text:
    Johnson v. State of Ohio.

      Prosecution for manslaughter — Deceased unintentionally hilled— Aci of slayer must be prohibited by law or of culpable negligence — Criminal law.

    In a prosecution for manslaughter, wherein the state relies for conviction on the ground that the deceased was killed unintentionally, while the slayer was in the commission of an unlawful act, it must be shown that the alleged unlawful act is prohibited by law; and it is not sufficient to establish, that such act so engaged in, was a crime at common law, or one of gross and culpable negligence.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Scioto county.
    The plaintiff was indicted for the crime of manslaughter in unlawfully killing one Emory Barrows on the twenty-fifth day of May in the year 1901. On the trial of the case under this indictment the defendant was convicted on the following as the conceded facts:
    “That the defendant, Noah Johnson, who is a young man about twenty-three years of age and an expert bicycle rider, in the county of Scioto and state of Ohio, on the twenty-fifth day of May, 1901, as it was growing dusk in the evening, rode a bicycle, known as a racing machine, noiselessly down the main street of a village containing about 1200 inhabitants and over one of its most prominent street crossings at a speed of about twenty miles per hour; that the evening was fair and many people were walking up and down said street and over its crossings; that defendant was leaning forward and over his bicycle, the handle bars being dropped, and was in the position commonly used in riding in bicycle races; there was no bell attached to his bicycle, no alarm was given by defendant, and he could have seen ahead of him; while riding over the aforesaid street crossing at said rate of speed, the defendant collided with Emory L. Barrows, who was at the time walking, at the usual and customary place, from one corner of said crossing over the street upon which said defendant was riding, to another corner, the force of which collision lifted said Emory L. Barrows from the ground, hurled him a distance of about fifteen feet through the air and fractured and crushed his skull in several places, thereby causing his death. The decedent and the defendant saw each other an instant before the collision and each tried to avoid it; the defendant did not intend to and did not purposely collide with the decedent and there never was any personal feeling existing between them whatever.”
    Exception was taken by the defendant to the following portion of the charge of the court to the jury, bearing on the legal effect of the facts stated:
    “An act lawful in itself when properly performed, may be performed so improperly, that is, so recklessly and wantonly as to render it unlawful, and in such case, if the death of another result directly and proximately therefrom, it is manslaughter; the wanton recklessness or gross negligence, in such a case, supplying the place of direct criminal intent. But inferenees of guilt are not to be drawn from remote causes, and tbe law does not hold a person criminally responsible for slight negligence, nor even for a mere failure to observe or to exercise ordinary care and diligence, but only for gross negligence in the sense that I have above defined that term to you. In other words, to make it entirely plain to you: The carelessness or negligence with which an act must be done in order to render the death of another resulting therefrom, criminal homicide or manslaughter, must be gross, and such as an ordinarily reasonable and prudent person, that is, a person of ordinary discretion and judgment, might, and reasonably ought to foresee and anticipate, would endanger the lives and safety of others, and be likely to result in fatal injuries to others.”
    A general exception was saved to the charge. A verdict of guilty was rendered and the defendant was sentenced accordingly. He prosecuted error in the circuit court where the judgment of the common pleas was affirmed, and he prosecutes error in this court to reverse the judgments of both the lower courts.
    ' Mr. Thomas„ O. Beatty, for plaintiff in error, cited the following authorities:
    Sections 6811, 6812, Revised Statutes; Weller v. State, 10 Circ. Dec., 381; 19 C. C. R., 177; Smith v. State, 12 Ohio St., 466; Winn v. State, 10 Ohio, 345; Mitchell v. State, 42 Ohio St., 383; Sutcliffe v. State, 18 Ohio, 469.

      Mr. Henry Bannon, for defendant in error, cited the following authorities:
    4 Blackstone Comm., 191; 1 Hawkins’ Pl. Cr., 89; Sutcliffe v. State, 18 Ohio, 469; Swan’s Stat., 229;
      Stewart v. State, 1 Ohio St., 66; Marts v. State, 26 Ohio St., 162; Erwin v. State, 29 Ohio St., 186; 4 Blackstone Comm., 191; 2 Bishop Crim. Law, Sec. 178; 2 Bishop Crim. Law, Secs. 642, 657; 1 Bishop Crim. Law, Secs. 314, 321; 1 Wharton’s Crim. Law Secs. 305, 354, 355; 3 Greenleaf on Ev., Secs. 128,129; Carlton on Homicide, 285, 290; 9 Am. & Eng. Ency. of Law (1 ed.), 588; Commonwealth v. Pierce, 138 Mass., 165; Harris’ Crim. Law, 140, 142; Sec. 7217, Revised Statutes; Wolf v. State, 19 Ohio St., 248; Williams v. State, 35 Ohio St., 175.
   Price, J.

If the conceded facts are sufficient aitd the charge of the trial court sound law to govern the jury in deciding on such facts, the plaintiff in error may have been properly punished for very reprehensible conduct. That part of the charge contained in the statement of the case as well as a subsequent paragraph which we will notice, were equivalent to directing a verdict of conviction, inasmuch as there was no dispute as to the facts. There was a verdict of conviction and a sentence upon the verdict, which the circuit court sustained, and thereby must have held that the charge correctly stated the law of the case.

The importance of what is presented as an apparently new doctrine in this state, as well as respect for the opinions of both the lower courts, have been sufficient reasons for giving the questions involved a careful consideration.

The indictment for manslaughter in this case is in the short form authorized by section 7217 of the Revised Statutes, and it charges that “Noah Johnson * * * on the twenty-fifth day of May in the year of our Lord one thousand nine hundred and one, in the county of Scioto, did unlawfully kill one Emory Barrows then and there being, contrary to the form of the statute,” etc.

Prior to the codification of the criminal statutes, manslaughter was thus defined: “That if any person shall unlawfully kill another without malice, either upon a sudden quarrel, or, unintentionally while the slayer is in the commission of some unlawful ’ act, every such person shall be deemed guilty of manslaughter, and on conviction thereof, be punished,” etc. Vol 1, S. & C., 403.

The statute on the subject now is section 6811, Revised Statutes, which reads: “Whoever unlawfully kills another, except as provided in the last three sections is guilty of manslaughter, and shall be imprisoned,” etc. The preceding sections define murder’ in the first and second degrees. But the present section 6811 is not different in substance and meaning from the original section above quoted, and to ascertain the elements of the crime of manslaughter welook to the original as it stood before codification or revision. Therefore, to convict of manslaughter, it is incumbent upon the state to establish that the killing was done “either upon a sudden quarrel, or, unintentionally while the slayer was (is) in the commission of some unlawful act ”

It is clear that from the facts and the instructions given the jury, that Barrows was not killed by Johnson in a quarrel; nor was the killing intentional. Hence, the latter clause of the definition of the crime is the one to which our investigation should be confined. The state was required to show that while the killing was unintentional, it was done by Johnson while he was in the commission of some unlawful act; and the question arises, whether the negligent act or acts of tlie slayer, though no breach of any law, may be sufficient to constitute the unlawful act designated in the statute. Or, is the state required to show that he was in the commission of an act prohibited by law?

At the time of this homicide there was even no ordinance of the village of Scioto regulating the speed or manner of riding bicycles upon its streets. None appears in the record, and we therefore assume there was no such ordinance. And it is not claimed that there was any statute then in force on that subject. What then is the proper construction of the clause “while in commission of some unlawful act?”

The construction which prevailed in the lower courts is found again in a portion of the charge which we quote as the final admonition to the jury: “Now, gentlemen, apply these principles to the case and determine from the evidence introduced upon the trial whether the defendant, Noah Johnson, at the time he struck and killed the decedent, Emory Barrows, wa$ riding his bicycle with gross negligence, and was it such as an ordinarily reasonable and prudent person might and reasonably ought to have foreseen would endanger the lives and safety of others, and be likely to produce fatal injuries; and was such killing the direct, natural and proximate result of such negligence? If the evidence satisfies you beyond a reasonable doubt of all these matters, then your verdict should be that the defendant is guilty of manslaughter as he stands charged in the indictment; otherwise you should acquit him.”

In this language the trial court told the jury that in the defendant’s conduct in the manner of riding the bicycle — its speed without signal of a bell — was, in their judgment, grossly negligent, it was an unlaw'ful act, and they might find that in such conduct he was committing an unlawful act, and, if it resulted in the death of Barrows, the rider was guilty of manslaughter. And it was left to the jury, and they were directed to determine from the evidence whether or not the acts done were grossly negligent and regardless of the life and safety .of another. If so, to convict.

We have no common law crimes in this state. We think such has been the uniform understanding of the bar, anid the opinion of both the judicial and legislative departments of our commonwealth. Before the trial of this case there was but one other case brought to our attention, where the proposition has been called in question. Weller v. The State of Ohio, 10 Circ. Dec., 381; 19 C. C. R., 166.

But this court has settled the commonly accepted rule in more than one case. In Sutcliffe v. The State, 18 Ohio, 469, 477, Justice Avery, speaking for the court, says: “There is no common law crime in this state, and we therefore look always to the statute to ascertain what is the offense of the prisoner, and what is to be his punishment * * *.” Again on same page: “What is affirmed in this statute of manslaughter of the character which this court is intended to reach, except that the slayer must be in the commission at'the time of some-unlawful act?”

