for giving publicity to the arguments in its favor, would be not only unfair to those opposed to it, but would work a fraud upon the electorate of the state. It would be absurd to say that such a construction would be giving effect to the intention and purpose of the people of this state, who have written this provision into our constitution, and yet that intention and purpose must be the polestar to guide the court in the interpretation of its provisions.

In the particular cases under consideration the operation of this provision of the constitution presents no difficulty whatever. In each case it is admitted that the argument presented to the secretary of state was presented by electors honestly and conscientiously opposed to the proposed amendment to the constitution, and no more than one such argument against each amendment has been presented. It further appears that these arguments have been presented by persons having the official sanction of the governor, who is the chief executive officer of the state. No controversy arises as to the good faith of the arguments presented, and there is no conflict between contending factions claiming the right to present such arguments. By the printing and distributing of these arguments in the respective cases the command of the constitution is obeyed, and no injustice is done to anyone.

Notwithstanding that in these particular cases no conflict arises between persons or factions claiming the right to present these arguments to the secretary of state, it is contended, nevertheless, that such a conflict may arise in future cases, and that when such conflict does arise, then this provision can not be self-executing, because neither the constitution nor the statutory law of the state provides any method by which the secretary of state may determine who may prepare and file this argument, or, in case more than one argument is prepared and filed with him, which one of these arguments shall be printed and distributed, and that, therefore, if this provision of the constitution is not self-executing in all cases it is not self-executing in any.

This contention overlooks the fact that the constitution expressly provides that this provision shall be self-executing in all cases, and it also overlooks the further, fact that when the constitution commands an officer of the- state to do a particular thing, the mere omission to point out in detail the manner and method of doing it does not excuse the officer from performing the duty enjoined upon him by the supreme law of the land. If a master commands a servant to do a particular thing, without directing him in detail how he shall do it, it is a fair and necessary presumption that the servant is to exercise an intelligent discretion in doing the thing commanded to be done. Certainly affairs of state must be conducted on as equally intelligent lines as private business. Therefore, if the constitution of the state commands a public officer to do a particular thing, without directing the manner in which it shall be done, and the general assembly of the state has not, in the-exercise of the authority conferred upon it, enacted any laws to facilitate the operation of the provisions of the constitution, it necessarily follows that the officer who is required to perform this duty has implied authority to determine, in the exercise of a fair and impartial official discretion, the manner and method of doing the thing commanded; otherwise, full directions would have been given the officer or the duty would not have been imposed upon him. It would be the merest folly to command him to do a particular thing and then withhold from him the power to do it.

It is provided by statute that the secretary of state shall be the chief election officer of the state, and as such he is clothed with ample authority to do and perform all duties in relation to elections enjoined upon him by the constitution or the statutory laws of this state. In some cases the law specifically provides that he shall hear and determine controversies arising in relation to his duties, particularly in matters preliminary to elections. The presumption naturally obtains that he will fairly and honestly discharge his duties in this behalf and determine all questions he is called upon to decide according to the justice of the case, regardless of his own personal preferences or political affiliations, and there is no apparent reason why he cannot or will not exercise the same fair and impartial judgment in controversies arising under the provisions of this section of the constitution .that he would exercise in other matters pertaining to elections.

Our attention is called to the act of the general assembly of Ohio, passed April 18, 1913, entitled, “An act to provide for the submission of publicity pamphlets by the state, county or municipality, relative to measures submitted to the people through the initiative and referendum,” which act has been given sectional numbers 5018-1 to 5018-9, inclusive, of the General Code.

It. is clear that this act does not facilitate the operation of this particular provision of Section lg of Article II of the Constitution. It may have-been intended to do so, but if that were the intention it fails in the'accomplishment of its purpose.

The constitution vests in the general assembly authority to enact legislation that will relieve this provision from all possible doubt and uncertainty, and this could be done by providing in detail the manner and method of the selection of a person or persons to prepare and file an argument or explanation, or both, against any proposed constitutional amendment, or by specifically granting, in terms, to the secretary of state the power and authority now necessarily implied. Undoubtedly this will be done as soon as the attention of the general assembly is called to the fact that there is need of such legislation; but whether such laws are passed or not, the mandate of the constitution must be obeyed, and if any question or doubt arises as to the manner and method of doing this, that question must be answered and that doubt resolved by the application of the same ordinary intelligence of men that is applied to the solution of everyday problems of life.

Peremptory writs allowed. ■

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


source: Caselaw Access Project

author: Matthias, J.

license: Public Domain

text:
    The State, ex rel. Jones, v. The Board of Deputy State Supervisors and Inspectors of Elections of Montgomery County.

      Elections — Filing nominating petitions — Sixty-day limitation expires, when — Section 5004, General Code (103 O. L., S43) — • Time computed, how.

    1. Under the provisions of Section 5004, General Code, the period for filing nominating petitions does not expire until the end of the sixtieth daj' previous to the day of election, and it is •the duty of the board of deputy state supervisors of elections to provide opportunity for 'the presentation of such petitions up to midnight of that day.
    2. Where a statute requires that an act lie performed a fixed number of da3rs previous to a specified da)r, the last day should be excluded and the first day included in making the computation.
    3. A nominating petition of one seeking to qualify as a candidate in an election to be held on November 2 may be filed as late as September 3.
    (No. 15028
    Decided October 7, 1915.)
    In Mandamus.
    Facts are stated in the opinion.

      Mr. D. K. Watson; Mr. James H. Watson and Mr. DeWitt C. Jones, for relator.

      Mr. Robert C. Patterson, prosecuting attorney, for respondent.
   Matthias, J.

