author: Spear, C. J. Johnson and Donahue, JJ.,

text:
    The State, ex rel. Hogan, Attorney General, and Henry T. Hunt, Prosecuting Attorney of Hamilton County, v. Hunt.

      Authority for action in quo warranto — Given only by section 12303, General Code — Legality of exercise of mere function — Cannot be inquired into, when — Sections 1539, 1540 and 1683, General Code — Do not constitute a supervising judge — An officer holding a separate office, when.

    1. The authority, and the only authority for bringing an action in quo warranto in this state, is given by section 12303 of the General Code. That section provides that quo warranto may be brought in the name of the state against a person who usurps, intrudes upon, or unlawfully holds or exercises, a public office, or a franchise, within this state.
    2. The legality of the exercise of a mere function alleged to be erroneously exercised by one who, it is claimed, is a public officer, can not be inquired into by a proceeding in quo warranto.

    3. Neither section 1539, 1540, nor 1687, of the General Code, nor all taken together, constitute the judge therein designated as supervising judge, an officer holding an office separate and distinct from his office as judge of the court of common pleas. Such designation is mere descriptio personae. And there being no such public office as supervising judge, there can be'no intrusion by anyone into such alleged office. Hence, quo warranto will not lie to oust such alleged intruder. This court, therefore, has no jurisdiction of the action sought to be brought.
    (Decided April 18, 1911.)
    Application fpr leave to file petition in Quo Warranto.

    A statement of facts appears in the opinion.

      Mr. Timothy S. Hogan, attorney general, and ikfr. Henry T. Hunt, prosecuting attorney, the relators, argued the matter orally, and submitted a brief.

      Mr. Lawrence Maxwell argued orally in opposition, and, with Mr. Charles W. Baker and Messrs. Darby & Benedict, submitted a brief.
   Spear, C. J.

The petition presented, and to file which leave in this court is asked, represents in substance, that the defendant, who is a judge of the court of common pleas of Hamilton county is, and has been for several days last past, usurping and intruding into the following alleged office and following function, to-wit: the office known and designated as, and the functions of supervising judge of the common pleas court of Hamilton county, Ohio, that is, the office and function of designating, appointing and assigning to a judge of such court to try and hear and dispose of criminal cases pending in such court before a judge or judges thereof who have, or are alleged by affidavits to have bias or prejudice for or against parties to such cases; that he usurps such office and functions under a claim that the statutes of Ohio provide for such office and functions in Hamilton county, and that he has been duly elected thereto, and that he has been lawfully vested with said office and functions. Judgment of ouster is therefore prayed.

Quo warranto may be brought in the name of the state against a person who usurps, intrudes into, or unlawfully holds or exercises, a public office, or a franchise, within this state; General Code, section 12303. The alleged office must be not only of a public nature, but must be a substantive office; not merely the function or employment of a' deputy holding at the will of others. Shortt on Ex. Rems., *121.

It must appear, then, that there is, within the meaning of the statute, an office into which one may intrude. Whether or not this “alleged office” is a real office depends upon what construction is to be given to sections 1539, 1540 and 1687, of the General Code, .which sections make provision for the selection and prescribe the duties of the judge designated as supervising judge. We are of opinion that neither of these sections, nor all taken together, create a new office, or constitute the judge designated as supervising judge an officer separate and distinct from his office as judge of the court of common pleas. It is to be borne in mind that the question is not whether it would have been possible for the general assembly to create an office and devolve upon the holder the duties which it is by statute made the duty of the supervising judge to perform. That may readily be admitted. But the question is do these sections under review create any such office?

It is usual for the judges of the district, pursuant to section 1533, to meet on the third Tuesday of October of each year, and issue an order to the clerk of the court of common pleas of each county fixing the day of the commencement of each term for the next jfidicial year. At the same time, by section 1539, they are to apportion the labor on the part of the judges, which order shall specify what terms, or parts, shall be held by each judge. The following section directs that the order shall designate one of their number to supervise the execution of the order, which judge is there termed supervising judge. This order, it is to be noted, is in effect only one year. Upon information that a judge who has been assigned to certain work is unable to do it, or when an unusual amount of business occurs in one or more counties, he shall assign a judge or judges, not otherwise' engaged, to discharge the duties of such disabled judge, or to help dispose of the unusual work. Section 1687 makes provision for a situation where a judge in any cause or matter pending in his court is disqualified to sit, (the same being shown by affidavit of party or counsel), the supervising judge, if himself not disqualified, shall assign some other judge to try such matter or cause. This is the manner of constituting and filling the alleged office, and these are the duties to be performed by such alleged officer enjoined by these sections, and all of them. We'look in vain for any language which even purports to create a new office, or purports to constitute the judge designated as supervising judge an officer; there is nothing which tends to disclose such an intent, and surely such intent is not to be implied where the language used by the general assembly does not warrant such implication. The statute does not direct the taking of an oath of office, which the constitution, section 7 of article XV., requires of all officers, nor is it customary for any oath to be administered to such judge as such; it does not require any bond; it does not provide any emolument, it does not provide for the issuing of any commission, nor does it provide any quarters where the appointee may discharge his duties. It may be that neither of these provisions is essential in an act creating an office, and we suppose that neither is essential, but the absence of all.of them is of significance in arriving at the intent of the general assembly in enacting these sections. Rather is it the authorizing by all the judges of the district of one of their number to perform additional duties, as such; duties devolved upon him by his superiors under authority of the statute and not independent duties, thus making of the place but an adjunct to that judge’s general duties as judg'e; duties which terminate at the time fixed in the order, and terminate at all events at the conclusion of such judge’s term of office. It can not be supposed that such judge would hold over in case of failure by the judges of the district to make a new appointment at the end of his term as judge, which holding over would necessarily follow by force of section 8 of the General Code if such supervising' judge be an officer independent of his office as judge. True, such judge is designated as supervising judge. But, as held by this court in The State, ex rel., v. Jennings et al., 57 Ohio St., 415: “The character of an office cannot be attached to a position by a name merely. Whether it be an office or not, will depend upon the nature and character of the duties attached to it by law.” But for the provision of the statute directing the appointment of a supervising judge, the work of the supervision of the order might properly, though perhaps with some inconvenience, be performed by the judges jointly. If so, it is difficult to see a reason why the one appointed to attend to that duty or assist in its performance, should not be classed as a mere auxiliary, helping to make up the judicial machinery, as in the case of a jury commissioner, who was held in The State v. Kendle, 52 Ohio St., 346, not to be an officer of the state, but merely an assistant to the court. The same act which authorizes the appointment by the judges of one of their number to perform the duties imposed on the supervising judge devolves additional duties of a ministerial character upon all the judges. Suppose, now, that the legislative draftsman who drew the act referred to had happened to designate those judges as “appointing judges,” would anyone suppose that new offices had been created? And yet why not if the judge called “supervising judge” holds an independent office? It seems clear that the term “supervising judge” used in the statute is merely descriptio personae.

In giving construction to the statute it must be borne in mind that the policy of this, state, as shown by its general legislation under the present constitution, while it has in a few instances imposed additional ministerial duties on judges of the court of common pleas, has been not to impose the burden of making appointments to office upon such judges. They are not even authorized to appoint the clerk who is to record their mandates, nor the sheriff who is to execute their writs and care for and keep order in their courtroom, both of those officers being chosen by the people. The court may and does sometimes appoint deputies, and other auxiliaries such as interpreters, stenographers, and criminal bailiffs, but deputies have been held not to be officers, and it can hardly be claimed that the other even more subordinate positions are offices.

We have not undertaken to enter the field of definition of the term “office” or “officer.” As given in the books they are multitudinous, not to say multifarious. Indeed so varied are they, scattered through the books, that the ingenious barrister may find support for almost any proposition relating to the general subject which the necessities of his case may seem to demand. But, like maxims of the law,- when used indiscriminately and without judgment, they are apt to mislead. One which seems to have met with most favor, perhaps, is that an office is a public position to which a portion of the sovereignty of the country attaches, and which is exercised for the benefit of the public. And yet, without a satisfactory definition of what is and what is not, the “sovereignty of the country,” this definition seems to fail to adequately define. Manifestly, however, each case should be decided on its peculiar facts, and involves necessarily a consideration of the legislative intent in framing the particular statute by which the position, whatever it may be, is created. Returning again to the statute, when its intent and purpose is ascertained, we are nearing a proper answer to the question of office or no office, and if that purpose is not inconsistent with the language used in the act we may confidently assume that our answer is correct. Now upon the very face of the sections cited appears the purpose to fix the date of the commencement of. the terms in the several counties, and provide for a fair apportionment and equalization of the work of the district, incident to which is provision for meeting a situation where an unusual amount of business occurs in one or more counties, and of supplying a qualified judge to take the place of one temporarily disqualified. This main purpose, which is indeed the only expressed purpose, is not at all inconsistent with the language of the entire sections, but is in full harmony with it. It seems clear that the law-makers, when enacting these sections, did not dream that they were installing a new officer or creating a new office.