Also on page 477: “It is claimed for the plaintiff in error that there, is no allegation in the count of the unlawful act designated in the statute. It was necessary to allege in the indictment that the person was engaged in the commission of some unlawful act. And this allegation, it appears to the court, is distinctly made in that part of the indictment which charges the prisoner with an assault upon the person killed, and unlawfully discharging and' shooting off at him a loaded gun. This sufficiently declares an unlawful act * * *.”

As before stated, our statute now provides for a shorter form of indictment, but it does not dispense with the ingredients of manslaughter as defined in the former statute.

In Smith v. The State, 12 Ohio St., 466, 469, this court says: “It must be borne in mind that we have no common law offenses in this state. No act or omission, however hurtful or'immoral in its tendencies, is punishable as a crime in Ohio, unless such act or omission is specially enjoined or prohibited by the statute law of the state. It is, therefore, idle to speculate upon the injurious consequences of permitting such conduct to go unpunished, or to regret that our criminal code has not the expansiveness of the common law.”

The same statement of the law was again made in Mitchell v. The State, 42 Ohio St., 383, and other decisions of this court.

We think the same rule abides in many, if not all the other states of the Union whose legislatures have made codes or systems of statutory crimes. It evidently is true of the federal government as settled by repeated decisions of the Supreme Court of the United States. United States v. Worrall, 2 U. S. (2 Dall.), 384; United States v. Hudson and Goodwin, 11 U. S. (7 Cranch), 32; Pennsylvania v. Bridge Co., 54 U. S. (13 How.), 518, and later cases in that court. When our legislature first enacted statutes upon the subject of homicide and defining its different degrees, it did, as to manslaughter, what the state suggests, adopted almost literally the common law definition. Sutcliffe v. The State, 18 Ohio, 469, supra. But when this definition was borrowed and adopted by our legislature, it was adopted, not in part, but as a whole, and the act committed when the unintentional killing occurs, must be a violation of some prohibitory law. The very word “unlawful” in criminal jurisprudence, means that and nothing less. Surely the legislature did not intend to adopt part of the common law description of the offense as -a statutory provision, and leave the other part to the expansiveness of the common law. Yet, that is practically the construction which the lower courts must have placed upon our statute against manslaughter. We assume that the facts show conduct grossly negligent in character. There was no malice and no quarrel between defendant and the deceased. The killing was unintentional. It was manslaughter nevertheless, if the slayer was then in commission of some unlawful act. The jury were told that if in their judgment, the accused was guilty of gross negligence, and a disregard for the lives and safety of others, the state was entitled to a verdict of manslaughter. In considering this rather unusual, if not new construction of the law, we must not forget a few elementary principles of the law of negligence. It (negligence) may consist of acts of omission as well as commission; and what may be mere ordinary negligence under one class of circumstances and conditions, may become gross negligence under other conditions and circumstances. Negligence is the failure to exercise ordinary care. Gross negligence may consist in failure to exercise any or very slight care. There are other definitions, but these are sufficient now for our purpose. So we may truly say that negligence differs only in degree. With this, we cannot overlook what experience has tanght for many years, that what may seem ordinary negligence when contemplated by one mind may be regarded by another as very gross negligence. The inferences drawn from the same facts by different minds may often greatly differ. Hence, when we look to the case as it appeared, in the trial court, we see, that without any rule of conduct prescribed by statute to govern the case, the rule for the first time was to be established by the verdict of the jury and sentence, of the court.

Up to that time the behavior of the defendant had violated no law. It was for the jury to say, under the instructions given, whether the accused had been guilty of gross negligence. If so, although the killing was unintentional and free from malice, it was manslaughter. In England, the home of the common law and where it attained its wonderful growth, and from which we have borrowed to a large extent, it became necessary and was permissible to build up, by the pen of law writers and adjudged cases a system of criminal jurisprudence, and enforce it until parliament would occupy the ground and supplant it. But that country, while so doing, was under no written constitution, and eon post- facto, or retroactive laws might be laid down by the courts or enacted by parliament. Not so in this country where we have a written constitution prohibiting retroactive and eoe post facto legislation. Weeks or months after the negligent acts involved in this case, we have the rule of conduct of the defendant passed upon and defined by a verdict upon the all important and indispensable element of manslaughter based on the facts of the case. It is retroactive in its effect. An act of the legislature attempting to so operate would be promptly held unconstitutional. Can we sustain a construction of our statute against manslaughter which will have the same effect?

In our judgment the unlawful act, the commission of which gives color and character to the unintentional killing, is an act prohibited by law, and that such is the natural meaning of the term or clause when used in the parlance of criminal jurisprudence.

Another observation is appropriate here: The uncertainty of the common law. Some principles which are deemed common law in Ohio, are not so regarded in other states, and whgit some of them regard as common law, we do not recognize as such in Ohio. Therefore, the wisdom of enacting a system of penal laws at the beginning of our statehood, and of improving and expanding it as fast as conditions of society required. The growth of such legislation is itself against the holdings of the lower courts. What acts or omissions in early years were harmless, owing to the sparsity of population and character of property and business then owned and conducted, afterAvards, as population increased, and business relations became diversified, became injurious to others; and in other respects the good order of society and the protection of life and property demanded and received appropriate legislation. That department of our state government has kept pace with the wrongs, the vices and immoralities of our social and industrial life. It has gone farther, when occasion demanded, and has made criminal many acts and omissions which before belonged to the field of negligence, as witness, many provisions regarding the management of railroads, factories and mines, and other branches of business where labor is employed. Many acts or omissions to act, which before were subject to the charge of negligence, are made penal by statute. And a consideration of this course of legislation demonstrates that there is no longer a necessity to turn to the common law to find what act or acts it is unlawful to commit.

If the contention of the state in this case is tenable, it is not difficult to see how the criminal dockets in our courts will soon be flooded. The gross negligence of one, may unintentionally cause the death of many. If such negligence is the commission of an unlawful act, the killing of each of the slain becomes a separate crime of manslaughter. And so it would proceed, and the cases multiply according to the judgment of men, as to when the acts of others are or are not grossly negligent.

The position is untenable, and we decide that the judgments of the common pleas and circuit courts are erroneous and must be reversed, and the facts of this case being conceded, as stated herein, the plaintiff; in error is discharged.

Reversed.

Burket, Davis and Shauck, JJ., concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Eshelby v. The Cincinnati Board of Education.

      Treasurer of school district must account for interest on deposits — Section 6841, Rev. Stat.

    The treasurer of a school district who, under favor of the proviso of section 6841, Revised Statutes, deposits its funds in a bank which allows interest on the average balance of the deposit is required to account to the school district for such interest.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Hamilton county.
    Plaintiff in error was treasurer of the city of Cincinnati and ex officio of the school district of Cincinnati. Between July 5, 1897 and July 1, 1898, he received as interest on the average balance of the school funds which he had deposited in the Atlas National Bank the sum of $2,051.62. Whether the interest belonged to him or to the school district of Cincinnati was the subject of contention in the court of common pleas. The performance of the official duties of the treasurer was secured by a bond conditioned as follows:
    “The condition of the obligation is such that, whereas the said Edwin O. Eshelby was, on the fifth day of April, 1897, duly elected to the office of treasurer of the city of Cincinnati, and, whereas, under section 4042 of the Revised Statutes of Ohio, the treasurer of the city funds is ex officio treasurer of the school funds.
    “Now, therefore, if the said Edwin O. Eshelby shall faithfully perform all and singular his duties as said treasurer of the school funds of the school district of Cincinnati, and shall faithfully keep, disburse and account for, according to law, all moneys that shall come, from time to time, into his hands, as such treasurer, and at the expiration of his term of office shall pay over to the proper person or authority all such moneys remaining in his hands, then this obligation shall be void and of no effect.”
    The court of common pleas adjudged the interest to the school district of Cincinnati, and its judgment was’ affirmed by the circuit court.

      Mr. Frederick Her tens toin, for plaintiff in error, cited the following authorities:

      State v. Harper, 6 Ohio St., 608; United States v. Prescott, 44 U. S. (3 How.), 578; Beneficial Association v. Ferson, 2 Circ. Dec., 48; 3 C. C. R., 84; Muzzy v. Shattuck, 1 Denio, 233; Commonwealth v. Comly, 3 Pa. St., 372; Commonwealth v. Baily, 129 Pa. St., 480; Inhabitants v. McEachron, 33 N. J. L., 339; McClelland v. State, 138 Ind., 321; Linville v. Leininger, 72 Ind., 491; District Township v. Morton, 37 Iowa, 550.

