author: Williams, J.

text:
    Board of Trustees v. Cuppett et al.

      Federal statute — Construction by U. S. supreme court binding on state courts — Act of congress February 18, 1871, construed — Cession of U. S. lands to Ohio— What entries and surveys prior to fanuary 1, 1852, are void — Effect of patent isstied upon void survey after lands ceded to state — Acts of congress of May 27,1880, and August 7,1882.

    1. The construction given to a federal statute by the Supreme Court of the United States, is binding upon the state courts.
    2. The cession of the “ unsurveyed and unsold ” lands in the Virginia military district to the state of Ohio, by the act of congress approved February 18, 1871, was a grant in presentí, and vested the title to the lands in the state at that date, subject only to the right of bona fide settlers to preempt portions occupied by them not exceeding the quantity named in the act.
    3. Entries and surveys of lands in the Virginia military district, which were made prior to January 1, 1852, but the survey not returned to the proper department until after that date, became void, and all rights under them extinguished; the lands covered by them were, in contemplation of law, “ unsurveyed ” lands when the act of cession to the state took effect, and the indefeasible title thereto vested in the state under that act.
    4. Such entries and surveys are not within the operation of the act of congress of March 3,1855, allowing the further time of two years from the passage of that act for making and returning surveys to the General land office.
    5. A patent issued upon such void survey after the lands were ceded to the state, cannot impair or affect its title, or that of any one claiming under it by valid grant; nor have the acts of congress of May 27, 1880, and August 7, 1882, or either of them, such operation, their purpose and effect being not to create new rights, but to preserve those already existing when the act of cession was passed.
    (Decided April 23, 1895.)
    Error to the Circuit Court of Scioto county.
    Action to recover'possession of real property, and the rents and profits of the same. The answer denies title in the plaintiff. The jury were instructed to return a verdict for defendants, ■which they did. Judgment on the verdict was affirmed "by the circuit court.
    The question presented is whether plaintiff has a legal estate in the lands. There is no controversy concerning the facts, and a sufficient statement of them is contained in the opinion.

      J. W. Bannon and T. C. Anderson, for plaintiff in error.
    The questions presented "by the record are:
    ■ First — "Was survey No. 15,835, “unsurveyed and unsold” lands, within the meaning-of the act of congress of February 18, 1871 ?

      Second — Did the title to the land embraced in survey No. 15,835 pass under that act to the state of Ohio?

      Third — Was the title to this land vested in the plaintiff by the acts of the general assembly of the state of Ohio, passed March 26, 1872, and April 3, 1873?
    I. It is proper to observe here that the acts of March 23, 1804, and March 2, 1807, required surveys to be returned to the secretary of war. After 1807 the General land office was established, and thereafter all surveys were required to be returned to the General land office.
    The acts passed prior to July 7, 1838, fixed one time for locating entries, and a longer time for main up- and returning surveys, but the act of July 7, 1838, and subsequent acts fixed January 1, 1852, as the limit allowed for making entries and making and returning surveys. We therefore claim that under these acts the parties holding- military warrants Nos. 8,439 and 8,440, under whom defendants claim, upon which survey No. 15,835 was located and surveyed, acquired a right which depended on the performance of certain prescribed conditions. They failed to perform these prescribed conditions; failed to return the survey with the original warrant or a certified copy thereof to the General land office on or before January 1, 1852, and this failure to perform the conditions stopped them of all interest or estate in the lands covered by the entry and survey. Fissell v. Gregg, 113 U. S. S. C., 550; Jackson v. Clark, 1 Peters, 628; Coan v. Flagg, 123 U. S. S. C., 117.
    II. It was contended on behalf of defendants in the courts below that the legislation by congress in 1855, and afterwards in 1880, had the effect of making good the title, or the equitable right which the parties holding the entry and survey had to require a title, and this brings us to notice these acts in their order. The act of 1855, passed March 3, has no relation whatever to entries and surveys which were made prior to January 1, 1852. Those who made both entries and surveys prior to January 1, 1852, were not within the letter nor the spirit of the act. The extension was to those holding land by entries which were njade prior to January 1, 1852, and they were allowed the further time of two years after the passage of the act to make and return their surveys. The policy of this act is clearly stated in the case cited from the 113 U. S., 561. The defendants also contended that the provisions of the act of May 27, 1880 (in 21 U. S. Statutes, 142), cured any possible defect in their title or right to demand .the issuance of a patent for the survey in question.
    The act of 1880 is to be strictly construed. The second, third, and fourth sections have no application to the ease before the court. The first section cannot affect the right of the University to this survey- — under' its grant — from the United States, because:
    •1. It is not in the power of congress to declare the meaning of a previous statute so as to give that meaning a retrospective operation, and in so far as this statute undertook to declare the true intent and meaning of this statute to give it a retrospective operation, it was nugatory.' The opinion of a subsequent legislative body upon the meaning of a statute is entitled to no more weight than that of the same men in a private capacity. Cooley’s Con. Law, 94; 25 Fed. Rep., 650; 7 Johnson, 508; 8 Minn., 448.
    2. It is the province of the courts to declare what is the effect and meaning of a statute. To declare what the law is, or has been, is a judicial function. To declare what it shall be is a legislative.
    3. When the courts have'given a judicial interpretation to a statute that must prevail and any subsequent legislation can have only a prospective operation.
    4. Congress cannot by any explanatory or declaratory act interfere with vested rights. 28 Ind., 369; 56 Pa. St., 57, 51; 44 N. J. L., 648; 17 Ohio, 125.
    That the title to this survey was in the United States discharged of any claim, either legal or equitable, is, we think, apparent and beyond controversy. ( The entry and survey had by reason of the failure to make proper return, on or before January 1,1852, become vacated, annulled and void, and that w~as its condition when the United States granted to the state of Ohio this survey together with other lands discharged of the trust under which they had been held. And it is in view of the fact that the trust had been satisfied, and any right as to the survey with other lands extinguished, that the act of February,'1871, must be considered and construed. If then the title granted by the United States was a valid title the act of May 27, 1880, cannot, as the Supreme Court holds, have the effect of divesting its title.
    We assume, therefore, that the United States did on the 18th day of February, ,1871, grant to the state of Ohio survey No. 15,835, that being a part of the lands which had lapsed into and become a part of the general body of public lands of the United States, and that the same could not, after January 1, 1852, lawfully serve as the basis of a patent thereon.
    III. But it will be contended that theUnited States did issue a patent for this survey on April 27, 1871, to Janet K. Harrison and David F. Heaton, and that all question as to their right to the land must be considered closed by the action of the United States in issuing the patent. The argument of the case thus far has proceeded upon the theory that this survey had lapsed by reason of the failure to return the survey on or before January 1, 1852, and that the United States in February, 1871, granted by deed of cession that survey with all other similar lands to the stateof Ohio. No formal acceptance of this deed was necessary by the state of Ohio to complete the vesting of the title. It was perfectly competent to show that at the time this patent was issued, there was a want of power in„the officer who issued it. If the officer had the power to issue it, the patent is treated merely as a quit claim or conveyance of such interest as the government then possessed in the land. Sherman v. Buick, 93 U. S. S. C., 209; Doolan v. Carr, 125 U. S., 618; Henshaw v. Bissell, 85 U. S., 255.
    And it would follow as a- necessary consequence that if the officer who issued the patent had the power to do so the patent, was a title only from its date, and not conclusive-against those whose rights commenced previous to. its emanation. Hoofnagle v. Anderson, 20 U. S., 212; Stubblefield v. Boggs, 2 Ohio St., 216; Thomas v. White, 2 Ohio St., 540.

      N. W. Evans and D. Livingston, for defendants in error.
    The defendants here are the representatives of Lieutenant Richard Routt, of Virginia, who served three years in the Continental army. They have a patent from the United States, dated April 27, 1871, and it is admitted that they connect themselves by a claim of intermediate conveyances with this patent. Upon this patent, and the steps preceding its issue, defendants, rest their case.
    This land was originally subject to the warrants of Lieutenant Richard Routt. He, or rather, his heirs, located them on it, and had a survey made of the land. This survey, was returned to the General land office at Washington, D. C., and patent applied for.. In issuing the patent, the land office passed upon the regularity of the various steps, the validity of the warrants and survey, and held them legal and valid. It then issued the patent, thus adjudging the warrants, entry, and .all the preliminary steps required by law, to have been fully complied^ with and the survey valid. This was a proceeding in the land office of the United States. It is binding on everyone until vacated or reversed by a direct proceeding for that purpose. Plaintiff here, by a proceeding strictly at law, seeks to attack collaterally, the proceeding in the land office by which we obtained our patent. It cannot be done. -It brought an action at law to reeovér the land. It should have brought a suit in equity to have annulled the patent, if it was irregularly or improperly issued, and because it failed to do so, the judgment below must be affirmed on the strength of Coan v. Flagg, 38 Ohio St., 156.
    In that case the proceeding was in equity to quiet title, but the court' held there that the decision of the commissioners could not be questioned collaterally in a suit in equity. '
    The appropriate officers of the land department have been constituted a special tribunal to the same extent that those of other judicial or quasi judicial tribunals are. Johnson v. Towsley, 13 Wall., 72; French v. Fyan et al., 93 U. S., 169; Steel v. Smelting Co., 106 U. S., 447; United States v. Marshall Mining Co., 129 U. S., 579; United States v. San Jacinto Tin Co., 125 U. S., 273; Quinby v. Conlan, 104 U. S., 420; Baldwin v. Stark, 107 U. S., 463; Smelting Co. v. Kemp, 104 U. S., 636; Heath v. Wallace, 138 U. S., 573; Land Co. v. Griffey, 143 U. S., 32; Galliher v. Cadwell, 145 U. S., 368; Stringer v. Young's Lessee, 3 Peters, 320; Boardman v. Reed, 6 Peters, 328; Polk's Lessee v. Wendel, 9 Cranch, 87; Spencer v. Lapsley, 20 How., 264; White v. Rumley, 20 How., 235; Taylor v. Fletcher, 8 B. Monroe, 80; Sutton v. Mesmer, 6 B. Monroe, 433; White v. Wicholson, 9 B. Monroe, 268; Jennings v. Whittaker, 4 B. Mon.; Pierson v. Baker & Ashbell, 4 Dana, 321; Cain v. Flynn, 4 Dana, 499.
    The act of May 27, 1880, makes our title good. We and those under whom we claim have been in possession of the land ever since 1850, forty-four years. The petition herein was not filed until July 30, 1890, more than forty years after our survey was made. All this time we had been in possession, and plaintiff knew nothing of the land, or any claim it could assert thereto. We being in possession on May 27, 1880,'and plaintiff, then not making any claim, .Congress validated our title by its acts of that date, and the court below did not err in rejecting evidence tending to invalidate the survey, when it was cured by legislative act of May 27, 1880. Bear in mind that this date, May 27, 1880, defendants were in quiet, undisturbed possession, with no adverse claimants. The United States, under these facts, quieted their title. The act was in the nature of a quit-claim by the United States to the defendants. The United States up to that time, might have sought to set aside its patent, but instead,' it ratified it, and released all right to set it aside. This enactment waived all objections to the patent, ratified it, and concluded the rights, not only of itself, but of any one, who, prior to that, might have asserted any right. ‘
    What we claim is, that Congress having made this gift, and it being a mere naked gift, it had the right to construe and define the extent and terms of the gift. . Congress having reserved the surveyed and sold lands in the district, had the right to define what it meant by surveyed or sold land ; and that Congress has the sole and exclusive power to declare what shall be the effect of and entry and survey, made under its laws, no matter when returned to the land office at Washington for patent and what title it gives to the owner thereof.
    Although the act of 1880 is awkardly worded and the first section thereof purports to be an act to construe the meaning of the cession of February 18,1871, yet both are, in fact, acts for the purpose of validating imperfect or defective titles, and not an assumption on the part of Congress to usurp the functions of the judiciary. Parkinson v. Bracken, 1 Pinney (Wis.), 174; 1 Burnet (Wis.), 18, and cases, cited ; Sutherland on Statutory Construction, section 483.
    We submit that the same power which authorized congress to extend the limit for locations, authorized it to cure a filing beyond the limit. Jackson v. Gilchrist, 15 Johns., 89; Wilkinson v. Leland, 2 Peters, 627; Satterlee v. Mathewson, 2 Peters, 380; Randall v. Kreiger, 23 Wall., 137; Webb v. Den, 17 How., 576; Jonesboro City v. Railroad, 110 U. S., 192; Grenada County v. Brogden, 112 U. S., 261; Beloit v. Morgan, 7 Wall., 619; Thompson v. Perrine, 103 U. S., 806; Quincy v. Cook, 107 U. S., 549; Otoe County v. Baldwin, 111 U. S., 1; City v. Lamson, 9 Wall., 477; Burget v. Norris, 25 Ohio St., 308; Dengenhart v. Cracraft, 36 Ohio St., 549; Trustees, etc., v. McCaughey, 2 Ohio St., 152; Miller v. Graham, 17 Ohio St., 1; Chestnut v. Shane, 16 Ohio, 599; Connell v. Connell, 6 Ohio, 358; Meddock v. Williams, 12 Ohio, 377; Silliman v. Cummins, 13 Ohio, 116.
    At the time of the passage of the act of August 7, 1882, the defendants and those under whom they claim, were still in possession and plaintiff had made no claim. That act quieted the title of those who had been in possession under an entry on survey for over twenty years. Assuming the defendants’ privies in title to have been in possession from the date of their survey, April 1, 1850, they had been in possession more than twenty years before plaintiff’s title accrued and lacking one month and ten days of’ twenty-one years. This act confirms our title and acts as a'patent or quitclaim from the United States. Moreover, it repeals all of the act of February 18,1871, in conflict with its provisions. We claim this act and the act of May 27, 1880, operated as a grant from the United States direct to us, and made and makes our title perfectly good, relating back to our entry and survey. Stubblefield v. Boggs, 2 Ohio St., 217; Thomas v. White, 2 Ohio St., 540.
   Williams, J.

