author: Jones,J

text:
    Brown, Admr., v. Winterbottom et al. The Superior Savings & Trust Co., Trustee, v. Winterbottom et al. Winterbottom v. The Superior Savings & Trust Co., Trustee, et al.

      Receivership — Damages for negligence — Distribution of assets — Foreclosure — Person injured may intervene, when — Priority of claims — Damage claim and mortgage lien.

    1. Expenses of a receiver, such as damages resulting from the
    negligence of himself or his employes, are part of the operative expenses of the court, and in proper cases are chargeable to the corpus.
    2. Where such receiver has 'been appointed in foreclosure proceed-
    ings and such operative expenses incurred, the person injured may intervene in the foreclosure suit before final distribution of the proceeds and apply for an order postponing distribution pending the determination of his claim.
    3. Where the mortgagee, in applying for the receiver, asks also for power to manage and operate the property, he thereby not only invokes the authorization with its incidental risks, but impliedly agrees that damages resulting from the receiver’s negligence in operation shall take priority over the mortgage lien and be paid from the corpus of the property, if current earnings or other assets are insufficient.
    (Nos. 15698, 15706 and 15723
    Decided April 30, 1918.)
    Error to the Court of Appeals of Cuyahoga county.
    ; The Superior Savings & Trust Company, as trustee for bondholders, held a mortgage upon property which included an eight-story building on the corner of Euclid avenue and Fifty-ninth street in Cleveland, Ohio.

      Oliver P. Brown, as administrator, held a mortgage upon the same premises,' subject to the priority of the trust mortgage.
    On March 31, 1916, the trustee for the bondholders brought suit in the court of common pleas of Cuyahoga county for the foreclosure of its mortgage, and on the same day applied for a receivership of the property. In that suit, on April 29, 1916, Oliver P. Brown, administrator,, filed his answer and cross-petition, seeking an accounting for the amount due and for foreclosure of his mortgage lien.
    The trust mortgage contained a provision that upon default the trustee was entitled to take possession of the premises and manage the same, and, in the event of foreclosure, to apply for and obtain a receiver for the property. Under its mortgage covenant the trustee had taken possession of the property on February 6, 1914, pending the appointment of a receiver. The petition of the trustee asked the court that a receiver be appointed “to manage and conserve the property.” Thereafter, proceedings were had in the foreclosure suit resulting in a decree on May 17, 1916, ordering the sale of the property and a distribution of the proceeds: first, to the payment of costs of suit, taxes, and assessments against the property; second, to the trust company as,prior mortgagee the sum of about $77,000; third, to Brown, administrator, upon his mortgage, the sum of about $187,000. The property was sold on August 4, 1916, to the second mortgagee and realized the sum of $133,000, an amount which was insufficient to pay the mortgage liens. It is further disclosed by the record that the receiver was carrying liability insurance to protect him against liability for injuries and damages resulting from the operation of the elevator, and that under such policies he was to be reimbursed on account of any money which he might pay out in satisfaction of any judgments secured against him.
    Pertinent to the issues here are the following facts as disclosed by the record: On July 3, 1916, Winterbottom was injured by falling into the elevator shaft of the building, which injury he claimed was caused by the negligence of the receiver who had control of and was operating the same. On the 25th day of July, 1916, Winterbottom applied to the- court of common pleas, in the foreclosure suit, for permission to sue the receiver, and asked that the receiver hold the funds which might come into his hands for the payment of any judgment he might secure. This authority was granted by the court on that day; and the court also ordered that the receiver be required to hold the funds in his hands to the further determination . of the court. Thereupon, on the same day, Winter-bottom filed his suit for damages against the receiver. 'On August 2, 1916, Winterbottom filed his motion to vacate the order of distribution made on May 17, 1916, and on August 3, 1916, served notice that his motion would be heard on the next day. On August 8, 1916, the same day that the sale of the premises was confirmed by the court, Winterbottom filed in the original foreclosure suit a petition styled “Petition for Intervention and for Vacation and Modification of Decree” — the decree of May 17, 1916. Just before this, as a precautionary measure, he also filed an independent suit in equity seeking the same relief. Both of these petitions contained the facts as herein set forth, and both were demurred to by the parties affected. The common pleas court sustained the demurrers in bofh cases. Proceedings in error were thereupon taken to the court of appeals, and that court affirmed the action of the court of common pleas in sustaining the demurrer to the intervention pleading in the original foreclosure action, but reversed the common pleas court in the independent equitable action, holding that Winter bottom’s petition not only stated a cause of action, but that his independent equitable suit was the proper method of procedure.
    On motion to certify the cases, this court sustained the motion of both parties to certify the cases here for review.

      Messrs. Cook, McGowan & Foote, for plaintiff in error.

      Messrs. Alden, Knapp & Magee and Messrs.. Boyd, Cannon & Brooks, for Alfred Winter-bottom.

      Messrs. Price, Alburn, Crum & Alburn, for The Superior Savings & Trust Co., Trustee, and E. S. Hanson, Receiver.

