author: Shauck, J.

text:
    State ex rel. Plimmer v. Poston et al.

      Conduct of elections — Papers to secure nomination of candidates— Signers must pledge to support nominee — Act of April 8,1898— Constitutional law.

    The requirement of section 1 of the act of April 8, 1898 (93 Ohio Laws, 93), that papers to secure the nomination of candidates for public offices “shall contain a provision to the effect that each signer thereto pledges himself to support .and vote for the candidate or candidates whose nominations are therein requested,” operating uniformly and impartially upon all classes of electors and interposing no unreasonable impediment to the exercise of the elective franchise, is valid.
    (Decided November 1, 1898.)
    In Mandamus.
    The petition of the relator alleges that he is a qualified elector of Franklin county, Ohio; that defendants compose the board of election of the city of Columbus and are charged with the duties of deputy state supervisors of election of Franklin county. That on the nineteenth day of September, 1898, the relator presented to the defendants a nomination paper signed by more than three hundred qualified electors of said county, containing a list of nominations for the several offices of said county to be filled at the general election in November, 1898, including the nomination of the relator for the office of county commissioner. The allegations of the petition show that the paper conforms in all respects to the acts of the general assembly to provide for the mode of conducting elections, et cetera, except that it does not comply with the requirement of section 7 of the amendatory act of April 8, 1898, 93 Ohio Laws, 93, that “such nomination papers shall contain a provision to the effect that each signer thereto thereby pledges himself to support and vote for the candidate or candidates whose nominations are therein requested.”
    The petition shows that because the paper did not comply with the requirement of the statute in the respect indicated, the defendants refused to receive and file it and to have the names of said nominees printed on the ballots to be voted at said election. The defendants demurred to the petition, and for the purpose of final judgment admit that its allegations are true.

      F. M. Mecartney; G. T Stewart and Mahlon Bouch, for plaintiffs.
    Brief of F. M. Mecartney.

    The relator admits that the party on whose ticket he desires- his and said nominees’ names to be printed did not poll one per cent, of the total vote at the next preceding general election in the state, as required by section 6, and has not secured the signatures to nomination papers, as required by said section 7; but he maintains that both said sections are unconstitutional and void; and that the constitution guarantees to him and every other qualified elector of the state the right to be a candidate for office and to vote at all elections on equal terms, without regard to party affiliation; that he is denied the right to vote and to be a candidate for office at the next election by this action of said board of elections; and that he is without remedy at law.
    The act of the general assembly brought in question by this proceeding is sections 6 and 7 of the act commonly known as the Ballot Laws.
    It is here held that the foregoing sections are in direct contravention of section 1, article V, of the constitution of Ohio, as qualified and explained in section 1, article XIV and article XV, of the constitution of the United States; and section 26, article II, of the constitution of Ohio.
    The following provisions of the constitution of Ohio also have a bearing upon the question before us:
    1. Preamble: “We the people;” 2. Section 2, article V; 3. Section 4, article V; 4. Section 5, article V; 5. Section 6, article V; 6. Section 4, article XV; 7. Section 2, article I; 8. Section 20, article I; 9. Section 1, article II.
    While the principles and rules applicable to the consideration of this case are perfectly familiar to this court, it may not be a work of supererogation to briefly state them here, in order that we may appear to order our argument in accordance with their requirements.

      First — The duty of the judiciary. C. W. & Z. Railroad Company v. Commissioners, 1 Ohio St., 81; Marbury v. Madison, 1 Cranch., 137.

      Second — The conflict must be clear.
    This principle is too well. founded in sound reason and has been too well established by an unbroken line of decisions from the Supreme Court of the United States down through our state courts to need further amplification. Hylton v. U. S., 3 Dallas, 371; Cooper v. Telfair, 4 Dallas, 14; Fletcher v. Peak, 8 Cranch., 87; McCormick v. Alexander, 2 Ohio, 65; Lehman v. McBride, 15 Ohio St., 573; State ex rel. v. Cincinnati, 20 Ohio St., 18; Walker v. Cincinnati, 21 Ohio St., 14; W. U. Telegraph Co. v. Mayer, 28 Ohio St., 521; Kendle v. State, 52 Ohio St., 346; Adams v. Howe, 14 Mass., 345; Wellington v. Petitioners, etc., 16 Pich., 95; City of Louisville v. Hiatt, 2 Mon., 178; Lexington v. McQuillan’s Heirs, 9 Dana, 914; Ohio ex rel. v. Dudley, 1 Ohio St., 441.

      Thirch — The constitutionality of a law is determined by its application. State ex rel. v. Judges, 21 Ohio St., 1; State ex rel. v. Hipp, 38 Ohio St., 199.

      Fourth — The extent of legislative power. Bingham v. Miller, 17 Ohio, 445; Cass v. Dillon, 2 Ohio St., 607; Evans v. Dudley, 1 Ohio St., 437; Varick v. Smith, 5 Paige, 137; Powers v. Bergon, 2 Seld., 358; Calder v. Bull, 3 Dallas, 386; Rogers v. Bradshaw, 20 J. R., 735; People v. Platt, 17 J. R., 195; People v. Supervisors, etc., 4 Barb., 64; Benson v. Mayor of New York, 10 Barb., 223; People v. Edmonds, 15 Barb., 229; Hatch v. Vermont Cent. R. R. Co., 25 Vt., 49; R. R. Co. v. Davis, 2 Dev. and Bat., 451.