The lands in controversy are situated in the Virginia military district, and it is conceded that the plaintiff has all the title to them which the state acquired by the act of Congress, approved February 18, 1871, which reads as follows:

. “Be it enacted by the Senate and House of Representatives of the United States of America assembled, that the lands remaining unsurveyed and unsold in the Virginia Military District, in the state of Ohio, be and the same are hereby ceded to the state of Ohio, upon the conditions following, to-wit:
“Any person, who, at the time of the passage of this act is a bona fide settler on any portion of land may hold not exceeding one hundred and sixty acres so occupied, by .his preempting the same in such manner as the legislature of the state of Ohio may .direct. ”

One of the questions made is whether the lands in dispute were unsurveyed lands when the act above quoted went into effect. It is claimed by the defendants they were, not,. and therefore, not within the descriptive terms of the.grant to the state. If the determination of the question involved the weight of the evidence we should decline to enter upon its consideration; but it does not, its decision depending entirely upon the effect of certain federal statutes limiting and extending the time for making entries and'making and returning surveys of lands in the Virginia military district. In the cession of the territory northwest of the river Ohio to the United States, by the state of Virginia, there was a reservation of the right to appropriate any of the lands “lying between the Scioto and Little Miami rivers,” by the officers and soldiers of the Virginia military line in the war of the Revolution, on warrants issued to them for their services ; and the United States took those lands subject to that trust. By the act of Congress passed March 23, 1804, “officers and soldiers, or their legal representatives, were required to make their locations within three years and make and return their surveys within five years from the passage of the act.” The act contains the further provision, that all lands within the district which “ shall not have been located, and the surveys whereof shall not have been returned to the Secretary of War within the time and times prescribed by this act shall thenceforth be released from any claim or claims for such bounty lands.” By the subsequent act of March 2, 1807, soldiers having such warrants were “allowed the further time of three years from March 23d next, to complete their locations, and a further time of five years from that date to return their surveys and warrants, or certified copies of warrants to the office of the Secretary of the War Department,” subject, however, to the proviso: “That no locations aforesaid within the above mentioned tract shall, after the passing of this act, be made on tracts of land for which patents had previously been issued, or which had been previously surveyed, and any patent which may, nevertheless, be obtained for land contrary to the provisions of this section shall be considered null and void.”

It was held, in the ease of Jackson v. Clark, 1 Peters, 628, that under the cession of the northwest territory, congress had the power to prescribe the time within which the lands reserved for the Virginia troops should be appropriated to that purpose, and annex conditions to any extension of that time, as was done by the statutes above mentioned, and that all lands not appropriated within the time, and according tp the conditions, were divested of the trust in behalf of such troops, and discharged from their claims ; the general government thereafter, being at liberty to dispose of the lands as a common fund for the states of the Union. As said by Chief Justice Marshall,in that case, the time allowed for making the appropriation “certainly ought to be liberal. But, unless some time might be prescribed, the other purposes of the trust would be totally defeated ; and the surplus land remain a wilderness. ”

By subsequent legislation the time for making entries on warrants issued to the Virginia troops, and for making and returning surveys of the lands entered, was extended from time to time, upon the conditions set forth in the previous statutes, until, by the act of February 20, 1850, the time within which such entries and surveys might be made and returned was limited to January 1,1852. It is not necessary to examine this legislation in detail; it has been considered and construed by the Supreme Court of the United States, by whose decisions it is established that, whatever of these lands “had not been appropriated in accordance with the terms of existing law, so as- to secure to the claimant a legal right to call for a patent, was subject to the disposal of the United States for its own use, and according to its own pleasure. It is in view of this condition of things that the act of February 18,. 1871, must be considered and construed;” and that, “it was essential to the vesting of any interest under an entry and survey within the Virginia military land district, made prior to January 1, 1852, that the survey should be returned to the commissioner of the General land office at Washington, on or before that date, and that the failure to do so discharged the land from any claim founded on such location and survey, and extinguished all right, title and estate previously acquired thereby.” Coan v. Flagg, 123 U. S., 117; Fussell v. Gregg, 113 U. S., 550.

The lands involved in this action were entered upon-Virginia miliary warrants issued for services of Lieutenant Richard Routt, and the. survey was made on the first day of April, 1850, but not returned to the proper office at Washington until after the 1st of January, 1852; so that, the survey, not having been returned within the time limited by the then existing law, was unavailing as an appropriation of the lands included in it, and consequently, they remained unaffected by it, and subject to any disposition the government might choose to. make of them; and, unless that legal status of the land was changed before the grant made to the state by the act of February 18, 1871, took effect, they passed by that grant divested of any claim under the.-entry and survey. Such-change did not occur unless it was effected by the act of March 3, 1855, which provides: “That the officers and soldiers of the Virginia line on continental ' establishments, their heirs or assigns, entitled to bounty lands which have, prior to the 1st day of January, 1852, been entered within the tract reserved by Virginia, between the Little Miami and Scioto rivers, for satisfying the legal bounties to her officers and soldiers upon continental establishments, shall be allowed the further time of two years from and after the passage of this act, to make and return their surveys and warrants, or certified copies of warrants, to the General land office.” This statute, it has been held, has no application to cases where both the entry and survey were made prior to January 1, 1852, but applies only where the entry, but not the survey, was made before that date, allowing the additional time of two years from March 3, 1855, within which to have the survey made and returned. Fussel v. Gregg, supra, also Coan v. Flagg, supra.

Whilst the statute might admit of the more liberal construction, that, as it allows the specified time for both making and returning a survey’, the right to return a survey already made should be regarded as within its spirit and intent, we are not at liberty to adopt that interpretation, or disregard the construction it has received from ¿the Supreme Court of the United States. A construction given to a Federal statute by the highest Federal court, is binding upon the state courts. • In construing this statute, it is said by Mr. Justice Wood, in Fussel v. Gregg: “This act is by its terms confined to the lands entered and not surveyed prior to January 1, 1852.-'The policy of the act is clear. The acts passed prior to the act of July 7,1838, fixed one period for locating entries and a longer time for making and returning surveys, plainly because the surveys could not be made until the entries were made. But the act of July 7, 1838, as revived and continued in force by subsequent statutes, fixed the first day of January, 1852, as the limit allowed both for making entries and making and returning surveys. It therefore doubtless happened that laggard warrant-holders procrastinated the making of their entries until it was too late to make and return their .surveys before the first of January, 1852. Therefore the act of March 3, 1855, was passed allowing the holders of warrants, who had made their entries before January 1, 1852, two years further time after the passage of the act to make and return their surveys. Those who before January 1, 1852, had made both their entries and surveys were not within the words or spirit of the act.”