A number of the later decisions of this court in quo warranto proceedings have been called to our attention by counsel for the relators. We do not find that any of them bear close resemblance to the case at bar as to the facts. Indeed none •of them, save The State, ex rel., v. Anderson, 45 Ohio St., 196, seems to bear any resemblance whatever. All others are cases where the question related to the status of a person holding, or claiming to hold, an office wholly apart from any relation with or to any other office. The State v. Jennings et al., supra, presented the question whether the defendants, certain firemen in the fire department of Newark, who had been appointed by the city council to those places, were officers. The court held they were not officers and dismissed the petition. Palmer v. Zeigler, 76 Ohio St., 210, presented the question whether the superintendent of a county infirmary is or not the holder of a public office. The holding is that he is not such officer. The State v. Anderson, supra, involved the question whether or not the presidency of a .city council is a public office. The court, basing its judgment on the language of the statute creating the office (section 1676 Williams’ Revised Statutes), held that it is. The State, ex rel., v. O’Brien et al., 47 Ohio St., 464, was against persons who assumed to exercise the functions of a member of city council (membership in which is clearly an office), and the defendants were ousted because they had not been elected as councilmen from any territory entitled to be represented in the council; that is, they were not councilmen because they had not been duly elected as such. The fact is to be emphasized that the attack was made on the defendants because they were intruding into, and assuming to exercise the powers of councilmen. The ground on which they sought to defend did not in the least detract from the fact of their actual intrusion into an office. The State, ex rel., v. Brennan, 49 Ohio St., 33, was against one who was exercising the duties of a place relating to the purchase and custody of office supplies for Hamilton county under and by virtue of an appointment by the clerk of the court of common pleas, and of a statute which- created a county office, but provided for filling it by appointment rather than election. This was the part that was held void. The act on its face, purported'to create an office. That it failed in that regard was not seriously contended. But Brennan was occupying it by virtue only of an appointment. Hence the ouster. The State, ex rel., v. Wilson, 29 Ohio St., 347, holds that the place of medical superintendent of a hospital.for the insane, under the act of March 27, 1876 (73 O. L., 80), is an office; this because, and because only, of the provisions of that statute which clearly indicates an intent to create a public office.

We now come to two cases which, we think, have a direct bearing on the case at bar. The State, ex rel., v. The Judges, 21 Ohio St., 1, challenged by quo warranto the authority of the judges of the court of common pleas of the county of Hamilton, to fix the compensation of certain deputies, clerks, etc., employed by the treasurer, auditor, recorder, sheriff, probate judge, and the clerk of that county. The judges justified because of a recent statute directly conferring authority to do and perform the acts complained of. The statute was assailed as attempting to give the judges power to usurp or intrude into an office of trust distinct from that of judges, the question being whether the authority thus given by the statute constitutes a distinct office or is merely additional authority conferred on them as judges. The court held that, “the act does not create or invest them with a new office. What they are authorized to do they can only do by virtue of their office as judges. It does not follow from the fact that the new duties or powers might have constituted a new office, that therefore they do constitute such office. New duties may as well be attached to an existing office as that part of the duties of an existing office may be assigned to a new one.” Walker v. Cincinnati, 21 Ohio St., 15, relates to the power of the judges of the superior court of Cincinnati to appoint trustees of the Southern Railway. The court held that, “the act is not the creation of a new office, but the annexing of a new duty to an existing office,” and the' complaining party failed.

The petition seems to assume that a mere function, being exercised by á person occupying a place or office, may be the subject of a quo warrranto inquiry. We have not so understood the law.^ A function, in this, connection, is said to be a course of action by anyone in a public office, but it is not the office itself; nor is it within the purview of the quo warranto statute.

Finally, if the position of supervising judge be an office, how, under the constitution, (section 14, article IV), which provides that judges of the court of common pleas shall not “hold any other office of profit or trust under the authority of this' state or of the United States,” could a judge of the court of common pleas be eligible to it? Surely, if an office at all, it is an office of trust. This court is not at liberty to assume that the law-makers were ignorant of this constitutional inhibition, nor that they intended to disregard it. Nor can we assume that the general assembly intentionally committed the folly of creating an office, by the same act limiting its occupancy to certain persons, no one of whom would be eligible to fill it, but in fact all such persons distinctly, and by constitutional provision, prohibited from filling it. And yet this is exactly what the general assembly did do, if the position of supervising judge is an office.

It follows that if there be no public office there can be ho intrusion into such alleged office. Hence quo warranto will not lie, and this court is without jurisdiction to entertain the case sought to be brought. With this conclusion reached, the filing of the petition in this court would be only an idle ceremony. The application, therefore, is refused. Nor is the refusal to allow the filing of the petition in any way a denial of, or prejudicial to, any substantial right of relators. The .hearing on the application was ample, not only orally, but by means of elaborate briefs, and abundant time was taken for consideration. Had the petition been filed it would have been open to a general demurrer, and the disposition of the matter following that would have been precisely the same as it now is. The court has in the matter but followed a rule of practice of long standing as to applications for leave to file petitions in this court in causes of which the constitution gives the court original jurisdiction.

Leave refused.

Davis, Shauck and Price, JJ., concur.

Johnson and Donahue, JJ.,

dissenting. We are unable to concur in the conclusion reached by the majority of the court in refusing leave to file this petition. We do not, however, dissent from the first proposition announced by the majority of this court at the time leave to file was refused, as appears on page 139 of the Ohio Law Bulletin under date of April 24, 1911, that: “Where the action of a court is challenged as erroneous and question of error only is presented, quo warranto will not lie.” ' That is a self-evident proposition, but we do not understand that that question is involved in this application. The petition presented here by the attorney general of Ohio and the prosecuting attorney of Hamilton county does not seek to review any alleged error, of any court, but rather to inquire by what authority defendant assumes to exercise the duty and function of appointing and assigning a judge to try and dispose of certain causes in1 the district in which he is a judge. That is the only question presented by the petition, and the only one in our opinion proper to be considered in disposing of the motion for leave to file. So that while this proposition of law announced by the majority of this court is undoubtedly correct, and no lawyer in this state would likely question the same, yet we can not understand why it should be declared now as pertinent to this case. Neither do we dissent from the first and second paragraph of the syllabus as it now appears, for undoubtedly the only authority for bringing an action in quo warranto is found in section 12303 of the General Code, and the provisions of that section are as stated in the first paragraph of the syllabus. The second paragraph of the syllabus as now written is but a different statement of the same proposition as found in the first paragraph of the original announcement. But as we have already said that, although á proper statement of the law, in our opinion has no application here. The petition does not assign error of a lower court in the application of law or rules of procedure in a cause which was properly before the court; but it presents a case in which it is claimed that this particular judge was assuming to exercise certain functions and powers which he had no authority whatever to exercise, and which amounts to usurpation of an office, and wholly without warrant in law.

We think that this petition raises that question and asks for an authoritative disposition of the same, and .that is reason enough why the attorney general of this state should be permitted to file it. It is a question that ought to be fully heard and determined upon the final hearing of the petition in quo warranto sought to be filed herein. We think that upon this motion, the question to be considered is whether or not the petition raises a substantial question of importance to the people of the state, and if such a question is raised, the court should not dispose of it upon the motion itself, but rather permit the filing of the petition, to the end that such full hearing and consideration may be had. Especially is this true, when the question is one as to which the bench and bar of the state have entertained a feeling of uncertainty and is one which so largely and vitally affects the administration of justice.

The petition presented, avers that the defendant is usurping and intruding into the office and functions of supervising judge of the common pleas, court of Hamilton county; that is, the office and functions of appointing and assigning a judge of such court, to try and hear and dispose of criminal cases and proceedings pending in such court before a judge thereof who is- alleged to have bias or prejudice, for or against the parties, to such cases, or proceedings; and that he claims to be invested with such office and functions.

Against the petition it is contended, and the majority of the court conclude, that the provisions of the statute on the subject found in Sections 1539, 1540 and 1687, of the General Code, do not constitute an office, and therefore there can be no intrusion into such office. We do not think that the cases cited and relied on apply to the question made here.

In State, ex rel., v. The Judges, 21 Ohio St., 1, the statute which was attacked, provided that the judges should fix the number and compensation of clerks of certain county officials. Under that act all of the judges participated in the performance of the duty defined, and this court held that it was simply a new duty added to the existing office of judge, and not the creation of a new office. The duty attached to, and was to be performed by all of the judges in the district acting together and equally.

The court did not hold that it was not the exercise of a public function. On the contrary, the court recognized that it was a public function, and was proper to be imposed on the office of judge in addition to its other functions. It would have presented an entirely different case and the reasoning of the court would have led it to an entirely different conclusion, if the statute had provided that the judges of the district should elect one of their number who should be invested with the power and duty of fixing the number and compensation of the clerks. The judge chosen would then be invested with a function separate and distinct from the others. He would be clothed with the power and duty of a public office. In such a case we do not think it would be claimed that quo warranto would not lie to test the right of a judge to exercise such power.