The relator, Thomas R. Jones, instituted an original proceeding in mandamus in this court and seeks an order compelling the board of deputy state supervisors and inspectors of elections of Montgomery county to receive and file his nommating petition.as a candidate for chief justice of the municipal court at Dayton at the election to be held on November 2, 1915. It was disclosed upon the hearing that the relator procured a nominating petition in the form required by law, with the requisite number of qualified petitioners, and that he sought to present to the board of deputy state supervisors and inspectors of elections of Montgomery county such nominating petition, for the purpose of having the same filed, shortly after 5 o’clock p. m., . and again later in the evening of September 2, 1915, but was unable to do so for the reason that the office of said board was closed and remained closed until the next day. On that day, being September 3, 1915, relator presented his nominating petition in due and legal form, and with the requisite number' of signatures of qualified electors, and requested that it be filed. Said board refused fio receive and file it.

From these facts it is contended by relator that if it be assumed that September 2 was the last day upon which nominating petitions could be filed, he was entitled to have until midnight of that day to present his petition, and that it was the duty of said board to have its office open and accessible so that petitions for nomination might be presented for filing up to midnight of that day. Relator further contends that the presentation of his petition on the 3d day of September was a compliance with the requirement of Section 5004, General Code (103 O. L., 843), that “nomination papers of candidates shall be filed * * * not less than sixty days previous to the day of election.”

Having reference to the contention first made, we find no statutory provision fixing or in any' manner regulating the office hours of the board of deputy state supervisors and inspectors of elections, nor any express requirements in that regard, but under the express provisions of the statute above referred to, candidates are entitled to all of the period up to “not less than sixty days previous to the day of election” during which to present nominating petitions, and whichever day is the last day upon which such petitions may legally be presented for filing, candidates are undoubtedly entitled to all of it. No rules or regulations of the board of deputy state supervisors and inspectors of elections as to office hours should be permitted to deprive candidates of rights which they have under the law. A well-established .rule of construction requires that this statute shall be so construed as to avoid a penalty or forfeiture, or deprivation of any right conferred by law.

Assuming that September 2 was the last day for the filing of nominating petitions, that day did not expire until midnight, and, hence, opportunity should have been afforded for the presentation of nominating petitions throughout the period allowed by law, which, under the assumption that September 2 was the last day, would not expire until .the end of that day, which was midnight.

The presentation of his nominating papers by the plaintiff on September 3 was within the time fixed by law and in every respect a compliance therewith; hence, his petition, when presented on that day, should have been filed. A statute almost identical, in the respect in question, with Section 5004 of our General Code has been construed by the supreme court of California in the case of Cosgriff v. Election Commissioners, 151 Cal., 407. The requirement there construed, as to the filing of petitions, was not “less than twenty days before the day of election,” while our statute reads “not less than sixty days previous to the day of election.” Because of the similarity of these two provisions, the reasoning of the court in that case is so pertinent and apt that we quote from the opinion the following:

“The word ‘days,’ as here used, refers to a day as a unit of time, and not as an aggregation of a certain number of hours, minutes, or seconds. In this sense, and for the purpose thus used, a day is not capable of subdivision into hours, minutes, or seconds, but is to be taken as a whole. In such computations the hours are not counted to ascertain whether a period of twenty-four hours, or a given number of such periods, have elapsed between the act to be done and the day from which the time is to begin running. The fractions of the days are no more taken into consideration than are the fractions of the seconds. The consequence is that every day, and every part of that day is, by this rule, one day before every part of the succeeding day. The last moment of any day is, in contemplation of law in such cases, one day before the first moment of the next day, although the elapsed time is infinitesimal. The rule is strictly one of convenience. Any other method of computation would require an accurate account to be kept of the exact hour, minute, and second of the occurrence of the act to be timed, would produce endless confusion and strife, and would prove impolitic, if not wholly impracticable.”

A like conclusion is announced in Stebbins v. Anthony et al., 5 Colo., 348. From the many cases construing similar, provisions we cite these because of their clear statement of the rule now generally followed.

The election for which plaintiff sought to qualify as a candidate is to be held on the 2d day of November. Starting with the 1st day of November, which manifestly is one day “previous to the day of election,” and thus counting the consecutive days backward, it is readily ascertained that September 3 is the sixtieth day, and is, therefore, “not less than sixty days previous to the day of election.”

A like construction was placed upon a similar provision by this court in Hagerman et al. v. Ohio Building & Savings Association et al., 25 Ohio St., 186. The provision there construed was a requirement of publication of notice of sale “for at least thirty days before the day of sale,” which is in form almost identical with the statute here in question. The court there held that in computing the time, the day of sale should be excluded, but the day on which the advertisement was first made may be included, and that the time prescribed may be computed by counting the day on which the notice was first given. The. court there held further that Section 597 of the Civil Code, being Section 10216 of the General Code, did not apply because that case did not have to do with an act to be done within a certain time.

From an examination of the many cases dealing with the construction of statutes of this character, we are convinced that the rule of computation now almost universally adopted and followed, and which appeals to us as the proper and reasonable one, is that where a statute requires an act to be performed a fixed number of days previous to a specified day, the last day should be excluded and the first included, just as under a requirement that an act be done a fixed number of days after a specified day, the first is to be included and the last excluded, in making the computation. The use of the words “at least,” prefixed to the number of days named, cannot in anywise affect the result or the method of computation.

Applying the rule above stated, and counting the day of filing the petition and excluding the' day of election, it will be seen that a petition filed on September 3 is filed at least sixty days previous to November 2, which is the day of election this year. It was, therefore, the duty of said board of deputy state supervisors and inspectors of elections to receive and file said petition when presented to it on September 3.

Writ allowed.

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


author: By the Court.

text:
    The State, ex rel. Smith, v. Lloyd et al., as the Board of Deputy State Supervisors and Inspectors of Elections of Franklin County.

      Elections — Nominating petition — Signatures in pencil insufficient, when — Municipal charter controls — Jurisdiction—Board of elections.

    (No. 15030
    Decided October 7, 1915.)
    In Mandamus.