That case was followed in Coan v. Flagg, where, in the opinion by Mr. Justice Matthews, it is said: “It was decided by this court in the ease of Fussel v. Gregg, 113 U. S., 550, upon a careful and detailed review of all the legislation on the subject, that it was essential to the vesting of any interest under an entry and survey within the Virginia military land district, made prior to January 1, 1852, that the survey should be returned to the commissioner of the General land office at Washington, on or before that date, and that the failure to do so discharged ‘ the land from any claim founded on such location and survey, ’ and extinguished ‘all right, title, and estate previously acquired thereby.’ Such lands might, therefore, very properly be considered. in contemplation of law, as ‘unsurveyed.’ ”

We are not advised of any legislation subsequent to the act of 1855, and prior to that of February 18, 1871, which affects the question here; so that, at the time of the adoption of the latter act, the lands which are the subject of this action, were within the category of unsurveyed lands in the Virginia military district, and included in the terms of the grant thereby made to the state. The state, by an act of its legislature passed March 26, 1872, formally accepted the grant, vested the title to the lands in the Ohio Agricultural and Mechanical College, the name of which has since been changed to that of the Ohio State University, and made provision for the pre-emption of portions of the lands by tona fide settlers, in accordance with the conditions of the grant. In the meantime, namely, on the 27th day of April, 1871, a patent for the lands in dispute was issued to the representatives of Lieutenant Routt, upon the survey which was made, as before stated, prior to January 1, 1852, but not returned until after that date. The defendants, by a chain of intermediate conveyances, connect themselves with that patent, and claim title from no other source; and their principal contention is, that the patent establishes the regularity of all the steps preliminary and necessary to its issuing, 'and is conclusive as to the title, until set aside by a direct proceeding. The soundness of that position, it is manifest, must depend upon whether, when the patent was obtained the title to the lands covered by it was still in the government of the United States. If before that time it had parted with all its title to the lands, of course none was conveyed by the patent; for a patent cannot, any more than the deed of an individual, create title to anything not owned by thé grantor. The question is thus raised, when did the title to the lands ceded by the act of February 18, 1871, vest in the state? Was it when the act took effect, or not until the acceptance of the grant by the state ? If at the former date, the patent could not divest the state’s title, for once vested, it became irrevocable; but if the title did not vest until the passage by the legislature of the act accepting the grant, the state acquired no title to the lands in question, for the reason that, having already been conveyed by the patent they were taken out of the terms and operation of the grant to the state. It is well settled that in construing a congressional grant, “it is to be borne in mind the act by which it is made is a law as well as a conveyance, and such effect must be given to it as will carry out the intent of congress. That intent should not be defeated by applying to the grant the rules of the common law, which are properly applicable only to transfers between private parties. To the validity of such transfers, it may be admitted that there must exist a present power of identification of the land; and that where no such power exists, instruments, with words of present g-rant, are operative, if at all, only as contracts to convey. But the rules of the common law must yield in this, as in all other eases, to the legislative will. ” Railway Co. v. Railway Co., 97 U. S., 491. In that case, by an act of congress, there was granted to a railroad company the alternate sections of land on each side of its line, which were not sold, reserved, or otherwise disposed of. The act provided that upon the completion of every forty miles of the road, commissioners, to be appointed by the president, were to examine the same and report whether it was so completed, and when such reports were made, if favorable, patents were to issue for the sections on each side of the road so completed. The question was whether the title vested in the company at the date of the act, or not until the forty miles of road were constructed and accepted, or only when the patents were issued. In holding that it vested at the date of the act, Mr. Justice Field said: “The language of the act, ‘is that there be and hereby is granted,’ words which import a grant in presentí, and not in futuro, or the promise of a grant;” and further, that when the location of the road was made and the sections granted ascertained, the title of the company “took effect by relation as of the date of the act, except as to the reservations mentioned, so as to cut off all intervening claimants except as to the reservation made.”

In R. R. v. U. S., 92 U. S., 733, it is held that the words ‘ ‘ there be and is hereby granted, ” in an act of congress, are words of absolute donation, and import a grant in presentí/” and it is there said, ‘ ‘ this court has held that they can have no other meaning, and the land department, on its interpretation of them, has. uniformly administered every previous grant.” And again in the case of Van Wyck v Knevals, 106 U. S., 360, in giving construction to a congressional grant which gave to the state of Kansas for the use of the St. Joseph and Denver City railroad company, alternate sections designated by odd numbers, on each side of the proposed road, subject to the condition that if it appear, when the route of the road is ‘definitely fixed,’ that the United States have sold any section or part thereof, or the right of pre-emption or homestead settlement has attached, or the same has been reserved by the United States for any purpose, the secretary of 'the interior shall cause an equal quantity of other lands to be' selected from odd sections nearest those designated in lieu of the lands appropriated, which shall be held by the state for the same purpose, Mr. Justice Field uses the following language: “The grant is one in presentí, except as its operation is affected by that condition; that is, it imports the transfer, subject to the limitations mentioned, of a present interest in the lands designated. The difficulty in immediately giving full operation to it arises from the fact that the sections designated as granted are incapable of identification until the route of the road is ‘definitely fixed.’ When the route is thus established, the grant took effect upon the sections by relation of the date of the act of congress. In that sense we say that the grant is one in presentí. It cuts off all claims, other than those mentioned, to any portion of the lands from the date of the act, and passes the title as fully as though the sections had then been capable of identification. Nor is this operation of the grant affected by the fact that patents of the United States are subsequently, upon certificate of the governor,’ to be issued by the secretary of the interior directly to the company, and not to the state.” And to the same effect is R. R. Co. v. Baldwin, 103 U. S., 426.

Under the well settled rule of construction of congressional grants, that made to this state by the act of February 18, 1871, is a grant in presentí, its language being, “that the lands remaining unsurveyed and unsold in the Virginia military district in the state of Ohio, be and the same are hereby ceded to the state of Ohio.” Its formal acceptance by act of the legislature, or otherwise, is not made a condition to the vesting of the title, and there are no reservations in the act except the right of pre-emption of limited quantities of land by bona ficle settlers. The duty imposed upon the legislature of prescribing the manner of making such pre-emptions is not a condition precedent to the investing of the state with the title to any of the lands embraced in the grant; but it is rather a condition subsequent, the performance of which contemplates the title as being in the state, subject only to the rights of bona fide settlers to make pre-emptions of lands occupied by them not exceeding the quantity allowed by the act. It seems clear, therefore, that on February 18, 1871, when the act of cession to the state took effect, the defendants had no beneficial estate in the lands in controversy, either legal or equitable, and the complete title to them, on that day, vested in the state. It is also clear that its title cannot be defeated or impaired by the subsequently obtained patent under which the defendants claim. The congressional grant to the state was itself a patent, or the equivalent of a patent, and the plaintiff is in the position of a holder of the elder of two conflicting patents, which must prevail over the junior. Nor can the defendants claim the benefit of the rule that when two grants conflict, preference will be given to a junior patent founded on a senior entry, over a senior patent founded on a junior entry, because when the grant to the state took effect there was no subsisting entry or survey upon which to predicate the patent set up by the defendants. And, furthermore, the state was not in the position of a subsequent locator, but as said by Mr. Justice Matthews in Coan v. Flagg, supra, it “was a grantee under the terms of a new law directly from congress itself.”

We do not doubt the rule, in support of which counsel for the defendants have cited many authorities, that in an action of ejectment a patent cannot be assailed for irregularities in obtaining it, or for errors of the officers' charged with the duty of passing upon the sufficiency and regularity of the proceedings to obtain it. Upon all these matters the patent itself is conclusive. But we do not understand that the plaintiff attacks the patent set up by. the defendants, or that it, was necessary to do so, on any of those grounds. When brought forward as a defense to the action, the plaintiff denies that it conveys title to the land described in it, for the sufficient reason that there was none in the government to convey when it was issued ; and it was therefore no impediment to the plaintiff’s recovery. We are not aware that it has been held a patent may not be shown to be void for want of title to the land, or power to convey the same. The contrary doctrine has been frequently maintained. Thus in Doolan v. Carr 125 U. S., 618, it is said, that, where the government “has issued a patent in due form of law which is sufficient on its face to convey the title to the land described in it, such patent is to be treated as valid in actions at law, subject, however, at all times to the inquiry whether such officers had the lawful authority to make a conveyance of the title. But if those officers acted without authority; if the land they purported to convey had never been within their control, or had been withdrawn from that control, at the time they undertook to exercise such authority, then their act was void.” And the court further says, “that even a patent from the United States issued with all the forms of law, may be shown to be void, by extrinsic evidence, if it be such evidence as by its nature is capable of showing a want of authority for its issue.” And other cases announce the same doctrine.

Finally, it is claimed the defendants’ title to the lands in question was confirmed by the acts of congress of May 27, 1880, and August 7, 1882. By the former of these acts it is declared that the true intent and meaning of the act of February 18, 1871, was to cede to the state, of Ohio, only such lands as were unappropriated and not included in any survey or entry; and the latter act provides that persons who have been in possession of any of the lands for twenty .years under claim or color of title based on such entry, shall be deemed the legal owners of the land included in the entry. But here again, whether this claim of the defendants can be maintained, must depend upon whether the title to the lands vested in the state by the act of cession. If, notwithstanding that act, the title remained in the general government, there could be no objection to its making such disposition of them as it should choose to make; and the defendants might well claim their title was assured by the legislation referred to. But if, as we have’ seen is the case, the indefeasible title was vested in the state, the lands ceased to be within the control of congress, and such subsequent legislation could not divest or otherwise affect the state’s title to them, though ceded as a donation, any more than the acts or declarations of any other grantor, after he has parted with his title by valid conveyance, could affect the title of his grantee. If it were otherwise, the cession would amount to a mere revocable license; for it is obvious that if the lands ceded were thereafter subject to congressional control in any respect, they must be in all, and could be wholly withdrawn from the operation of the grant. The purpose and effect of this subsequent legislation was not to- create new rights, but to preserve and protect rights already existing when the act of cession to the state was passed. Under the law applicable to the facts of this case, we are constrained to hold that tire court erred in directing the jury to return their verdict for the defendants.

Judgment reversed.

Bradbury and Burket, JJ., dissent.


source: Caselaw Access Project

author: Minshall, C. J.

license: Public Domain

text:
    Root v. Board of Education.

      Competency of legislature as to special taxing districts — Uniformity of levy — Constitutional law — Act of May SI, 1894 ( 91 Ohio Laws, 84%).

    1. It is competent to the legislature to provide for the'creation of a special taxing district; but, in such case, the tax must be levied by a uniform rule on all property in the district.
    2. The act of the general assembly to provide higher education in counties containing cities of the first grade of the first class, passed May 21, 1894 (91 Ohio Laws, 842), is unconstitutional and void, by reason of the want of uniformityin the mode provided for levying the requisite tax, contained in the second section of the act.
    (Decided April 23, 1895.)
    Error to the Court of Common Pleas of Hamilton county.