      Messrs. Cook, McGowan & Foote, for The Tennis-Euclid Co. and E. S. Cook, Admr.
   Jones,J

In his effort to have the nisi prius court hold The proceeds of the mortgage property until the determination of his unadjudicated claim for damages for personal injuries Winterbottom adopted the precautionary measures of filing his petition of intervention in the original foreclosure action and of bringing an independent action in equity seeking the same relief. 1 The questions here involved are presented in two aspects: first, whether or not the corpus of real estate encumbered by mortgage liens may be subordinated to a claim for damages against the receiver of that property resulting from his control and operation thereof; second, what effect, if any, the action of a lienholder has when he procures a receivership not only for the purpose of conservation and custody of the property but also for its control and business management^

/ The law in relation to the receivership of railways has gradually developed until it is now uniformly held that receivers of that class of corporations may incur obligations of the character here involved, which must be paid out of the current earnings of the corporation, and, in lieu of any deficiency therein, out of the corpus of the property itself. But, even in receiverships of that character, Mr. Justice Brewer, in the frequently cited case of Kneeland v. American Loan & Trust Co., 136 U. S., 89, 98, said: “It is the exception and not the rule that such priority of liens can be displaced. We emphasize this fact of the sacredness of contract liens, for the reason that there seems to be growing an idea, that the chancellor, in the exercise of his equitable powers, has unlimited discretion in this matter of the displacement of vested liens.”

And it is held as to railway liens that current operating expenses of a railroad, including damages for personal injuries, may be preferred over the railway mortgage liens. This legal principle is attributed to the fact that these great corporations not only assume to derive their franchises and public functions from the state but are of such character as to be affected by public interest to an extent that their operation may be required in proper cases, notwithstanding the objections of stockholders and mortgagees, and irrespective of the question whether the latter may have been notified at the time of the original appointment of the receiver. But does the same rule apply to corporations of a private character which are not affected with such public interest ? This feature was clearly recognized by the justice of the United States supreme court who rendered the opinion in the case of Wood v. Guarantee Trust & Safe Deposit Co., 128 U. S., 416, when, in speaking of the case of Fosdick v. Schall, 99 U. S., 235, he said: “The case lays great emphasis on the consideration that a railroad is a peculiar property, of a public nature, and discharging a great public work. There is a broad distinction between such a case and that of a purely private concern. We do not undertake to decide the question here, but only point it out.”

Since rendition of the opinion in the latter case the lower courts of federal jurisdiction have uniformly held that the principles that apply to railway corporations involving the' subordination of vested liens do not apply to individuals and private corporations where no such public interest attaches. Farmers’ Loan & Trust Co. v. Grape Creek Coal Co., 50 Fed. Rep., 481; Fidelity Ins., Trust & S. D. Co. v. Roanoke Iron Co., 68 Fed. Rep., 623, and Hanna v. State Trust Co., 70 Fed. Rep., 2.

This principle has also been adopted by the state courts generally, which have had the question under consideration. Cooper v. Central Trust Co., 81 Md., 559, 591; International Trust Co. v. United Coal Co., 27 Colo., 246, 254; Hotchkiss v. Makeel, Receiver, 87 Ill. App., 623, affirmed 190 Ill., 311, and Raht v. Attrill, 106 N. Y., 423, 436.

; The rule is generally recognized that' the cost of the custody and preservation of the property in the hands of the court, as well as the taxes, are of course payable out of the corpus of the realty encumbered, either in the case of individuals or private corporations, and are considered part of the expenses and costs of suit, j In such cases, when the liens were incurred and accepted by the mortgagees such costs were impliedly assented to when the mortgages were taken. Further, with relation to railway mortgage liens, when the lienholder obtained that class of security he did so with knowledge of the ■ fact that he was acquiring it ■ upon quasi-public corporate property which might be operated under the sanction of the court. This principle, 'however, does not affect the vested rights existing between mortgagees and individuals or corporations of a private nature. If it did, then any claimant of an insolvent concern, or a partner upon dissolution of partnership, could on his own motion divest the security without consent of the lienholder, and possibly without any financial risk to himself.

[ However, there is another phase to this case which is controlling. The record discloses that the trustee of the bondholders at the time it filed its petition for foreclosure affirmatively asked for a receiver, and that on its motion one was appointed, not only to conserve, but to manage the property. If the receiver was authorized to manage this property as a going concern, it was at the instance and on the motion of the mortgage lienholder. In his operation of the property, it develops from the record, damage ensued by reason of that operation. This damage when adjudicated, being incidental to the management, became part of the expense of the administration by the court. It does not now lie in the mouth of the lienee, who secured this operation by its express request, to deny the resultant expense accruing therefrom. While the rule of extending protection to mortgagees obtains in ordinary cases, it does not apply where personal ' injuries have been sustained because of the negligence of a receiver whom the lienee had expressly demanded for the business management of the property. We think this principle is amply supported by reported cases in state and federal jurisdictions. People’s Nat. Bank v. Va. Textile Co., 104 Va., 34; Metropolitan Trust Co. v. Tonawanda V. & C. Rd. Co., 103 N. Y., 245; St. Louis Southwestern Ry. Co. v. Holbrook, 73 Fed. Rep., 112; Doe v. Northwestern Coal & Trans. Co., 78 Fed. Rep., 62, and Kneeland v. Trust Co., supra.

\ Any equitable consideration existing in this case between- the mortgagees, or between them and the fund procured from liability insurance, need not now be determined. These questions are left to the consideration of the court of first instance. All that is necessary for us to do at this time is to decide whether Winterbottom’s pleading stated a cause of action which required the court to hold the proceeds arising from the sale of property until the determination of his suit for personal injuries. We hold that this right exists! and the sole remaining question is: What was'ms mode of procedure?

As disclosed by the record Winter bottom not only filed his motion, and his petition for intervention, vacation and modification of decree in the foreclosure suit, but also just prior to filing the intervention petition filed an independent suit in equity seeking the vacation and modification of the decree of distribution made at the term just preceding.