      Fifth — Special g’rant of power.
    As an instance of the extreme care of the people to secure to themselves the sacred rights to “alter, reform, or abolish their government, whenever they might deem it necessary,” and to prevent the destruction of the exercise of this right in a peaceful and regular manner, article Y of the constitution was ordained as a safeguard against the violation of this right by the legislature, and its abuse by persons not properly qualified.
    Section 4 provides “ that the general assembly shall have power to exclude from the privilege of voting, or of being eligible to office, any person convicted of bribery, perjury, or other infamous crime.”
    It would appear from this special grant of power, amounting in this case to a command, that the general assembly is precluded from enacting any law whose operation and effect shall be to take away the elective franchise from any male citizen of the United States having the prescribed age, and residence in the state, county, township or ward, as it may provide by law. 2 Am. Law Register, N. S., 470; People v. Barber, 48 Hun., 198; Paine on Elections, 301; Cooley on Const. Lim., 682, 752; State ex rel. Evans v. Dudley, 1 Ohio St., 450; Hendershot v. State, 44 Ohio St., 409.
    If the constitutionality of a law is to be determined, not from its mere form, or words, but from its operation and effect, this act of the legislature must be held to abridge and restrict the right to vote in hundreds and thousands of legally qualified voters in county, district and state elections. The qualifications of an elector and of those who are eligible to office, are set forth in the constitution and in such laws as the legislature has received authority to pass by that instrument; and the necessary effect of this act of the legislature is to prescribe further qualifications and restrictions wholly unauthorized and clearly in contravention of section 1, article V, of the constitution. Cooley on Const. Lim., 753, 775; Fort Dodge v. Dist. Twp., 17 Iowa, 85; Barry v. Lanck, 5 Cold., 588.
    The question of the power of the legislature to regulate the manner and method of holding elections has been before our Supreme Court on several occasions. Monroe v. Collins, 17 Ohio St., 665; Daggett v. Hudson, 43 Ohio St., 548.
    The true line between laws which take away or abridge the right of suffrage, and those which may lawfully be enacted to regulate its exercise, is laid down by the Supreme Court of Massachusetts in Capen v. Foster, 12 Pick., 488; Page v. Allen, 58 Pa., 345; Byler v. Asher, 47 Ill., 101; State ex rel. v. Baker, 38 Wis., 88; State v. Butts, 31 Kan., 554; Dells v. Kennedy, 49 Wis., 558; Attorney General v. Common Council, 78 Mich., 545; Davis v. School Dist., 44 N. H., 398; Cooley on Const. Lim., 775.
    The act is not eve a intended “to provide for the mode of conducting elections, to insure the secrecy of the ballot and prevent fraud and intimidation at the polls,” as its subject would lead us to believe It is intended and calculated to (and will) “subvert,” “injuriously, unreasonably and unnecessarily restrain, impair and impede the exercise’ ’ of that right. It can have no other effect and could, therefore, have had no other purpose. This was the very intention in the mind of the legislature. Cooley on Const. Lim., 760.
    It will tax the powers of the imagination to conceive a more effectual method to expose the elector, who may desire to vote for minority party or independent candidates, to the machinations of party bosses and their numerous henchmen, and open the way to intimidation at the polls than this act requiring the signers of the petitions to pledge themselves “to vote for and support the candidates therein nominated.” The petitions are open to public inspection, and every one may know the names of the signers and their addresses.
    It will not be denied that both acts are of a general nature. The subject-matter is not only general, but the acts also apply generally throughout the state. The subject-matter legislated upon cannot be localized, and no attempt was made to limit the operation and effect of the law to any particular county, city,-township or ward. An act “to insure the secrecy of the ballot and prevent fraud and intimidation at the polls,” cannot be a law of a local nature. If there were any doubt as to its general nature, we think it would be dissolved by section 2, article V, of the constitution, which provides that “all elections shall be by ballot.” The subject is one in which the citizens of the state are universally interested, and by which they are all affected. It must, therefore, be a law of a general nature within the meaning of section 26, article II, of the constitution, and, to be valid, must have a uniform operation throughout the state. Brooke v. Hyde, 37 Cal., 375; People v. C. & P. R. R. Co., 43 Cal., 432; Mc Aunich v. The M. & M. R. R. Co., 20 Ia., 338; C., B. & Q. R. R. Co. v. Iowa, 94 U. S., 155; Leidy v. Grove, 53 Ohio St., 662; Gordon v. State, 46 Ohio St., 629; Bronson v. Oberlin, 41 Ohio St., 476.
    Brief of G. T. Stewart.