      R. A. Harrison, John A. Wolfe and L. H. Pummill, for plaintiff in error.

      The provisions of the act, on which objection is based, pertain merely to the administration of the school system of the state, and so come within the range of purely legislative' authority. In the absence of any constitutional prohibition, the whole matter of the establishment of public schools, comes within the range of proper legislative authority. Curryer v. Merrill, 25 Minn., 1.
    Although the state may not have the constitutional power to divert school money from the purposes for which they are set apart, she may change the administration of the fund, and, in her wisdom and discretion direct The mode or manner of the administration of the trust, and how, by whom, and to whom the moneys are to be paid and applied. Mobile School Commissioners v. Putnam, 44 Ala., 506.
    As the legislature can establish school districts, so it can change or abandon them. The inhabitants of school districts have no rights in the existence, or in any of the corporate functions of the district, which can be regarded as vested rights or which can be set up as beyond legislative control. Farnum’s Petition, 51 N. H., 376. Rawson v. Spencer, 113 Mass., 40.
    The debts which abolish districts may be imposed upon the town. Whitney v. Stowe, 111 Mass., 368; Bromley v. Reynolds, 2 Utah, 525.
    The second contention of opposing counsel is, that the law is not uniform in its operation, in this, that, as is said, it is attempted by this law to levy a tax upon property of persons residing outside of the city, for the support of schools within the city. This contention, like the first, is founded upon a false assumption of fact. The truth is, that the tax provided for is limited to the precise equivalent of the benefit received by the school districts in the county or counties in which the high school or high schools of the cities mentioned in the act are located; and the tax is uniform in the sense in which that word is used in the constitution, because it is levied by uniform rule upon all the taxable property in the school district who receive the benefits of the act, to pay for which, and nothing else, the tax is levied.
    The third claim on the other side is, that the law is mandatory, because it imposes upon boards of education and the board of county commissioners administrative duties which are beyond the power of the legislature to confer. All matters pertaining to the government and administration of public schools come within the range of proper legislative authority; and that with the wisdom or policy of a statute passed in the exercise of such legislative authority, courts have rightfully no concern. Cooley on Taxation, 478; Inhabitants of Norwich v. County Commissioners of Hampshire, 13 Pick., 60; People v. Flagg, 46 N. Y., 401; Gordon v. Cornes, 47 N. Y., 608; Salem Turnpike, etc., v. County of Essex, 100 Mass., 282.
    The act in this present case confers no powers upon a municipal corporation. The powers which it confers are conferred upon common school districts, and boards of education, and boards of county commissioners; neither of which are corporations within the meaning of section 1, article XIII of the Constitution. The State v. Powers, 38 OhioSt., 54; Neil v. Board of Trustees, etc., 31 OhioSt., 15. It should be observed, that special legislation upon a subject matter in its nature local, is not prohibited by section 26, article II of the. constitution, which provides that all laws of a general nature shall have a uniform operation throughout the state, notwithstanding the subject matter is the subject of a general law. State ex rel. v. Shearer, 46 Ohio St., 275. In that case Judge Spear most thoroughly reviews the cáse of State v. Powers, 38 Ohio St., 54, in which a different ruling was made; and the decision in the latter ease was overruled by a unanimous decision in the former ease.
    Another ground of objection to the act is that it is vague and indefinite, and, therefore, inoperative and void. It is well settled that the imperfection of a law will not render it void, unless it be so imperfect as to render it utterly impossible to execute it. Cochran's Heirs' Lessee v. Loren, 17 Ohio, 409; Gordon v. State, 46 Ohio St., 607.
    An act will not be declared void for uncertainty, if by resort to recognized aids in the construction of statutes, it is possible to ascertain its meaning. State ex rel. v. Commissioners, 35 Ohio St., 458; State ex rel. v. Commissioners of Holmes County, 17 Ohio St., 608; State ex rel. v. Foster, 38 Ohio St., 599.
    Evidently, the statute in question is possible of execution. It provides that the children of all tona fide residents of that portion of any county containing a city of the first grade of the first class, not within the corporate limits of such city, and not within any school district which maintains a high school with a four years course of study of similar character to the high school of such city, shall be admitted into and receive instruction in such high schools of said city. '

      Frederick Hertenstein, for defendant in error.
    It has been shown that if these acts are constitutional the children of non-residents will have been educated, for the years 1894 and 1895, at the expense of the taxpayers of Cincinnati, and we claim that the practical operation of these acts would be equivalent to imposing a tax upon the taxpayers of the school district of Cincinnati, for the years 1894 and 1895, to educate the children of nonresidents, without a corresponding benefit. Wasson et al. v. Commissioners, 49 Ohio St., 635; Dorgan v. City of Boston, 12 Allen, 237; Cooley on Taxation, 141; Wells v. City of Weston, 22 Mo., 384; City of St. Charles v. Nolle, 51 Mo., 122; Callam v. City of Saginaw, 50 Mich., 7; Hammett v. Philadelphia, 65 Pa. St., 146; Bromley v. Reynolds, 2 Utah, 525.
    We claim that the law is not uniform in its operation. As to all taxation apportioned upon property, there must be taxing districts, and within these the rule of absolute uniformity must be applicable. A state tax is to be apportioned through the state, a county tax through the county, a city tax through the city. Cooley Const. Lim., 6th ed., 610.
    It is attempted by this law to levy a tax upon the property of persons residing outside of the city, for the support of schools within the city. The absence of uniformity in this law is fatal to the case at bar. Exchange Bank v. Hines, 3 Ohio St., 1; Fletcher v. Oliver, 25 Ark., 289; Railroad Company v. Boone Co., 44 Ill., 240; Fisher v. Commissioners, 36 Ohio St., 476; Lydecker v. Englewood, 41 N. J. L., 154.
    We further claim that the law is mandatory, because it imposes upon the Board of Education and board ' of county commissioners administrative duties which are beyond the 'power of the legislature to confer. Weston v. Goesling, 30 W. L. B., 291; Commissioners v. State ex rel., 50 Ohio St., 653;
      Landis v. Commissioners, 32 W. L. B., 311; State v. Bartlow, 91 N. C., 550.
    It appears to us that the Board of Education, nor the county commissioners, nor the courts, can pass upon the question of a course of study similar to that of the Cincinnati high scliools, and for that reason the statute is inoperative.
    "While section 2 of the act under consideration provides for the assessing and levying’ of a tax, it makes no provision as to the manner in which it shall be paid to the Board of Education. It seems to us that if the taxpayers of the various districts pay the tax to the county treasurer, there is no provision made for the payment of those taxes by the county treasurer to the Board of Education, and "for that reason the law cannot be enforced. 3 Lea (Tenn.), 466.
   Minshall, C. J.

On May 26, 1894, the plaintiff, Georg-e A. Root, brought suit in the court of com: mon pleas of Hamilton county, to restrain the defendant, the Board of Education of the school district of Cincinnati, from excluding his son from Woodward high school, the school being-under the supervision and control of the defendant. The plaintiff did not reside in the Cincinnati district, but in a special school district of Columbia township, Hamilton county. Under a resolution that had previously been adopted, the defendant exacted the payment of $17.50 as tuition in advance for the quarter ending July 1, 1894. This the plaintiff refused to pay, claiming the right to have his son admitted without such payment, under the provisions of the act of the legislature passed May 21,1894. There was no objection to the admission of the plaintiff’s son other than the nonpayment of the tuition.

The cause was heard on a demurrer to the petition. The court held the law to be invalid, sustained the demurrer, and dismissed the petition. The only question involved in the case is the validity of the statute. The material sections are as follows:

£< Section 1. That hereafter all bona fide residents of that portion of any county containing a city of the first grade of the first class not within the corporate limits of such city, and not within any school district which maintains a high school with a four years’ course of study of similar character to the high schools of súch city, shall be admitted into and receive instruction in any such high school of such city or school district on the same terms and conditions as to tuition fees and otherwise, as are now or. may hereafter be prescribed for pupils of such schools residing within such city, or school district.
£ £ Sec. 2. The board of education or other proper board of such city or school district shall, after this act shall have been in force one year, and annually thereafter, make an estimate of the additional funds required for the maintenance of such high school under the provisions of this act, and certify such estimate to the commissioners of the respective county, who, in addition to their other powers of taxation, are hereby authorized and directed to assess and levy upon all the taxable property of such portion of said county not within the corporate limits of such city, and not within the limits of any such school district maintaining such a high school a sufficient tax annually to provide such additional funds; provided, that nothing in this act shall be so construed as to render nugatory the stipulations under which any bequest, devise, donation or endowment has heretofore been made or given for the support and maintenance of any such high school. * * * *
“Sec. 3. This act shall take effect and be in force from and after its passage.”

A number of objections are made to the validity of the law. The principal one is to the mode of levying the tax authorized by the second section. The claim is that the provision for levying it is not uniform as required by section 2 article XII of the constitution. It is a tax on property and must therefore, conform to this provision. The section referred to requires the board of education of the city, after the act has been in force for one year, and annually thereafter, to make an estimate of the additional funds that will be required, for the support of the high school under the provisions of the act, and certify the amount to the commissioners of the proper county, who are then directed to assess and levy a sufficient tax to provide such additional funds upon all the taxable property, not of the entire county, but upon such portions of it, not within the corporate limits of such city, and not within the corporate limits of any school dis - trict that maintains a high 'school with a course of study similar in character to the high school of the city.

Now, unless a tax district can be said to be created by this statute, within which all the property subject to taxation is to be assessed for the purpose of raising the additional funds, it is manifestly invalid, for want of uniformity. Field v. Commissioners, 36 Ohio St., 476. It is claimed by the plaintiff that the tax district is not the county, but the portion that remains after excluding the territory of the city and such school districts as maintain a high school similar in character to that of the city; and that it is competent to the legislature, as held in Bowles v. State, 37 Ohio St., 35, to create a special taxing district without regard to the municipal or political subdivisions of the state. In that case special tax districts were created by the law. Each embraced all the taxable property within one mile on each side of the road improvement, with certain exemptions at the crossings where lands had been assessed for similar improvements. The court noted the si milarity between the want of uniformity between the statute then under consideration and the statute considered and held invalid in the Field’s case; which provided for the levying of a tax in certain counties for the construction of turnpikes, making, however, an exception of such lands as had been assessed for a similar improvement. But as the record in the case did not disclose that there were any such crossings on the Biddeng’er road (the road in question), as would require an exemption of any lands to be made under the law, and the statute might therefore have a constitutional operation in the particular instance, the court held a bond that had been issued for the making of the improvement, to be a subject of forgery. It was not held that exemption could be made in the district in which the tax is to be levied. In the statute now under consideration there is no attempt by definite lines to make a tax-district within which the tax is to be uniformly levied. It may extend to and include the whole county outside of the corporate limits of the city, or it may include but part. This will depend upon whether there are, or are not, school districts within the county having a hig-h school similar in character to that of the particular city; in other, words, whether there ar*e lands within the county outside the city entitled under the law to exemption from the tax. The county is the tax district; and the amount, estimated by the board of education of the city, as necessary to carry out the provisions of the law, is to be levied by the county commissioners upon all lands in the county, except the city, because it maintains the particular high school, and school districts having a. high school similar to the city, because taxed for a similar purpose. There is, then, no difference in principle between this statute and the one held invalid in Field v. Commissioners. There, lands in the county were to- be exempt that had been assessed for. similar road improvements; here, property in the county is to be exempt that has been taxed for the maintenance of a high school similar to that of the city. It violates the principal of uniformity in the taxation of property required by the provision of the constitution above referred to.

There is no question but that it would be competent to the legislature to create, or provide for the creation of a special district in any county for the maintenance of a high school. It might embrace the whole county, or a part of it, provided that all property in it-is taxed alike for the maintenance of the school. Such is not this case. The city, through its board determines' the amount of the levy to be made, pays no part of it. Those who have the tax to pay have no voice whatever in determining the amount of it. It signifies nothing to say that the tax »is levied by the commissioners. When the amount has been ascertained by tbe board and certified to the commissioners, the law is mandatory as to them — they must make the levy. They are mere agents in carrying out the determinations of the board of education.

A special district for taxation should, during the operation of the law creating it, be permanent and definite. Here both these characters are wanting. Until the commissioners have made a levy under the law, no one can tell with certainty what property in the county will be assessed and what not; and their determination may be changed by the judgment of some court on the question, whether some district does, or does not, maintain a high school similar in character to that of the particular city. Again, there is nothing- to prevent any district from raising the standard of its high school to that of the particular city, or even above it, in which case the district would be diminished, or, possibly left without any property in it subject to taxation. These considerations show that any attempt to liken the provisions of this statute to the creation of a special taxing district is illusory, and wholly fails of its object.