The pleading for intervention in the foreclosure suit was the proper method of procedure, since full and adequate relief could be obtained in that action. The property, or the proceeds therefrom, will be in the hands of the court, together with all the parties interested in the distribution of the proceeds after sale. By its order of May 17, 1916, the court decreed that the costs of suit should first be paid. While this expense of operation cannot technically be termed costs, still it is a part of the administration expense of the court. “Damages for injuries to persons or property during the receivership, caused by the torts of the receiver’s agents and employees, are classed as a part of the operating expense of the corporation.” (34 Cyc., 354.) While the order of distribution may have been an adjudication of the existing rights between the parties, it in no wise affected this expense of the court which accrued after that order. It cannot be claimed that if the expense had been an ordinary administration expense of the receiver the court would not have had inherent power to protect itself by the payment of the receiver’s indebtedness. (34 Cyc., 307.) While the petition for intervention was filed at a succeeding term of the court, it was filed at a time when the court still had charge of the property, and before final distribution of the proceeds arising from its sale. This sale was not confirmed until August 8, 1916. Prior to that time, to-wit, on July 25, 1916, the receiver and the court were not only advised that this claim existed, but that the same was being prosecuted in a court of law, under an order of court in the foreclosure suit authorizing such action.

In cases Nos. 15698 and 15706 the judgment of the court of appeals reversing that of the common pleas in the independent equity suit is reversed, and that of the common pleas court affirmed.

In case No. 15723 the judgments of the court of appeals and the common pleas court are reversed, and the case remanded to the court of common pleas, with instructions to overrule the demurrer to the petition for intervention.

Judgments reversed.

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


source: Caselaw Access Project

author: Wanamaker, J. Donahue, J.,

license: Public Domain

text:
    Hoffman v. The State of Ohio.

      Constitutional lasa — Statute requiring accused to demand jury — Error proceedings — Record to show demand and refusal, etc. — Criminal law.

    1. Statutes providing in substance that before an accused shall be
    entitled to a jury in the trial of misdemeanors or petty offenses under municipal ordinances, where imprisonment is made a part of the penalty, he must demand the same, are not in any wise violative of the constitutional right to trial by jury.
    2. Under such statutes before error may be pros'ecuted to the action of the trial judge in trying the case without a jury, the record must show such demand and a refusal to grant the same.
    (No. 15704
    Decided April 2, 1918.)
    Error to the Court of Appeals of Cuyahoga county.
    The facts are .stated in the opinion.

      Messrs. Marvin & Marvin, for plaintiff in error.

      Mr. Samuel Doerfier, prosecuting attorney, and Mr. James L. Lind, for defendant in error.
   Wanamaker, J.

George A. Hoffman was convicted in the municipal court of Cleveland for a violation of Section 12628-1, General Code. Said section reads as follows:

“That it shall be a misdemeanor for any person to operate a motorcycle or motor vehicle of any kind upon any public highway or street while in a state of intoxication, and upon conviction he shall be subject to punishment by a fine not less than twenty-five dollars nor more than one hundred dollars, or imprisonment in the county jail for not more than six months, or both.”

A motion for a new trial was filed and overruled, and error was prosecuted to the court of appeals, which court affirmed the judgment below.

The sole error claimed in the court of appeals and claimed here as the basis for a reversal of the conviction grows out of the following journal entry from the record of the municipal court:

“July 25, 1916. Affidavit filed, warrant issued’ and returned. Defendant in court and pleads not guilty. Hearing had and he is found guilty and he is sentenced to thirty days imprisonment in the county jail, and to pay a fine of fifty dollars and costs, and to be imprisoned in the county jail until said fine and costs are paid or secured to be paid or he is discharged according to law.”

Obviously in. this journal entry there is no specific reference to any jury in this trial; nor to a judge in the trial. The language is “defendant in court and * * * hearing had * * * and he is found guilty.” But the conceded facts are that this was all done by the municipal judge.

It is urged that before such municipal judge could try this cause there would have to be a prior waiving of a jury, and that such waiver must affirmatively appear in the record in order to give the judge sole jurisdiction, since imprisonment is a part of the penalty provided by the statute.

It must be conceded, of course, that such affirmative waiver does not expressly appear in this record.

Prosecutions for misdemeanors under federal and state laws, and for petty offenses under municipal ordinances, may be divided into two classes, under the various statutes conferring jurisdiction:

1. Those where a jury must be waived before the judge has jurisdiction to try the offense without a jury.

2. Those in which a jury must be demanded before the judge has jurisdiction to try the case with a jury — before the defendant is entitled to a jury.

Manifestly an affirmative act is therefore contemplated by the statute under the. first class to avoid a jury, and under the second class to avail oneself of a jury.

How does the statute giving jurisdiction read in this case?

Plaintiff in error admits that the municipal court, as such, had jurisdiction by virtue of Section 1579-12 et seq., General Code, and that Section 1579-20, General Code, provides the general plan of practice and procedure in reference to criminal jurisdiction of the municipal court, said section providing that it shall be the same as that now, or hereafter “possessed by police courts in municipalities.”

By virtue of the foregoing sections plaintiff in error contends that Section 4577, General Code, relating to the jurisdiction of police courts, controls in this case in the municipal court. The latter part of that section is as follows:

“Cases in which the accused is entitled to a jury trial, shall be so tried, unless a jury be waived.”

There is much virtue in plaintiff in error’s contention for reversible error if Section 4577, General Code, applies to the municipal courts, and- in the absence of any provision relating specifically to municipal courts doubtless said section would apply. But the general assembly of Ohio, in the municipal-court act of Cleveland, expressly provided otherwise by Section 1579-24, General Code, which reads:

“All causes in the municipal court shall be tried to the court unless a jury trial be demanded by a party.”