      Messrs. Pugh & Pugh, for relator.

      Mr. Franklin Rubrecht and Mr. Wm. J. Ford, assistant prosecuting attorneys, for respondents.
   By the Court.

The relator filed in this court his original petition and seeks a writ of mandamus requiring the board of deputy state supervisors and inspectors of elections of Franklin county to print and place upon the official ballot the relator’s name as a candidate for the office of mayor of the city of Columbus.

There is no issue of fact in the case, and for the purposes of this decision it is sufficient to state that it is admitted by the respondents that the nominating petition filed by relator conforms to Chapter 7, Title 14, Part First, General Code, and to the provisions of the charter of the city of Columbus, with the exception that seven signatures to said nominating petition were in lead pencil, and that no objection in writing was made to said nominating petition by any person at any time; and it is agreed that unless the seven signatures in lead pencil be counted the relator’s petition contains an insufficient number of signatures to entitle him to a place on the ballot in said election.

The relator is not' entitled to such writ of mandamus unless it clearly appear that the performance of the act sought by him is one “which the law specially enjoins as a duty resulting from an office, trust or station.”

Section 207 of the charter of the city of Columbus, duly adopted in pursuance of authority conferred by the constitution, having reference to the requirements of nominating petitions for municipal offices, specifically requires that “Each signer to a petition shall sign his name in ink or indelible pencil.” Such provision controls and that requirement must be regarded as mandatory, and therefore signatures not in compliance therewith need not be and should not be considered or counted in determining the sufficiency of a nominating petition.

It appears upon the face of these petitions that in the respect referred to they were not in conformity with the requirements of the law, and therefore the board of deputy state supervisors and inspectors of elections was not required to deem them valid, although no objection had been made in writing within five days after the filing thereof.’ Sections 5005 and 5006, General Code, must be read and construed together. The latter section, as amended in 103 Ohio Laws, 844, provides that “Such objections or other questions, arising in the course of the nomination of candidates, shall be considered as follows: * * * For township or municipal offices, justices of the peace, or members of the board of education, by the board of deputy state supervisors of the county, and its decision shall be final.” Not only would the board have the inherent right, but authority is conferred upon it, without objection filed, to reject and refuse to. act upon nominating petitions which clearly are not in conformance with the requirements of the law.

The conceded facts show that the relator has not filed such a petition as entitled him to a place on the official ballot. The act he seeks to have performed by the deputy state supervisors and inspectors of elections is not specially enjoined upon them by the law, and his prayer for a writ of mandamus must therefore be denied.

Writ refused.

"Nichols, C. J., Johnson, Donai-iue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    Cadwell v. Cadwell.

      Courts of appeals — Appeal and error — Jurisdiction in alimony case —Must be challenged before decree entered, when,

    (No. 14848
    Decided October 13, 1915.)
    Error to the Court of Appeals of Lucas county.

      Mr. Richard H. Lee and Messrs. Doyle, Lewis, Lezvis & Emery, for plaintiff in error.

      Mr. Berkley Pearce and Messrs. Marshall 6x Fraser, for defendant in error.
   By the Court.

In 1912 the defendant in error, Herma M. Cadwell, filed her petition for alimony in the Lucas county common pleas, where the same was denied for want of jurisdiction on May 15, 1913.

On June 12, 1913, she perfected her appeal to the court of appeals of that county, where the case was heard upon the evidence, and, after intervening interlocutory orders, alimony in gross was allowed her in that court in the sum of $15,000, for which execution was awarded. This decree was made January 4, 1915.

A motion for new trial was filed and overruled on January 25, 1915. The next day plaintiff in error, Frank W. Cadwell, moved to dismiss the action and to vacate the decree for the reason that the court of appeals had no jurisdiction in alimony cases under Article IV, Section 6, of the Constitution of Ohio as amended.

The record discloses that from the time the appeal was perfected on June 12, 1913, until January 25, 1915, no question was made by the plaintiff' in error as to the jurisdiction of the court of appeals, on appeal, but on the contrary he consented to the submission of the case until final decree, after which, and for the first time, he endeavored to raise the jurisdictional question.

That this cannot be done has been expressly held in Drake et al., Trustees, v. Tucker et al., 83 Ohio St., 97, and the reasons therein stated apply whether the jurisdiction is statutory or constitutional.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

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


author: Newman, J.

text:
    The State, ex rel. The City of Dayton, v. Patterson, Prosecuting Attorney, et al.

      Budget commissioners — Adjustment of taxes and reduction of bxidgeis — Mandamus does not tie — To control discretion or correct error of judgment, when.