    It is contended that the general assembly was only exercising its power to regulate elections, in the enactment of these two sections, six and seven. But regulation is not forfeiture, it is not destruction. Its office is friendly. It means protection and improvement. Daggett v. Hudson, 43 Ohio St., 548.
    This seventh section in the act of April 8, 1898, is very partial, unreasonable and unconstitutional in many other respects. It requires all who sign nomination papers to thereby pledge themselves to support and vote for the candidates named in them. No such pledge is exacted from any voter of the major parties which are not required to produce such papers. The expense of that mode of nomination is heavy and falls on those minority parties least able to bear it, who are compelled to use this highly penal method, under, penalty of disfranchisement if they refuse.
    The sections, six and seven, of the act for the conduct of election of public officers, are practically one, and are united in their aggressions on the constitution and the rights of voters, and mutually dependent on each other. The State ex rel. v. Commissioners, 5 Ohio St., 497.
    When the constitution says: ‘ ‘All elections shall be by ballot,” article IV, section 2, it combines in these few words the two grand elements of a free choice, and a secret vote, between parties, candidates and principles, as vital to constitutional elections. When either of these are violated by any act of legislation, that act is plainly unconstitutional, null and void. Temple v. Mead, 4 Vt., 541; Williams v. Stein, 38 Ind., 90; People v. Pease, 27 N. Y., 81; People v. Cicotte, 16 Mich., 283; High on Const. Lim., 606.
    Section seven of the Ohio election law not only encourages all this “trickery and fraud” by systematic “espionage,” but publicly devotes the offices and officers of'government itself, to promote that infamous wrong against the constitution and the people.
    Next to the seal of secrecy which the constitution imprints on every ballot as to the personal identity of the voter, it demands for him a free choice between the political parties and principles represented on the official ballot. As to the- two major parties on the general ticket of last year, there was free advertisement of their organization and professed principles. They held their state conventions where they nominated their candidates, adopted their platforms of principles, for which they asked the support of the people, and then each chose an emblem or device for. the head of its ticket, to represent those candidates and principles. The names of the two parties and their candidates, with their emblematic devices all appeared, first in order, on the general ticket. But how was it as to the six minority parties, who were on that ticket merely by nomination papers? State ex rel. v. Kinney, Secy. of State, 57 Ohio St., 221.
    Brief of Malüon Bouoh.

    It was evidently in the mind of the legislators to provide for primaries for the two dominant political parties, only. If some election board should allow one of the minor parties to hold a primary to the exclusion of either dominant one, we could much better see the practical working of the law which likely would then be very unsatisfactory. This law gives the board arbitrary power, although it calls it discretionary. Yick Wo v. Hopkins, 118 U. S. Rep., 356; Baltimore v. Radecke, 49 Md., 217.
    Where no reason for discrimination can be shown, the conclusion cannot be resisted, that no reason for it exists except hostility toward minor political parties and a desire to stamp them out entirely, which in the eye of the law is not justified. The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws. ,
    The safeguard of secrecy is thrown around all parties which, at the next preceding election polled more than one per cent, of the whole vote cast, but thé same law forces publicity and pledges on any party which casts less than one per cent, of the whole vote. This is certainly an unlawful disr crimination. Page v. Allen, 58 Pa. St., 338; 118 U. S. Rep., 369; Monroe v. Collins, 17 Ohio St., 665; Daggett v. Hudson, 43 Ohio St., 548; 58 Penn. St., 338; 12 Pick., 485.

      F. S. Monnett, Attorney-General; Charles W. Voorhees, Prosecuting Attorney; Plorizel Smith and William J. Ford, for defendants.
    The point in dispute resolves itself into thq query: Has the general assembly the power to legislate on the right to vote and hold office, and if so, has that power been used to the detriment of the people and in contravention of the constitution?’
    Section 27, article II of the constitution and see-; tion 1, article X of the constitution.
    As will be seen, section 27 says the election of officers not provided for by either the United States or state constitutions shall be made as directed by law; in other words, by the legislature of the state. Section 1 of article X, explicitly gives the legislature the power to make such provision as may be necessary for the election of county and township officers. These sections are so plain as to need no further comment from us. Mason v. The State ex rel., 58 Ohio St., 30; 23 Md., 531.
    If the subject of elective franchise is left to the states for regulation, there is but one way in which it can be done, and that is by our legislature. 23 Md., 531; 43 Cal., 43; Cooley on Const'. Lim., 752. From the foregoing citations we believe it is clear that the legislatures have the right to reg-ulate elections by appropriate legislation, and that the right to vote and hold office are not classed with the inalienable rights, but are only political privileges conferred upon the people.
    As the writ of mandamus is a command for the performance of an act required by law, without stopping to multiply authorities, the issuance of such writ will not be awarded in the absence of a clear legal right to the object sought. State ex rel. v. Yeatman, 22 Ohio St., 546.
    The object of the law is not to discover for whom the signers of the nomination papers will vote, but its whole aim is to secure elections free from fraud. The signing of süch nomination paper is purely a voluntary act and can no more be regarded as unconstitutional than would be the parol declaration of an elector as to what his vote would be. The act simply calls upon men to act “honor bright.” The constitution certainly can stand such a call; if not, it’s made out of poor stuff.
    . Indeed, if it can be said that this provision of the statute violates the secrecy of the ballot, the same could be said of any nomination paper presented in good faith, although containing- no such provision; for men signing such nomination paper in good faith would thereby declare to the world that their votes would be cast for the candidate or candidates named in the paper subscribedby them. This court, however, has held in the ease mentioned and that was brought by the relator against the defendants that the provision of the statute requiring nominations to be made by nomination papers by a party polling less than a certain per cent, of the vote east is a constitutional provision and in no way is inhibited by the declaration that all elections shall be by ballot. Other courts have held the same thing. De Watt v. Bartley, 146 Pa. St., 519; Ranson v. Black, 54 N. S. L., 446.
   Shauck, J.

It is admitted that by the express provision of the act of April 8, 1898, a pledge in a nomination paper, that those who sign it will vote for the candidates whose nomination is requested, is a condition to their right to have the names of the nominees printed on the ballot. If the prescribed condition is valid, the law does not enjoin upon the defendants the duty of performing the act which the relator asks us to command. It is said, however, that the provision of the act which prescribes this condition is void because it restricts the right of suffrage as guaranteed by sections one and two of article five of the constitution, ordaining:

“Section 1. Every male citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township or ward in which he resides such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections.”