This language is all-comprehensive and includes both civil causes and criminal causes. If there -be any doubt as to this construction, the subsequent provisions will remove such doubt.

Now, what is guaranteed by the Constitution? It is “the right of trial by jury;” that is, no law may be passed denying, restricting or limiting this right, as it is known at the common law. But a requirement imposed by law upon the accused to demand his right before he may enjoy it is not a restriction, limitation or violation of such right.

This has been the uniform holding in Ohio for so long a time, and with such strong show of reason, that it ought not now to be disturbed, as will fully appear from the following cases.

One of the earliest cases decided by this court involving this question is that of Dailey v. State, 4 Ohio St., 57, where there was a,criminal prosecution in the probate court for the unlawful sale of intoxicating liquors. The statute regulating trial by jury in the probate court then provided “upon a plea other than a plea of guilty, if the defendant do not demand a trial by jury, the probate judge shall proceed to try the issue.”

This was held to be a valid and constitutional statute in no wise violating the constitutional provision safeguarding the right of trial by jury.

Judge Kennon, speaking for the court, then composed of himself and Judges Thurman, Ranney, Bartley and Swan, said:

“Does this act in any sense interfere with the right of trial by a jury? If the act had provided, in express terms, that the accused might have his own choice of two modes of trial, either by the court or jury, as he might think proper, and if he supposed the court the safer mode of trial, should expressly waive his right of trial by jury, and request that the court should try the issue, it would be hard to see how his right of trial by jury was violated. The provision of the constitution was intended to limit the power of the legislature in this particular, and prohibit it from depriving the accused of the right to have a jury of twelve impartial men to pass on his guilt or innocence. That right still exists; all he has to do is to demand a jury trial, and the law awards it to him; but if he will not demand such trial, then the law authorizes the judge to try the issue. * * * The accused does not demand a jury, but submits to he tried by the court; and after trial, and after he is found guilty, says T have been deprived of my right of jury trial.’ But who deprived him of that right? Surely, not the court nor the statute.”

True in the above case the record affirmatively-showed that the accused “did not demand a jury,” but had the record been silent touching this matter the presumption would be that the journal entry showed what had taken place, and the journal entry being silent as to a demand, which was necessary to secure a jury, the presumption would be that the accused was silent, in not demanding. The logic of the opinion, no less than the syllabus of the case* abundantly sustained the conviction there and sustains the conviction here.

The case of Billigheimer v. State, 32 Ohio St., 435, is to the same general effect. The prosecution there was in the police court of Cincinnati for a violation of the statute forbidding common labor on the first day of the week. The third paragraph of the syllabus of that case expressly holds:

“Unless the record shows that defendant demanded a jury, he will be deemed to have waived it.”

The statute controlling the police court in Cincinnati, however, at the time provided that:

“The power to hear and determine such offenses shall extend to cases where the accused is entitled to a trial by jury, if a jury be waived.”

That is, the affirmative act required of the accused before he might be tried without a jury was to waive it. Whereas, under the present statute of demanding a jury, the affirmative act of a demand is necessary before the accused may have a jury. The opinion of Judge Wright, however, goes much further, and holds that, the record being silent as to waiver, waiver is presumed:

“The only question, therefore, is, did the defendant waive his right. As has been said the record indicates nothing on the subject. It merely shows that, when the court ordered the plea of not guilty filed, the cause proceeded and evidence was heard. It does not show that defendant demanded a jury, nor that he excepted to proceeding without one. This failure to avail himself of his rights must be held to be a giving of consent. * * *

“We think a defendant may waive his rights impliedly as well as expressly, and if he remains silent, when by speaking he could have obtained what he desired, it is too late to complain after his cause has proceeded to final adjudication.”

One of the latest Ohio cases touching this same subject is that of Simmons v. State, 75 Ohio St., 346. The syllabus of that case reads as follows:

“1. In a prosecution under Section 3718a, Revised Statutes [relating to cruelty to animals] upon a plea of not guilty, before the justice can acquire jurisdiction to hear the complaint and render final judgment in the case without the intervention of a jury, the accused must waive his right to a jury trial.

“2. Such waiver must clearly and affirmatively appear upon the record, and it can not be assumed or implied by a reviewing court from the silence of the accused, or his mere failure to demand a jury. (Dailey v. State, 4 Ohio St., 57, and Billigheimer v. State, 32 Ohio St., 435, distinguished.)”

In the Simmons case the court reversed the conviction below upon the record of the justice of the peace, which recited the following facts:

“Trial was had on the 22d day of December, 1903, the parties being present. The defendant did not demand a jury.”

The court distinctly held that under the language of the statute then in force such a recital in the record of the court was not sufficient to show a waiver necessary to give the justice of the peace jurisdiction to try the cause. This holding is consistent with the syllabus of the Billigheimer case, supra, but in flat contradiction of the opinion in said case.

However, in the Simmons case, this court recognized and reaffirmed the doctrine of the Dailey case, as well as the syllabus in the Billigheimer case, when applied to the identical kind of statute involved in the instant case, that is, a statute requiring the accused to demand a jury in order to avail himself of the right of trial by jury.

Another claim has been urged upon this court to the effect that the right of trial by jury guaranteed by the Constitution of Ohio cannot be waived; in short, if the accused be entitled to a jury he must at all events have a jury, whether he wants it or no, and we are cited to the dissenting opinion of Mr. Justice Harlan in Schick v. United States, 195 U. S., 63.