      Mr. Charles J. Hunt and Mr. Wade H. Ellis, for defendant in error, cited the following authorities:

      State v. McFetridge, 84 Wis., 523; Commonwealth v. Godshaw, 92 Ky., 435; Johnson v. Fleming, 50 S. W. Rep., 855; Inhabitants v. McEachron, 33 N. J. L., 339; State v. Walsen, 17 Colo., 170; Wilson v. People, 19 Colo., 199; State v. Clarke, 73 N. C., 255; Supervisors v. Wandel, 6 Lansing, 33; Muzzy v. Shattuck, 1 Denio, 233; Supervisors v. Dorr, 7 Hill, 584; Supervisors v. Bank, 5 Hun, 649; Olney v. Wickes, 18 Johns., 122; Law’s Estate, 144 Pa. St., 499; Davis v. Dunlevy, 53 Pac. Rep., 250; Burrows v. Smith, 10 N. Y., 555; Lonsdale v. Church, 3 Brown Ch. Rep., 36; Willis v. Commissioners, 5 East. Rep., 21; Mosby v. United States, 133 U. S., 273; Hughes v. People,
      82 Ill:, 78; Spratley v. Commissioner, 56 Kan., 272; State v. Copeland, 96 Tenn., 296; Willkes-Barre v. Rockafellow, 171 Pa. St., 177; Village of Glenville v. Engelhart, 10 Circ. Dec., 408; 19 C. C. R., 285; Mast v. Matthews, 30 Minn., 443; Cooper v. People, 85 Ill., 417; Commissioners v. Van Slyck, 52 Kan., 662; People v. Supervisors, 1 Hill, 362; Matter of N. Y. C. & H. R. R., 7 Abb. N. C., 408.
   Shauck, J.

Counsel for the plaintiff in error has made it quite clear that the liability of the treasurer is absolute, and that it differs in that respect from that of the ordinary trustee or bailee who may be exempt from liability on account of funds lost without his negligence or connivance. But it does not necessarily follow that funds coming into the hands of the treasurer are his, nor that upon the receipt of money in his official capacity the relation of debtor and creditor is established between him and the district. To the contrary it is quite clear that instead of being the creditor of the district he is its treasurer — the custodian of its funds — and that he acquires custody of the funds without acquiring title to them. In his bond they are designated as “the school funds of the school district of Cincinnati.” In section 4049 of the statutes they are referred to as “money belonging to the district.” The terms of section 6841 of the Revised Statutes, contain a similar suggestion as to the title of the funds. That section designates them as “public money * * * belonging * * * to the board of education,” and makes it unlawful for the treasurer “to use, loan or invest it in any manner.” While the proviso of that section makes it lawful for the treasurer of a board of education to deposit the funds in his keeping, it designates them as “public money.” These legislative designations of the ownership of the funds, and these and other limitations upon their use by the treasurer, are quite irreconcilable with the theory that they become the property of the officer and he a mere creditor of the school district. Whether he should be regarded as “ a bailee with express and extraordinary liabilities,” or as “a special trustee,” is not material, for he is, in either view, the custodian of funds which belong to another. Since the funds belong to the school district, the ultimate question in the case is answered in favor of the defendant in error by the elementary proposition, that in the absence of a statute or stipulation to the contrary the increment follows the principal. It does not aid an inquiry as to what the law is to suggest that the district would not be injured by the deposit of its funds at interest payable to the custodian since he may deposit it without interest. The suggestion does not appear to have been favorably considered by the legislature since it has indicated that while he may deposit it he may not in any manner invest it. The safety of public funds has been the chief object of care. For their security the law employs the character and ability of the treasurer, and the security which is afforded by his official bond. It has not been thought expedient to establish a policy which would give to the treasurer any personal motive in selecting a, place of deposit, nor does the case suggest any reason why it should be regarded as an exception to the rule that a public officer shall receive such compensation only as is expressly provided.

[The above case was decided previous to the retirement of Judge Minshall. — Reporter.]

Judgment affirmed.

Minshall, C. J., Williams, Burket, Spear and Davis, JJ., concur.


author: Davis, J. Burket, J.,

text:
    Platt, a Taxpayer, etc., v. Craig, Daly, James, Individually, etc., et al. Jones, Mayor of the City of Toledo, v. The State of Ohio ex rel. Walbridge.

      Construction of bridge over Maumee — Invalidity of act of April l-'h 1900 — Conflict with article IS, section 1, and article 2, section 26, of constitution — Classification of cities — Constitutional law.

      1. The act of the General Assembly (94 0. L., 175), supplementing Revised Statutes, section 2835, and which provides, “That any city of the third grade of the first class may, subject to the provisions herein contained, construct, reconstruct, enlarge or repair a bridge or bridges across any navigable river or rivers, passing into or through such city,” etc., is a special act applying only to the city of Toledo. Said act confers corporate powers and is in conflict with article 13, section 1, of the constitution of Ohio.
    2. The said act being legislation upon a subject matter of a general nature, and being local in its operation, and it not appearing that any such local and temporary emergency exists as to justify and require special legislation, the act is in conflict with article 2, section 26, of the constitution or Ohio.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Lucas county.
    Harvey P. Platt, a taxpayer, brought suit against John Craig, William S. Daly and Daniel H. James as members of the bridge commission of the city of Toledo, Samuel M. Jones as the mayor of the city of Toledo, and the city of Toledo, to obtain an injunction restraining the defendants from proceeding under an act passed by the general assembly of Ohio, April 14, 1900 (94 O. L., 175), entitled “an act to1 supplement section 2835 of the Revised Statutes of Ohio.” On the hearing of that action in the court of common pleas that court found for the defendants and dismissed the petition. On petition in error filed in the circuit court the judgment of the common pleas court was affirmed, and the case is now before this court to reverse the judgment of the circuit court. About the same time one Thomas H. Walbridge, as a taxpayer of the city of Toledo, brought an action in the name of the state of Ohio, upon his relation, against Samuel M. Jones, mayor of the city of Toledo. The object of this proceeding was to obtain a writ of mandamus requiring the mayor to issue a proclamation and notice to the qualified electors of the city of Toledo, notifying them in due form of law that there would be submitted to them at the election to be held on November 6,1900, the questions as to the construction, reconstruction and enlargement or repair' of bridges over and across the Maumee river in accordance with said statute. Such proceedings were had in the court of common pleas that a peremptory writ of mandamus was awarded against the mayor. On petition in error in the circuit court the judgment of the court of common pleas was affirmed. That case also is in the Supreme Court on petition in error to reverse the judgment of the circuit court.
    In both of these cases the same questions were raised. Various objections were made to the validity of the above mentioned statute, but the case is disposed of upon the constitutional grounds indicated in the opinion, and therefore, it is unnecessary to state the other questions made.

      Mr. W. H. A. Read, and Messrs. Doyle & Letois, for plaintiff in error.

      Mr. M. R. Brailey and Messrs. King■ & Tracey, for defendants in error.
   Davis, J.

These cases present two questions relating to “An act to supplement section 2835 of the Revised Statutes of Ohio,” passed April 14, 1900 (94 0». L., 175). First, that the act was not constitutionally enacted. For the purposes of this case we will assume that the act was lawfully passed. Second, that this act is in conflict with article 2, section 26, and article 13, sections 1 and 6, of the constitution of Ohio. Perhaps the counsel who have raised this point deem it a self-evident proposition. At least we have not been furnished with any argument in its support, although it has been strongly combated by counsel for the. city.

We will not undertake to reconcile all of the reported decisions of this court concerning those provisions of the constitution which are here involved. While as to the general principles of interpretation there is a tolerably clear consensus, a consistent thread of agreement, yet so contradictory and artificial are the conclusions resulting in specific cases, that it would be impossible to harmonize them; and it must be admitted that occasionally the court has seemed to yield to considerations of expediency rather than to firmly apply the unambiguous and explicit provisions of the constitution. Recognizing the importance of the conclusion which we have reached in these cases, we briefly restate some of the principles of constitutional interpretation on which all of the reported cases in this state seem essentially to agree.

The constitution must be construed in the light of the popular and received signification of its words. Because it emanates from the people it must be construed as the people must have understood it. The terms “general” and “special” must therefore be understood and applied in their ordinary and nontechnical sense. They are antonyms. “General” is defined in Webster’s International Dictionary as follows : “4. Common to many, or the greatest number; widely spread; prevalent; extensive though not universal.” The same eminent authority defines “special” thus: “2. Particular; peculiar; different from others; * * * 3. * * * Designed for a particular purpose, occasion or person. 4. Limited in range;confined to a definite field of action. * * It would seem to be clear, therefore, that a special ■act, as opposed to an act of a general nature, is one that is local and temporary in its operation (State v. Hoffman, 35 Ohio St., 435, 443); and while the various provisions of the constitution seem to contemplate general laws as the rule, rather than special ones, yet there is nothing in the constitution of Ohio which prohibits legislation on a subject which would be otherwise general, when such legislation is designed to meet a temporary emergency in a particular locality or in regard to a particular person, provided that such legislation does not confer corporate powers. For while it must be conceded that the tenor of the whole constitution seems to forbid special legislation under most conditions, it cannot be successfully maintained that it is absolutely prohibited under all circumstances. It would have been unwise to have left the general assembly powerless to act in unforeseen exigencies. Hence, while it is provided that all laws of a general nature shall have a uniform operation throughout the state, if it had been intended to prohibit absolutely all special legislation, it would have better expressed that intent to have said that all laws shall have a uniform operation throughout the state; and instead of providing that the general assembly shall pass no special act conferring corporate power, it would have been said that the general assembly shall pass no special laws. The inclusion of the qualifying words must be presumed to have been deliberate and intentional. But the local and temporary emergency must be a real exigency, and not a mere* pretext for special legislation. In all other cases the exercise of legislative power must be by general laws (in some cases it is expressly so provided); and laws of a general nature are required by the constitution (Art. 2, Sec. 26) to have a uniform operation throughout the state. Not only must such laws operate throughout the state, but they must operate uniformly, that is, there must be no exemptions as to indivi duals of the same class. A general law must, therefore, in its operation be co-extensive with the state and co-extensive with every class brought within the purview of the statute; but this section does not imply that a law of a general nature must necessarily affect every individual in the state, or every small subdivision of territory within the state.