“Section 2. All elections shall be by ballot.”

It is not doubted that the power of the legislature over the subject is restricted to laws regulating the exercise of the right, nor that such laws “must be reasonable, uniform and impartial, and calculated to facilitate and secure, rather than to subvert or impede, the exercise of the right to vote.” The implied limitation was so defined in Monroe et al. v. Collins, 17 Ohio St., 665, and its enforcement is obviously a judicial duty to the end that the right may not be defeated by indirect means. The application of the limitation to this enactment is the subject of contention.

It does not seem to be doubted that the provision in question operates uniformly and impartially on all political parties and sections of voters. What dyer discrimination it makes is on account of numbers solely. It is said, however, that it unréasonably impedes the exercise of the right to vote of the sections of voters to whom it applies.

In State ex rel. Plimmer v. Poston et al., 58 Ohio St., 620, we decided that the requirement of section 6, that certified nominations must represent a party which at the next preceding election had polled at least one per cent, of the entire vote cast in the state, is valid. This was in view of the alternatives providing for procuring nominations on the ballot by means of petitions or nomination papers, and of every voter to supply the names of all persons for whom he may desire to vote, whether nominees of any party or not. Obviously the same constitutional considerations apply to the requirement as to the number of electors who shall sign nomination papers. The pledge required by the amendment now under consideration is a provision by the legislature to secure good faith on the part of the electors who sign such nomination papers. It was required in view of the facts that at the preceding election six tickets were printed upon the blanket ballot which required, to secure their places on the ballot, an aggregate of more than 102,000 votes at the prior election, or signatures to nomination papers, and which six tickets received at the election an aggregate of but 16,321 votes. One nomination paper was signed, as it was required to be, by more than 10,200 electors for the nomination of a state ticket, which at the election received but 477 votes in the entire state. It can hardly be necessary to say that it is not practicable for the state to provide a ballot large enough to afford places for tickets for each of such small sections of its voters, who number more than a million. If the general assembly is without power to enact such provisions as will maintain the practicability of the Australian ballot, it must have been without power to pass the act of April 18, 1892, which provided for it; and the denial of the validity of the amendment now under consideration is a denial of the validity of the original act. This does not seem to conflict with the views of counsel for the relator, for one of them, after speaking of the election of 1897, says: “The next session of the general assembly witnessed the closing plot of a revolution in the voting system commenced in April, 1892, and concluded in April, 1898.”

In view of the uniformity of the decisions upon the subject of the validity of laws providing for the system, the general acquiescence in it and the number of cases in which we have enforced it, it does not now seem necessary to enter upon a discussion of the general subject.

It is said that this provision of the act destroys the secrecy of the ballot. The secrecy of the ballot is not preserved or required by the section of the constitution which ordains that all elections shall be by ballot. In some of the states similar constitutional provisions are carried into effect by statutes which require all ballots to be so marked as to identify the persons by whom they are cast. Nor does this provision require any elector to disclose his purpose with reference to the character of his vote, unless he voluntarily does so as a petitioner on a nomination paper. The act merely defines the conditions on which the state will cause tickets to be printed upon the ballot, leaving every elector entirely free to vote a ticket that has otherwise acquired a place on the ballot, or to supply in secrecy the names of the persons for whom he desires to vote, or become a petitioner by giving the required pledge.

Nor can this requirement be held void because it is not logically consistent with the provisions of the act which prohibit the marking or exposing of his ballot by an elector. The original act and its amendments seem to be the result of a very sincere desire of the legislature to prevent the repetition of frauds upon the elective franchise which were notorious and the moral coercion of electors, which some believed to have been practiced. Can it be said to be inconsistent in an act passed for such a purpose, that an elector is forbidden to exhibit or mark his ballot for the purpose of showing that he has complied with the condition upon which he is to receive a bribe, and a petitioner is required to give such pledge as to his intention as will show that he signs a nomination paper in good faith? Moreover, the logical inconsistency of the provisions of a statute has never been regarded as a reason for declaring any of them void. Much that is said in the briefs of counsel and most of the cases cited relate, as does Monroe v. Collins, to enactments which impede and restrict the exercise of the right to vote. The provisions now under consideration, defining the conditions upon which the state will provide tickets and thus facilitate the exercise of the right, and leaving to every elector an opportunity to vote according to his preference, are within the power of the legislature. In view of the evils to be remedied and the ends to be attained, we cannot say that any of them is unreasonable.

Writ refused.

Spear, C. J., and Minshall, J., dissent.


source: Caselaw Access Project

author: Bradbury, J.

license: Public Domain

text:
    Allen v. Russell et al.

      Homestead owned by mother — Son supports mother for rents and profits — Son not liable to creditors of mother— Who have liens on the homestead— Tax title and claims for improvements of homestead by son — Section 2880, Revised Statutes.

    1. Where, after a homestead has been set off to a mother in real estate owned by her in fee simple, her son, already occupying the premises, agrees to support her in consideration of its rents and profits, and continues in possession of the premises and to support her under the agreement during her lifetime, he is not liable after her death to account to the creditors of the mother who have judgment liens thereon for the rents and profits that accrued prior to his mother’s death.
    2. If, in such ease the taxes become delinquent and the son purchase the premises at tax sale and subsequently obtains a tax deed therefor, and on the faith of such title makes valuable and lasting improvements on the premises, he will not, if his title is invalid, be allowed under the occupying claimant’s act as against the judgment creditors of the mother, the value of the improvements thus made.
    3. If, however, he was under no obligation to pay the taxes on the premises, he falls within the provisions of section 2880, Revised Statutes, and should be subrogated to the lien of the state for the amount paid at the tax sale, the taxes subsequently paid, and interest at six per centum from the time payment was made.
    (Decided November 1, 1898.)