    Under the provisions of Section 5649-3a, General Code, the budget commissioners, in the adjustment of the various amounts of taxes to be raised in a taxing district and in reducing the estimates contained in the budgets, are called upon to exercise their official judgment and discretion. In the absence of fraud, bad faith or abuse of discretion it is not within the power of the court to interfere, and an action in mandamus will not lie to control such discretion or correct an error of judgment.
    (No. 15014
    Decided October 29, 1915.)
    In Mandamus.
    This is a proceeding in mandamus, originating in this court, brought by the city of Dayton against the budget commissioners of Montgomery county. The cause was submitted to the court upon a demurrer to the petition, upon the grounds that there was a defect of parties defendant and that the petition did not state facts sufficient to constitute a cause of action.
    On or before the first Monday in June, 1915, the relator, the city of Dayton, submitted to the county auditor of Montgomery county its annual budget, setting forth in itemized form an estimate stating the amount of money needed by it for its wants for the year 1916, in which it appeared that the sum of $969,222.08 was required for operating expenses and for interest and sinking fund for indebtedness incurred subsequently to June 2, 1911, without a vote of the people. The amount of taxable property in the city of Dayton at the time of filing the petition here had not been determined, but it was estimated to be $169,920,000, and the calculations of the budget commissioners hereinafter referred to were based upon that amount.
    The board of education of the city school district of the city of Dayton likewise filed its annual budget as required by law, in which it appeared that it would need for the like purposes for the year 1916 the sum of $676,300. It appears that the city school district extends beyond the corporate limits of the city of Dayton, that the value of the taxable property outside of the city taxable in said school district is estimated at $2,235,650 and that the amount of such budget to be raised by a tax levied on property within the city was $667,615.63.
    The county commissioners of Montgomery county likewise filed the annual budget of the county, in which it appeared that the requirements of the county for the year 1916 for the like purposes would be $676,286. The value of the taxable property in said county outside the limits of the city is estimated at $60,940,000, and the amount of such budget to be raised by a tax levied on the property within the city was $481,383.
    These budgets were laid before the budget commissioners, and upon examination it was found by them that the total amount of taxes to be raised in said city of Dayton, as shown by said budgets and by the estimate prepared by the auditor of the amount of money to be raised for state purpose's— there being no levy for township purposes — excepting provision for interest and sinking fund on bonds issued prior to June 2, 1911, and flood emergency bonds, and bonds authorized by vote of the people, was $444,510 in excess of the amount which could be raised by a levy of ten mills on each dollar of the tax valuation of the taxable property in said city. Said totals, on the estimate of $169,920,000 tax valuation, would require a levy in mills per dollar of valuation as •follows: For school purposes, 3.929 mills: for county purposes, 2.833 mills; for Dayton corporation purposes, 5.704 mills; for state purposes, .15 mill; total, 12.616 mills.
    It is alleged in the petition that it thereupon became, the duty of the budget commissioners to adjust the various amounts to be raised by taxation in said city so that the total amount thereof should not exceed the sum authorized to be levied therein, and to reduce the estimates contained in any or all such budgets by such amount or amounts as would bring the total for the city school district, county of Montgomery and the city of Dayton within the limits provided by law. It is alleged that in the discharge of such duty the budget commissioners should reduce the amount to be raised by taxation by the city of Dayton, the county of Montgomery and the board of education ratably in proportion to the needs of said several taxing-authorities and with regard to their respective powers in the levying of taxes. It is alleged that by such method of reduction the amount to be levied by the city of Dayton for. its operating expenses and interest and sinking fund on bonds issued after June 2, 1911, would be $765,659, and levies in the city of Dayton for like purposes of the county and the board of education should be likewise reduced, whereby the tax levy for all property in said city, reduced to terms of mills on the dollar would be: For city purposes, 4.506 mills; for county purposes, 2.239 mills; for school purposes, 3.105 mills; for state purposes, .15 mill; total, 10 mills.
    It is further alleged that the budget commissioners, in disregard of the duty imposed by law thus to reduce the several estimates, have refused so to do, but have presumed to exercise a discretion in adjusting the amounts of said several budgets in such manner as to allow the board of education the entire amount set forth in its budget and to deduct from the amount of the county budget the sum of $122,900, of which $90,-567 was deducted from that portion of said budget which would be raised by levy upon property in said city, and from the budget of the city of Dayton the sum of $353,943, whereby the total levies for said purposes on all propery in said city, reduced to terms of mills on the dollar, will be: For city purposes, 3.621 mills; for county purposes, 2.300 mills; for school purposes, 3.929 mills; for state purposes, .15 mill; total, 10 mills.
    There is a further allegation in the petition that if the pretended action of the budget commissioners is allowed to stand, the amount of taxes collected and turned over to the relator for the purposes for which the same were levied will be vastly short of its proper proportion of the aggregate taxes authorized to be levied in said city and vastly short of the necessities of said city, for which it has no adequate remedy in the usual course of law'.
    The prayer of the petition is that an alternative writ of mandamus issue to the defendants commanding them, on or before a day to be fixed by the court, to adjust the amounts to be raised by taxation upon property in the city of Dayton in proportion to the needs of the said city of Dayton, the county of Montgomery and the city school district of the city of Dayton, and with regard to their respective powers in the levying of taxes, so that the tax levy upon all property in said city for all purposes, excepting the interest and sinking fund on bonds issued after June 2, 1911, and flood emergency bonds, reduced to terms of mills on the dollar, will be, for city purposes, 4.506 mills; for county purposes, 2.239 mills; for school purposes, 3.105 mills; for state purposes, .15 mill; total, 10 mills; or show cause, if any they have, why a peremptory writ of mandamus should not issue commanding such reduction.

      Mr. W. S. McConnaughey, city attorney; Mr. John C. Shea and Mr. Jay Leach, for relator.

      Mr. Robert C. Patterson, prosecuting attorney, and Mr. Roy G. Fitzgerald, for respondents.
   Newman, J.

The budget commissioners of Montgomery county, upon an examination of the budgets submitted by the city of Dayton, the board of education of the city school district of Dayton and the county commissioners of Montgomery county, and the estimates prepared by the auditor of the amount to be raised for state purposes, found that the total amount of taxes sought to be raised in the city of Dayton exceeded the amount authorized by law. To raise the amount of money needed for the wants of - the city of Dayton, for corporation purposes, as shown by its budget, based on the estimated value of the taxable property of that city, would require a levy of 5.704 mills. To raise the amount required for school purposes, as shown by the budget of the board of education, would require a levy of 3.929 mills, and to raise the amount required for county purposes, as shown by the budget of the county commissioners, would require a levy of 2.833 mills. These, together with the levy for state purposes — .15 mill — would require a total levy for these several purposes of 12.616 mills. To bring the total levy within the ten-mill limitation provided for in Section 5649-2, General Code, the budget commissioners reduced the levy for corporation purposes to 3.621 mills and for county purposes to 2.3 mills, leaving the levy for school purposes undisturbed, as well as that for state purposes, the commissioners having no authority to reduce, increase or in any manner change the sum or sums levied by law for state purposes. The State, ex rel. Donahey, Auditor of State, v. Edmondson, County Auditor, et al., 89 Ohio St., 93.