The counsel who represent the mayor of the city of Toledo, plaintiff in error in the one case, and the bridge commissioners, the mayor and the city of Toledo, defendants in error in the other case, expressly concede: 1. That the act in question is one conferring corporate power, and 2. That it is a law of a general nature. This conclusion was inevitable in view of previous decisions by this court and the fact that the subject matter of the act is already the subject of general legislation. If then this act of the general assembly is a special act, it is in conflict with article 13, section 1 of the constitution, because it confessedly confers corporate powers; for, in the purview of the constitution, there is no distinction between private and municipal corporations. State v. Cincinnati, 20 Ohio St., 18. If it be an act of a general nature it must operate uniformly throughout' the state, exempting no individual of the class named. If it cannot by its very terms be construed as having such operation throughout the state it is in conflict with article 2, section 26 of the constitution.

The act provides as follows: “That any city of the third grade of the first class, may, subject to the provisions herein contained, construct, reconstruct, enlarge or repair a bridge or bridges, across any navigable river or rivers, passing into or through any such city,” etc. It is obvious that this does not apply to all cities of the third grade of the first class, now existing or which may hereafter become such, but distinctly applies to any city of the third grade of the first class, which has a navigable river or rivers passing into or through such city. This applies to Toledo, and the court is not informed that there is one other city of the third grade of the first class in Ohio, which comes within the words of the statute or is likely ever to do so. The exercise of the powers.conferred by the statute is, therefore, localized in Toledo,, and it matters not whether the subject matter of the act is of a special or general nature, for inasmuch as it is special in its application to the municipal corporation of Toledo and confers corporate powers, it is unconstitutional and void.

The same conclusion must be reached if we follow up the suggestion of counsel that while this is a law the subject matter of which is of a general nature, yet that it is not in conflict' with Art. 2, Sec. 26 of the constitution, “simply because it is limited to certain municipalities of the state.” This law is not limited to certain municipalities, or a certain class of municipalities, but to one certain municipality. The constitution requires uniformity of operation throughout the state, upon the class named. This statute, instead of operating uniformly ip all cities of the third grade of the first class, is limited to a city of that description having a navigable river passing through it. There is not so much as a hint in it of any such local or temporary emergency as would justify and require local legislation on a subject otherwise of general nature. But counsel put forward the language of the circuit court as an argument as follows: “The question remains as to whether the subject matter is appropriate to municipal control, and therefore proper to be brought under such classification of municipalities.” We disclaim any intention of discussing here the much mooted doctrine of classification of municipal corporations; but answering this suggestion without denying or conceding the power of classification in general, if exercised at all it must be by general laws, and can never be done by special acts, such as the one under consideration. (Const., Art. 13, Secs, land 6.)

This act attempts to create a distinct class, viz.: cities of the third grade of the first class having navigable rivers passing into or through them, an exceedingly artificial and a sham classification; and however ingenious the reasoning, it cannot be made to appear to be other than special legislation. The powers and privileges conferred, and which are conceded to be of a general nature, are conferred upon the smallest number of a particular grade of a particular class; and even if there were within the state two or three cities answering to the description, it would still be special legislation, as much so as if the act were limited by name, for example, to Toledo, Marietta and Portsmouth.

The judgments of the circuit court and of the court of common pleas in both cases are

Reversed.

Spear, Shauck and Price, JJ., concur.

Burket, J.,

concurs in the judgment, and also in the syllabus and opinion, except the emergency part thereof. There is no emergency clause in the constitution, and none can be engrafted thereon by this court or the general assembly.


author: Spear, J.

text:
    Bonham v. Hamilton.

      Sale of goods by administrator — Upon terms of credit with approved security — Failure of security and resale to another— First bidder does not get title, when — And cannot maintain replevin.

    1. It is a general rule that, in case of the sale of goods, if nothing remains to be done on the part of the seller, as between him and the buyer, before the thing purchased is to be delivered, the property in the goods immediately passes to the buyer, and that in the price to the seller; but if any act remains to be done on the part of the seller, then the property does not pass until that act has been done.
    S. Where, at an administrator’s sale of goods, upon terms of credit of nine months with approved security, a bid is accepted, but it is stipulated that the transaction is to be a sale if surety be given by ten o’clock the next day, but if not given the goods to be again offered for sale, and the sureties tendered by the bidder are not approved by the administrator, and the goods are thereupon offered and sold to another, the title to the goods does not pass to the first bidder, and he cannot maintain replevin for their possession.
    (Decided March 18, 1902.)

      Error to the Circuit Court of Hamilton county.
    The action in the court of common pleas was hy the defendant in error against the plaintiff in error, in replevin, .to recover possession of a stock of goods in a store room in the city of Cincinnati, on a claim that the plaintiff had purchased the goods of the defendant, as administrator, at an administrator’s sale. The goods were taken under the writ and possession delivered to the plaintiff. Among other defenses the defendant, in his answer, set up the following:

      “5. The defendant says that he is, and was at the commencement of this action, the administrator of the estate of Robert Wood Mercer, deceased, duly appointed by the probate court of Hamilton county, Ohio, July 8, 1896, and that in pursuance with his duties as such administrator, and by direction of such court, on the twenty-fifth day of May, 1897, he offered at public auction,as such administrator,the goods and chattels belonging to said estate remaining unsold at said date; and that at such sale the plaintiff, Jonathan Hamilton, bid the sum of $3,550 for said stock of goods, and stated to said administrator at said time that the bid was made in pursuance of the terms of sale upon nine months’ time with approved security; the defendant, as such administrator, then announced that said sale would be postponed until May 26, 1897, at 10 o’clock, for the purpose of permitting the said plaintiff, Jonathan Hamilton, to present such note to the defendant as such administrator, with security to be approved by the administrator, as required by law. Said plaintiff, Jonathan Hamilton, on the same day presented two notes to this defendant, as such administrator, with certain security or sureties, to-wit: R. W. Mercer, C. W. Mercer, William Disney and J. S. Crawford, in the total sum of $3,550, the said note being executed by tbe plaintiff, Jonathan Hamilton, to Scott Bonham, administrator of tbe estate of Robert W. Mercer.
    “This defendant at once investigated tbe sureties, in accordance with an agreement with tbe plaintiff, and notified tbe plaintiff within a short time thereafter that such sureties were insufficient and were not approved by tbe defendant; that tbe notes would not be accepted by tbe defendant, and this defendant refused to accept said notes and also refused to deliver tbe property which be bad offered for sale as such administrator aforesaid or any part thereof to tbe said plaintiff, all of which proceedings on the part of this defendant in refusing to accept such notes and to turn over such property to tbe plaintiff, were also duly brought to tbe notice of tbe probate court of Hamilton county, Ohio, in tbe presence of tbe plaintiff and tbe sureties named herein and tbe defendant’s proceeding and refusal to accept were approved by said court. And tbe defendant, as such administrator and officer of said court, was directed to proceed with tbe sale of tbe said property as if no such bid bad been made by tbe said plaintiff, which orders of tbe probate court this defendant, as such administrator, proceeded to comply with.” And prayed judgment for tbe value of tbe goods which be averred was $6,823.24, and damages for detention.
    The new matter was denied by reply.
    At tbe trial tbe defendant gave testimony, by himself and others, in support of bis answer. And tbe plaintiff offered testimony in contradiction, but it was not denied that tbe goods were offered at administrator’s sale, nor that tbe terms of sale were as stated in tbe answer. It was admitted that tbe value of tbe goods was correctly stated in tbe answer. Tbe plaintiff also offered testimony respecting the financial worth of the sureties upon the notes tendered to the defendant in payment for said goods. Objection to this testimony was made by defendant which was sustained, and the testimony was not permitted to be given. The testimony of the plaintiff (Hamilton), respecting the alleged sale, and the only testimony offered by him on that subject, was as follows:
    “On the twenty-fifth of May, 1897, I had some notices these goods were going to sell; were advertised to sell that day, and I got down here in the morning about eight or nine o’clock, and went down to the store; I went to the store and Mr. Bonham was there, and somewhere between nine and ten o’clock he commenced selling some goods; and after he offered them for sale he sold some small article. Near ten o’clock, or at ten o’clock, he offered the whole store for sale, and Mr. Disney bid so much, I do not recollect just what the bid was in the first place; somebody bid before Mr. Disney, and they commenced bidding up, until it was knocked off by Mr. Disney’s bid at $3,550, or fifty-two dollars, and if I understood Mr. Bonham rightly, he asked Mr. Disney who was the buyer, and Mr. Disney said Jonathan Hamilton of Maysville; and Mr. Bonham cried off the sale, saying: ‘I offer all the personal property of Robert Wood Mercer, appraised at $6,500,’ and something, holding, I thought, an inventory of the goods in his hand, and said: There is the appraised value, what can I get?’ — when he started off. Uan I get two-thirds?’ maybe he said first; and finally he got a bid and said: ff offer all the property of Robert Wood Mercer, what can I have a bid for it?’ Those bids were put in, first one and then another, and it was finally knocked off to Mr. Disney’s bid. Well, then, after the sale, why Mr. Bonham stated that this was a sale if there was security given, if there was not security given by ten o’clock the next day he would go and sell, he would offer it again for kale; and soon after that we retired and went to Mr. Disney’s office, and there those notes were gotten up that same afternoon, if my recollection serves me right, in two notes, and signed by me and the two Mercer boys, Mr. Disney and, I believe, Mr. Crawford.
    “Q. Was there anything done after you left Mr. Disney’s office?
    “A. Why, there was nothing done that afternoon that I recollect of, only, if my memory serves me right, Mr. Bonham came back there thát evening or the next morning and remarked that he would not accept of the security, and said he was going to sell the store again; he was going to go to sell the goods, and I believe did go on down.”
    At the conclusion of the testimony, ° counsel for Hamilton requested the court to give the following-charge to the jury, viz.:
    “If the jury find that the sureties on the two promissory notes given by the plaintiff, Jonathan Hamilton, for $2,000 and $1,550, payable respectively in nine months after date, to Scott Bonham, as administrator of the estate of Robert Wood Mercer, were in the aggregate sufficient as security, and should, in the exercise of prudence and reasonable care on the part cf said Bonham, have been accepted and approved by him, then I charge you that the delivery of said notes by plaintiff to the defendant was a compliance with the terms of the sale, and thereby the title to the goods so sold passed to the plaintiff, Hamilton.”
    Which the court refused to give.
    Thereupon the court directed a verdict for the defendant for the sum named and nominal damages of one dollar, which was then rendered, and judgment was entered in favor of defendant and against the plaintiff below upon the verdict. Error was prosecuted by Hamilton to the circuit court, by which court the judgment below was reversed for “error in this, to-wit: that the court erred in instructing the jury to bring in a verdict for the defendant, in overruling the motion for a new trial on this ground, in rendering judgment on verdict in favor of defendant in error, in refusing to give the special charge set forth in the petition in error, in rejecting evidence as to value of property and in holding that the administrator had the arbitrary power to reject the sureties, and in refusing to permit the plaintiff to introduce evidence to show the financial worth of the persons who were endorsers on the notes and given as security therefor in accordance with the advertisement and the sections of the statutes of the state of Ohio relating thereto.”
    Mr. Bonham, defendant below, brings error.