      Error to the Circuit Court of Summit county.
    This action was brought in the court of common pleas of Summit county by the defendant in error, William E. Russell, to assert a judgment lien against certain real estate of Mrs. Jane Allen, deceased, and to marshal the liens thereon. The cause was appealed to the circuit court and there tried on the merits, and judgment rendered for defendant in error, and certain other lienholders, and denying to the plaintiff in error, William E. Allen, a claim he had set up for taxes and for improvements made as an occupying claimant of the land in question.
    Thereupon the plaintiff in error instituted proceedings in this court to reverse the judgment of the circuit court. The facts will be stated in the opinion.

      Tibbals <& Frank, for plaintiff in error.

      Musser <& Kohler and G. M. Anderson, for defendants in error.
   Bradbury, J.

There was no substantial conflict in the testimony relating to any fact upon which the respective rights of the parties rested. The circuit court, however, found and stated the facts separately from its conclusions of law. From this finding and the pleadings it appears that in the year 1878, Jane Allen was the owner of the real estate which is the subject of the controversy. That at the May term of the court of common pleas of Summit county for that year the plaintiff recovered a judgment against said Jane Allen and others for the sum of $424.17; and thereafter the said James S. Carpenter and George K. Pardee, in their lifetime also recovered a judgment against Jane Allen for the sum of $166.51.

, That executions were issued upon both said judgments and severally levied upon the said premises of said Jane Allen, the lien of the plaintiff’s judgment being prior to that of said Carpenter and Pardee. That executions have been issued from time to time upon said judgments, and the liens of both have been kept alive and in force up to the hearing of this cause, and are now valid liens against said premises.

That after the said Russell had recovered judgment, he caused execution to issue thereon and levied on the premises in controversy. That said Jane Allen thereupon demanded that the same should be set off to her as a homestead which the sheriff refused to do, but instead, sold the same on a vendi exponas to said William E. Allen who paid the purchase price to the sheriff. That afterwards, by decision of this court, Mrs. Allen was adjudged to be entitled to hold the premises as a homestead, and thereupon the price that said plaintiff in error had paid was refunded to him.

That at the time and prior to the rendition of said judgments, said Jane Allen was living in, and occupying said premises as her homestead, and that said defendant, William E. Allen, after said sale by the sheriff immediately moved into said premises and occupied them, his mother living with and being supported by him until April, 1887, at which time he removed from said premises. That thereafter said William E. Allen received the rents of said premises and continued to support his mother, until her death, on the sixth day of June, 1894.

-That after the sale of said premises by the sheriff to said William E. Allen, and during the pendency of said litigation in the district and Supreme Courts, as above stated, “he paid the taxes on said premises, aggregating at the time of the setting aside of the sale by the Supreme Court, to the sum of $74.54.”

That after the setting aside of said sale by the Supreme Court, and the holding that said Jane Allen was entitled to a homestead therein, to-wit: On the twentieth day of January, 1885, said premises were sold for taxes unpaid and delinquent thereon for the years 1883 and 1884, to the amount of $118.18; that at said tax sale said defendant, William E. Allen, purchased said premises and received a tax certificate therefor, which he held for a period of two years, and on the twenty-first day of January, 1887, he received a tax deed of the auditor of said county for said premises which said tax deed by reason of irregularities and nonconformity to the statutes relating thereto, is found to be invalid and irregular, and the same is set aside, held for naught.

That at the time he purchased said premises at said tax sale and received said certificate and also said tax deed, he was still living in said premises with his mother under said agreement to care for and support her, that he continued to occupy said premises with his said mother until said first day of April, 1887, when he removed from said premises, and made the new agreement hereinbefore mentioned.

That after two years from the date of the sale of said premises for taxes, said defendant, William E. Allen, made lasting and valuable improvements on said premises under said tax title, and in. good faith, and supposing that he had a good title to said premises, that the value of said improvements was $160. That he annually paid the taxes on said premises after purchasing the same as aforesaid down to the present time, amounting in the aggregate to the sum of $245.92.”

That after he removed from said premises he has received and collected the rent thereof amounting in the aggregate to more than the taxes so paid by him, and of the lasting improvements so made by him.”

CONCLUSIONS OF LAW.

“'^“And the court as its conclusions of law from the facts above stated holds, finds and adjudges — ”

“I. That said defendant, William E. Allen, is not entitled to be reimbursed for taxes so paid by him pending litigation under the sheriff’s sale as aforesaid made; and said claim is by the court disallowed and dismissed.”

“II. The said William E. Allen is not entitled to be reimbursed for lasting and valuable improvements made and established as aforesaid, and the same are disallowed and said claim dismissed.”

“III. That said William E. Allen is not entitled to be reimbursed for the taxes thereafter paid by him with interest thereon. ”

“All said claims are disallowed on the ground that said Allen having occupied said premises as aforesaid and having collected and received rents of said premises in excess of all said taxes and lasting and valuable improvements. It is ordered that his said answer and cross-petition be and the same is hereby dismissed.”