For the same reasons we think it is clear that Walker v. Cincinnati, 21 Ohio St., 15, does not apply here. The law provided that the judges of the superior court of Cincinnati should appoint trustees of Cincinnati Southern Railroad. The decision is placed directly upon the ground that the duty imposed on the judges did not create an additional office, but simply annexed another duty to the office of judge which all of the judges in that court should perform.

In State, ex rel., v. Jennings, 57 Ohio St., 415, this court held that a fireman is not an officer, but an employe, and that quo warranto would.not lie to oust him from his employment. However, in the syllabus in that case, it is held that: “to constitute a public office against the incumbent of which quo warranto will lie, it is essential that certain independent public duties, a part of the sovereignty ©f the state, should be appointed to it by law, to be exercised by the incumbent, in virtue •of his election or appointment to the office, thus created and defined, and not as a mere employe, subject to the direction and control of some one else.”

In the opinion the following from High on Extraordinary Legal Remedies, Sec. 625, is quoted with approval: “An office, such as to properly come within the legitimate scope of an information in the nature of a quo warranto, may be defined as a public position, to which a portion of the sovereignty of the country, either legislative, executive, or judicial attaches for the time being, and which is exercised for the benefit of the public.”

It would seem' to be clear, that the duties and functions defined and referred to in the sections of the General Code, touching the subject of supervising judge, are clearly included in the definitions of an office as above given. These sections specifically define these duties and provide that they shall be performed by a certain and particular judge, designated in the act as supervising judge and chosen in the manner provided, for a fixed and definite term. And these duties and functions are such as can be performed only by the particular judge chosen in the manner provided.

In the State, ex rel. v. Anderson, 45 Ohio St., 196, it is held in the syllabus that: “The presidency of a city council is a public office, within the purview of Section 6760 of the Revised Statutes, authorizing an action in quo warranto to be brought against a person who usurps, intrudes into, or unlawfully .holds, or exercises, a public office.”

In the opinion it is pointed out that the duties of the president of the council are different from those of the members, and although he. still remains a member of the council, with all of the powers and duties incident thereto, and although such president must be chosen from the membership, and that the place is without emolument, still -its functions are of a public nature and for public purposes, and it is a public office. It is difficult to see how the duties of a president of a council chosen in the manner referred to should constitute a separate public office, and the distinct, additional and important duties, which are imposed by the statutes, upon a supervising judge, who is designated as such by the statutes, should not constitute an office, to which a portion of the judicial sovereignty of the state attaches within the terms of the definition above given.

Section 1540 provides that the judges of each judicial district shall select or designate one of their number to supervise the execution of the order, with authority to make changes and assign judges of the district to other counties, and requires that: “Upon receiving notice thereof from the supervising judge, the judge so assigned shall proceed to hold such courts.” Section 1687 provides that when a judge of the common pleas court is interested in a cause or matter pending before the court in a county of his district, or is related to, or has a bias or prejudice, etc. — that it shall be the duty of the clerk of that court to forthwith notify the supervising judge, who shall then proceed in the manner required by law in the case of illness or other disability of the judge, to designate or assign some other judge of the subdivision or district in which such matter or cause is pending. It is clearly evident from these statutes that if the judge so selected as supervising judge acquires no additional powers or authority differing from the other judges of that district, • that the legislature failed in its purpose, for it evidently intended that such judge should have such additional powers and authority in excess of all other judges of the district during the time that he is entitled by such election to exercise' the rights, duties and powers of supervising judge.

Where one has assumed to exercise public duties which are a part of the sovereignty of the state, quo warranto may be maintained against him, although the particular territory for which he assumes to act and perform such functions, has not been brought within the terpns^f any statutes defining such duties.

In State, ex rel., v. O’Brien, 47 Ohio St., 464, this court held: “Quo warranto may be maintained against a person who assumes the exercise of the office of member of council from a ward which has no legal existence, or under an election held without lawful authority.”

And on this point we wish especially to notice the case of State, ex rel., v. Newark, 57 Ohio St., 430, which is cited in the brief of counsel opposing this application. The first sentence in the first proposition of the syllabus in that case is quoted in the brief of counsel in support of the proposition, that qtio warranto will not lie against a city for the simple purpose of testing its powers. But the second sentence in the same proposition of the syllabus is as follows: “The remedy, in such case, is to enjoin any steps that may be taken to enforce the ordinance; or to procee-d in quo warranto against any person or persons who may claim to hold an office, under and by virtue of the provisions of the ordinance claimed to be invalid.”

The court, Minshall, J., in the opinion uses the following language: “Or where, as in this case, it creates what is claimed to be an office, and provides a mode of filling it, not authorised by. law, and proceeds to fill it, the incumbent may be proceeded against in quo warranto, as was done in the preceding cases.”

It seems to be conceded by counsel on both sides on the hearing of this application that Section 1687, 1539, and 1540 of the General Code, do not apply to Hamilton county.

While the petition, which is here sought to be filed, simply contains averments of intruding into the office and functions referred to, the record and brief filed by counsel opposing the application shows that they in a proceeding in mandamus, sought to compel the defendant in this proceeding to perform the duties of the office which they now claim has no legal existence.

We think the authorities relied on by the majority of the court do not justify the conclusion it has reached, but, on the contrary, these authorities and the reasons on which the judgments. in those cases are based would indicate a different view of the question presented here than the majority of the court have taken.

We think it is a matter of very serious doubt whether this court has a right to deny to the law officers of this state the right to file a petition in quo warranto. The constitution itself does not suggest any right of the court to grant or refuse leave to file the .petition. Section 12305 of the General Code requires the attorney general or prosecuting attorney to commence an action in quo warranto whenever directed by the governor, supreme court or general assembly so to do, and' Section 12306 authorizes the attorney general or prosecuting attorney to bring such action upon his own relation or he may bring the action upon the relation of another person by leave of court or a. judge in vacation. If this court has the right to refuse the attorney general or prosecuting attorney leave to file a petition in quo warranto, when either of these officers' bring such action upon his own relation, then serious complications must necessarily follow, for by the express terms of the statute it is made the duty of the attorney general, or the prosecuting attorney, to commence an action in quo warranto whenever directed by the governor, supreme court or general assembly so to do, and if the governor or general assembly were to direct either of these officers, to bring such an action and the supreme court were to refuse him leave to file his petition in this court there would arise a serious conflict of authority, and a serious complication of the public business that certainly was not within the contemplation of the general assembly when this law was enacted. In other words, it would appear from a reading of the constitution, and of these statutes in reference to the action of quo warranto that jurisdiction in quo warranto was conferred upon the supreme court, not for its benefit, but for the equal benefit of the coordinate branches of government and for the benefit of the public directly interested in the controversy, the only difference being that when the attorney general or prosecuting attorney -brings such action upon request or direction of the governor or general assembly, or upon- his own relation, it would appear that no leave is required, but when he brings such action upon the relation of a private individual, then it is provided that leave of court, or a judge in vacation, must first be obtained. We are of the opinion that when the prosecuting attorney of any county in this state, or the attorney general of this state, either upon the direction of the governor or general assembly of the state of Ohio, or upon his own relation, presents a petition in quo warranto to this court, he does so as of right and not as a privilege to be granted by the court; but even though it be said that permission must first be obtained before such petition in quo warranto can be filed in this court, then certainly when the court finds there is one or more questions in the case calling for its determination, as has been found and announced by the majority of the court in this case, the court should permit the filing of such petition, and permit the joining of issue thereon and determine the question in the regular and ordinary way. It is true there has been printed and handed to this court a record of other proceedings in Hamilton county that-may' or may not have logical connection with the case sought to be filed by the attorney general, but how is this court to take cognizance of these matters except in the regular way, that is, by an answer setting up any fact that may be pertinent to the issue so joined? The constitution invests the su7 preme court with original jurisdiction in quo warranto> and surely this court can have no more imperative duty than to exercise that jurisdiction when called on to lend its aid and authority in preventing the machinery of the courts and judiciary itself from being involved in unseemly and regrettable confusion.


source: Caselaw Access Project

author: Donahue, J.

license: Public Domain

text:
    Powell v. The State, ex rel. Fowler.

      Every child begotten in lawful wedlock — Presumed legitimate — ■ Evidence required to prove such child bastard.