It is alleged in the petition that the budget commissioners, in disregard of the duty imposed by law, presumed to exercise a discretion in adjusting the amounts of the several budgets. There is no allegation that there was an abuse of discretion. It is the contention of counsel for relator that when it becomes necessary for the budget commissioners to make reductions of the estimates in the ■budgets, filed by the different authorities within the taxing district, to bring the total within the ten-mill limitation, the reduction should be made in proportion to the various estimates, so that the resultant shortage, inconvenience and deprivation will be distributed ratably, rather than imposed altogether upon one of the instruments of local government cooperating within their several spheres in the community. They are asking the court to require the budget commissioners to proceed along these lines in the matter of the adjustment of the amounts to be raised by taxation, and in their brief they suggest other plans or methods which may be adopted in the event the plan first suggested does not meet the approval of the court. Counsel deny that the budget commissioners have the right to exercise any discretion in the adjustment of these various amounts to be raised so that the total amount shall not exceed in any taxing’ district the sum authorized to be levied therein.

Under the provisions of Section 5649-3a, General Code, the city of Dayton, through its council, the board of education of the city school district and the county commissioners were required to submit, on or before the first day of June, 1915, to the county auditor, their annual budgets, setting forth in itemized form an estimate stating the amount of money needed for their wants for the year 1916. This statute recites at length the numerous matters and things required to be specifically set forth in the budgets, including “such other facts and information as the tax commission of Ohio or the budget commissioners may require.” It is to be presumed in the instant case that the officers and boards submitting these budgets complied with the law. These budgets, under the requirements of Section 5649-3c, General Code, are laid before the budget commissioners by the auditor with “such other information” as they may request.

It is further provided in Section 5649~3c:

“The budget commissioners shall examine such budgets and estimates prepared by the county auditor, and ascertain the total amount proposed to be raised in each taxing district' for state, county, township, citjq village, school district, or other taxing district purposes. If the budget commissioners find that the total amount of taxes to be raised therein does not exceed the amount authorized to be raised in any township, city, village, school district, or other taxing district in the county, the fact shall be certified to the county auditor. If such total is found to exceed such authorized amount in any township, city, village, school district, or other taxing district in the county, the budget commissioners shall adjust the various amounts to be raised so that the total amount thereof shall not exceed in an}^ taxing district the sum authorized to be levied therein. In making such adjustment the budget commissioners may revise and change the annual estimates contained in such budgets, and may reduce any or all the items in any such budget, but shall not increase the total of any such budget, or any item therein. 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, village, school district, 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 therein of such county, and of each township, city, village, school district, or other taxing district, returned on the grand duplicate, and place it on the tax list of the county.”

It is the positive duty of the budget commissioners, in adjusting the various amounts to be raised, to see that the total amount shall not exceed in any taxing district the sum authorized to be levied therein, to-wit, ten mills on each dollar of the tax valuation of the taxable property therein. In the discharge of this duty they are to reduce the estimates contained in any or all budgets by such amount or amounts as will bring the total of the taxing district within the limits provided by law. It is to be observed that they are authorized to “revise and change the annual estimates contained in such budgets.” They “may reduce any or all the items in any such budget.” According to the contention of counsel for relator they must reduce the estimates contained in all the budgets. We do not think the statute will bear that interpretation. By its plain provisions the budget commissioners are called upon to use their official judgment and discretion in the adjustment of the various amounts, and in the reduction which they make. In the absence of fraud, bad faith or an abuse of discretion, their action as certified to the county auditor cannot be interfered with. It is said that in the case of State, ex rel., v Sanzenbacher, Auditor, 84 Ohio St., 506, this court has indicated that in making a reduction the budget commissioners should have due regard to the proportions of the total amount that each taxing board or taxing officer is authorized to levy. Can it be said that in the present case such regard was not had? The aggregate of all taxes that may be levied for corporation purposes under Section 5649-3a, General Code, is 5 mills; for school purposes the same. When the adjustment and reduction were made in the present case the levy for corporation purposes was 3.621 mills; for school purposes 3.929 mills. As we have seen, the budget commissioners, when they examine the budgets, have before them a full and detailed statement of the financial condition of each taxing authority in the taxing district and the data upon which the needs and requirements of the taxing officers and boards are based. In the case at bar they deemed it advisable from the information at hand to reduce the estimate of the city of Dajdon for corporation purposes and to leave undisturbed the estimate of the board of education. They had authority to do this. One of the purposes in having the estimates of the amount of money needed submitted in itemized form and in requiring a submission of the facts and information provided for in Section 5649-3a, is to provide a basis of calculation in the event it becomes necessary to adjust and reduce the amounts. If the contention of counsel for the relator is correct these detailed statements would serve no purpose. An estimate not itemized would answer the purpose. It would be necessary only to have the totals of the different estimates, and-the reduction could then be made ratably and in proportion to these different totals.

This is a proceeding in mandamus. Before the writ will issue it must appear that the duty of reducing the various estimates proportionately, or according to any of the plans or methods suggested by counsel in their brief, is a duty specially enjoined by law upon the budget commissioners. Section 12285, General Code, provides that a writ in mandamus may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but- it cannot control judicial discretion. The budget commissioners have exercised their judgment in this matter and discharged the function of reducing the various amounts to be raised by taxation to within the limits provided by law. It is not within the power of the court to interfere with a lawful discretion. The law announced in State, ex rel., v. Crites, 48 Ohio St., 460, is in point: “The remedy by mandamus, while appropriate to compel an officer to proceed in a judicial or quasi judicial matter confided by law to his jurisdiction, cannot be invoked to correct his errors, or control his discretion.” For the reasons we have given we conclude that the facts set out in the petition are insufficient to constitute a cause of action.