      Mr. Drausin Wulsin/ Messrs. Simrall & G-alvin and Mr. Scott Bonham, for plaintiff in error.

      Mr. Province M. Pogue and Mcssrs. Pogue <fi Pogue, for defendant in error.
   Spear, J.

The plaintiff below contended that if he could establish by testimony at the trial that he had tendered security which was in fact good and ought to have been approved, he was entitled to maintain his action, and he offered proof tending to support that claim. But the court of common pleas refused to admit the testimony, holding that the option to approve the sufficiency of the sureties on the notes tendered by Hamilton in payment, rested with the administrator and to.be determined finally by him, and the cause seems to have turned in that court upon that question alone. With this holding the circuit court did not agree, and reversed the judgment on this ground. As we view the record a question of importance must be considered and determined before the correctness of that holding is reached in its order.

The question above referred to relates to the completion of the alleged sale. The facts are to be assumed as given by the testimony of Hamilton, taken in connection with the admitted facts of other portions of the record. It is shown without controversy, that the alleged sale was that of an administrator, and that the terms were to be nine months’ credit with approved security. This was in consonance with the terms of the statute which permits a credit of nine months where the amount purchased exceeds three dollars, and requires the administrator to take notes or bonds with two or more approved sureties. This length of credit was the longest permitted by the statute, and the administrator was without authority to make more favorable terms as to sureties, and the evidence shows this to have been clearly understood by the parties. Manifestly, therefore, the sale could not, in law, be deemed complete until these terms had been satisfied. As expressed by Hamilton: “This was a sale if there was security given; if there was not security given by ten o’clock the next day he would go on; the defendant would go on and sell — would offer the property again for sale.” And that was what was done. That is, the administrator, not approving of the sureties offered, refused to accept the notes and thus, whether rightfully or wrongfully we need not now inquire, refused to complete the sale. The basis of the plaintiff’s claim being the ownership in and right to possession of the goods, in other words that he had acquired title to them, it was incumbent on him to show that the title had passed to him. If it had not, he had no right to possession. Did the admitted facts warrant the conclusion as matter of law, that the title had passed?

The distinction between a bargain and sale and a conditional sale is a vital one. If by the terms of the agreement the property in the thing sold is intended to pass immediately to the buyer, the contract is a bargain and sale; but if the property in the goods was to remain for the time being in the seller and only to pass to the buyer at a future time, or on the fulfillment of certain conditions, then the contract is an executory agreement. The question of when, and under what circumstances, á transaction amounts to a complete sale, and when only to a conditional sale, has been the subject of extended discussion since the commencement of the growth of the common law, and the number of cases bearing generally upon the subject is legion. An extended search, however, fails to find a reported case which can be said to be on all fours with the one at bar. But it is believed that a principle announced in text-books, and based upon decisions of courts of high authority, is determinative of the question here presented. In Benjamin on Sales, the author, at page 270, gives three rules applicable to conditional sales, viz.: (1) Where by the agreement the vendor is to do anything to the goods for the purpose of putting them, into that state in which the purchaser is to be bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the property. (2) Where anything remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring, or testing the goods, where the price is to depend on the quantity or quality of the goods, the performance of these things also shall be a condition precedent .to the transfer of the property, although the individual goods be ascertained and they are in a state in which they ought to be accepted. (3) Where the buyer is by the terms bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled even though the goods may have been actually delivered into the possession of the buyer.”

Professor Mechem, in his work on Sales, volume 1, page 2, defines the distinction in this wise: “The bargaining of parties respecting a transfer of title may take a variety of forms. Thus there may be an agreement whose legal effect is the immediate transfer of the absolute or general title. This is a sale, called sometimes, for the purpose of further distinction, a present sale, an executed sale, or a bargain and sale. Or there may be an agreement whose legal effect is that the title shall not pass until a future time, either because in the case of an ascertained chattel, something remains to happen or be performed which the parties have treated as precedent, or because the particular chattel whose title is to be so transferred has not yet been ascertained. This is an agreement to sell, called, often, for the purposes of distinction, an executory sale. It does not become a sale until the precedent event has happened, or until the condition has been performed. It then becomes a sale by force of the present agreement aided or completed by the happening of that event or the performance of that condition.”

A ease somewhat in point is that of McDonald v. Hewett, 15 Johns., 349. This was an action of trover for timber. Plaintiff and A. entered into a written contract which stated that plaintiff had bought of A. certain timber tó be paid for at fair market price at the measurement in the city of New York, when it was delivered and inspected; also that the amount should be endorsed on notes which plaintiff held against A., and if it exceeded the amount of the notes, the balance to be paid in cash. The defendant took the timber to New York, but refused to deliver it, and transferred it to another. The court held the transaction to be an executory agreement, which did not vest the property in the timber in the plaintiff and that he could not maintain an action in trover against a third person for its conversion. The syllabus is: “Where after a sale of goods some act remains to be done by the vendor before delivery, the property does not vest in the vendee, but continues at the risk of the vendor.” In the opinion, Spencer, J., cites Busk v. Davis, 2 M. & S., 397, and Shepley v. Davis, 5 Taunt, 621, as “full to the point that if any act remains to be done by the vendor before delivery, the property does not pass,” and the cases sustain the proposition.

The rule is given in Tarling v. Baxter, 6 B. & C., 360, by Holroyd, J., thus: “Now, in case of a sale of goods, if nothing remains to be done on the part of the seller, as between him and the buyer, before the thing purchased is to be delivered, the property in the goods immediately passes to the buyer, and that in the price to the seller; but if any act remains to be done on the part of the seller, then the property does not pass until that act has been done.” And by Bailey, J., in the same case: “The rule of law is, that where there is an immediate sale, and nothing remains to be done by the vendor as between him and tbe vendee, tbe property in the thing sold vests in the vendee.”

Upon the question of title under the head,-“where the title has not passed,” Professor Mechem, Sec. 1716, observes: “The simplest form, perhaps, of the seller’s breach of contract is that which is presented when, wiiile the contract remains wholly executory, he fails or refuses to proceed with its performance. Usually and naturally the goods will not have been delivered, but will still remain in the possession of the seller.” And, at section 1734 the author remarks: “In the cases in which specific performance cannot be enforced, the remedy of the buyer for the seller’s breach of his agreement to sell and convey must be sought at law. The buyer in the contingency now being considered — breach before the transfer of title — can obviously not recover the goods, for, by the hypothesis, the title has not vested in him.”

In the present case there did remain something not only for the buyer to do before a sale should be effected, but there remained something for the vendor to do. He was, in the discharge of the duty enjoined by his trust position bound to exercise his judgment upon the security which the buyer might offer. He could not, in disregard of this duty, blindly take what might be tendered and turn over the property of the estate, and this fact was well known to both the parties. It then follows that neither could have understood that the sale could be regarded as complete until that duty had been discharged by the administrator, and the further conclusion would also follow that without a decision favorable to the buyer, the sale would not be complete and hence title would not pass. Our conclusion is that the. principle announced controls the case, and that there was no completed sale and that the title to the goods did not pass to the bidder.

We are aware that there are cases, and many of them, which hold that where all the terms are complete save payment, and where, at the proper time and in the proper way, the buyer tenders payment, the title vests in him and he has the right to recover the goods in specie. But these cases rest upon the principle that the contract is complete when the minds of the parties have met upon the terms, the unconditional promise of one being a sufficient consideration for the unconditional promise of the other, and it Avould. seem plain that the rule will not apply where the vendor is to do something in the future, as in the present case, to complete the sale.