    1. Every child begotten in lawful wedlock is presumed in law to be legitimate.
    2. Before such child can be adjudged a bastard the proof must be clear, certain and conclusive, either that the husband had no powers of procreation, or the circumstances were such as to render it impossible that he could be the father of the child.'
    (No. 11816
    Decided May 9, 1911.)
    Error to the Circuit Court of Franklin county.
    Mollie Fowler was married to Karl Koch on the 8th day of March, 1898, and was divorced from him on the 15th day of September, 1904. No entry of the decree of divorce was put upon the records of the court until some two years later, when a decree nunc pro tunc was entered. Sometime later she married a man named Jaycox, but the evidence does not disclose the date of this marriage. On the 7th day of January, 1907, she filed with a justice of the peace an affidavit in which she stated that she was then an unmarried woman, a resident of Montgomery township, Franklin county, Ohio; that on the 12th day of January, 1905, she was delivered of a bastard child, and that John V. Powell was the father of such child. In her examination before the magistrate on the hearing of said charge she testified that she was an unmarried woman. On cross-examination she testified that she was married to Karl W. Koch on the 7th day of March, 1898; that she was divorced from him, but did not give the date of the divorce; that she had separated from him on the 22nd day'of-February, 1904; that she saw him last on the 21st day of July, 1904, and that her child was born on the 12th of January, 1905. On the trial of the case in the common pleas court she testified that she had separated from her husband several times before this final separation, and during each of these separations she sustained illicit relations with the defendant Powell, and then would return to her husband for short intervals and again leave him and. renew her adulterous relations with Powell; that the final separation occurred on the 22nd of February, 1904, after which time she continued to live with Powell pending her proceedings for divorce from her husband; that she became pregnant on the 3rd day of April, 1904, and that the defendant, John V. Powell, was the father of her child, and she denies that she ever had any sexual relation with her husband after the final separation. It appears from the evidence that Karl Koch resided in Columbus at least up until July 21, 1904. There is , some evidence tending to show that he did leave Columbus shortly after that date, but that is not clear. Her evidence is corroborated as to the fact that Powell balled upon her at the different places where she was living after her separation from her husband, but she is wholly uncorroborated as to whether or not she had sexual relation with her husband after- February 22, 1904. It was admitted that two witnesses who were offered by the defense'would testify that she had told them that her husband was the father of this child. Another witness- did testify that she asked her if she did not think the child resembled its father, Karl Koch. This affidavit in bastardy was not filed until about two years after the birth of the child and about the time she received information that the defendant Powell was to be married to another woman.
    The jury returned a verdict finding the defendant guilty, a motion for new trial was overruled and the defendant was adjudged the putative father of the relator’s child, and adjudged to stand charged with the maintenance of the child in a sum fixed by the court, payable at certain intervals. The circuit court affirmed this judgment of the common pleas court and this proceeding in error is prosecuted to reverse the judgment of both courts.

      Mr. Claude L. Brewer, for plaintiff in error,
    cited and commented upon the following authorities :

      Schaffer v. Mueller, 8 Dec. R., 751; Miller v. Anderson, 43 Ohio St., 473; Haworth v. Gill, 30 Ohio St., 627.

      Mr. Fred S. Hatch and Mr. James A. Miles, for defendant in error,
    cited and commented upon the following authorities:

      Devinney v. State, Wright, 564; Johnson v. State, 55 Neb., 781; State v. Lavin, 80 Ia., 555; Miller v. Anderson, 43 Ohio St., 473; Haworth v. Gill, 30 Ohio St., 627; Roth v. Jacobs, 21 Ohio St., 646; Law v. Albert, 8 O. C. D., 784, 62 Ohio St., 649; Crow v. Jordon, 49 Ohio St., 655; Gilmanton v. Ham, 38 N. H., 108; Woodward v. Blue, 107 N. Car., 407; Schaffer v. Mueller, 8 Dec. R., 751; 5 Cyc., 629, 630; Howes v. Draeger, 23 Ch. Div., 173; Marr v. Marr, 3 U. C. C. P., 36; In re Jessup, 81 Cal., 408; Shorten v. Judd, 56 Kans., 43; Pendrell v. Pendrell, 2 Str., 925; State v. McDowell, 101 N. Car., 734; Wright v. Hicks, 15 Ga., 160.
   Donahue, J.

Section 5614, Revised Statutes (Section 12110, General Code), provides that when an’ unmarried woman who has been delivered of or is pregnant with a bastard child makes complaint thereof in writing under oath before any justice' of the peace charging a person with being the father of such child, the justice shall issue his war-' rant for the arrest of the person so charged. The statute uses the word “bastard” but does not define it; therefore, the common law definition of bastard is the proper meaning to be given to that word as used in this statute. .The common law definition of bastard is one that is begotten and born out of lawful matrimony. 1 Blackstone Commentaries, 454; 2 Kent, 208. This definition is now subject to some modification, but a strong presumption always obtains that a child either born in lawful wedlock, or within the competent time after its termination is legitimate, and before it can be found to be a bastard the proof must be clear and convincing. In England unless the husband was shown to be beyond seas during all the period in which it was possible for the wife to become pregnant and be delivered of a child, or unless it could be shown beyond cjuestion that the husband had no power of procreation, this presumption was so absolúte that the doctrine of filiatio .non potest. probaris applied and no proofs would be received to dispute the legitimacy of the child. This doctrine has practically been adopted in the United States with the modification that if the child is born under such circumstances that render it impossible that the husband of its mother can be its father, then the child may be adjudged a bastard. Van Aernam v. Van Aernam, 1 Barb. Ch., 375; Dennison v. Page, 29 Pa., 420; Watts et al. v. Owens, 62 Wis., 512. But such impossibility must be proven beyond a reasonable doubt. Stegall v. Stegall’s Admr., 2 Brock., 256; Cross v. Cross, 3 Paige Ch., 139; Wright v. Hicks, 15 Ga., 160; State v. Herman, 13 Ired., 502.

The question, therefore, to be presented to the jury in a case of this character is not whether the mother of the child and her husband did or did not have sexual intercourse at or about the time the wife became pregnant, but whether under the circumstances proven such acts of intercourse were possible. In other words, such circumstances must be shown by the evidence as would render it impossible that the husband of this woman could be the father of her child.

The evidence offered in this case as shown by the record falls far short of proof of all the requisite facts to authorize a jury or court to find therefrom that a child begotten in lawful wedlock is a bastard. The only evidence tending in that direction is the testimony of the mother that she had no sexual intercourse with her husband from and after the 22nd of February, 1904, a period of 324 days before the birth of the child, and she is not corroborated except perhaps as to her illicit relations with Powell, but proof of the adultery of the wife is not sufficient to show the child is a bastard. She is contradicted in two or three important particulars. True, some of these witnesses were not called to testify, but she admitted in open court that if they were called they would testify that she had said to -them that her husband was the father of the child, and that its blindness resulted from the fact .that its father, her former husband, was suffering with a venereal disease. Aside from this it is clearly in evidence that this woman falsely testified in her divorce case, or at least deceived the court and obtained a divorce by fraud, for according to her evidence now, she was then, and for many months prior to the time of the granting of the divorce, cohabiting in a state of adultery. She now seems willing to add to her own infamy, and further wrong her child, either for the purpose of securing a few dollars from the defendant, or for revenge for his failure to marry her. But if her testimony should be taken as proving beyond a reasonable doubt all- the matters and things to which she testifies, even then the evidence fails to meet the measure of the law. Public policy requires that the status of a child born or begotten in lawful wedlock should be fixed and certain, and the immediate exigencies or even the appa'rent justice of any particular case will not justify a departure from the rule so necessary and salutary to the best interests of society. The law is not willing that a child shall be declared a bastard to suit the whims or purposes of either parent, nor upon evidence merely that no actual act of intercourse occurred between husband and wife at or about the time the wife became pregnant. The proof must be such as to show the impossibility of access, and this evidence not only fails to prove that, but on the contrary it does show that access was a physical possibility at all the time from the date that she claims there was a final separation up until the time the divorce was granted, or at least up until the 21st day of July, after which time there is some proof, very vague and uncertain however, that he was in distant parts. The common pleas court charged the jury among other things, that there is a strong presumption that the husband is the father of a child begotten during the marriage; that the presumption is not conclusive and may be overcome by evidence where it is shown to the jury that the husband could not possibly have had any intercourse with his wife. The charge of the court in this respect was right. The only criticism is, that from the whole paragraph the jury might have understood that the presumption could be overcome by her testimony that she 'had not had sexual intercourse with her husband from the 22nd of February of that year. However that may be, it is evident that the jury either did not understand the charge as given, or did not apply it to the proofs offered, for there is practically no evidence in this record rebutting the presumption of law that her then husband is the father of this child.

Judgment of the common pleas court and of the circuit court is' reversed and cause remanded for further proceedings according to law.

Reversed.

Spear, C J., Davis, Shauck and Johnson, JJ., concur.


author: Johnson, J.

text:
    State of Ohio v. Van Gunten.

      Year referred to in act of March 22, 1906 — To ñx salaries of county officers — Is calendar year beginning January 1 — Question of time of 'payment into treasury — Of county treasurer’s fees.