This is not a case in which the invalid portion of the law may be rejected without affecting the entire statute. The provisions of the first and second sections are dependent. We cannot assume that the legislature would have authorized the children of nonresidents to attend the high school of the particular city, as is done by the first section, without the provision'as to taxation, contained in the second. The invalidity of this section emasculates the law and renders the entire act invalid. The conclusion here reached makes it unnecessary to consider the other objections to the statute.

Judgment affirmed.


author: By the Court.

text:
    Cincinnati v. Anderson.

      Assessment for street improvement — Omnibus resolutions — Act op January 11, 189S (90 Ohio Laws, 5).

    (Decided April 23, 1895.)
    Error to the Circuit Court of Hamilton county.

      Theodore Horstman, Corporation Counsel, for plaintiff in error.

      William M. Ampt, for defendant in error.
    Suit brought to enjoin an assessment made to meet the costs and expenses of the condemnation of land for a street improvement, on the ground that the condemning ordinance was irregularly adopted, and that the property assessed did not abut on the improvement, the mode of assessment adopted being by the front foot. The case was appealed to the circuit court, and judgment rendered for the plaintiff, upon a hearing of the cause.
   By the Court.

We agree with the opinion of the circuit court, as announced in another case, that the fact that resolutions declaring it necessary to improve several streets are voted on together in council, without any separation or division of the question as to each, does not impair the validity of the assessments levied thereunder. They come within the reason and spirit of the curative law of January 11, 1893 (90 Ohio Laws, 5). This is in accordance with recent holdings of this court in similar cases. But as the property of the defendant.in error, Anderson, is found by the court not to abut upon the improvement, the judgment of the circuit court is, upon the authority of Cincinnati v. Batsche, ante 324, affirmed.


text:
    State ex rel. v. Wood, Turnkey.

      Summoning jury — Sections 5189a and 5189b, Rev. Stat. — Act oj April 6,1892 (89 Ohio Laws, 222) — Act of April 24, 1898 ( 90 Ohio Laws, 254) — 89 Ohio St., 658, construed.

    (Decided April 23, 1895.)
    Error to the Circuit Court of Montgomery county.

      W. A. Hallaman, for plaintiff in error.

      C. H. Kumler, Prosecuting Attorney, for defendant in error.
   By the Court.

Held; That sections 5189a and 51896, Revised Statutes, as enacted April 6, 1892 (89 Ohio Laws, 222), are not repealed so far as they relate to Montgomery county, by the act of April 24, 1893 (90 Ohio Laws, 254), nor by any subsequent statute. The rule of construction stated in State v. Brewster, 39 Ohio St., 653, is a general one, and not to be applied so as to defeat the manifest intention of the legislature.

Judgment affi/rmed.


text:
    Griggs v. Dittoe.

      Dogs at large — Liability to owner for killing — Section 7008, Rev. Stat. — Act-of May 4,1891 (88 Ohio Laws, 518).

    Under section 7008, Revised Statutes, as amended May 4,1891, any person may, without liability to the owner, kill a dog running at large away from the premises occupied by such owner and unaccompanied by any person, although such dog is listed for taxation, and the tax paid when due.
    (Decided May 7, 1895.)
    Error to the Circuit Court of Perry county.

      Ferguson & Johnston and Owen Yost, for plaintiff in error.

      W. E. Finck and W. F. Finck, Jr., for defendant in error.
   By the Court.

The general scope of section 7008, Revised Statutes, authorizes any person to kill a dog “at large away from the premises occupied by the owner and unaccompanied by any person.” The concluding proviso of the section as amended May 4, 1891, “that any dog returned for taxation, and the tax on which is paid when due shall be regarded as, and shall be property, etc.,” is not inconsistent therewith. The proviso itself implies that there may be a lawful killing of such animal, and circumstances under which there may be such lawful killing are described in the general scope of the act.

Judgment affirmed.


text:
    No. 2979.
    Sheridan v. Village of Oberlin.
    (Decided October 16, 1894.)
    Error to the Circuit Court of Lorain county.

      E. G. Johnson and George L. Nichols, for plaintiff in error.

      W. B. Bedortha and C. A. Metcalf, for defendant in error.
   Judgment affirmed.


text:
    No. 2984.
    Bank v. Treasurer.
    (Decided October 16, 1894.)
    Error to the Circuit Court of Payette county.

      J. J. Harper and Mills Gardner, for plaintiff in error.

      R. A. Harrison and H. B. Maynard, for defendant in error.
   This court is of opinion that the recovery of taxes against the said bank should have been limited to taxes upon the monthly average of cash in possession of said bank, and that the judgment of the said court of common pleas ought, by said circuit court, to have been modified accordingly, and that the said circuit court erred in affirming, without modification, the judgment of the said court of common pleas. And proceeding to render the judgment which the said circuit court should have rendered, this court does order and adjudge that the judgment of the said court of common pleas be and the same is hereby reversed for error in holding that the defendant in error was entitled to recover taxes upon that part of said return which embraces the monthly average amount due from other banks and bankers to the said plaintiff in error.

Dickman, C. J., dissents.

Williams, J., not sitting.


text:
      No. 2985.
    Hosford et al. v. Avery, Ex'r, et al.
    (Decided October 16, 1894.)
    Error to the Circuit Court of Huron county.

      G. T. Stewart; for plaintiffs in error.

      L. D. Strutton and C. P. & L. W. Wickham, for defendants in error.
   Judgment affirmed.


text:
    No. 3680.
    Iron Company v. Hynes, Guard.
    (Decided October 16, 1894.)

      Error to the Circuit Court of Mahoning county.

      Myron A. Norris and T. W. Sanderson, for plaintiff in error.

      A. J. Wolf and W. S. Anderson, for defendant in error.
   Judgment affirmed.

Burket and Spear, JJ., dissent.


text:
    No. 3800.
    Coal & Mining Company v. Devault, Adm'r.
    (Decided October 16, 1894.)
    Error to the Circuit Court of Hocking county.

      L. D. Vickers and E. W. Kittredge, for plaintiff in error.

      Wright & Pettit, for defendant in error.
   Judgment reversed on the authority of The Consolidated Coal & Mining Co. v. Adm'r., of Clay, 51 Ohio St., 542.


text:
    No. 3934.
    Railway Company v. Foil, Adm'x.
    (Decided October 16, 1894.)
    ERROR to the Circuit Court of Cuyahoga county.

      Estep, Dicky, Carr & Goff, for plaintiff in error.

      Burke & Ingersolls, for defendant in error.
   Judgment affirmed.

Burket and Spear, JJ., dissent.


text:
    No. 2880.
    McFarlin et al. v. Graham.
    (Decided October 23, 1894.)
    Error to the Circuit Court of Delaware county.

      F. M. Marriott, for plaintiffs in error.

      S. S. Gardner, H. M. Carper and J. F. Millar, for defendant in error.
   Judgment affirmed.


text:
    No. 2972.
    Hyde et al. v. Bank.
    (Decided October 23, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      E. Sowers, for plaintiffs in error.
    Brewer, Palmer & McGowan, for defendant in error.
   Judgment affirmed.


text:
    No. 2978.
    Insurance Company v. Moore.
    (Decided October 23, 1894.)
    Error to the Circuit Court of Monroe county.
    Hunter, Mallory & Jeffers and Lee Elliott, for plaintiff in error.

      J. P. Spriggs & Son and James C. Tallman, for defendant in error.
   Judgment affirmed on the authority of Moody v. Insurance Company, ante, 12.


text:
    No. 2983
    Morganthaler et al. v. Perkins.
    (Decided October 23, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Smith & Blake, for plaintiffs in error.

      George A. Groot, for defendant in error.
   Judgment affirmed.


text:
    No. 2989.
    Hand v. Elben.
    (Decided October 23, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      L. A. Wilson, for plaintiff in error.

      Russell & Rice, for defendant in error.
   Judgment affirmed.


text:
    No. 2990.
    Davis v. Kelly, Receiver.
    (Decided October 23, 1894.)
    Error to the Circuit Court of Meigs county.

      John N. Myers, for plaintiff in error.

      Grosvenor, Jones & Davis, for defendant in error.
   Judgment affirmed.


text:
    No. 2993.
    Lowe v. Arey.
    (Decided October 23, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Arnold Green, for plaintiff in error.

      Stearns & Kelley, for defendant in error.
   Judgment affirmed


text:
      No. 2994.
    Campbell et al. v. Tidemann.
    (Decided October 23, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Arnold Green, for plaintiffs in error.

      E. C. & G. H. Schwan, for defendant in error.
   Judgment affirmed


text:
    No. 3120.
    Railroad Company v. Griffith.
    (Decided October 23, 1894.)
    Error to the Circuit Court of Licking county.

      Kibler & Kibler and J. H. Collins, for plaintiff in error.

      S. M. Hunter, for defendant in error.
   Judgment affirmed.


text:
    No. 3838.
    Landis et al. v. Commissioners.
    (Decided October 23, 1894.)

      Error to the Circuit Court of Darke county.

      Martin B. Trainer, for plaintiffs in error.

      Sater & Robeson, for defendants in error.
   Judgment affirmed on the grounds that the plaintiff has not such a special interest as will entitle him to maintain an action for an injunction.

Spear, Burkett and Minshall, JJ., dissenting.

We think that the law is invalid, on the ground that it is not competent to the legislature to require the commissioners of a county to vacate a county road; and further, are of the opinion that the plaintiff, Landis, is shown by the record to have such an interest in the road as to entitle him to maintain an action to enjoin its vacation under the supposed law.


text:
    No. 3872.
    Railway Company v. City of Cincinnati.
    (Decided October 23, 1894.)
    Error to the Superior Court of Cincinnati.

      E. A. Ferguson, for plaintiff in error.

      Theodore Horstman, corporation counsel, Frederick Hertenstein and W. H. Whittaker, for defendant in error.
   Judgment affirmed for reasons stated in the opinion in City of Cincinnati v. The Cincinnati Inclined Plane Railway Company, Superior Court of Cincinnati in general term, 30 W. L. J., 321.


text:
    No. 3907.
    Railway Company v. Rasey.
    (Decided October 23, 1894.)
    Error to the Circuit Court of Marion county.

      Goulder & Holdin, W. Z. Davis and John T. Dye, for plaintiff in error.

      Johnston & Young, for defendant in error.
   Judgment affirmed.


text:
    No. 3940.
    Oberlin et al. v. Wasson et al.
    (Decided October 23, 1894.)
    Error to the Circuit Court of Wayne county.

      A. D. Metz, McClure & Smyser and Johnson & Taylor, for plaintiffs in error.

      Adair & Adair, Day, Lynch da Day and Alfred J. Thomas, for defendants in error.
   This cause came on for nearing on the demurrer to the answer in bar filed by the defendants in error, and thereupon the court having heard the same, finds that said answer sets up facts sufficient to bar further proceedings in error and the demurrer is overruled; and the plaintiffs in error pleading further and upon the ground that the •bonds for which it was sought to tax Wayne county have become the property of the state, to be paid from the general revenue fund of the state, and the indebtedness for which said bonds were issued by Wayne county, having been paid by the state as alleged in said answer,' said indebtedness having been for the location and establishment of a state institution, for which the state at large could be taxed, and not a single county, the judgment of said circuit court, enjoining further attempts to levy or collect taxes from the taxpayers of Wayne county to pay said bonds issued for the establishment and location of said Experiment Station, hereby is affirmed.


text:
    No. 3994.
    Electric Railway, Light and Power Company v. McMullen.
    (Decided October 23, 1894.)
    Error to the Circuit Court of Richland county.