We are of opinion that, Avhether the ground of the holding of the common pleas was or not correct —:and upon that we are not now required to pass — the judgment was correct, and that in reversing that judgment the circuit court erred. The latter judgment will be reversed and that of the common pleas affirmed.

Reversed.

Williams, C. J:, Bukket, Davis, Shauok and Price, JJ., concur.


author: Burket, J.

text:
    Geurinck v. Alcott.

      A corporation cannot be a member of a partnership — Credit due two corporations united for joint business not partnership assets — Of money in hands of third person for two such corporations — Half belongs to each corporation — Law of garnishee — Illegality of combination to regulate prices — Money belonging to such combination not tainted with illegality, when.

      2. Where two corporations by agreement contribute capital to carry on a joint business in an assumed name, the net profits to be equally divided, such combination is not a partnership, and credits due thereto are not partnership assets, but belong to the two corporations.
    3. Where money is held by a third person for such two corporations, and the same is garnisheed to pay the individual debt of one of them, and, the disclosures being unsatisfactory, an action is brought against such third person and the other corporation as garnishees, both answer, and both fail to claim that such other corporation has any interest in the money, and the cause is tried upon the pleadings and testimony, it is not error of law for the court to find that one-half of such money belongs to the debtor corporation, and render judgment accordingly.
    4. While a combination to regulate prices and control output, may be against public policy and illegal, ihe money arising as the fruits of such combination, when placed in the hands of a third person for one of the members thereof, ceases to' be tainted by such illegality, and becomes honest money, subject to seizure and sequestration by garnishee process, in favor of a creditor of such member.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiff in error, also plaintiff below, brought his action in the court of common pleas against the Ellwood Gas Stove & Stamping Company, a Pennsylvania corporation located at Ellwood City in that state, hereinafter known as the Stamping Company, for the recovery of over fifteen hundred dollars on contract, and caused an attachment and garnishee process to be issued upon proper affidavit, and the same was duly served upon said Frank L. Alcott, defendant in .error, and service made on the corporation by publication. The disclosure of Mr. Alcott not being satisfactory, the said Bernard A. Geurinck brought an action against said Alcott under Sec. 5551, Rev. Stat., and alleged in his petition that said Alcott had certain sums of money in his hands at the time the three several writs were served upon him, belonging to said defendant corporation, and prayed that full disclosure be made, and for judgment against said Alcott for whatever money might be found in his hands belonging to said defendant corporation. The Vapor Stove Manufacturers’ Association of the United States, the Cleveland Co-operative Stove Company, hereinafter known as the Stove Company, W. W. Baldwin and M. B. Clark were also made defendants and duly served, but as they claimed no interest in the money held by Mr. Alcott, they were afterward dismissed out of the case by the plaintiff below.
    A joint answer was filed by the defendants, and after admitting, that said Alcott is a resident of Cuyahoga county, that said Stove Company is an Ohio corporation, and some other immaterial admissions, the answer is as follows:
    “They deny that said Frank L. Alcott at any time had in his possessions under his control, or anybody else had in their possession or under their control belonging to said Gas & Vapor Stove Company and the Cleveland Co-operative Stove Company jointly credited to them under the name of the Ellwood Gas & Vapor Stove Company, and they deny every other allegation of the plaintiff’s petition not herein admitted.
    “Further answering the defendants say that said proceedings as set out in plaintiff’s petition was an attempt to find in this state in the hands of somebody, the funds of a corporation not doing business in this state, incorporated under the laws of another state, and that all proceedings in such attempt were illegal and irregular, and of no binding force and effect, and were proceedings for which there is no authority under the laws and statutes of the state of Ohio.- That said Vapor Stove Manufacturers’ Association so far as it exists at all in the state of Ohio, is not a legal entity and is not authorized to transact any business and it is incapable of being sued under the provisions of the laws of the state of Ohio.
    “Defendants say that whatever money is in the possession, or ever has been, of the Ellwood Gas & Vapor Stove Company, that the same was in its hands as its own, and is not the property of anybody else, and the said Ellwood Gas Stove & Stamping Company has no interest whatever therein, and having fully answered the defendants ask to go hence with their costs.”
    A jury was waived and the cause submitted to the court upon the issues and evidence, and the court made special findings of fact separate from its conclusions of law in substance as follows: In February, 1895, the said Stamping Company and said Stove Company, an Ohio corporation doing business at the city of Cleveland, entered into a written contract to continue to July, 1900, whereby the Stamping Company was to contribute its plant, and the Stove Company an amount of capital equal to the value of the plant, and the two companies under the assumed name of the Ellwood Gas and Vapor Stove Company, hereinafter known as the Vapor Company, were to carry on a joint business at the plant in Ell wood, each company to have one-half the net profits.
    That about the twenty-first day of September, 1895, the said Stamping Company and Stove Company, under the said name of the Vapor Company, entered into a pool with a large number of other companies to regulate prices and output, and this last named combination appointed said Alcott as its commissioner, and reports were made to him each month for one year, and he received and had in his hands, the funds of the combination, and apportioned to each member its amount each month.
    That when the first writ was served, May 4, 1896, Mr. Alcott had in his hands for said Vapor Company under said combination agreement, the>sum of $1,359.-75, one-half of which was the property of the said Stamping Company, and one-half the property of the Stove Company. That on June 30, 1896, when the second writ was served, he had in his hands upon the same terms, the sum of $1,268.64, and on August 7, 1896, when the third writ was served, he had in his hands $200.95, making a total of $2,829.34, one-half of which, $1,414.67, was the property of the Stamping Company, and was in the hands of Mr. Alcott for that company.
    Judgment having been rendered in favor of the plaintiff below in the original action, the court rendered judgment against Mr. Alcott as garnishee for the amount so found in his hands, with interest and costs.
    The circuit court reversed the judgment, and rendered final judgment in favor of Mr. Alcott upon the findings of fact. Thereupon the plaintiff below filed his petition in error in this court, seeking to reverse the judgment of the circuit court, and for an affirmance of the common pleas.

      Messrs. Preusser & Wennemann, for plaintiff in error.
    The question now in this court is: Can the Ellwood Gas Stove & Stamping Company., a Pennsylvania corporation, and the Cleveland Co-operative Stove Company by contract form a new firm, which absorbs for the time from February 2, 1895, to July 1, 1900, the entire plant or the use thereof of the Ellwood Gas Stove & Stamping Company, also all its other “property of every kind and description,” and to which the Cleveland Co-operative Stove Company contributes capital equal to the value of the plant, machinery, etc., the management of which new concern is in the hands of the latter company, and thus prevent an Ohio creditor from collecting a debt which the Pennsylvania corporation owes him.
    As a matter of law we claim that cannot be done. If the money found due at the several times from Alcott to the Ellwood Gas & Yapor Stove Company, was due to a partnership, the case of Myers v. Smith, 29 Ohio St., 120, would seem to settle that the garnishee cannot be held, where the proceeding is purely in rent and the members of the partnership are not within the jurisdiction of the court. Langdon v. Conklin et al., 10 Ohio St., 439; Railway Co. v. Volkert, 58 Ohio St., 362; Ford v. Dry Dock Co., 50 Mich., 358.
    We claim that the Cleveland Co-operative Stove Company having answered in this case, and claiming no interest in the funds in Alcott’s possession, in a suit which it might bring against Alcott for having paid the fund in his hands to Geurinck, could not re-coyer against him if Alcott plead in his answer an estoppel on the part of the company, by its appearance in this case and non-claimer of any interest in the funds. Kunneke v. Mapel, 60 Ohio St., 1.
    Corporations are endowed with such powers only as are conferred upon them by their charters, or such as are reasonably nfecessary to carry into execution the powers granted. The enumeration of certain powers implies the exclusion of all others. There is no authority to form a partnership conferred upon the Cleveland Co-operative Stove and Hollow Ware Foundry Company.
    The formation of a partnership implies the giving of control over the affairs of the corporation to others than their legally constituted officers and board of directors. Sec. 3248, Rev. Stat.
    The common law never allowed corporations to form partnerships, and in the absence of anything to the contrary, the Ellwood Gas Stove & Stamping Company is presumed not to have such power.
    Again the formation of partnerships by corporations, subjects the stockholders to additional risks, which they cannot be presumed to have contemplated,, and it is furthermore void as against public policy.
    While the precise question has not been passed upon in our Supreme Court, it is held in Bank v. Bank, 36 Ohio St., 350, and Railway Co. v. Iron Co., 46 Ohio St., 44, that one corporation cannot subscribe for stock in another corporation. State v. Standard Oil Co., 49 Ohio St., 137, sustains the contention. In Pearce v. Railway Co., 62 U. S. (21 How.), 441; Railway Co. v. Railway Co., 131 U. S., 371; Central Transport Co. v. Pullman Car Co., 139 U. S., 24; Bank v. Kennedy, 167 U. S., 362.