    The year referred to in the act passed March 22, 1906, to fix the salaries of certain county officers (98 O. L., 89), is the calendar year beginning January first, and the end of each quarter, referred to in Section 6 of that act, requiring the payment into the county treasury- of all fees, etc., collected during said quarter, means the end of each quarter of three months, after January first of each year.
    (No. 12748
    Decided May 9, 1911.)
    Exceptions to the Court of Common Pleas of Allen county.
    At the January term, 1910, of the common pleas court of Allen county, an indictment was returned by the grand jury against the defendant Henry Van Gunten for misconduct in office, he being the sheriff of the county.
    Omitting formal parts the first count of the indictment is as follows:
    “That Henry Van Gunten, late of said county, on the 1st day of April, in the year of our Lord one thousand nine hundred and eight, with force and arms, in said county of Allen and state of Ohio, was then and there an officer of said county, to-wit: The duly elected and qualified sheriff of Allen county, Ohio, and did then and there unlawfully and wilfully fail and neglect to pay into the county treasury of said county on the warrant of the county auditor of said county, the sum of eighteen dollars and eighty-eight ($18.88) cents, which said sum, the said Henry Van Gunten as said sheriff and by virtue of his said office, collected and received as fees and costs for the use of said county, as follows, to-wit: February 12th, 1908, for serving venires, eighteen dollars and eighty-eight ($18.88) cents and so the jurors aforesaid upon their oath aforesaid do say the said Henry Van Gunten is guilty in manner aforesaid of misconduct in said office as sheriff of Allen county, Ohio, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”
    There are five other counts in the indictment which are substantially the same as the first, differing in dates and amounts.
    A plea in abatement filed by the defendant was heard an4 dismissed by the court. 'Defendant then filed a demurrer to the indictment and the court sustained the demurrer as to each count. Exceptions to the ruling of the court in sustaining the demurrer are now prosecuted here.

      Mr. Benjamin F. Welty, prosecuting attorney, and Mr. James W. Half hill, for the exceptions.

      Mr. W. H. Leete, against the exceptions.
   Johnson, J.

The indictment under examination is based on Sections 6 and 22 of the act passed March 26, 1906, to fix the salaries of certain county officers. Section 6 provides:

“Each of the officers named herein, shall at the end of each quarter, pay into the county treasury on the warrant of the county auditor, all fees, costs, penalties, per centages, allowances and perquisites of whatever kind collected by his office during said quarter, for his official services, which moneys shall be kept in separate funds by the county treasurer, and credited to the office from which the same has been returned.” -

The pertinent portion of Section 22 is as follows:

“Whoever, being an officer required, as aforesaid, to file a report and to pay in money to the county treasury, neglects to make such reports or to pay said money, as above directed, or willfully violates any of the provisions of this act, upon indictment, in the court of common pleas in the county, shall be adjudged guilty of misconduct in office, and fined for the use of the county, not more than two thousand dollars; and such conviction shall work an immediate forfeiture of h¿s office.”

The state contends that the words in Section 6, “at the end of each quarter,” mean the end of each quarter of three calendar months, while defendant insists that this expression refers to the term of office of the particular official, the beginning of which in this case, of the sheriff, is on the first Monday in January and not-the first day of January. Thus, the ends of the official quarters would be the first Monday in April, July, October and January.

The defendant also insists, that Section 6 is uncertain and' that Section 22 is unreasonable in so far as it prescribes penalties for neglect to perform the requirements of this uncertain Section 6.

The two sections, six and twenty-two, which are under consideration here, must be viewed in connection with the whole act of the general assembly of which they are part. The rule is familiar, but a restatement of it as made in State v. Rouch, 47 Ohio St., 478-485, may be of assistance here, viz: In giving “construction to a statute all its provisions must be construed together. We must endeavor to get at the legislative intent by a consideration of all that has been said in the law and not content ourselves with partial views, by selecting isolated passages and holding them alone up to criticism. What is the whole scheme of the law? What object did the legislature intend to accomplish ?”

The purpose of this law was to fix the salaries of certain county officers. It was passed March 22, 1906. Section 24 provides that the act shall take effect January 1, 1907. Section 3 provides that on November 20, 1906, each of the officers named shall prepare and file with the county commissioners a detailed statement of the probable amount necessary for employes “for the year ipo?” And further provides that on each November twentieth thereafter he shall file a like statement showing the requirements of his office “for the year beginning January 1st, thereafter.”

It is manifest from these provisions that the year referred to in the law is the calendar year “beginning January first.” Section 1, of the law, provides that all fees, costs, etc., collected or received by any such officer shall be received and collected for the sole use of the treasury of the county in which they are collected and shall be held as public moneys.

Section 6 above quoted requires each officer at the end of each quarter to pay into the county treasury all fees, costs, etc., of whatever kind collected by his office during said quarter.

As the language of the act clearly indicates that the legislature intended that the year referred to in the different sections is the calendar year, it necessarily follows under the rule of construction above given that the “end of each quarter” referred to in Section 6 means the end of each quarter of three months after January 1st of each year.

Therefore, any such officer who neglects to pay such money to the county treasury, at the end of any such calendar quarter, is liable to the penalties provided in Section 22 of the act.

The indictment in this case was sufficient and the demurrer should have been overruled.

After the demurrer to the indictment in the above case had been sustained, another indictment was returned, which was in the same words as the former, except that in the body of the instrument the words “on the first Monday of April” were inserted. So that the new indictment read: “That Henry Van Gunten late of said county on the first day of April, 1908, etc., * * * did fail and neglect to pay into the county treasury of said county etc., on the first Monday of April, 1908,” etc.

The common pleas court also sustained a demurrer to this indictment and exceptions to that ruling are now prosecuted here.

As to the last indictment it is contended that the averments are inconsistent because of the difference in the days referred to.

For the reasons already given this indictment was sufficient without the words “first Monday in April, 1908,” and in accordance with Section 13581, General Code, their presence does not invalidate that instrument.

The court should have overruled the; demurrer to that indictment.

Exceptions sustained.

Spear, C. J., Davis, Shauck, Price and Donahue, JJ., concur.


text:
    State of Ohio v. Van Gunten.

      Indictment under Section 7075, Revised Statutes — Charging presentation to county auditor — Of false and fratidulent bill — Indictment pointing out items not incurred by defendant — Sufficiently charges offense, when.

    An indictment under Section 7075, Revised Statutes, charging the presentation to a county auditor of a false and fraudulent expense bill for the purpose of procuring a warrant for the payment of the same out of the treasury of th'e county, which in describing the bill avers it to have been a false and fraudulent bill and sets out the bill itself showing items of expense incurred as sheriff of' the county and then alleges that certain-particular items pointed out were not incurred by defendant, and that the bill was presented with intent to defraud, he knowing it to be false, "sufficiently charges an offense under above 'section. {Du Brul v. State, 80 Ohio St., 52, approved and followed.)
    (No. 12749
    Decided May 9, 1911.)
    Exceptions to the Court of Common Pleas of Allen county.
    At the January term, 1910, of the court of common pleas of Allen county, the grand jury returned an indictment against the defendant Henry Van Gunten for presenting false and fraudulent bills.
    A plea in abatement was heard and dismissed by the court and the cause coming on for trial, a jury having been impaneled, defendant objected to the introduction' of any evidence for the reason that no one of the five counts in the indictment stated facts sufficient to constitute an offense against the laws of Ohio.
    The court sustained this objection, directed the jury to return a verdict of not guilty, and discharged the defendant.
    Exceptions to this ruling of the court are, now prosecuted here.
    The material parts of the first count in the indictment are as follows:
    “That Henry Van Gunten, whose real and true name is to the jurors of the grand jury unknown, late of said county, on the 29th day of December, A. D. 1909, with force and arms, in said county of Allen and state of Ohio, unlawfully and falsely pretending that Allen county was indebted to him the said Henry Van Gunten in the sum of one hundred and twenty-seven and fifteen hundredths ($127.15) dollars for expenses incurred as sheriff of Allen county, Ohio, unlawfully did make out a certain false and fraudulent bill against Allen county, Ohio, which said false and fraudulent bill was in words and figures following, to-wit:
    (The indictment here sets forth in full the alleged false and fraudulent bill relied upon in this count.)
    • The indictment then alleges:
    ' “That said bill was false and fraudulent in this, to-wit: August 30th, James O’Connor, to State Hospital at Gallipolis, railroad fare to Gallipolis and return,- eight and ten hundredths ($8.10) dollars; railroad fare for patient, four and fiye hundredths ($4.05) dollars; hotel and meals, three and no one-hundredths ($3.00) dollars; hack at Gallipolis, one and no one-hundredths ($1.00) dollars; hack at Lima, fifty hundredths ($0.50) dollars, zvhich items of expense were not incurred by said Henry Van 'Gunten, and unlawfully did present said false and fraudulent bill to E. C. Akerman, then and there the auditor of Allen county, Ohio, for the purpose of procuring the allowance of said bill by the commissioners of Allen county, Ohio, and for the purpose of procuring from the said E. C. Akerman, the said auditor of said county, a warrant for the payment of said bill out of the treasury of said county, with intent to defraud, he the said Henry Van Gunten then and there well knowing the said bill to be false and fraudulent, contrary to the form of the statutes in such case made and provided and against the peace and- dignity of the state of Ohio.”
    The particulars in which any of the other counts are essentially different from the first count are noticed in the opinion.