      Cummings & McBride, for plaintiff in error.

      Lutz & Lutz and Skiles da Skiles, for defendant in error.
   Judgment affirmed.


text:
    No. 4116.
    Darby v. State ex rel. Palmer.
    (Decided October 23, 1894.)
    Error to the Circuit Court of Pulton county.

      Doyle, Scott & Lewis and W. W. Touvelle, for plaintiff in error.

      Hurd, Brumback & Thatcher, for defendant in error. '
   Judgment affirmed.

Bradbury, Burket and Spear, JJ., dissent on the ground that the petition does not show a cause of action.


text:
    No. 2447.
    Gourley v. Bailey.
    (Decided October 30, 1894)
    Error to the Circuit Court of Mahoning county.

      George F. Arrel and W. Hyde, for plaintiff in error.

      W. S. Anderson, and James Kennedy, for defendant in error.
   Judgment affirmed.


text:
    No. 2454.
    Delsignore & Bro. v. Champion Ice Manufacturing and Cold Storage Company.
    (Decided October 30, 1894.)
    Error to the Superior Court of Cincinnati.

      Kramer & Kramer and Lowery Jackson, for plaintiff in error.
    Ramsey, Maxwell and Ramsey, for defendant in error.
   Judgment affirmed.


text:
    No. 2788.
    Trunkey et al. v. State ex rel. Hull et al.
    (Decided October 30, 1894)
    ERROR to the Circuit Court of Trumbull county.

      Tuttle & Fillius, for plaintiffs in error.

      George P. Hunter and John J. Sullivan, for defendants in error.
   Judgment affirmed.


text:
    No. 2925.
    Cope et al. v. Gee et al.
    (Decided October 30, 1894.)
    Error to the Circuit Court of Columbiana county.

      Henry C. Jones and J. W. & H. Morrison, for plaintiffs in error.

      J. A. Ambler and B. S. Ambler, for defendants m error.
   Judgment affirmed.


text:
    No. 2970.
    Flour Company v. Hydraulic Company
    (Decided October 30, 1894.)
    Error to the Circuit Court of Montgomery county.

      Gottschall & Brown and Gunckel, Rowe & Shuey, for plaintiff in error.

      Corwin & Corwin, Frank Conover and McMahon & McMahon, for defendant in error.
   Judgment affirmed


text:
    No. 2981.
    Crane & Co. v. Buckles et al.
    (Decided October 30, 1894.)
    Error to the Superior Court of Cincinnati.

      Charles W. Baker, for plaintiffs in error.

      Joseph W. O’Hara and Paxton & Warrington, for defendants in error.
   Judgment affirmed.


text:
    No. 2992.
    Insurance Company v. Noller & Narrowgang.
    (Decided October 30, 1894.)
    Error to the Circuit Court of Hancock county.

      H. F. Burket, for plaintiff in error.

      George H. Phelps, for defendants in error.
   Judgment affirmed.

Burket, J., not sitting in the case.


text:
    No. 2998.
    Barnes v. Flowers et al.
    (Decided October 30, 1894.)
    Error to the Circuit Court of Perry county.

      Charles Hoy, and Percy A. Walling, for plaintiff in error.

      Ferguson & Johnston, for defendants in error.
   Judgment affirmed.


text:
    No. 3005.
    Phillips v. Haneley.
    (Decided October 30, 1894.)
    Error to the Circuit Court of Allen county.

      Prophet & Eastman, for plaintiff in error.

      Hoagland & Henderson, for defendant in error.
   Judgment affirmed.


text:
    No. 3009.
    Smythe et al. v. Smythe.
    (Decided October 30, 1894.)

      .Error to the Circuit Court of Morrow county.

      Olds & Olds, for plaintiffs in error.

      Prophet & Eastman, Vaughan & Kaufman and J. H. Beebe, for defendant in error.
   Judgment affirmed.


text:
    No. 3013.
    Foster v. Ernest et al.
    (Decided October 30, 1894.)
    Error to the Circuit Court of Hancock county.

      Charles G. Barnd, James A. & E. V. Bope and Whitely, Pendleton da Whitely, for plaintiff in error.

      H. F. Burket and W. J. Rigby, for defendants in error.
   Judgment affirmed.

Burket, J., not sitting in the case.


text:
    No. 3016.
    Pierce v. Kepner.
    (Decided October 30, 1894.)
    Error to the Circuit Court of Darke county.

      Safer & Robeson, for plaintiff in error.

      J. I. Allread, for defendant in error.
   Judgment affirmed on the grounds stated in the opinion in H. A. Kepner v. O. B. Pierce, 5 O. C. C. Rep., 488.


text:
    No. 3051.
    Dewitt & Company v. King.
    (Decided October 30, 1894.)

      Error to the Circuit Court of Richland county.

      Cummings & McBride, for plaintiffs in error.

      Jenner, Tracy & Weldon, for defendant in error.
   Judgment affirmed.


text:
    No. 3810.
    Village of Delphos v. Findley.
    (Decided October 30, 1894.)
    Error to the' Circuit Court of Van Wert county.

      F. F. Leland and Horace A. Reeve, for plaintiff in error.

      B. A. Roloson, for defendant m error.
   Judgment affirmed.


text:
    No. 4042.
    Ralston v. Wells.
    (Decided October 30, 1894.)
    Error to the Circuit Court of Defiance county.

      Henry & Edward H. Newbegin, for plaintiff in error.

      Harris & Cameron and W. H. Hubbard, for defendant in error.
   Judgment affirmed.


text:
    No. 4053.
    Street Railway Co. v. Sweeney et al.
    (Decided October 30, 1894.)
    Error to the Circuit Court of Lucas county.

      Baker, Smith & Baker, for plaintiff in error.

      Scribner & Hurd, Merrill & Hone, E. D. Potter, Jr. and C. F. Watts, for defendants in error.
   Judgment affirmed.

Spear and Minshall, JJ., dissent from the affirmance of the judgment against the city, and, also from the affirmance of that against the Lake Shore and Michigan Southern Railway; and Burket, J. dissents from the affirmance of the judgment against the latter company only.


text:
    No. 2455.
    Holmes, Booth & Hayden v. Hayes et al.
    (Decided November 3, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      William H. Harris and Everett Dellenbaugh & Weed, for plaintiffs in error.

      Henderson, Kline & Tolles, for defendants in error.
   Judgment affirmed.

Minshall, Bradbury and Spear, JJ., dissent on the ground that the defendants in error were put upon inquiry as to the authority of the agent, . Adams, to indorse the note in suit, and should be held to have all information which proper inquiry would have shown.


text:
    No. 2472.
    Hawkins v. Goodrich.
    (Decided November 3, 1894.)
    Error to the Circuit Court of Geauga county.

      O. S. Farr and Metcalfe & King, for plaintiff in error.

      I. N. Hathaway, J. B. Burrows and C. W. Osborne, for defendant in error.
   Judgment affirmed.


text:
    No. 2480.
    Kinney et al. v. Kinney et al.
    (Decided November 3, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      W. C. Rogers and W. Robinson, for plaintiffs in error.

      John O. Winship, for defendants in error.
   Judgment affirmed.


text:
    No. 2877.
    Worthington et al. v. Worthington Jr., et al.
    (Decided November 3, 1894.)
    Error to the Circuit' Court of Madison county.

      L. J. Gritchfield, Manus O'Donnell, G. W. Wilson, John F. Locke and Howard C. Black, for plaintiffs in error.

      Nash & Lentz, Booth & Keating and Ira H. Crum, for defendants in error.
   Judgment affirmed.


text:
    No. 2986.
    Kripendorf Dittman & Co. v. Tressell, Sheriff.
    (Decided November 3, 1894.)
    Error to the Circuit Court of Richland county.

      Cummings & McBride, for plaintiffs in error.

      Connolly & Laser and Douglass Douglass, for defendant in error.
   It appearing from the record that one of the g'rounds of the circuit court for reversing the judgment of the court of common pleas was, that that court erred in overruling a motion for a new trial for the reason that the verdict is against the weight of the evidence and the law, the judgment of the circuit court is hereby affirmed, this court not passing upon other questions of alleged error raised on the record.


text:
    No. 3023.
    Duvall et al. v. Ozias, Guard.
    (Decided November 3, 1894.)
    Error to the Circuit Court of Preble county.

      Millikin, Shotts & Millikin, James A. Gilmore and H. C. Fox, for plaintiffs in error.

      R. W. Quinn, Fisher & Vaughan, A. F. Hume and J. H. & S. B. Foos, for defendant in error.
   Judgment affirmed.


text:
    No. 3026.
    Thomas v. Heyl.
    (Decided November 3, 1894.)
    Error to the Circuit Court of Wayne county.

      Mahlon Rouch, for plaintiff in error.

      B. F. Eason and A. S. McClure, for defendant in error.
   Judgment affirmed.


text:
    No. 3029.
    Gartrell v. Gartrell, Adm'r.
    (Decided November 3, 1894.)
    Error to the Circuit Court of Carroll county.

      Fimple, Holder & DeFord and Healea & Greene, for plaintiff in error.

      McCoy & Eckley, for defendant in error.
   Judgment affirmed.


text:
    No. 3031.
    Smith v. Fisher.
    (Decided November 3, 1894.)
    Error to the Circuit Court of Logan County.

      West & West, for plaintiff in error.

      Howenstine & Huston, for defendant in error.

   Judgment affirmed.


text:
    No. 3034.
    Baldwin et al. v. Platt, Adm'x.
    (Decided November 3, 1894.)
    Error to the Circuit Court of Montgomery county.

      C. H. Baldwin, for plaintiffs in error.

      R. M. Nevin and D. B. Corwin, for defendant in error.
   Judgment affirmed.


text:
    No. 3037.
    Baker v. Baker et al.
    (Decided November 3, 1894.)
    Error to the Circuit Court of Hancock county.

      A. & F. P. Blackford, for plaintiff in error.
    Whiteley, Pendleton & Whiteley, for defendants in error.
   Judgment affirmed.


text:
    No. 3069.
    Hooker et al. v. Trimble et al.
    (Decided November 3, 1894.)
    Error to the Circuit Court of Fairfield county.

      S. A. Kistler, for plaintiffs in error.

      Brasee & Brasee, C. W. McCleery, Wm. Davidson and G. W. Alfred, for defendants in error.
   Judgment for the heirs of Richard Hooker, Sr., reversed, and judgment for the plaintiffs in error.


text:
    No. 3044.
    POHLMAN v. POHLMAN.
    (Decided November 13, 1894.)
    Error to the Circuit Court of Hamilton county.

      Charles W. Baker, for plaintiff in error.

      C. Hammond Avery, for defendant in error.
   Judgment affirmed on the authority of Rogers v. Rogers, 51 Ohio St., 1.


text:
    No. 2484.
    Railroad Company v. Pavey & Pavey.
    (Decided November 20. 1894.)
    Error to the Circuit Court of Fayette county.