Prom this conclusion of law it is quite apparent that the circuit court in arriving at its judgment, did not take into consideration the value of the support given by the plaintiff in error to his mother. If the circuit court was right in this, its judgment should be affirmed; otherwise it should be reversed.

The plaintiff in error occupied the premises in one of two capacities. His relation to it was either that of an owner or as a tenant of his mother. He could not at the same time occupy it in both capacities. The circuit court dealt with him as if he had been the owner under a bona fide claim of title which was defective. It in fact expressly found that the tax sale and deed were defective but that he believed in good faith that they conferred a good title on him, and on the faith of that belief made the improvements for which he claimed compensation, and it further found that the sale was irregular and invalid. This finding placed him within the category of occupying claimants under section 5786, Revised Statutes. That court did not deny his claim to be reimbursed for taxes paid and improvements made but finding’ that the rents received by him from the premises exceeded the aggregate sum composed of the taxes paid by him, and the value of the improvements he had made thereon as a bona fide occupant under claim of title, denied his claim to relief on account of such expenditures, simply, because that claim had been satisfied by the rents he had received.

His first possession of the property was taken as purchaser thereof at judicial sale, and of course his relation to it was then that of an absolute owner in fee simple, and the rents or profits received by him while the property was thus occupied should be set off against any claim he might have for improvements made and taxes paid during this period. For if he was occupying the property as its owner and not by virtue of a contract with his mother to support her in consideration of the rents from it he had no legal claim to have the support given to her taken into the account. But after this court had adjudged that Mrs. Jane Allen was entitled to a homestead in the premises and the money the plaintiff in error had paid for it at the judicial sale had been refunded to him, his title terminated, and thenceforward, until his mother’s death, his possession was under her, unless he subsequently acquired an independent title adverse to her.

The only title he subsequently acquired was that founded on the sale for taxes mentioned in the special finding of facts.

The finding of the circuit court does not specifically state the terms of the contract between the plaintiff in error and his mother by virtue of which he occupied the premises after the homestead had been assigned to her. It does state, however, that when he bought the property “at tax sale and received said certificate and also said tax deed, he was still living in said premises with his mother under said agreement to care for and support her.” This constituted the relation of landlord and tenant between the two. A most confidential relation, that of mother and son also existed, and in addition to these relations she was a member of his family, and as the income of the property was not sufficient to support her, to a considerable extent dependent upon him.

Under these circumstances, as against her, he could not acquire, by a tax sale and deed, a title adverse to her, but would hold it as her trustee. A court of equity would not permit him in that way to acquire an adverse title by means of which he could cast off the burden of his contract to support her. Equity, notwithstanding this tax sale and deed would continue to regard him as her tenant. But whether the tax sale and deed were, in all respects, regular and valid or not, as long as the plaintiff in error continued to support his mother, she could not have asserted against him a claim to the rents of the property. If she could not assert such a claim in her lifetime her creditors could not directly or indirectly assert it after her death. To permit in favor of these creditors, the rents and profits to be set off against any claim he could otherwise assert against the property on account of taxes paid and improvements made, would in effect, be to compel him to account to such creditors for those rents and profits. The judgment of the circuit required this accounting, which was the foundation of the error it fell into. Whatever claim the plaintiff in error could assert against the premises should not be defeated in this way. This brings us to a consideration of his claims.

If the plaintiff in error is regarded as a tenant of his mother under a contract to support, her in consideration of the rents of the premises, and permitted to avail himself of that relation to avoid a legal accounting for those rents to her judgment creditors, he should not be allowed to occupy an inconsistent relation to the property, that of an independent owner in order to charge those creditors with the value of the improvements made by him thereon. We think, therefore, that the claim of the plaintiff in error to compensation on account of any improvements placed on the property by him, should be disregarded.

His mother being the owner of the premises, should have paid the taxes assessed against it. Her obligation in this respect was neither enlarged or diminished by its having been set off to her as a homestead. But while this was so, she incurred no forfeiture by neglecting this duty. The effect of the nonpayment of the taxes was simply to create an obligation to the state which became a lien on the premises superior to that of the judgment creditors. The plaintiff in error, in the absence of a stipulation to that effect in the contract between his mother and himself for her support, was under no valid obligation to pay the taxes on the premises. The record is silent respecting such stipulation. It may be assumed, therefore, that their nonpayment should not be attributed to any default on his part.

This being so, we see no reason for prohibiting him from purchasing the premises at the tax sale. The title he should thereby acquire being- at the election of his mother held in trust for her. If the sale had been valid and his mother had sought to have him declared her trustee, it is clear that she would have been entitled to that relief only on condition that he should be reimbursed for the money he had paid at the sale, and subsequently for taxes. It is not, however, material to inquire into his right in this supposed state of the case, for the circuit court, as a matter of fact, found the sale to have been irregular and invalid. The sale, having- been invalid and he under no obligation to pay the taxes originally, no reason is apparent for denying to him the lien created by section 2880, Revised Stat utes, which reads as follows:

“Section 2880. Upon the sale of any land or town lot for delinquent taxes, the lien which the state has thereon for taxes then due shall be transferred to the purchaser at such sale; and if such sale should prove to be invalid on account of any irregularity in the proceedings of any officer having any duty to perform in relation thereto, the purchaser at such sale shall be entitled to receive from the proprietor of such land or lot the amount of taxes, interest and penalty legally due thereon at the time of such sale, with interest thereon from the time of payment thereof, and the amount of taxes paid thereon by the purchaser subsequent to such sale; and such land or lot shall be bound for the payment thereof. ”

We think, therefore, that he was entitled on the pleadings and the undisputed facts, to a decree for the amount he had paid at the tax sale and the taxes subsequently paid by him together with interest thereon, at the rate of six per cent, per annum from the date the respective payments were made, and that for the sum thus due him he had a paramount lien on the premises. The finding of facts does not give the dates, nor the respective amounts, of the several payments of taxes made by the plaintiff in error. Had the finding stated those matters final judgment would have been rendered by this court. For want of that data the cause will be remanded to the circuit court.