Justice Harlan based his dissent, however, upon the peculiar wording of the Federal Constitution in this behalf.

In this federal case there was a prosecution under the federal law touching the subject of oleomargarine unstamped according to law. The defendants, in writing, waived a jury and agreed to submit the issues to the court, the penalty being a mere fine. The question, therefore, was as to whether or not such a waiver was good in law.

The venerable Harlan held that the provision of Section 2, Article III, of the original Federal Constitution, to-wit, that the trial of all crimes, except in cases of impeachment, shall be by jury, was a mandatory provision which the defendant could not • waive, and that this mandatory provision was in no wise affected or modified by a subsequent change in the Constitution made by virtue of the 6th Amendment, to-wit, that the accused “shall enjoy the right to a speedy and public trial, by an impartial jury.” The 6th Amendment is in substance the Ohio constitutional provision, the latter provision reading that “The right of trial by jury shall be inviolate.”

Mr. Justice Harlan’s opinion is ■ so completely answered and reviewed by Mr. Justice Brewer, who wrote the opinion for the court, that that opinion deserves special mention. Touching the subject that defendant cannot voluntarily waive a jury to which he is entitled, the learned justice said at page 71:

“Can it be that a defendant can plead guilty of the most serious, even a capital, offense, and thus dispense with all inquiry by a jury, and cannot when informed against for a petty offense waive a trial by jury? Article six of the amendments, as we have seen, gives the accused a right to a trial by jury. But the same article gives him the further right ‘to be confronted with the witnesses against him * * * and to have the assistance of counsel.’ Is it possible that an accused cannot admit and be bound by the admission that a witness not present would testify to certain facts? Can it be that if he does not wish the assistance of counsel and waives it, the trial is invalid? It seems only necessary to ask these questions to answer them. When there is no constitutional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy. Authorities in the state courts are in'harmony with this thought. In Commonwealth v. Dailey, 12 Cush. 80, the defendant in a misdemeanor case waived his right to a full panel and consented to be tried by eleven jurors, and this action was sustained by the Supreme Court of Massachusetts. Chief Justice Shaw, delivering the opinion of the court, said (p. 83): ‘He may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court.’ The same doctrine was laid down in Murphy v. Commonwealth, 1 Met. (Ky.) 365; Tyra v. Commonwealth, 2 Met. (Ky.) 1, and in State v. Kaufman, 51 Iowa, 578. In Connelly v. State, 60 Alabama, 89, a statute authorizing the waiver of a jury was sustained. The same rule was made in State v. Worden, 46 Connecticut, 349, which was a case of a felony. See also People v. Rathbun, 21 Wend. 509, 542.”

This language is so strikingly consistent with progressive common sense that it need not be supplemented.

Clearly this right is for the benefit of the accused. If he regards it in the particular case as a burden, a hardship, a prejudice to a fair trial, why in the name of reason should he not be permitted to waive it and submit his cause to the magistrate? The local atmosphere with which jurors are more or less impregnated may not in his judgment have reached the magistrate. He may have the highest confidence in his sense of fairness and justice in determining the facts of his cause, and what was given to him generally, as a shield, should not be used as a sword in case he feels that a jury trial in such case would so result.

Moreover, such a construction is highly reactionary and exceedingly technical. It fits the old order of things, but is wholly out of touch with the new, the salutary, the reasonable.

It must follow, therefore, that under statutes requiring the demand for a jury before one may have a jury, the record must show not a waiver, but an affirmative demand, before the right to a jury is available to the accused, either upon trial or review.

The judgments of the courts below are affirmed.

Judgments affirmed.

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

Donahue, J.,

dissenting.

The right of an accused to a trial by jury is not based upon the provision of any statute of the state, but is a right guaranteed by the Constitution. Section 5, Article I of the Constitution of Ohio, provides among other things that the right of trial by jury shall be inviolate. It is further provided in Section 10, Article I, that in criminal cases the accused shall be entitled “to a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.”

These constitutional provisions are clear and unambiguous. The right conferred is an absolute and unconditional one. If, under this provision of the constitution of Ohio, an accused is entitled to a jury trial unless he expressly waives the same, then no statute can deprive him of this right, or impose upon him any burden other and further than is imposed by the constitution itself-; nor can “progressive common sense” deprive the accused of a right guaranteed to him by the constitution of the state, regardless of how superior such wisdom may be to the wisdom of the constitutional provisions.

The people of this state write its constitution. It is for them to say when their need demands a change in its provisions.

The first constitution of Ohio contained this same guarantee of the right of trial by jury. It was rewritten into the Constitution of 1851, and the Constitutional Convention of 1912 did not seem to think that the intelligence of this age required the elimination of this provision from the constitution of this state, nor did the people of Ohio demand such an amendment..

This constitutional guarantee of a right of trial by jury is not peculiar to this state. The Constitution of the United States and the constitution of every state in the Union contain almost identical provisions. Nor do I understand that the right of trial by jury is not in harmony with the progressive ideas of modern jurisprudence. It is true that trial by jury is an ancient institution, but the right of trial by jury probably dates from Magna Charta, in which it is more than once declared to be the principal bulwark of English liberties. In addition to this, it is made one of the distinct and separate provisions of that historic document, that will ever be regarded as a monument in the course of human progress.

There was a time in the history of the human race when no man was secure in his life, liberty or property; when an anonymous accusation against an individual, deposited in a place provided for that purpose, on the evening of one day, resulted in his execution before the morning of the next.