      Mr. B. F. Welty, prosecuting attorney, and Mr. James W. Halfhill, for the exceptions.

      Mr. W. H. Leete, against the exceptions.
   Johnson, J.

The indictment is founded on Section 7075, Revised Statutes, parts of which pertinent to this case are as follows:

“Whoever, knowing the same to be false or fraudulent, makes out or presents to * * * the auditor or commissioners, or other officers of any county * * * any claim, bill, * * * or other evidence of indebtedness, false or fraudulent in whole or in part, for the purpose of procuring the allowance of the same, or an order for the payment thereof out of the treasury of said. * * * county; and whoever, knowing the same .to be false and fraudulent, receives payment of any such claim, bill * * * from the treasurer * * * of any county * * * shall; if such evidence of indebtedness so made out and presented * * * or of which payment is received, is false or fraudulent to the amount of thirty-five dollars or more, be imprisoned in the penitentiary,” etc.

The contention of the defendant is that the indictment simply alleges a conclusion of law and fails to allege the facts on which the conclusion is based. The section of the statute above referred to was under consideration in this court in the cases of State v. Voute et al., 68 Ohio St., 274, and Du Brul v. State, 80 Ohio St., 52, in each of which the sufficiency of an indictment founded on that section was the subject of inquiry, and those cases are invoked by the contending parties here in support of their respective views. The holdings in the two cases referred to are in perfect harmony.

In the Du Brul case it is held that an indictment brought under Section 7075, Revised Statutes, charging the presentation of a false and fraudulent claim and obtaining payment of same by the county treasurer, which in describing the claim avers it to have been a “certain false and fraudulent" claim,” but in no way avers wherein it was false and fraudulent, and states no facts showing that it was so, is bad on demurrer and will not support a conviction.

The indictment alleged generally that the claim was false and fraudulent, and set out the claim itself in detail, but did not state in what respect it was false or fraudulent. The court, Spear, Judge, in the opinion cites and discusses a number of Ohio cases which support the conclusion that: “a criminal charge should be preferred with such certainty and precision as will reasonably apprise the party charged with that which he is required to answer and may be expected to' meet, and so that the court and jury may know what they are to try and the court may determine without difficulty what evidence is admissible, also that the record to be made will be sufficiently definite to make it clear of what the party has been put in jeopardy.”

In the Voute case a different question was made. The indictment charged that defendant presented a false and fraudulent pay-roll against the city of Toledo, to the auditor of the city. It was claimed, and the lower court held, that the auditor was not authorized by law to allow or pay the claim and that therefore no offense was charged, and that the indictment was bad. This court held that the common pleas court erred because the authority of the officer referred to, does not enter into the statutory definition of the crime, and this court held the indictment in that case to be sufficient.

But that indictment specifically set forth the respects in which the pay-roll was false and fraud-ulent in full compliance with the rule stated in the Du Brul case.

Does the indictment in this case meet the requirements of the wise and well-settled rules above stated and enforced? The first count after the formal parts, sets out the bill in detail, and then alleges, that said bill was false and fraudulent in this, to-wit: then follows certain items of expense which are included in the bill presented, and then the allegation: “which items of expense were not incurred by said Henry Van Gunten and unlawfully did present said false and fraudulent bill to E. C. Akerman then and there the auditor of Allen county,- Ohio,” etc.

So that in this .count of the indictment, the defendant is advised of the exact particulars and items of the bill (alleged to have been presented) which are claimed to have been false and fraudulent; and the respect in which they are false and fraudulent.

Defendant is fully apprised of what he may expect to meet.

The court of common pleas therefore erred in holding the first count to be insufficient.

The fourth and fifth counts are similar to the -first except the amount and details of the bill are ■different, and there is a distinct allegation in each that the items of expense set out, and which is part of the bill presented, was not incurred by defendant. Thus fully meeting the requirements of a sufficient presentment informing defendant of the exact charge which he must meet.

The second and third counts are each similar to the first except also as to amounts and particular items. Each contains the averment that “said bill was false and fraudulent in this, to-wit:” and then follows a list of items which are a part of the bill so presented, followed by the allegation “and unlawfully did present said false and fraudulent bill to E. C. Akerman, Auditor,” etc., “for the purpose of procuring the allowance of said bill by the commissioners of Allen county,” etc., “with intent to defraud, he then and there well knowing said bill to be false and fraudulent.” But there is not contained in either of said second or third counts any averment showing wherein the claim was false and fraudulent nor is there set out any facts from which it would necessarily follow that it was so. Under the authorities referred to, the simple averment that the claim is false and fraudulent does not fill the requirements of the -rules of pleading in criminal cases. That averment is a legal conclusion and is not aided by the allegation that the defendant well knew the claim to be false and had been presented with intent „ to defraud. The wrongful and unlawful act itself must be described, not simply the intent with which it is done. It has been settled by many state and federal decisions that such a pleading does not secure to the accused the full information concerning the charge against him to which under the constitution he is entitled. The court below did not err therefore in sustaining the objection as to the second and third counts. As to the first, fourth and fifth counts, the exceptions are sustained.

Judgment accordingly.

SpeAr, C. J., Davis, Shauck, Price and Donapiue, JJ., concur.


author: Price, J.

text:
    The Hamilton Machine Tool Co. v. The Memphis National Bank.

      Maker sends note to payee — With request to have discounted— And proceeds returned to maker — Bank discounts note — Payee overdrawn at bank — Bank appropriates amount of overdraft from principal of note — Bank sues maker of note — Maker’s defense, payee’s overdraft pre-existing debt — And, therefore, no consideration — Bank held to be bona tide purchaser.

    On the 12th day of November, 1904, the H. M. T. Co., of Hamilton, Ohio, executed its note for the sum of $948.15, payable to the order of Y. & L., of Knoxville, Tennessee, in four months after date, and sent it by mail to Y. & L. requesting them to procure its discount and remit the proceeds to the maker of the note. On the 14th day of November, 1904, Y. & L., being indebted to the Memphis National Bank on overdraft in -the sum of $436.55, sent said note endorsed in blank to that bank with which they had an account, requesting it to discount it and place the proceeds to their account, all of which was done, the bank having no knowledge of the instructions by the maker to Y. & L., thus extinguishing the overdraft and leaving a credit balance of $491.85 in favor of Y. & L.
    On the 17th day of November, 1904, Y. & L. drew their check against the credit balance for the sum of $500, which was honored by the bank, leaving their account overdrawn in the sum of $8.15, and shortly thereafter, the account was closed and Y. & L. ceased business with the bank. The note was not paid at maturity, and the bank brought suit thereon against the maker who claimed1 in partial defense, that the amount of said overdraft of $436.55 extinguished by the proceeds of the discounted note, should be deducted, because such overdraft was a pre-existing debt.

      Held: That the bank, having no knowledge of the instructions sent by the maker to Y. & L., and believing the note belonged to them, purchased it in good faith before maturity, and it is entitled to recover on the same without deduction of the amount of such overdraft.
    (No. 12038
    Decided May 9, 1911.)
    Error to the Circuit Court of Butler county.

      The plaintiff in error was defendant in the court of common pleas in an action brought against it by the defendant in error, the Memphis National Bank, in which action the issues were joined by the petition, answer and reply.
    The petition filed by the bank is the following:
    “Plaintiff, says that it is a national bank duly organized with powers to sue and be sued in its corporate name by virtue of the laws and a certificate issued to it by the United States.
    “Plaintiff says that on the 12th day of November, 1904, the defendant (The Hamilton Machine & Tool Co.)', made and executed a certain promissory note on that d'ate in the favor of Young & Lane for the sum of nine hundred and forty-eight dollars and fifteen cents ($948.15) due in four months after said date.
    “A copy of said note made and delivered to Young & Lane reads as follows, together with all the indorsements thereon:
    “$948.15. Hamilton, Ohio, Nov. 12th, 1904.
    “Four months after date We promise to pay to the order of Young & Lane
    “Nine hundred and forty-eight 15-100 — dollars, at Union Savings Bank & Trust Co. — -Cincinnati, Ohio.
    Value received.
    No......... Due........
    “The Hamilton Machine Tool Co.
    “Citas. F. Hilker, Prest.

    “On the back of said note appears endorsement Young & Lane, Frank Lane.