It is suggested by counsel for the defendants that in this matter the rights of the board of education had become fixed and that it was a necessary party to this proceeding. The only authority cited in support of this contention is State v. Pilsbury, 31 La. An., 1. In that case it was held that any third person having an interest in the success of the relator or respondent in a mandamus suit, or an interest opposed to both, may intervene in the suit. There was no holding in that case, as-we understand it, that such person was a necessary party. A proceeding in mandamus is statutory and the only order that can be made is against the defendant, commanding the performance of an act which the law enjoins as a duty resulting from the office, trust or station. Such an order, in many cases, may affect many persons. But it is certainly unnecessary to make such persons parties to the proceeding.

Demurrer sustained and petition dismissed.

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


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    Board of Commissioners of Darke County v. Board of Commissioners of Mercer County.

      Joint county ditches — Disagreement over apportionment of cost— Submission to arbitration — Constitutionality of Sections 6540 to 6351, General Code, waived, when — Rights of landowners.

    (No. 14784
    Decided November 9, 1915.)
    Error to the Court of Appeals of Mercer county.
    A petition was filed on the 15th day of November, 1910, with the board of county commissioners of Mercer county, Ohio, by certain landowners, residents of that county, praying for the improvement by ditching, deepening, widening and straightening a certain described ditch, drain and watercourse in Granville and Recovery townships in that county, setting forth the necessity and benefits thereof, alleging that their lands would be benefited by such improvement, and describing the line and termini thereof.
    Such proceedings were had that thereafter the county commissioners of Mercer county found in favor of the improvement and ordered the same, constructed.
    It further appearing that these improvements would furnish an outlet ditch for land in Darke county, which drains into a ditch that would enter into the proposed Mercer county ditch, the county commissioners of Mercer county, on the 5th day of March, 1912, and before work was begun in the construction of deepening, widening and straightening the ditch in Mercer county, caused a notice to be served upon the board of county commissioners of Darke county to meet with them upon the line between Mercer and Darke counties, Ohio, for the purpose of determining how much should be paid by the commissioners of Darke county to the commissioners of Mercer county for the use, benefit and burden of such outlet ditch in Mercer county, Ohio.
    The commissioners of both counties met in joint session on the 19th day of March, 1911. That meeting was adjourned until the 25th day of March, 1911, but the commissioners of these respective counties were unable to agree on an amount that should be paid by Darke county to Mercer county for this purpose.
    Thereupon the board- of county commissioners of Mercer county.filed in the probate court of that county a petition setting forth these facts, averring that the total cost of the improvement would be about $40,000; that the ditch improvement to be constructed would drain about 21,000 acres of land in Darke county, and prayed for the appointment of four freeholders to estimate and report to the court the amount that should be justly paid by Darke county to Mercer county for the use and benefit of such outlet ditch, in manner and form as provided by Section 6545, General Code.
    Summons was duly served upon the commissioners of Darke county, who thereupon filed in the probate court of Mercer county an answer admitting the allegations of the petition in reference to the filing of the petition, the ordering of the improvements and the failure to agree, but denying that the. outlet ditch would furnish drainage for 21,000 acres of land, and praying that that court appoint two disinterested freeholders, as provided by law, to act with two freeholders appointed by the probate court of Darke county, to estimate and report to that court the amount which should be paid by Darke county to Mercer county for the use and benefit of such outlet ditch, and for such other and further relief as may be just and authorized by law.
    Thereupon the probate court of Mercer county appointed two disinterested freeholders, not residents of either county, and notified the probate court of Darke county to do likewise, which was done accordingly.
    The freeholders so appointed met as directed by statute, and found and reported to the- court the amount which should be paid by Darke county to Mercer county for the use and benefit of this outlet ditch.
    Exceptions were filed to this report by the commissioners of Darke county, which exceptions were overruled and the report approved.
    Error was then prosecuted to the common pleas court of Mercer county, which court reversed the judgment and proceeding of the probate court and dismissed the petition.
    The court of appeals reversed this judgment of the common pleas court and affirmed the judgment of the probate court.
    This proceeding in error is brought to reverse the judgment of the court of appeals.

      Mr. L. E. Kerlin and Mr. George W. Porter, prosecuting attorneys, and Messrs. Meeker & Gas-kill, for plaintiff in error.

      Mr. B. A. Myers, prosecuting attorney; Mr. J. W. Loree and Mr. J. D. Johnson, for defendant in error.
   By the Court.

Counsel for plaintiff in error contend that Sections 6540 to 6551, General Code, inclusive, are unconstitutional, because in conflict with Sections 16 and 19 of Article I of the Constitution of Ohio and the 5th and 14th Amendments to the Constitution of the United States.

The board of county commissioners of Darke county, having actively participated in securing the appointment of four freeholders to act as arbitrators in the manner and form as provided by the statute, is not now in position to challenge the constitutionality of the act under which it jointly, with the board of county commissioners of Mercer county, invoked the jurisdiction of that court. Tone v. Columbus, 39 Ohio St., 281.

The action of the board of county commissioners of Darke county in that behalf amounted to an agreement to submit the question in dispute to the arbitration of four freeholders to be appointed by the respective courts of Mercer and Darke counties, and, in the absence of fraud, collusion, irregularity or misconduct on the part of the arbitrators, the award must stand, regardless of the constitutionality of the act under which they were appointed.

The proceedings by which the amount that Darke county should pay to Mercer county has been determined, can in no way affect the landowners in Darke county. So far as they are concerned, it is the same as if the commissioners of the respective counties had met and agreed upon that amount. These landowners are in exactly the same situation as if a local ditch had been petitioned for and allowed by the board of county commissioners of Darke county, and they have the same right to be heard in reference to assessments. Lands not benefited thereby cannot be assessed therefor, nor can any lands be assessed more than they will be benefited thereby.