What is now transpiring in the old world would indicate that it is at least possible that the civilization of to-day is not so far in advance of the civilization of mediaeval times as we have heretofore believed it to be. Therefore, it is well for the people of this age to observe the warning of Sir William Blackstone, one of the greatest law writers of any age. In answering the argument of convenience and expedition urged against the right of trial by jury, he said: “However convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), let it be again remembered, that delays, and little inconveniences in the form of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally-opposed to the spirit of our Constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.” 4 Blackstone, 350.

Except in this case and the case of Billigheimer v. State, 32 Ohio St., 435, which will be discussed a little later, the courts of this country have uniformly observed, -respected and enforced this constitutional right of trial by jury, unless the defendant in a prosecution for a misdemeanor waived the same, and such waiver clearly and affirmatively appeared upon the record. Nor have the courts placed upon the accused any burden whatever as a condition precedent to such a right.

The case of Slocum v. Lessee of Swan et al., 4 Ohio St., 162, was a civil action, an action of ejectment to recover possession of “the old penitentiary lot.” This court held in that case that a record showing “neither party requiring a jury” did not show a waiver by the parties of a trial by jury. In the opinion of Thurman, Chief Justice, it is said: “The issue made by the plea of ‘not guilty’, could not be tried by the court, without a waiver by the parties of jury trial. There was no such waiver. The judgment must be reversed, and a writ of procedendo awarded.”

In the case of Gibbs v. Village of Girard, 88 Ohio St., 34, which was also a civil action, the second paragraph of the syllabus reads as follows: “The right of trial by jury, being guaranteed to all our citizens by the constitution of the state, cannot be invaded or violated by either legislative act or judicial order or decree.”

Is it possible that in this progressive age “the dollar is to be placed above the man,” or that the protection of the liberty of the individual is of less concern to the state than the protection of his property?

It was held by this court in the case of Work v. State, 2 Ohio St., 297, that “it is beyond the power of the general assembly to impair the right [trial by jury] or materially change its character.”

In the opinion, Ranney, J., referred to the language of Sir William Blackstone above quoted, and further said, at page 306: “The question has seldom arisen, but whenever it has, the same result has followed without a single dissenting opinion or dictum to the contrary, so far as we are advised.

“We have deemed it our duty to meet and arrest at the outset, what we cannot but regard as an infringement of a great constitutional right — not in a very flagrant manner, but, nevertheless, opening the door to further encroachments.”

I do not understand that it is contended by counsel in this case that this defendant could not have waived the right of trial by jury, or that “he must at all events have a jury, whether he wants it or no.” The law of Ohio as to misdemeanors punishable by fine and imprisonment is too well settled to permit of further controversy. On the contrary, it is claimed that the accused did not waive a jury, and that no such waiver appears of record.

If the opinion of Justice Brewer in the case of Schick v. United States, 195 U. S., 65, supports the judgment of the majority of the court in this case in any particular whatever, then I am unable to read that opinion intelligently. As I read that case, it is wholly unlike the case at bar. The prosecution was for a petty offense, punishable by fine only. The court held that in such case, the constitutional guarantee of a right of trial by jury did not apply.. This has been the settled law of Ohio for many years. There was a written waiver of jury, and this fully appeared from the record. If the waiver of a jury appeared in the record of the case under consideration, or if the offense therein charged were punishable by fine only, this case would not be here.

Upon the facts presented by the record in the case of Schick v. United States, supra, the decisions of this court are in entire harmony with the decision of the majority of the supreme court of the United States in that ease.

Justice Brewer very .carefully distinguished this prosecution under Section 11 of the Oleomargarine Act, which provides a penalty by fine only, from other sections of the same act which authorize imprisonment as a part of the penalty, and quoted with approval the following language from the case of Callan v. Wilson, 127 U. S., 540:

“Except in that class or grade of offenses called petty offenses, which, according, to common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, the guarantee of an impartial jury to the accused in a criminal prosecution, conducted either in the name of, or by or under the authority of, the United States, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offense charged.”

The judgment of the court in that case was not predicated upon the 6th Amendment to the Constitution, but the court expressly held that Section 2, Article III of the Constitution of the United States, “does not include a petty offense like the present.”

The “venerable” Justice Harlan, who was recognized by his compeers as one of the ablest justices that ever served the people of this country upon the supreme court of the United States, and whose place in the history of American jurisprudence is too secure to require defense or permit of successful attack, in a vigorous dissenting opinion collected and discussed practically all the authorities upon this subject.

A consideration of these authorities may aid largely in applying the unquestioned principles therein discussed to t-he question presented by the record in this case.

In the case of Cancemi v. People, 18 N. Y., 128, it was held that the consent of the prisoner to be tried by less than a full jury of twelve was a nullity, and the conviction illegal. To the same effect is the doctrine declared in the case of Dickinson v. United States, 159 Fed. Rep., 801. In the case of Houpt v. Utah, 110 U. S., 574, 579, it was held by the United States supreme court that the defendant upon trial for felony could not waive his right to

be present-when the jury was impaneled and the proposed jurors challenged. The same conclusion was reached in the case of Lewis v. United States, 146 U. S., 370. In the case of Hill v. People, 16 Mich., 351, it was discovered, after the trial, that one of the jurors was disqualified under the statutes of Michigan, and it was contended by the state that the neglect of the accused to challenge waived the disqualification of the juror. The supreme court of Michigan held that “it is the duty of courts to see that the constitutional right of a defendant in a criminal case shall not be violated, however negligent he may be in raising the objection!’