Judgment reversed cmd catóse remanded.


author: Spear, C. J.

text:
    City of Wellston v. Morgan.

      Contract for lighting city — Statute granting municipality power to contract for ten years — Invalidity of ordinance authorizing contract for ninety-nine years — Action by assignee of electric light company against city — Nature of action — Pleadings.
    1. Where a statute gives power to a municipal corporation to contract for the lighting of its streets and other public grounds for a period not exceeding ten years, the conclusive implication is that such corporation is forbidden to contract for a longer period. And where such corporation undertakes, by the passage of an ordinance, to contract with an electric light company for an exclusive privilege to such company for the use of its streets, and stipulating for the lighting of the street, et cetera, for ninety-nine years, at a given price per month, such ordinance is ultra vires and void, and the contractual stipulations contained therein are equally void, and neither party can enforce them.
    2. M., the assignee of an electric light company, brought action in the court of common pleas against the City of W., claiming that the company had furnished electric light to the City under a valid subsisting contract, which had not been paid for, and that the City had violated its contract and refused to perform it, and was threatening to prevent plaintiff from performing on his part in the future, by destroying the poles, et cetera, of plaintiff rightfully in the streets of the city, and praying an injunction, and that an account be taken of the amount due for light furnished, and that the City be required to pay for such lighting, and to recover damages for the violation of the contract. A general demurrer to the petition was sustained by the court of common pleas and, judgment being rendered against plaintiff, he perfected an appeal to the circuit court.
    3. In due time the defendant moved to dismiss the appeal for want of jurisdiction, which was overruled and exceptions taken. An answer was then filed. This pleading disclosed, what had not appeared in the petition, that the only semblance of a contract between the City and the electric light company was in the form of an ordinance passed by the council, which undertook to grant to the company the exclusive use of the streets for the erection of its poles, et cetera, for the period of ninety-nine years, and to bind the City to purchase light of the company during that time at a stated sum per month. These allegations were not controverted. As to other matters involved, issues were made up and a trial had. The court thereupon found the ordinance illegal, null and void, and found against the plaintiff in all respects, except as to light furnished, and as to that claim, found that the plaintiff ought to recover for light furnished what it was reasonably worth, viz : the sum of $3,600, and proceeded to render judgment in favor of plaintiff for that sum, interest and costs, and as to the equitable relief prayed for, dismissed the petition. The defendant moved for a new trial on the ground that the finding and judgment were contrary to law, which, being overruled, exception was duly taken.

      Held: a. That the case of the plaintiff, when fully disclosed in the circuit court, embraced a cause of action legal in its nature, and a simulated cause of action equitable in its nature, not arising from the same transaction, nor transactions connected with the same subject of action.

      b. Of the latter the circuit court acquired jurisdiction by appeal. But as to the legal action it had not jurisdiction to adjudicate it, and upon discovery of the facts, a dismissal of plaintiff’s entire petition was the proper judgment to render.

      c. The City having, in proper time, moved to dismiss the appeal on the ground of want of jurisdiction in the circuit court, and having at the first opportunity, pleaded the real facts and brought to the attention of the court the illegal character of the ordinance, and having also moved for a new trial upon a f like ground, and preserved proper exceptions, is not estopped to make the question of such want of jurisdiction in this court.
    (Decided November 1, 1898 )
    Error to the Circuit Court of Jackson county.
    The defendant in error, Morgan, commenced an action -against the plaintiff in error, the City of Wells ton, a municipal corporation, in' the court of common pleas of Jackson county, alleging in his petition, in substance, that about the year 1888 the municipality, through its council, duly and legally entered into a contract with the Consolidated Wells-ton Coal & Iron Company, a corporation, providing for the lighting by electricity of its streets, alleys and public places therein, and by ordinance granted to the company and to its assigns certain rights and franchises in the use of its streets and alleys for the erection and building therein of necessary buildings, poles, wires, et cetera, to carry out the terms of the contract of lighting’, and further provided for the rights of the company and its assigns in the operation of the plant for lighting, fixing the price, time and manner of payment. Pursuant to the contract and ordinance, the company, at great expense and outlay of money and labor, erected its plant within the city limits, all in conformity to the contract and ordinance, and to the acceptance of the City, until about February 7, 1889, in accordance with the terms of the contract. On that day the City, without any fault on the part of the company, or the owners of the plant, refused to further pay, and still refuses, although the contract is in full force and effect; notwithstanding which the company continued to operate the plant and light the streets, et cetera, according to the terms of the contract and ordinance for more than two years after the refusal, and until the City became indebted to the company therefor in the sum of $4,800, which it still owes and refuses to pay. The company continued ready to perform, but did not light after that date because of the refusal of the City to pay.
    The petition further alleged the assignment by the company and transfer of its said plant and all appurtenances, including all rights, privileges and franchises, and the said claim of $4,800 to the plaintiff, Morgan, who, since that date, at great expense, has kept up the plant and has been ready and willing and offered to carry out the terms of the contract, but the City has wholly refused to permit the plant to be operated, and refused to carry out its stipulations under the contract and ordinance, which have continued and still are in full force and effect. Said plant, et cetera, is adapted only for the lighting of said streets, public places as well as the buildings in said city, and does not interefere in the use of said streets, alleys and public places for other matters, and the plant could not be removed and would be of no value for any other purpose or place.
    The City, regardless of plaintiff’s rights, and unlawfully, and without a hearing, and without 'consent of the plaintiff, without condemning or making compensation to plaintiff, and by force, is threatening to and is about to tear down and remove said machinery, poles, wires and lamps, and will, if not restrained, cut down and remove the same to the irreparable damage and injury of the plaintiff, against which he could have no adequate remedy at law.
    The prayer was for a temporary restraining order; also that an account may be taken between the Citjr and plaintiff, the owner of the plant, that the City maybe required to carry out the terms of the contract, said injunction be made perpetual, and the plaintiff recover such damages as may be justly due for the violation of the terms of the agreement, and the City’s refusal to perform on its part, and for other and further relief in law and equity as he may be entitled to. A temporary restraining order was allowed upon the filing of the petition.
    To this petition a general demurrer was filed by the City, which upon hearing, was sustained, and the plaintiff failing to plead further, judgment was rendered for defendant, that it go hence without day and recover costs. Notice of appeal to the , circuit court was entered and in due time bond given and the appeal perfected.