Judgment affirmed.

Nichols, C. J., Johnson, Donai-iue, Wanamaicer, Newman, Jones and Matthias, JJ,, concur.


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    The Board of County Commissioners of Butler County et al. v. The State, ex rel. Primmer, City Solicitor, Etc.

      City solicitor — Entitled to compensation from county — As prosecuting attorney of municipal court, when — Sections 4307 and 1579-122, General Code.

    (No. 14812
    Decided November 9, 1915.)
    Error to the Court of Appeals of Butler county.
    Benjamin F. Primmer, as city solicitor of Hamilton, Ohio, filed his petition in the court of common pleas of Butler county praying for a writ of mandamus against the board of county commissioners of said county to allow and fix his compensation for services as prosecuting attorney in the municipal court of Hamilton, Butler county, Ohio, and to' command the county auditor to issue his warrants for said services rendered since January 1, 1914.
    A general demurrer was filed to this petition and the same was sustained by the court of common pleas.
    Error was prosecuted to the court of appeals, which reversed the judgment of the court of common pleas, and to that judgment of reversal error is now prosecuted in this court.

      Mr. Ben A. Bickley, prosecuting .attorney, for plaintiffs in error.

      Mr. Benjamin F. Primmer, for defendant in error.
   By the Court.

Section 4307, General Code, is as follows:

“The prosecuting attorney of the police or mayor’s court shall prosecute all cases brought before such court, and perform the same duties, as far as they are applicable thereto, as required of the prosecuting attorney of the county. The city, solicitor or the assistant or assistants whom he may designate to act as prosecuting attorney or attorneys of the police or mayor’s court shall receive for this service such compensation as council may prescribe, and such additional compensation as the county commissioners shall allow.”

A merely superficial examination of this statute discloses the fact that its terms are as general as can be made so far as a police or mayor’s court is concerned. It reaches out to and applies to every police or mayor’s court in the state. And this, too, whether it be by name “police court” or “mayor’s court” or some other court, so long as it exercises what are known as police .powers and jurisdiction in a municipality.

The first sentence of the section imposes a duty upon the prosecuting attorney of such court.

The second sentence designates, first, who that prosecuting attorney shall be, to-wit, the city solicitor or assistants. The latter part of the second sentence provides for the compensation of such prosecuting attorney, the evident purpose being that the city shall compensate him for the prosecution of city cases, upon allowance of council, and the county, as a subdivision of the state, shall compensate him for services rendered in state cases, upon the allowance of the county commissioners.

The amount allowed by the council and the amount allowed by the county commissioners is wholly in their judgment, but the statute makes it mandatory upon them to allow something.

The question now arises as to whether the municipal court of the city of Hamilton, Butler county, Ohio, is, within the terms of Section 4307, a “police or mayor’s court.”

That it is such is so obviously and manifestly true that it is no more capable of argument than an axiom.

Was said city solicitor of the city of Hamilton prosecuting attorney of such municipal court ? This is equally apparent from a reading of Section 33 of the municipal court act for the city of Hamilton, as found in 103 Ohio Laws, 345, 353. Said section reads as follows:

“The solicitor for the city of Hamilton shall also be prosecuting attorney of the municipal court. He may designate such number of assistant prosecutors as the council of the city of Hamilton may authorize. The persons thus appointed shall receive for their services in city cases such salaries as the council prescribe. The prosecuting attorney of the municipal court shall prosecute all cases of a criminal nature brought before such court and perform the same duties, so far as they are applicable thereto, as are required of the prosecuting attorney of the county.” (Section 1579-122, General Code.)

It is claimed, however, that there is no provision here for compensation from the board of county commissioners, and failing to mention the same, though mentioning his allowance from the council in city cases, the presumption arises that this was intended as exclusive and that he should, therefore, receive no compensation from the county. However, his allowance of compensation from the county is fixed by the general section heretofore quoted, 4307, supra, and if the special act is to control as to compensation it should have expressly provided that such compensation should be in full for all services rendered, or used other apt words excepting it from the operation of the general statute.

Otherwise the state of Ohio, through county commissioners, would be compensating city solicitors in part of the cities of the state and not compensating them for the same service in other cities of the state.

This being a state statute, providing for compensation for services rendered to the state, it should be so construed as to have uniform operation as far as practicable throughout the state. Such construction should be given the special act as to the city of Hamilton as to conform to the general purpose of the general act and allow equal compensation for equal service throughout the state.

The allowance of the writ by the court of appeals should, therefore, be, and is, affirmed.

Judgment affirmed.

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


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    The Comstock Amusement Co. v. The Opera Ball Co.

      Contracts — Daily or final settlement — Receipts of theatrical performance — Breach of contract.

    (No. 14818
    Decided November 9, 1915.)
    Error to the Court of Appeals of Cuyahoga county.

      Messrs. White, Johnson, Cannon & Neff, for plaintiff in error.

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

The defendant in error, a theatrical company, entered into a contract with The Comstock Amusement Company for the presentation of theatrical performances at the latter’s theatre for the week beginning Monday, January 29, 1912, and ending February 3, 1912, the performances to be given each evening and on Thursday and Saturday afternoons. The contract in its printed form provided:

“The receipts of each performance shall be ascertained by the statement of the sale at the box office, verified by the count of the tickets taken at the door. Settlement may be made at the end of each performance or at such other times as shall be mutually agreed upon by-the parties hereto.”

Supplementing the printed form was the following engagement, written therein, that The Opera Ball Company should receive “Sixty-five per cent, of the first $5000 and seventy per-cent, on all over that amount. Should the gross receipts reach or exceed $8000, terms to be seventy per cent, straight.” The remaining percentage of total receipts formed the remuneration of The Comstock Amusement Company for providing and equipping the theatre for such performances.