      In the light of the above decisions it is plain that the contract between the two corporations conld not be enforced by the one against the other, and if at any time either disaffirmed the contract, either may bring suit against the other to recover as on a quantum memit the value of which it actually has received the benefit. Louisiana City v. Wood, 102 U. S., 294; Parkersburg v. Brown, 106 U. S., 487; Chapman v. Douglas Co., 107 U. S., 348; Salt Lake City v. Hollister, 118 U. S., 256; Railway Co. v. Railway Co., 118 U. S., 290.
    So the argument that Alcott owes the funds in his hands to the Ellwood Gas & Vapor Stove Company as a partnership, falls, because the two corporations cannot form a partnership.
    Suppose Alcott refused to pay to the Ellwood Gas & Vapor Stove Company the respective amounts he reported as due them as provided in the contract with the Vapor Stove Manufacturers’ Association of the United States, the result would have been that the Ellwood Gas & Vapor Stove Company would have to resort to a suit and in such suit the. Ellwood Gas & Vapor Stove Company could not appear as plaintiff in Ohio, in view of the decision of Jackson v. Brick Assn., 53 Ohio St., 303; Schuler v. Israel, 120 U. S., 506; Drake on Attachment, Sec. 528, 521; Ohio Statutes, 4993 (real party in interest must bring suit).
    The legal effect of service of garnishment process upon Alcott in the original attachment suit between this plaintiff in error and the Ellwood Gas Stove & Stamping Company was an assignment of all the interests said company had in the funds in Alcott’s possession credited to the name of the Ellwood Gas & Vapor Stove Company. Alsdorf v. Reed, 45 Ohio St., 653, and Alcott is charged with the knowledge of the assignment. The property right thus acquired by Guerinck, the plaintiff in the attachment suit and now plaintiff in error, is enforcible. It is not in the power of Alcott, after knowledge of the assignment to settle for the fund in his hands in the name of the Ellwood Gas & Vapor Stove Company, and pay over to it the full amount; for*in reality it is paying the fund to the two corporations, one of which is the defendant in the attachment suit, under an assumed name; Alcott could thus defeat Geurinck’s claim. It has been so held substantially in Railway Co. v. Volkert, 58 Ohio St., 362; McBlair v. Gibbes, 58 U. S. (17 How.), 232.
    To the proposition that the fund in hands of Alcott arose out of an illegal contract (the pooling contract) and could therefore not be collected from him we cite: Planters Bank v. Bank, 83 U. S. (16 Wall.), 483; Kinsman v. Parkhurst, 59 U. S. (18 How.), 289; Armstrong v. Bank, 133 U. S., 433.
    If the circuit court decision is to stand, it means that a corporation can transfer all of its property to a joint venture or partnership and its creditors are remediless; but as has been held in Andres v. Morgan, 62 Ohio St., 236, where a partnership was changed, into a corporation and all of the firm property transferred to the corporation; held, that the debts of the: partnership became the debts of the corporation and. it is liable therefor. In this case the property of the.corporation was transferred to the partnership or the new combination; the court of common pleas so found. Rouse, Trustee, v. Bank, 46 Ohio St., 493.
    If such is the policy of the law in Ohio in regard to Ohio corporations, the defendant Alcott cannot shield himself by saying the Ellwood Gas Stove & Stamping Company is a Pennsylvania corporation, for reason would tell us that a foreign corporation cannot enjoy greater privileges in Ohio than a local one.

      Mr. Orestes C. Pinney, for defendant in error.
    There are two reasons why this plaintiff could not garnishee on a claim against the Stamping Company any money in Alcott’s hands.
    First — The defendant is a foreign corporation, at Ellwood, Pennsylvania, and the credit due a foreign corporation cannot be garnisheed, the situs of the debt being in Pennsylvania and to garnishee the credit would be assuming extraterritorial jurisdiction.
    Second — The Stamping Company did not have such an interest in the fund in Alcott’s hands as that it would have had a right at the time when garnishment process was served, to bring a suit for any part of the fund, because:
    (a) No title to the fund or to a credit producing the fund existed until the money was paid into Alcott’s hands.
    (b) When paid in, the title was in Alcott as trustee until an actual proportionment had been made.
    (c) When the apportionment had been made the title to no part of it became in the Stamping Company, but was in the Vapor Company.
    (d) - The Stamping Company, against whom the plaintiff’s claim existed, had no title to any part of the fund belonging to the Vapor Company until a division had been made between it and the Cooperative Stove Company. .
    (e) Neither the Stamping Company nor the Cooperative Stove Company had any title to or right to or interest in, any of this fund in Alcott’s hands coming to the Vapor Company until all the debts of the Yapor Company had been paid, and there was shown to have been created a net profit.
    None of these events had occurred at the time when any of the processes of garnishment were served.
    The first proposition seems to have been decided adversely in the case of Owen v. Miller, 10 Ohio St., 136; Swearingen v. Morris, 14 Ohio St., 424; Root v. Davis, 51 Ohio St., 29.
    The court in this case, in applying our attachment statutes, seems to make a difference between the right to garnishment of a credit in an action against a resident of another county and one against a resident of another state. The authorities cited by this decision seem to sustain this doctrine, as do also Cole v. Cunningham, 133 U. S., 107; 138 Mass., 179; Cunningham v. Butler, 142 Mass., 47, and Goldey v. Morning News, 156 U. S., 518; Bank v. McLeod, 38 Ohio St., 174.
    This court held an attachment issued in Cincinnati against property of a Kentucky corporation would not hold the property as against a proceeding in the Kentucky court against the corporation, wherein the property, of the. corporation was being sought to satisfy creditors and trustees had been appointed to take possession of the property of the corporation. This does not decide the above question, but it shows that in principle the courts in this state cannot exercise extraterritorial jurisdiction and obtain control of the property of a foreign corporation temporarily in this state.
    But it is further urged that under the facts of the case there was nothing in the hands of Alcott, the garnishee, which could be made applicable to the payment of the claim of the plaintiff in his suit in the attachment case. The facts in that regard were found and stated by the court of common pleas, and we think the court was justified in finding the facts as found. Ford v. Dry Dock Co., 50 Mich., 358; Harris v. Miller, 71 Ala., 32; Roly v. Labuzan, 21 Ala., 60; 19 Ala., 138; 30 Ala., 68; 42 Ala., 370; Hassie v. Congregation, 35 Cal., 378; May v. Baker, 15 Ill., 89.
    The statute of Illinois provides for the attachment and garnishment of “lands, tenements, goods, chattels, moneys, choses in action, credits and effects.” Ill. Statute, page 932, par. 7. 35 Conn., 310; 83 Ill., 55; Smith v. Davis, 1 Wis., 447; Drake on Attachments, Sec. 463; 31 Ala., 552; 42 Ala., 370; 75 Ala., 530; 2 Wade on Attachments, Sec. 407; Swann v. Sommers, 19 W. Va., 115.
   Burket, J.

'In the unreported case of Merchants’ National Bank v. Standard Wagon Company, 65 Ohio St., 559, this court held, after full argument by counsel and consideration by the court, that it was not competent for two or more corporations to unite and form a partnership, and with that holding we are still content. The same question was again considered in this case, and the same conclusion reached. Of course two or more corporations, or a corporation and an individual, as was the case in Cleveland Paper Company v. Courier Company, 34 N. W. Rep., 556, may purchase goods for the use of both, and both be liable therefor, but the liability is not as partners, but individually, and that is as far as the above case goes. It is not within the corporate scope of business of a corporation to be a member of a partnership with all the rights and liabilities of a partner.

The combination formed by the agreement between the Stamping Company and the Stove Company, did not therefore have the legal effect of forming a partnership under the assumed name of the Vapor Company, and that contract does not pretend to constitute such partnership. Each corporation agrees to furnish the same amount of capital, the business to be for the mutual benefit of the two concerns. Each to be entitled to one-half of the profits of the joint business, the net profits to be determined annually in August, and such portions as may be thought advisable to be equally divided between them.

The above provisions look very much like a partnership agreement, but nothing is said in the contract about a partnership, and the parties seem to have understood that corporations could not legally enter into a partnership, and therefore they speak of it as a “joint business,” “for the mutual benefit of the two concerns.”

The combination entered into by the. Stamping Company and Stove Company under the name of the Vapor Company, and a number of other corporations, to regulate prices and control output, may have been void as against public policy; but certain funds came into the hands of Mr. Alcott as commissioner for that combination, and was by him apportioned to the several members thereof, among others the so-called Vapor Company, which was the Stamping Company and the Stove Company, and each of which companies was entitled under their agreement to one-half of the fund so placed into his hands for both. While the money so in the hands of Mr. Alcott may have been the fruits of an illegal combination, the money itself was not tainted by the illegality, but as to creditors of the Stamping Company, was honest lawful money, subject to seizure and sequestration by garnishee process.

It was the fund so in his hands that was garnisheed, and he answered that he had no funds belonging to the Stamping Company, because that company was entitled to one-half of the net profits only, and that no one could tell what the net profits would be until the joint business should be settled up, and Myers v. Smith, 29 Ohio St., 120, is cited by his counsel. In that case a claim due to a partnership was attempted to be reached to pay the debts of one of the partners, and it was held that firm credits could not be applied by garnishment to the payment of the debts of one of the partners. Here there is no partnership, but a joint venture. Section 5551 provides that “judgment may be- rendered in favor of the plaintiff for the amount of property and credits of every kind of the defendant in possession of the garnishee, and for what may appear to be owing by him to the defendant, and for the- costs of the proceedings against the garnishee.”