In discussing this question, the court said, at page 358: “Let it once be settled that a defendant may thus waive this constitutional right, and no one can foresee the extent of the evil which might follow. * * * One act or neglect might be recognized as a waiver in one case, and another in another, until the constitutional safeguards might be substantially frittered away.”

This court, in the case of Williams and Haynes v. State, 12 Ohio St., 622, held:

“Upon the trial of an issue raised by a plea of not guilty, in higher grades of crime, it is not in the power of the accused to waive a trial by jury, and, by consent, submit to have the facts found by the court, so as to authorize a legal judgment and sentence upon such finding.”

It is apparent from the majority opinion in the case of Schick v. United States, supra, that the supreme court of the United States agrees with the decision of this court in the case last cited.

The same conclusion was reached in the cases of State v. Carman, 63 Ia., 130, 131; State v. Mansfield, 41 Mo., 470; Wilson v. State, 16 Ark., 601; United States v. Taylor, 11 Fed. Rep., 470; State v. Maine, 27 Conn., 281, and State v. Stewart, 89 N. C., 563.

These cases fully emphasize the importance of this constitutional right of trial by jury and the vigilance exercised by the courts in protecting the accused in this right.

In line with the decision of the United States supreme court in the case of Schick v. United States, this court has repeatedly held that the constitutional guarantee of a right of trial by jury does not apply to a prosecution under the statute which authorizes a penalty by fine only. (Inwood v. State, 42 Ohio St., 186; Whiteman v. State, 10 Ohio St., 449; Thomas v. Village of Ashland, 12 Ohio St., 124, and State, ex rel., v. Smith, 69 Ohio St., 196.) This undoubtedly is the settled law of Ohio.

This court has also held that the accused may waive a trial by jury where the offense charged is a misdemeanor _ punishable by fine and imprisonment, yet, except in the case of Billigheimer v. State, supra, it has heretofore invariably held that this waiver must affirmatively appear of record. This is particularly emphasized in the case of Simmons v. State, 75 Ohio St., 346.

In the opinion in that case, the court quoted with approval the following language of Justice Thompson in United States v. Rathbone et al., 2 Paine, 578: “Every reasonable presumption should be against the waiver, especially when it relates to a right or privilege deemed so valuable as to be secured by the constitution.”

The opinion in the case of Simmons v. State, supra, distinguishes that case from the cases of Dailey v. State, 4 Ohio St., 57, and Billigheimer v. State, supra, upon the theory that both of these cases had been prosecuted under a statute which conferred upon the court jurisdiction to try the complaint if the defendant did not demand a jury trial.

It is true that in the case of Dailey v. State the statute then in force provided that “Upon a plea other than a plea of guilty, if the defendant do not demand a trial by jury, the probate judge shall proceed to try the issue.” In that case, however, the record did show that the defendant did not demand a jury. The court held that “A record showing that the accused ‘did not demand a jury/ sufficiently shows a waiver of the trial by jury.” It would therefore appear that the court as then constituted was of the opinion that this waiver must affirmatively appear of record, and in that respect it is not in conflict with the decision in the case of Simmons v. State, supra.

While it may be difficult to reconcile the doctrine announced in the Dailey case, that a record showing that the accused “did not demand a jury” sufficiently shows a waiver of jury, with the doctrine announced in the civil case of Slocum v. Lessee of Swan, supra, that a record showing “neither party requiring a jury” does not show a waiver by the parties of a trial by jury, nevertheless, both of these cases agree in the important particular that a waiver of a jury must affirmatively appear upon the record.

The judge writing the opinion in the case of Simmons v. State, supra, was wholly mistaken in the statement that the case of Billigheimer v. State, supra, was “prosecuted under a statute which conferred upon the court jurisdiction to try the complaint, if the defendant did not demand a jury trial.” On the contrary, the statute involved in that case was substantially identical with the statute involved in the case of Simmons v. State, supra, then under consideration. The statute in the latter case provided that “In any such prosecution where imprisonment may be a part of the punishment, if a trial by jury be not waived” a jury should be impaneled as therein provided.

In the case of Billigheimer v. State, supra, the statute provided that “The police judge shall have in all criminal cases the same power and jurisdiction that are or may be by law vested in justices of the peace of the county * * * . The power to hear and determine such offenses shall extend to cases where the accused is entitled to a trial by jury, if a jury be-waived.” This statute is identical in meaning with the statute construed in the case of Simmons v. State, supra.

The conclusion reached in the Billigheimer case is not only in clear conflict with the law as declared in the case of Simmons v. State, but is in conflict with all other authorities upon this subject either in the courts of this or other states, or of the United States. This court in Simmons v. State specifically repudiated any such doctrine, and, on the contrary, held that “Such waiver must clearly and affirmatively appear upon the record, and it can not be assumed or implied by a reviewing court from the silence of the accused, or his mere failure to demand a jury.” This holding of necessity would require an overruling of the Billigheimer case, and certainly that would have been, done were it not for the fact that the court in the Simmons case was mistaken as to the statute under consideration in the Billigheimer case.

In the case of Neales v. State, 10 Mo., 498, it was held that a record reciting “neither party requiring a jury, the cause was submitted to the court” did not affirmatively show a waiver of jury by the accused.

The last announcement of this court on this question is found in the case of City of Fremont v. Keating, 96 Ohio St., 468, in which case the identical question was .involved, but was not carried into the syllabus because other questions in the case were the only ones in serious dispute. Upon these other questions the court held with the city of Fremont, but it affirmed the judgment of the court of appeals adverse to the city of Fremont, solely for the reason that the record did not affirmatively show that the accused had waived a trial by jury.