On Monday night the playing company demanded a settlement of the receipts for the performance, which was refused, and a settlement was likewise demanded and refused for the .performance on Tuesday night. Thereupon The Opera Ball Company refused further to present its play during the week, claiming a breach of contract by the refusal to make nightly settlement.

The Comstock Amusement Company, construing the contract as one that required a settlement after the final performance, sued the playing company for damages for breach of contract. The Opera Ball Company filed its answer and recovered damages on its counterclaim for failure-to make nightly settlement.

The chief question to be determined in this case is whether, under the printed and written contract stipulations above set forth, the playing company had a legal right to demand partial settlement for each performance. In support of its counterclaim, on the trial, the latter company offered evidence of custom, which was received by the court as tending to establish the interpretation or construction of the stipulations of the contract, and to the effect that partial settlements were customarily demanded and made under playing contracts of this character.

An examination of the stipulations referred to, with_ reference to settlement, established the fact that the parties were contracting with reference to that question alone. Undoubtedly it was intended to have some definite time at which such settlement, either partial or final, could be made. Under its terms any settlement made other than at the end of each performance had to be made “at such other times as shall be mutually agreed upon by the parties. hereto.” Were we to hold to the strict construction relied upon by the plaintiff in error, there could be no settlement under the contract in case both parties did not mutually agree upon the time therefor. The obvious purpose of the stipulation is that settlement could be made at the option of either party at the end of each performance. . To hold otherwise would render nugatory the specific settlement terms of the contract and would destroy the manifest intention of the parties thereto. It is true that a full settlement of the percentages accruing to each could not be ascertained until the termination of the engagement, but The Amusement Company was fully protected by the minimum percentage as to any payment it was required to make under the contract stipulations. In this view, any testimony relating to custom was wholly immaterial.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

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


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    Haley v. Hanna et al.

      Parties — Service of summons — Waiver—Defendant not served — ■ Appearance entered without consent — Knowledge of proceedings and judgment — Failure to advise of defective service— Pleading — Answer to petition in error.

    (No. 14826
    Decided November 9, 1915.)
    Error to the Court of Appeals of Greene county.

      Mr. Joseph W. Sharts, for plaintiff in error.

      Mr. L. T. Marshall, for Gilbert C. Hanna, defendant in error.
   By the Court.

Gilbert C. Hanna, one of the defendants in error, brought an action in the court of common pleas of Greene county against plaintiff in error, Tim Haley, and the defendants in error, Kate Setz, Mary Haley, Jim Haley, John Haley, Will Haley and Elizabeth Butt. Judgment was rendered in his favor against the defendants, and the case was appealed to the court of appeals. In that court, upon the hearing of the cause upon the pleadings and the evidence, on March 27, 1914, judgment was again rendered in favor of Hanna against the defendants.

Thereafter, on October 9, 1914, Tim Haley, plaintiff in error, filed a motion in the court of appeals to set aside and vacate the judgment, decree' and final order entered against him, for the reason that he had not been served with summons as a defendant-nor in any other manner brought within the jurisdiction of the court by due process of law. This motion to vacate was submitted to the court upon the evidence and the court stated its conclusions of- fact as follows:

“1. That the return upon the original summons issued for Tim Haley was regular upon its face, showing that Tim Haley was served by the sheriff of Greene county by leaving a true copy of the writ at his usual place of residence.

“2. That Tim Haley was not in fact served with summons, he having no place of residence in Greene county at the date of service.

“3. That various pleadings purporting on their face to be the pleadings of all the defendants, including Tim Haley, were filed in the common pleas court and court of appeals prior to the judgment and decree complained of, and upon which, together with the regular return of service, the plaintiff relied.

“4. That Tim Haley did not authorize anyone to enter his appearance, but had full knowledge of the pendency of the action and of the issuing and return of service regular on its face, and of the proceedings had in said action.

“5. That Tim Haley did not advise the court nor the opposite party of the defect of service upon him, and did not protest nor object to the entering by others of his appearance in the case.”

As its conclusions of law upon these facts the court found that it was the duty of Tim Haley to advise the court and opposite party before judgment of the.defective service, and having failed to do so and not having protested or objected to the entering by others of his appearance, his omission constituted a waiver of the original defect of service. It was ordered that the motion be and the same was overruled.

Plaintiff in error filed his petition. in • error in this court, and defendant in error, Gilbert C. Hanna, filed what purported to be an answer thereto, in which were alleged facts occurring prior to the judgment or order of the court of appeals overruling the motion to vacate. These facts, if relied upon by the defendant in error as supporting the finding in his favor, should have been made a part of the record in the court of appeals. They cannot be brought to the attention of the court by an answer to the petition in error, and the answer therefore is stricken from the files.

In determining whether or not the court of appeals was correct in its conclusions of law on the motion to vacate, we are bound by the conclusions of fact presented by the record. The court found specifically that Tim Haley was not served with summons. While the pleadings on their face purported to be the pleadings of all the defendants, including Tim Haley, it appears affirmatively that he did not authorize anyone to enter his appearance. He had knowledge of the pendency of the action and the issue and return of service regular on its face and of the proceedings had. It further appears that he did not advise the court or the opposite party of the defective service upon him, and did not protest or object to the entering by others of his appearance in the case.

We are of the opinion that the court of appeals erred in its conclusions of law. We cannot agree with the holding that it was the duty of Tim Haley to advise the court or the opposite party before judgment of the defective service, and that, having failed to do so, his omission constituted a waiver of the original defective service. Haley was not brought into court by a summons and no one had authority to enter his appearance or act for him. He had knowledge of the proceedings in court, it is true, but we do not see upon what theory the duty devolved upon him to advise the court or the parties to the proceeding of the defective service. The judgment rendered against him was of no force or effect and the court of appeals erred in refusing to vacate the same.

Judgment of the court of appeals as to Tim Haley reversed and judgment in his favor.

Nici-iols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.