In this case Mr. Alcott now claims that he had no credit in his hands belonging to the Stamping Company and owed that company nothing, all the money owed by him being to the two corporations, the Stamping Company and the Stove Company; but he and the Stove Company were both made parties defendant, and neither one claimed in the answer filed that the Stove Company had any interest in the fund either jointly with the Stamping Company, or individually in its own right. The claim was set up in the joint answer that the fund belonged to the Yapor Company; but it could not belong to that company, because it had no existence, it was a fictitious person, a myth. This left the way open for the court to determine and find on the trial, to whom the fund belonged, and whether each company was the owner of and entitled to one-half thereof. The court found that the Stamping Company owned one-half of the fund, and that Mr. Alcott owed that half, fl,414.67, to that company, and this court will not weigh the evidence to see whether that finding is correct or not. The circuit court seems to have regarded that finding as a conclusion of law rather than a finding of fact, and on that ground reversed the judgment, and entered final judgment in favor of Mr. Alcott upon the findings of fact-

As the pleadings stood, no interest being claimed in the fund by the Stove Company, nor by Mr. Alcott in its behalf, the court could well find as a fact that one-half of the fund belonged to the Stamping Company, and was therefore subject in law to sequestration by garnishee process against it.

The other questions argued are so fully and clearly settled by former decisions of this court, that they need no further notice here.

Upon the record so made by the pleadings and finding of facts, the circuit court erred in reversing the judgment of the common pleas.

The judgment of the circuit court will be reversed, and the common pleas affirmed.

Judgment reversed.

Williams, C. J., Spear, Davis, Shatjck and Price, JJ., concur.


author: Williams, C. J.

text:
    Richardson v. The State ex rel. Prosecuting Attorney.

      Compensation of county commissioners — For expenses in official duty — Section 897, Rev. Stat. — Allowance of invalid claims of expense by board and probate judge — Not a bar to action for recovery.

    1. The expenses which are authorized to be paid a county commissioner, by the last clause of section 897, of the Revised Statutes, include only his official expenses “actually paid in the discharge of some official duty,” as distinguished from those incurred for his personal comforts and necessities. He has no valid claim against the county, or its funds, beyond the per diem compensation and mileage allowed, for any of his personal expenses.
    2. Expenses incurred for railroad fare, livery hire, charges for the use of his own conveyance, for the feed and shoeing of horses used by him, and for his board and others of a like nature, are of a personal character, for which no valid claim can be made against the county, although they are incurred while about the business of the county.
    3. The allowance of such invalid claim by the board of commissioners, upon the certificate of the prosecuting attorney, and approval of the probate judge, and its payment by the treasurer, is not a bar to an action to recover the money back.
    (Decided March 18, 1902.)
    Error to tbe Circuit Court of Morrow county.
    In accordance with section 5207 of the Revised Statutes, an agreed case was made up and submitted to the court of common pleas of Morrow county, by the prosecuting attorney in behalf of the state, and Samuel A. Richardson, a member of the board of commissioners. The purpose of the proceeding was to have the court determine whether certain money paid to Richardson out of the county treasury as compensation for his service • as such commissioner were illegally paid; and, if found to have been so, to recover judgment for the same. The agreed case was also intended to submit to the court questions relating to the legality of an account which had been presented by Richardson for payment, but which has not yet been paid. The items of this account are for expenses which Richardson paid, and for which he claims he should be reimbursed out of the county treasury. A statement of the nature of the various items of compensation paid, and of those demanded, will be found in the opinion. The court of common pleas held that the payments made to Richardson were illegal, and rendered judgment against him for the amount of $358.20; and also held that the items of the account presented for payment were illegal, with the exception of one small item, and, with that exception, dismissed and disallowed his claim.
    The circuit court affirmed that judgment, except as to one item of $6.45, and Richardson has prosecuted error to this court.

      Mr. J. W. Barry and Mr. A. L. Thurman, for plaintiff in error.

      Mr. C. E. .Wood, prosecuting attorney, for defendant in error.
   Williams, C. J.

The amount of the judgment recovered against the defendant below,- as affirmed by the circuit court, was made up of the following items, which were paid him out of the county treasury: (1) the sum of $161.50 paid for the feed of his horse when engaged in traveling on the business of the county other than attending sessions of the commissioners; and (2) the sum of $190.25 paid for his board when engaged in like business. And the items held unlawful in the account presented by the defendant, but not yet paid, are (1) the sum of $80.25 paid for the feed of his horse while attending meetings of the commissioners, and $79.10.paid for his board while attending such meetings; (2) the sum of $579 paid for livery hire and charged for the use of his own horse and buggy for travel within his county under the direction of the commissioners, and $12.50 paid for railroad travel in attending their sessions; and, (3) the sum of $20.50 paid for shoeing his horse used in traveling under the directions of the corn1 missioners and attending their meetings.

It is the claim of the plaintiff in error that, in addition to his per diem compensation and mileage, he is entitled to be reimbursed out of the county treasury for each of the foregoing expenditures, under the following provisions contained in section 897 of the Revised Statutes, these being the only provisions that are applicable to the county of Morrow: “Each county commissioner shall be allowed three dollars for each day that he is employed in his official duties, and five cents per mile for his necessary travel, for each regular or called session, not exceeding one session each month, or twelve in any one year, and five cents per mile when traveling within their respective counties on official business, to be paid out of the county treasury on the warrant of the county auditor;” * * * and “when necessarily engaged in attending to the business of the county pertaining to his office under the direction of the board, and when necessary to travel on official business out of his county,, sháll be allowed in addition to his compensation, and mileage as hereinbefore provided, any other reasonable and necessary expenses actually paid in the discharge of Ms official duty; and each commissioner shall present an itemized statement of his account for per diem, mileage, services and expenses as aforesaid, which before it is allowed by a full board shall be certified to by the prosecuting attorney of the county, and approved by the probate judge thereof.”

It must be conceded that the three dollars per day allowed the commissioner is the limit of his compensation for his day’s work, in whatever way it may be performed in the discharge of his official duties. He cannot lawfully claim that the county is also bound to pay his board, or other personal expenses.And, the “mileage” allowed him is intended to compensate him for expenses of his travel on official business. That is the legal meaning and import of the term. It is defined in the Century Dictionary as “payment allowed to a public functionary for the expenses of travel in the discharge of his duties, according to the number of miles passed over.” The same definition substantially is found in Bouvier’s and other law dictionaries. The commissioner is at liberty, under our statute, to adopt and pursue his own method and means of travel. He may, if he chooses, travel by railway when accessible, or by vehicle hired by him, or use his own conveyance. But whatever the mode adopted, he must pay all the expenses incurred, and his only source of reimbursement is the amount of the mileage allowed him. To make such expenses an additional burden on the public funds would require a plain and unequivocal provision of the statute. An intention to do so will not be inferred. We therefore find no authority in the statute for the allowance and payment out of the public funds of the county, of any of the items in the claim presented by the plaintiff in error, but not yet allowed nor paid. His principal contention is that the claim Avhich had been paid to him, and which he has been adjudged to pay back, is authorized by the clause of the statute which provides that each commissioner “when necessarily engaged in attending to the business of the county pertaining to his office under the direction of the board, and when necessary to travel on official business out of his county, shall be allowed in addition to his compensation and mileage as hereinbefore provided, any other reasonable and necessary expenses actually paid in the discharge of his official duty.”

This clause is not entirely free from ambiguity. It is doubtful whether, in order to entitle the commissioner to the expenses for which it provides, it is indispensable that he should, when the expenses are incurred, be engaged both in traveling outside of the county, and be there engaged in the business of the county under the direction of the board. It is not deemed necessary to pass upon that question, for it appears to be admitted .in the agreed case that the judgment recovered against the plaintiff in error was for expenses charged by him while acting under the direction of the board within his own county. And, however that question may be resolved, the expenses authorized to be paid a commissioner under the provision of the statute in question, are, we think, official expenses only, as distinguished from those which pertain to his personal comforts and necessities. The statute contemplates that emergencies may arise when it will become reasonable and necessary to pay out money in the performance of some official duty by the commissioner, in order to properly protect the interests of the county, without awaiting a meeting of the board; and the purpose of the provision was to reimburse him when, in the language of the statute, the money had been “actually paid in the discharge of his official duty.” For his personal expenses of any kind he can claim nothing beyond his per diem and mileage. It is a fair inference that if it had been intended to reimburse the commissioner for expenditures of this character, the legislature would have expressed that intention in plain terms. It is well settled that the compensation of public officers cannot be enlarged, by implication, beyond the terms of the statute. Debolt v. Trustees, 7 Ohio St., 237; Clark v. Commissioners, 58 Ohio St., 107.

It is further contended in behalf of the plaintiff in error, that the allowance of his claim by the board of commissioners, upon the certificate of the prosecuting attorney and approval of the probate judge, is equivalent to a judgment of a competent court upon the legality and merits of the claim, and, no appeal having been taken therefrom, is a bar to an action to recover the money back. Such an allowance, when no illegality appears on the face of the claim, may be sufficient to justify the treasurer in its payment, unless it is paid with knowledge of its infirmity otherwise obtained, but it cannot operate to protect the person who unlawfully received the money, nor to deprive the county of its right to recover back the money when it has been unlawfully obtained from the treasury. Jones v. Commissioners, 57 Ohio St., 189; Higgins v. Commissioners, 62 Ohio St., 621.

Judgment Affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.