      “Notes protested for non-payment March 13, 1905.
    “Plaintiff says that on or about November 17th, 1904, said Young & Lane for a valuable consideration transferred and delivered said note to said Memphis National Bank at said date which said bank then became owner and holder of said note for full value.
    “And that said Memphis National' Bank from said time became the bona fide owner and holder of said note and are still the bona fide owner and holder of said note.
    “And that said note became due and payable' and was then presented to the Union Savings & Trust Co. Bank of Cincinnati, Ohio, the same was then protested for non-payment of interest, Young & Lane had due notice.
    “Wherefore, a right of action has now accrued to the plaintiff for the reasons hereinbefore stated, and that there is now due to it from the defendants (The Hamilton Machine & Tool Co.) the sum of $948.15 with interest thereon 6 per cent, from the 13th day of March, 1905, and that no payments have been made thereon, that entire amount is now due and unpaid.
    “Wherefore plaintiff now asks judgment against defendants (The Hamilton Machine & - T ool Co.) for the sum of $948.15- together with 6 per cent, interest thereon from March 13th, 1905, and costs of suit and other relief.”
    To this petition the defendant below filed the following answer:
    “Now comes defendant, The Hamilton Machine Tool Company, a corporation under the laws of Ohio, and by way of answer to plaintiff’s petition herein, admits that it executed the note described in the petition herein, but denies that plaintiff paid any consideration for the said note.
    “Further answering this defendant says that on or about the 14th day of October, 1904, it delivered said note to Frank Lane, doing business under the firm name of Young & Lane, at Knoxville, Tennessee, under an agreement with said Frank Lane, that he should procure the discount of said note and remit the net proceeds of same to this defendant, The Hamilton Machine Tool Company.
    “This defendant further says that it is informed, and believes and so charges, as a fact that said Frank Lane sent said note to the bank of the plaintiff for discount; that at that time the said Frank Lane was indebted to the plaintiff in a sum greatly in excess of the amount named in said note, and when it discounted said note, instead of paying same to said Frank Lane, without the knowledge or consent of this defendant or of Frank Lane, it applied the net proceeds of said note to the reduction of the indebtedness of said Frank Lane, so that the said Frank Lane could not and in fact did not remit to this defendant the net proceeds of said note, as under his agreement with this defendant, he was bound to do.
    “This defendant further avers that the action of plaintiff in using the proceeds of its note to the extinguishment or reduction of the debt due to it from Frank Lane, was without warrant of law and wholly unauthorized, and when this defendant learned of the action of the plaintiff it notified plaintiff that its action was unauthorized and illegal and demanded of plaintiff the return of said note, which plaintiff refused and still refuses to do.
    ' “Wherefore this defendant prays that plaintiff may be ordered to surrender said note to it; that the petition be dismissed and the defendant recover its costs herein expended, and for all other and proper relief.”
    The following is the reply to the above answer:
    “And now comes the plaintiff and for its reply to defendant’s answer says:
    “The plaintiff says it paid a valuable consideration for said note, all of which it is ready and willing to make appear.
    ■ “The plaintiff says by way of further reply it has no knowledge or information as to any private agreement between Frank Lane and the defendant touching the proceeds of said note or the agreement on the part of Frank Lane to remit the same to the defendant at the time mentioned in said answer and therefore this plaintiff denies the same.
    “The plaintiff for further reply says at the time said Frank Lane procured the discount of said note by the plaintiff at the time mentioned in the petition, about the......day of November, 1904, and long before said note became due and payable, the said plaintiff'paid the said Frank Lane or the firm of Young & Lane, the full value of said note in money and funds belonging to said plaintiff, save and except about two hundred dollars of an overdraft of the said Young & Lane or Frank Lane. All of which was at the time consented to by said Frank Lane and Young & Lane.
    “There was paid at' the time about seven ($700.00) hundred dollars in money and perhaps about two hundred credited for the overdraft of Frank Lane and the firm of Young & Lane, all of which was agreed to at the time.
    “This plaintiff denies that it had any knowledge of any private agreement between Frank Lane or Young & Lane at the time mentioned or is bound by the same in any way. This plaintiff denies all the other affirmative allegations in defendant’s answer and prays for judgment for the whole amount of said note and interest as it prayed for in the petition and other relief.”
    On the issues thus made up, the cause by agreement was tried to the court, a jury being waived, and after hearing the evidence and arguments of counsel, the court found in favor of the bank for the amount of the note and interest, in the sum of $1,127.01, and judgment was rendered on the finding.
    A motion for new trial was overruled, a bill of exceptions containing all the evidence, with a petition in error, was filed in the circuit court, where the judgment was affirmed. The case is here for review on a petition in error.
    The facts are stated in the opinion.

      Mr. Oscar W. Kuhn, for plaintiff in error.
    The bank had no right to apply this $436.55 on the overdraft of Young & Lane for the reason that the money so applied was not the property of Young & Lane. Bank v. Brewing Co., 50 Ohio St., 151; 3 Am. & Eng. Ency. Law (2 ed.), 836; Bank v. Farwell, 58 Fed. Rep., 633.

      It is submitted that even in such a case the bank has no right to apply any part of the proceeds of such a note to the payment of an indebtedness to it from the ostensible owner. 4 Am. & Eng. Ency. Law (2 ed.), 298; Bank v. Valentine, 18 Hun, 417; Bank v. Newell, 71 Wis., 309; Bank v. Huver, 114 Pa. St., 216; Dresser v. Construction Co., 93 U. S., 92.
    Hence the bank becomes the trustee for the real owner of the fund who is allowed to recover it under the familiar rule in equity that a beneficiary of a fund may follow and reclaim his property so long as he can find it or its substantial equivalent if its form has been changed. Slater v. Mills, 18 R. I., 352; Commissioners v. Wilkinson, 119 Mich., 655; Bank v. Insurance Co., 104 U. S., 54; 28 Am. & Eng. Ency. Law (2 ed.), 1108.
    And this proposition is true even though it has no notice that the deposit belonged to some one else than the depositor. Zane on Banks, Sec. 140; 2 Morse on Banking, Sec. 590; Boon on Banking, Sec. 285; Douglas v. Bank, 17 Minn., 35; Cady v. Bank, 46 Neb., 756; Armstrong v. Bank, 53 Ia., 752; Van Allen v. Bank, 52 N. Y., 1; Burtnett v. Bank, 38 Mich., 630; Davis v. Bank, 29 S. W. Rep., 926; Bank v. Harrison, 127 Ind., 128; Baker v. Bank, 100 N. Y., 31; Frazier v. Bank, 8 Watts & Serg., 18; Merrill v. Bank, 19 Pick., 32.

      Mr. Stephen Crane and Mr. E. A. Belden, for defendant in error.

      It is admitted by opposing counsel that the bank is entitled to recover the amount drawn out by Young & Lane after the note was’ discounted, namely, $491.85; but we claim that this court should affirm the decisions of the lower courts giving judgment for the full amount of the note against the plaintiff in error.
    The action of the Memphis bank in accepting the note and placing the proceeds of the discount to the credit of Young & Lane, was a purchase of the instrument.
    This paper may be regarded as accommodation paper and follows the law upon that subject. 4 Am. & Eng. Ency. Law (2 ed.), 285, 295, 296, 299.
    This court will bear in mind the fact that not only was the overdraft of Young & Lane satisfied by the discount of this note, but Young & Lane were permitted to check against the proceeds of this discount of the paper. Bank v. Crawford, 2 C. S. C. R., 125; Kingsland, Hook & Co. v. Pryor, 33 Ohio St., 19.
    In the case at bar there was Credit given upon the strength of the apparent ownership of the negotiable instrument, and the bank from the time this note was discounted had no right of action against Young & Lane upon their overdraft, that overdraft had ceased to exist, and the remedy of the bank was suspended until maturity of the note given by plaintiff in error and Young & Lane.
    As to this making the bank a bona fide owner, we call attention of the court to the. following authorities: 2 Randolph on Commercial Paper, Secs. 461, 462; Holzworth et al. v. Koch, 26 Ohio St., 33; Clements v. Doerner, 40 Ohio St., 632.
    The payment of money to a creditor, who received it in discharge of the existing debt, innocently and without knowledge or means of knowledge that the debtor paying has no rightful ownership of the fund, is good and effectual, and the true owner cannot recover the money of the recipient. Newhall v. Wyatt, 139 N. Y., 452, Nassau Bank v. Bank, 159 N. Y., 456; Stephens v. Board of Education, 79 N. Y., 183; 2 Pomeroy's Equity Jur. (3 ed.), Sec. 1048.
    We submit the following propositions:
    1. A promissory note, or other negotiable instrument received in payment of a pre-existing debt, is taken for a valid consideration. Carlisle v. Wishart, 11 Ohio, 172; Section 3171x, Revised Statutes; Swift v. Tyson, 16 Pet., 1.
    2. The discount of a negotiable paper by a bank at the request of a customer and placing the proceeds to his credit, makes the bank a bona fide holder for value. Gordon v. Kearney, 17 Ohio, 572.
    3. Where one of two persons must sustain a loss, he shall be the sufferer who placed the means of imposition in the hands of the wrong-doer. Between two innocent persons, he shall suffer who incautiously g'ave the means of obtaining the false credit. Gordon v. Kearney, supra, 576.
    4. The extension of time constitutes a sufficient consideration for a note. Holzworth v. Koch, 26 Ohio St., 33.

      5. An agreement to forbear suit until the maturity of the note will be presumed from the acceptance thereof. Holzworth v. Koch, supra.