      H. T. Mathers and John Logan, for plaintiff in error.

      Harper & Marchant, for defendants in error.
   Judgment affirmed.


text:
    No. 2498.
    Allen, Ex'r, v. Insurance Company.
    (Decided November 20, 1894.)
    Error to the Superior Court of Cincinnati.

      Paxton & Warrington, Orlando P. Schmidt and John P. Boutet for plaintiff in error.

      Warner M. Bateman, W. H. Jones and Johnson & Levy, for defendant in error.
   Judgment affirmed.


text:
    No. 2500.
    Hull v. Hull et al.
    (Decided November 20, 1894.)
    Error to the Circuit Court of Lucas county.

      Lee & Brown and A. W. Eckert, for plaintiff in error.

      Osborn & Smith, for defendants in error.
   Judgment affirmed.


text:
    No. 2509.
    Bailey v. Gas Company.
    (Decided November 20, 1894.)
    Error to to the Circuit Court of Lucas county.

      Lee & Brown and Brown & Taylor, for plaintiff in error.

      Doyle, Scott & Lewis, for defendant in error.
   Judgment affirmed.


text:
    No. 2995.
    Malone Bros. & Ehrhart v. Iron Company.
    (Decided November 20, 1894.)
    ERROR to the Circuit Court of Williams county.

      Emery & Masters, Scribner & Hurd, and T. J. McDonnell for plaintiffs in error.

      Charles E. Scott and C. D. Robertson, for defendant in error.
   Judgment affirmed.


text:
    No. 3054.
    Wilson, Guard., v. Fullwiler.
    (Decided November 20, 1894.)
    Error to the Circuit Court of Mahoning county.

      James P. Wilson, for plaintiff in error.

      E. N. Brown, for defendant in error.
   ■ Judgment affirmed on the ground stated in the opinion of Peter Fullwiler v. John Infield's Guardian, 6 O. C. C. Rep., 39.

Minshall, J., dissents.


text:
    No. 3063.
    Finley v. Bank et al.
    (Decided November 20, 1894.)
    Error to the Circuit Court of Jefferson county.

      Trainer & Son, for plaintiff in error.

      John A. B. Wood, W. T. Medill, McClave & Lewis, John M. Cook and Dunbar & Kithcart, for defendants in error.
   Judgment of the circuit court reversed, and that of the common pleas affirmed, on the authority of Mandell v. McClave, 46 Ohio St., 407.


text:
    No. 3064.
    City of Toledo v. Lewis.
    (Decided November 20, 1894.)
    Error to the Circuit Court of Lucas county.

      C. F. Watts, City Solicitor and W. H. A. Read, for plaintiff in error.

      L. W. Morris, for defendant in error.
   Judgment affirmed.


text:
    No. 3066.
    Losh et al., Ex'rs, v. Drake et al.
    (Decided November 20, 1894.)
    Error to the Circuit Court of Clinton county.

      Mills & Clevenger, for plaintiffs in error.

      Smith & Savage and Oliver B. Jones, for defendants in error.
   Judgment affirmed.


text:
    No. 3072.
    National Union v. Harn.
    (Decided November 20, 1894.)
    Error to the Circuit Court of Richland county.

      D. Dirlam, for plaintiff in error.

      W. S. Kerr and Douglass & Douglass, for defendant in error.
   Judgment affirmed.


text:
    No. 3078.
    Taylor v. Knights of Pythias Fraternal Association.
    (Decided November 20, 1894.)
    Error to the Circuit Court of Marion county.

      George W. Ross, John McSweeny and B. G. Young, for plaintiff in error.

      Charles F. Garberson, for defendant in error.
   Judgment affirmed.


text:
    No. 3082.
    O'Rourke v. O'Rourke.
    (Decided November 20, 1894.)
    Error to the Circuit Court of Richland county.

      D. Dirlam, for plaintiff in error.

      Jenner & Weldon, for defendant in error
   Judgment affirmed.


text:
    No. 3086.
    Pjtts et al. v. Davids et al.
    (Decided November 20, 1894.)
    Error to the Circuit Court of Union county.

      P. R. Kerr, for plaintiffs in error.

      Robinson & Woodburn and. H. M. Carper, for defendants in error.
   Judgment affirmed.


text:
    No. 2512.
    Serrick et al. v. Serrick, Ex'x.
    (Decided November 27, 1894.)
    Error to the Circuit Court of Fulton county.

      A. W. Eckert, and Charles Dodge, for plaintiffs in error.
    Doyle, Scott & Lewis and W. W. Touvelle for defendant in error.
   Judgment affirmed, on the ground that in the opinion of this court the action was prematurely brought by the plaintiff below.


text:
    No. 2847.
    Tisdell, Aud., et al. v. Wire.
    (Decided November 27, 1894.)
    Error to the Circuit Court of Lake county.

      Osborn & Breed and Homer Harper, for plaintiffs in error.

      Burrows & Jerome and George W. Alvord, for defendant in error.
   Judgment affirmed.


text:
    No. 3062.
    Holah v. Holah.
    (Decided November 27, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      J. C. Hutchins and L. A. Willson, for plaintiff in error.

      Henderson, Kline & Tolles, for defendant in error.
   Judgment affirmed.


text:
    No. 3095.
    Hullitt et al. v. Gale.
    (Decided November 27, 1894.)
    Error to the Circuit Court of Lake county.

      Tuttle & Tuttle and Edward H. Fitch, for plaintiffs in error.

      J. B. Burrows, for defendant in error.
   Judgment affirmed.


text:
    No. 3097.
    McClarran Adm'r v. Orphan's Home et al.
    (Decided November 27, 1894.)
    Error to the Circuit Court of Wayne county.

      John C. McClarran, Alfred J. Thomas and Mahlon Rouch, for plaintiff in error.

      C. M. Bousch and Johnson & Taylor, for defendants in error.
   Judgment affirmed.


text:
    No. 3101.
    Wire Nail Company v. Martin.
    (Decided November 27, 1894.)
    Error to the Circuit Court of Hancock county.

      Ballard & Franks for plaintiff in error.

      A. Zugschwert, for defendant in error.
   Judgment affirmed.


text:
    No. 3107.
    Montgomery v. Anderson.
    (Decided November 27, 1894.)
    Error to the Circuit Court of Hancock county.

      John Poe and J. F. Leahy, for plaintiff in error.

      Dunn & Mehan, for defendant in error.
   Judgment affirmed.

Burnet, J., not sitting in the case.


text:
    No. 3108.
    Bode v. Woodward.
    (Decided November 27, 1894)
    Error to. the Circuit Court of Hamilton county.

      Philip Roettinger and Bode & Spiegel, for plaintiff in error.

      Reemelin & Reemelin and Coppock & Gallagher, for defendant in error.
   Judgment affirmed


text:
    No. 3121.
    PITZER et al. v. HILLMAN et al.
    (Decided November 27, 1894.)
    Error to the Circuit Court of Licking county.

      J. A. Flory, for plaintiffs in error.

      Kibler & Kibler, for defendants in error.
   Judgment affirmed.


text:
    No. 2546.
    Railway Company v. City of Cincinnati.
    (Decided December 4, 1894.)
    Error to the Superior Court of Cincinnati.
    Ramsey, Maxwell & Ramsey, for plaintiff in error.

      Frederick Hertenstein and H. H. Whittaker, for defendant in error.
   Judgment affirmed.


text:
    No. 2551.
    Greve, Trustee, v. Hardman.
    (Decided December 4, 1894.)

      Error to the Circuit Court of Clermont county.

      Matthews & Clevelaud and Hollister, Roberts & Hollister, for plaintiff in error.

      Simrall & Mack, for defendant in error.
   Judgment affirmed.


text:
    No. 3114.
    National Bank v. National Bank.
    (Decided December 4, 1894.)
    Error to the Circuit Court of Van Wert county.

      James L. Price, for plaintiff in error.

      Orville S. Brumback and Gail M. Saltzgaber, for defendant in error.
   Judgment affirmed for the reason that the circuit court found the facts as found by the common pleas, not sustained by the evidence.


text:
    No. 3119.
    Village of Jefferson v. McKay.
    (Decided December 4, 1894.)
    Error to the Circuit Court of Ashtabula county.

      Northway & Williams, for plaintiff in error.

      Hoyt & Munsell, for defendant in error.
   Judgment affirmed.

Bradbury, Minshall and Burket, JJ., dissent.


text:
    No. 3131.
    Enyart v. Keever et al.
    (Decided December 4, 1894)
    Error to the Circuit Court of Warren county.'

      Gorman & Thompson, for plaintiff in error.

      W. C. Thompson and W. F. Eltzroth, for defendant in error.
   Judgment affirmed on the authority of Johnson v. Johnson, 51 Ohio St., 446.


text:
    No. 3134.
    Insurance Company v. Leedy et al.
    (Decided December 4, 1894.)
    Error to the Circuit Court of Richland county.

      D. Dirlam and Brewer, Palmer & McGowan, for plaintiff in error.

      Douglass & Douglass and Bell, Brinkerhoff & Mengert, for defendants in error.
   Judgment affirmed.


text:
    No. 3138.
    Railway Company v. Stanfield.
    (Decided December 4, 1894.)
    Error to the Circuit Court of Cuyahoga county.

      Estepp, Dickey, Carr & Goff, and Squire, Sanders & Dempsey, for plaintiff in error.

      Edward S. Meyer, for defendant in error.
   J udgment -affirm ed.

Diokman, C. J., not sitting in the case.


text:
    No. 3141.
    Sheylock et al. v. Allbery, Exr., et al.
    (Decided December 4, 1894.)
    Error to the Circuit Court of Morgan county.

      Steward & Harris, J. A. Ivers and E. M. Kennedy, for plaintiffs in error.

      W. H. Ball and N. Corner, for defendants in error.
   Judgment affirmed.


text:
    No. 3143.
    Van Vleck v. Peck.
    (Decided December 4, 1894.)
    Error to the- Circuit Court of Sandusky county.

      Buckland & Love, for plaintiff in error.

      Bartlett & Wilson and B. R. Dudrow, for defendant in error.
   Judgment affirmed.


text:
    No. 3144.
    Gray v. Commissioners et al.
    (Decided December 4, 1894.)

      Error to the Circuit Court of Ross county.

      Frank H. Hinton, for plaintiff in error.

      Mayo, Yaple & Phillips, for defendants in error.
   Judgment affirmed.


text:
    No. 3146.
    Collier v. Insurance Company.
    (Decided December 4, 1894.)
    Error to the Circuit Court of Muskingum county.

      Charles A. Beard, for plaintiff in error.

      H. F. Achauer, for defendant in error.
   Judgment affirmed.


text:
    No. 3150.
    Livingstone v. Reed et al.
    (Decided December 4, 1894.)
    Error to the Circuit Court of Scioto county.

      N. W. Evans, for plaintiff in error.

      A. T. Holcomb, James M. Dawson and T. C. Anderson, for defendants in error.
   Judgment affirmed.


text:
    No. 3168.
    Wise v. Carley.
    (Decided December 4, 1894.)
    Error to the Circuit Court of Brown county.