The provisions of the ordinance involved in the case of Fremont v. Keating, supra, in reference to the trial by jury, were identical with the provisions in the statute under consideration in the cases of Simmons v. State and Billigheimer v. State, supra. The doctrine announced in the case of Simmons v. State must have been approved and followed by every judge concurring in the judgment in the Fremont case, otherwise a judgment of reversal instead of a judgment of affirmance would have been entered. It is therefore evident that the doctrine announced in the Billigheimer case has been twice repudiated by this court, and a different doctrine announced, although that case has not been specifically overruled.

The holding of the majority of this court in this case, that the failure of the accused to demand a jury amounts to a waiver, seems to me to be in direct conflict with paragraph 2 of the syllabus in the case of Simmons v. State, supra, that a waiver “can not be assumed or implied by a reviewing court from the silence of the accused, or his mere failure to demand a jury."

It is also in conflict with the decision of the United States circuit court in the case of United States v. Gilbert et al., 2 Sumner, 19, that “Under the laws of the United States, the plea of not guilty put the prisoners upon the country by a sufficient issue, without any further express words.”'

The Constitution of Ohio provides that the accused shall be entitled to a speedy public trial by an impartial jury, and that this right to a jury trial shall be inviolate. Section 1579-24, General Code, under authority of which the trial court heard and determined the guilt of the plaintiff in error, provides that the accused “shall be tried to the court unless a jury trial be demanded.”

If the declaration of this court found in the second paragraph of the syllabus in the case of Gibbs v. Village of Girard, supra, that “The right of trial by jury, being guaranteed to all our citizens by the constitution of the state, cannot be invaded or violated by either legislative act or judicial order or decree,” means what it says, it would seem unnecessary to say that this legislative act, which is in clear conflict not only with the letter but with the spirit of the constitutional provision guaranteeing to every person accused of a crime the right of trial by jury, without demand or other conditions prerequisite to such right, is unconstitutional and void.

Nichols, C. J., concurs in dissenting opinion.


author: By the Court.

text:
    The City of Cincinnati, etc., v. Doerger et al.

      Sewer assessments — Limited to special benefits' — Sewers constructed in parallel streets — Right to assess for abutting improvement— Connection with sewer in rear street — By crossing intervening lot — Adequate local drainage.

    (No. 15637
    Decided May 14, 1918.)
    Error to the Court of Appeals of Hamilton county.

      Mr. Charles A. Groom, city solicitor, and Mr. Frank K. Bowman, assistant city solicitor, for plaintiff in error.

      Messrs. Dorger & Dorger, for defendants in error.
   By the Court.

The parties will be referred to as they appeared in the court of common pleas.

The plaintiff John J. Doerger is the owner of two lots in the city of Cincinnati, which constitute one tract of land 47.10 feet wide, extending from McMicken avenue to Gilmore street, a distance of 240 feet. The plaintiff Henry Doerger is the owner of two lots 28.41 feet wide, which constitute, one tract of land, also extending from McMicken avenue to Gilmore street.

The city of Cincinnati passed the necessary legislation for the improvement of McMicken avenue and Gilmore street, and did improve the same by constructing in each street a sewer. The cost of the sewer improvement in each street was assessed by the front foot, and the lots of the plaintiffs abutting upon McMicken avenue were assessed for that improvement, and also similarly were the lots of the plaintiffs abutting upon Gilmore street assessed for the sewer improvement in that street.

The plaintiffs joined in an action to restrain the collection of said assessment upon the ground that their properties were provided with local drainage, no objection being made for misjoinder of parties or causes of action.

The case was submitted in the court of appeals upon an agreed statement of facts, supplemented by evidence descriptive of the premises of the plaintiffs and tending to show the use to which they were best adapted. •

The court of appeals from an examination of the evidence found that the Gilmore street sewer provided said tracts of land separately owned by plaintiffs with sufficient drainage, and sustained the assessment for the improvement on Gilmore street but enjoined the assessment for the construction of the sewer on McMicken avenue.

The two lots of John J. Doerger compose one tract, which is improved by a residence constructed thereon facing McMicken avenue, which is connected with and drains into the sewer constructed in Gilmore street. There are.no buildings on the premises of Henry Doerger, and no connection for the purpose of draining those premises has been made with the sewer in either street.

The assessment of expenses for the construction of sewers is authorized by Section 3812, General Code, but the provisions of that section must be considered in connection with the provisions of Section 3819, General Code, which require that council shall limit the assessments to the special benefits conferred upon the property assessed, and that no lots or lands shall be assessed for such improvement that do not need local drainage, or which are provided therewith.

The record discloses that the street level of McMicken avenue is about 30 feet higher than that of Gilmore street. Had the Gilmore street sewer been constructed prior to that in McMicken avenue, and each of the plaintiffs constructed a drain from the residence erected upon his lot abutting on McMicken avenue and connected the same with the Gilmore street sewer, and adequate drainage afforded thereby, it must be conceded that a valid assessment could not thereafter be levied upon either of said lots for the subsequent construction of the McMicken avenue sewer. The record supports the finding of the court of appeals that the Gilmore street sewer does provide adequate facilities for drainage of the tract of land of each of the plaintiffs, and therefore that the sewer in McMicken avenue renders no service and is of no benefit to said premises.

Upon the undisputed facts in this case the judgment of the court of appeals is affirmed.

Judgment affirmed.

Nichols, C. J., Newman, Matthias, Johnson and Donahue, JJ., concur.