      6. A creditor who has accepted property in payment of a pre-existing debt has changed his condition. Clements v. Doerner, 40 Ohio St., 632.
    7. Unless complicity in the fraud is proven, or knowledge of it at the time of taking the note, the paper in the hands of the creditor cannot be impeached. Kingsland et al. v. Pryor, 33 Ohio St., 19.
   Price, J.

The facts disclosed at the trial are not in dispute, as counsel for defendant in error state in their brief and in oral argument, that the brief for plaintiff in error correctly states the facts, and we are therefore authorized to adopt such statement, rather than search the record and restate them in another form. We add other facts contained in the record. Counsel differ mainly as to the conclusions which should be drawn from all the facts.

On the 12th day of November, 1904, The Hamilton Machine Tool Co. sent to Young & Lane at Knoxville, Tennessee, a promissory note, made, payable to the order of.Young & Lane, in the sum of $948.15, in four months after its date with six per cent.' interest per annum, requesting them to procure its discount, and remit the proceeds, , of same to The Hamilton Machine Tool Co. .

This note, with another not involved, in this ■case, was enclosed in a letter of which the following .is a copy: - . . ..

“11-12-04.
“Messrs. Young & Lane,
“Knoxville; Tenn.
“Gentlemen: — In accordance with Mr. Hilker’s understanding with you yesterday, we herewith enclose our two notes as follows:
“Nov. 12th, payable Feb. 23rd, 1905 — $920.80.
“Nov. 12th, at 4 months — $948.15.
“These notes you are to discount and send us proceeds together with your check for the difference to take up our note due December 10th for $2,683.47.”

The Hilker mentioned in the above letter was president of the tool company, plaintiff in error.

The note in this controversy was executed by The Hamilton Machine Tool Co., at Hamilton, Ohio, payable to the order of Young & Lane, and made payable at the Union Savings Bank & Trust Co., Cincinnati, Ohio. On the 14th day of November, 1904, Young & Lane sent this note, with the other, in a letter to the Memphis National Bank, at Memphis, Tennessee, requesting the bank to “place the proceeds of same to their credit on the books of the bank.”

This is the letter referred to:

“Knoxville, Tennessee, Nov. 14, 1904.
“Memphis National Bank,
“Memphis, Tenn.
“Dear Sirs: — Our records show our line of discounts with you .reduced about $2,000 this month, and we will be accommodated by your placing the enclosed to our credit, namely, Hamilton Machine Tool Co. $948.15, due March 12. * * *
“Yours truly,
“Young & Lane,
“Frank Lane.”

On the back of said note appears the endorsement: “Young & Lane, Frank Lane.”

The bank received this paper so endorsed, discounted it and placed the proceeds, amounting to $928.40 to the credit of Young & Lane, as requested by them.

On November 5, 1904, ten days before the bank received this note and discounted it, the account of Young & Lane was overdrawn to the. extent of $436.55, and it remained thus overdrawn up to the time the note was so received. When the note was discounted and its proceeds credited to the account this overdraft of $436.55, was charged off, leaving to the credit of Young & Lane the sum of $491.85. On the 17th day of November, a check for $500 was drawn by Young & Lane against this credit, which was honored by the bank and charged to the account, leaving it again overdrawn to the extent of $8.15.

No part of the proceeds of the note mentioned was ever received by the Hamilton Machine Tool Company.

The note was not paid at maturity, the bank brought suit upon it, and recovered, as appears in our first statement.

The following concession appears in the brief for plaintiff in error: “The plaintiff in error concedes that it is liable for the $491.85, which Young & Lane withdrew from the bank on their check of November 17, 1904, but not for the $436.55 which the bank applied toward the satisfaction of Young & Lane’s overdraft, and it is for the purpose of having the judgment in this case reduced by the amount of this $436.55 that this proceeding is brought here.”

This concession means that the Memphis Bank was not at fault in recognizing as valid, the check of Young & Lane for $500, drawn November 17, 1904, and charging it against the proceeds of the note, the maker of the note discounted by the bank, admitting as it does, “that when the bank discounted the note, it was not aware of these facts.” The facts referred to of which the bank was not aware, were that the note “was not the property of Young & Lane, but of The Hamilton Machine Tool Co., Young & Lane being simply the agents of The Llamilton Machine Tool Co. for the special purpose of procuring its discount and remitting the net proceeds ' of same to Hamilton Machine Tool Co.”

. The foregoing confession is no more than the facts compel, and tends to an easy solution of the contention, that the bank was not justified in applying proceeds of the discount to extinguish the overdraft of $436.55.

We find that the note in question was payable to order of Young & Lane — negotiable in form and the bank purchased it from the payees in the usual course of business, who endorsed it in blank, thus vesting the legal title in the bank. Instead of paying the proceeds to Young & Lane over the counter, the bank, at their request placed the same to their credit. It appears that Young & Lane had discounted other paper at this bank, not only-on this occasion, but had been transacting business with it previously, so that a regular account current existed between it and Young & Lane when this purchase was made. It so happened that they owed the bank $436.55 as an'overdraft on their account, and all the proceeds were placed to their credit, and after extinguishing or satisfying such overdraft, the bank owed Young & Lane on the account $491.85, or, in other words, they had a credit balance of that amount.

As before stated, by the check of November 17th, for $500 drawn on and honored by this bank, they exhausted the credit balance, which left the account again overdrawn in the sum of $8.15.

It being conceded that the bank was 'justified in honoring this check, because it had no knowledge of the mere agency of Young & Lane, and no knowledge of any relations they sustained to The Hamilton Machine Tool Co., maker of the note, except that shown by the note 'itself, it must also be conceded, that the bank acted in good faith, for it appears in the evidence of its cashier, and not controverted, that Young & Lane, in the course of their dealings with the bank, on previous occasions had overdrawn their account, which they subsequently made good, as they did in the discounting of this note — ostensibly their own note — and the bank acted upon it as their note.

In respect to extinguishing the overdraft, it is urged, that while the bank was ignorant of the agency of Young & Lane for the maker of the note, it used the proceeds of the discount in satisfying a pre-existing debt, which they could not do with funds actually belonging to the principal— the maker of the note. Is this position sound? It is entirely clear, and we think it cannot be controverted, that in discounting the note for Young & Lane, the bank became its absolute owner and that too in good faith. It was sent from Hamilton, Ohio, to. Young & Lane, at Knoxville, Tennessee, that they might get it discounted. To get it discounted would, or might, necessitate its sale. They were entrusted with such use of the note as would bring about its discount, of course for the benefit of the maker, but of the latter it is conceded the bank had no knowledge, and there was nothing on the face of the note, or in the negotiation, to excite suspicion or put the bank on inquiry.

Therefore, Young & Lane were authorized to hold themselves out to anyone who would discount the paper, as its absolute owners, as thev were the payees named therein.

But it was urged in argument that, as to this overdraft, the bank would not be the loser, if the court should credit its amount on the judgment in this case, for the reason that it has recourse on Young & Lane for that overdraft. The facts are against this ■ claim. E. B. McHenry, who was cashier of the Memphis bank, testified to his acquaintance with Young & Lane, especially Lane, and that “in May, I think it was the 24th or 25th of May, perhaps, 1904, the firm of-Young & Lane opened an account with the bank and did business there, was there for some time afterwards,, making deposits and having notes discounted, and checking on their account, just as an ordinary customer would do.” He also states that this bank had previously discounted two or three notes made payable to Young & Lane by The Hamilton Machine Tool Co., and that they were made payable at the same bank in Cincinnati mentioned in note referred to in this case.

The rate of discount was six per cent., and he states that the bank paid full value less this discount.

Another important fact in the record, is that but little if any business was transacted with this bank by Young & Lane after the purchase of the note, and certainly none after the bank became aware that anything was wrong or irregular between them and their principal. This concern, Young & Lane, resided at Knoxville, Tennessee, and sent the note with letter to the bank with instructions quoted above. After this purchase, and in January, 1905 — after they had overdrawn their account by the check of November 17, 1904— business between them and the bank ceased. • It has not been pointed out by counsel, and we do not know, how the bank could open up its account with Young & Lane — restore the charge of $436.55 overdraft — and pursue them for that amount. It had been paid and so entered on its books and the account closed, so far as business was concerned. By application of part of the proceeds to extinguishing the overdraft, the bank necessarily changed its position from that of a creditor to that of a debtor for the credit balance. This was wiped out by check later, which admittedly was properly honored by the bank. . The bank had a claim for $8.15 overdraft and that was all. The former overdraft had been paid and defense of pajmient could have been sustained had the bank sued for it. It had no right of action against them.

We are convinced that the bank believed and had a right to believe the note belonged to Young & Lane, having purchased it before maturity and in good faith, and it should not suffer because the apparent owner’s u.sed part of the proceeds to pay their debt to the bank. Neither fair play nor any maxim of equity requires such result.

The authorities relied on by counsel for the parties are collected in the briefs, and we have attempted to state the legal conclusion that should be drawn from undisputed facts, and we therefore affirm the judgment.

Judgment affirmed.

Davis, Si-iaucic, Johnson and Donahue, JJ., concur.