      Thompson & Fite, for plaintiff in error.

      Young & Barnes, for defendant in error.
   Judgement affirmed.


text:
    No. 3170.
    Martin, Adm'r, v. Squires.
    (Decided December 4, 1894.)
    Error to the Circuit Court of Coshocton county.

      S. H. Nicholas and W. A. Himebaugh, for plaintiff in error.

      W. & A. H. Stilwell, for defendant in error.
   Judgment affirmed.


text:
    No. 2558.
    Pope v. Flynn.
    (Decided December 11, 1894.)
    Error to the Circuit Court of Hamilton county.

      William H. Pope, for plaintiff in error.

      John P. Murphy, for defendant in error.
   Judgment affirmed.


text:
    No. 2559.
    Insurance Company v. Humphery.
    (Decided December 11, 1894.)
    Error to the Circuit Court of Sandusky county.

      Goulder & Holding and Garver & Garver, for plaintiff in error.

      Bartlett & Wilson and C. L. Kennan, for defendant in error.
   Judgment affirmed.

Dickman, C. J. and Burket, J. dissent.


text:
    No. 2566.
    Mohn v. Village of Clyde.
    (Decided December 11, 1894.)
    Error to the Circuit Court of Sandusky county.

      J. M. Lemmon and Bartlett & Wilson, for plaintiff in error.

      S. S. Richards and J. B. Fink, for defendant in error.
   J udgment affirmed.


text:
    No. 2574.
    Railway Company v. Ames et al.
    (Decided December 11, 1894.)
    Error to the Circuit Court of Sandusky county.

      Swayne, Swayne & Hayes and John M. Lemmon, for plaintiff in error.

      Richards & Heffner, for defendant in error.
   Judgment affirmed.


text:
    No. 3103.
    Bauer et al. v. Young et al.
    (Decided December 11, 1894.)
    Error to the Circuit Court of Crawford county.

      J. W. Coulter, W. J. Geer and O. W. Aldrich, for plaintiffs in error.

      Finley, Beer & Bennett and H. C. Carhart, for defendants in error.
   Judgment affirmed.


text:
    No. 3174.
    Sabin, Adm'r, et al. v. Corcoran et al.
    (Decided December 11, 1894.)
    Error to the Circuit Court of Greene county.

      Nesbitt & Hartley, and Charles II. Kyle, for plaintiffs in error.

      Charles Darlington, for defendants in error.
   Judgment affirmed.


text:
    No. 4269.
    Commissioners v. State ex rel. Teasdale.
    (Decided December 11, 1894.)
    Error to the Circuit Court of Hamilton county.

      Spiegel & Foraker, County Solicitors, for plaintiffs in error.

      Nathaniel Rockhold, for defendant in error.
   Judgment affirmed.

Spear, Minshall and Burket, J J., dissent.


text:
    No. 2592.
    Board of Education v. Clingan.
    (Decided December 18, 1894.)

      Error to the Circuit Court of Trumbull county.

      R. B. Murray, for plaintiff in error.

      Tuttle & Fillius, for defendant in error.
   Judgment affirmed.


text:
    No. 2743.
    Ury et al. v. Watterson, Trustee.
    (Decided December 18, 1894.)
    Error to the Circuit Court of Franklin county.

      Jones & Jones and A. Hambleton, for plaintiffs in error.

      Byrne & O'Neill, for defendant in error.
   Judgment affirmed on the grounds stated in the opinion of John A. Watterson, Trustee, etc., v. Theresa Ury et al., 5 O. C. C. Rep., 347.


text:
    No. 3166.
    Vetter v. Brewing Company.
    (Decided December 18, 1894.)
    Error to the Superior Court of. Cincinnati.

      Milton Sater, for plaintiff in error.

      Ramsey, Maxwell & Ramsey, for defendant in error.
   Judgment affirmed.


text:
    No. 3178.
    City of Cincinnati v. Bishop et al., Trustees.
    (Decided December 20, 1894.)
    Error to the Circuit Court of Hamilton county.

      Theodore Horstman, Corporation Counsel, for plaintiff: in error.

      Harmon, Colston, Goldsmith & Hoadly and E. A. Ferguson, for defendants in error.
   Judgment affirmed on grounds stated in the opinion in The City of Cincinnati v. The Trustees of the Cincinnati Southern Railway Co. et al., 6 O. C. C. Rep., 247.

Spear and Minshall, JJ., dissent.


text:
    No. 3338.
    City of Cincinnati, by, etc., v. Bishop et al.
    (Decided December 20, 1894.)
    Error to the Circuit Court of Hamilton county.

      Theodore Horstman, Corporation Counsel, for plaintiff: in error.

      Harmon, Colston, Goldsmith & Hoadly and E. A. Ferguson, for defendants in error.
   Judgment affirmed on grounds stated in the opinion in The City of Cincinnati v. The Trustees of the Cincinnati Southern Ry. Co., 6. O. C. C. Rep., 247.

Spear, J., dissents.


text:
    No. 2542.
    Nolf et al. v. The Commissioners.
    (Decided January 15, 1895.)
    Error to the Circuit Court of Sandusky county.

      Bartlett & Wilson, for plaintiffs in error.

      Kinney & Hunt, for defendants in error.
   Judgment affirmed.


text:
    No. 2606.
    Wilson v. The Cleveland Leader Printing Company.
    (Decided January 15, 1895.)
    ERROR to the Circuit Court of Cuyahoga county.

      Williamson & Cushing, for plaintiff in error.

      Prentiss & Vorce, for defendant in error.
   Judgment affirmed.


text:
    No. 2607.
    Wilson v. Chamberlain.
    (Decided January 15, 1895.)
    Error to the Circuit Court of Cuyahoga county.

      Williamson & Cushing, for plaintiff in error.

      Prentiss & Vorce, for defendant in error.
   Judgment affirmed.


text:
    No. 3154.
    Insurance Company v. Dun & Co.
    (Decided January 15, 1895.)
    Error to the Circuit Court of Payette county.

      Craighead & Craighead and Gardner & Rogers, for plaintiff in error.

      Hidy & Patton, for defendants in error.
   Judgment affirmed.


text:
    No. 3183.
    Reig et al. v. Village of St. Bernard.
    (Decided January 15, 1895.)
    Error to the Circuit Court of Hamilton county.

      Follett & Kelley and Louis J. Dolle, for plaintiffs in error.

      Gorman & Thompson and John D. Hammel, for defendant in error.
   Judgment affirmed.


text:
    No. 3189.
    Stewart v. Bank et al.
    (Decided January 15, 1895.)
    Error to the Circuit Court of Athens county.

      Grosvenor & Jones and E. A. Guthrie, for plaintiff in error.

      L. M. Jewett and Charles Townsend, for defendants in error.
   Judgment affirmed.


text:
    No. 3195.
    Lackey v. Sheriff.
    (Decided January 15, 1895.)
    Error to the Circuit Court of Paulding county.

      Hiram C. Glenn, for plaintiff in error.

      A. J. Twitchell, for defendant in error.
   Judgment affirmed.


text:
    No. 3202.
    Blee v. Bradley.
    (Decided January 15, 1895.)
    Error to the Circuit Court of Clark county.

      William A. Scott and Walter L. Weaver, for plaintiff in error.

      Wallace & Coleman and Cochran & Rodgers, for defendant in error.
   Judgment affirmed.


text:
    No. 2726.
    Timmonds, adm'r v. Wheeler et al.
    (Decided January 22, 1895.)
    Error to the Circuit Court of Scioto county.

      T. C. Anderson, for plaintiff in error.

      N. W. Evans, Duncan Livingston and William B. Grice, for defendants in error.
   Judgment affirmed.


text:
    No. 3159.
    Mayberry v. Paper Company.
    (Decided January 22, 1895.)
    Error to the Circuit Court of Cuyahoga county.

      Blandin & Rice, for plaintiff in error.

      Boynton, Hale & Horr, for defendant in error.
   Judgment affirmed.


text:
    No. 3207.
    City of Toledo v. Clopeck.
    (Decided January 22, 1895.)
    Error to the Circuit Court of Lucas county.

      C. F. Watts, City Solicitor and W. H. A. Read for plaintiff in error.

      A. Farquharson, for defendant in error.
   Judgment affirmed.

Minshall and Burket, JJ., dissent.


text:
    No. 3208.
    Brown et al. v. Baldwin, Guardian.
    (Decided January 22, 1895.)
    Error to the Circuit Court of Mahoning county.

      George F. Arrel, R. B. Murray, I. A. Justice and W. S. Anderson, for plaintiffs in error.

      Hine & Clarke, for defendant in error.
   Judgment affirmed.


text:
    No. 3210
    Williams v. Insurance Company.
    (Decided January 22, 1895.)
    ERROR to the Circuit Court of Putnam county.

      Sheets & Ogan, for plaintiff in error.

      Lewis Brucker & A. V. Watts, for defendant in error.
   Judgment affirmed


text:
    No. 3223.
    Brown v. Wilder et al.
    (Decided January 22, 1895.)
    ERROR to the Circuit Court of Trumbull county.

      George C. Wing, for plaintiff in error.

      Charles Fillius, for defendants in error.
   Judgment affirmed.


text:
    No. 3441
    Laundry Company v. Rigney.
    (Decided January 22, 1895.)
    Error to the Circuit Court of Hamilton county.

      H. P. Lloyd, for plaintiff in error.

      Follett & Kelly and J. W. O'Kara, for defendant in error.
   Judgment affirmed.


text:
    No. 2927.
    Inclined Railway v. Peppard.
    (Decided January 29, 1895.)
    ERROR to the Circuit Court of Hamilton county.

      Ramsey, Maxwell & Ramsey, for plaintiff in error. Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   Judgment affirmed.


text:
    No. 3184.
    Paige et al. v. Cherry.
    (Decided January 29, 1895.)
    Error to the Circuit Court of Lucas county.

      Bissell & Gorrill for plaintiffs in error.

      Clayton W. Everett, for defendant in error.
   Judgment affirmed.


text:
    No. 3206.
    Coffman v. City of Dayton.
    (Decided January 29, 1895.)
    Error to the Circuit Court of Montgomery ■ county.

      Kennedy & Munger, for plaintiff in error.

      William Craighead, City Solicitor, for defendant in error.
   Judgment affirmed.


text:
    No. 3213.
    Baker et al. v. White Sewing Machine Co.
    (Decided January 29, 1895.)
    Error to the Circuit Court of Warren county.

      George A. Burr and Frank Brandon, for plaintiffs in error.

      M. B. Johnson and W. F. Eltzroth, for defendant in error.
   Judgment affirmed.


text:
    No. 3226.
    Gilkison v. Swilling.
    (Decided January 29, 1895.)
    Error to the Circuit Court of Richland county.

      W. S. Ferr, for plaintiff in error.

      Seward & Bricker, for defendant in error.
   Judgment affirmed.


text:
    No. 3239.
    Coe v. Whitney, Auditor, et al.
    (Decided January 29, 1895.)
    Error to the Circnit Court of Morrow county.

      Olds & Olds, for plaintiff in error.

      Andrews & Barry, for defendants in error.
   Judgment affirmed.