      In the circuit court a motion was interposed by the defendant to dismiss the appeal because: 1. It appears by the petition that the case is in law and not in equity. 2. Because there was no final order or decree made by the common pleas from which an appeal can be legally taken. 3. Because the judgment rendered is a money judgment, and not a decree in equity. ■
    Upon hearing, this motion was overruled to which the City duly entered its exception. A general demurrer to the petition was then interposed which was overruled and exception taken. Thereupon an answer was filed by the City, alleging, in substance, as a first defense, that the so-called ordinance undertook to give to the company exclusive permission and authority within the limits of the municipality to erect, lay, operate and maintain on the public streets, alleys, et cetera, its poles, wires, et cetera, and other electrical apparatus, for the period of ninety-nine years. It provided also that the company should receive §200 a month, and for each lamp over twenty, eight dollars per lamp. It further provided that the company may at any time after three months’ notice to the council abandon all rights and privileges granted to the company by the ordinance, and that when the company signified its assent in writing, filed with the clerk, the same should become operative. The ordinance was the only authority, contract or agreement that the municipality had with the company, and the only semblance of contract that the company had when it erected its said plant. The ordinance is unconstitutional and illegal because the council had no power to pass the same; because it is contrary to law, is in restraint of trade and against public policy, and because it is an attempt to dispose of public money without such money being in or due the treasury or any tax levied therefor at the time said company entered upon what it claimed to be part performance on its part of the stipulations of the pretended contract.
    The company was not formed for the purpose of furnishing light, nor could it under any implication possess the power of entering into any such contract, the same not being- authorized by the certificate of its organization or by the laws of the state. So there was and is no mutuality of obligation between the municipality and the company, nor between the plaintiff and the defendant, and on the seventh day of February, 1889, the council duly notified the company that said council had stopped the payment of said $200 per month, as it then did, and as it was legally bound to do, and from said date no further payments were made on said alleged contract.
    For a second defense the City denied the indebtedness claimed, and put in issue generally the averments of the petition not covered by the allegations of the first defense.
    For a third defense the answer took issue with allegations of the petition bearing upon plaintiff’s claim for equitable relief, and tending- to justify the City’s action with respect to its order for the removal of the poles, eb cetera, from the streets. A copy of the ordinance was attached to the answer and made a part of it. A reply was filed to the third defense which took issue upon all the allegations of new matter therein.
    At the May term, 1896. of the circuit court, the cause was heard upon the petition, the answer and reply, and the evidence. The court, on request, stated its conclusions of fact and law separately. Among other facts found by the court was the passage of the ordinance of the character as stated in the answer; that the poles for lights were placed and located by direction of the City; that in erecting the plant and lighting the City the company acted under the ordinance and in good faith and in the belief that the same was legal and binding. That the company commenced to light and continued from about the first of May, 1888, for over two j^ears and the City paid the bills which were rendered until Felruarv 7, 1889, subject to certain deductions agreed upon. On the date named the City refused to further pay because of ■ certain other promises made by the company with other parties. The company and its assigns continued to run and operate the plant for twenty-four months after February, 1889, with the knowledge of the council, and without objection other than as shown by a written notice of February 7th, to the effect that the council had ordered the payment of $200 per month to be stopped until certain agreements and contracts were complied with by the company. About February 1, 1891, the City notified the company to take down its poles and wires from the streets, and remove the plant, or that it would be done by thé direction of the council and at the expense of the owners. The City did not pay any portion of the amount provided by the ordinance to be paid monthly for the twenty-four months from and after' the first of February, 1889. The court found that the lighting during the twenty-four months was subject to a deduction of $50 a month because the plant was not in repair and the light furnished not as good as the ordinance required, but that it was worth $150 a month. The court further found that Morgan was the owner and assignee of the rights of the company, and of the claim against the City, and entitled to' recover any amount that might be due thereon.
    ' As conclusion of law the court found: 1. The ordinance to be illegal, null and void, and the plaintiff not entitled to the equitable relief thereunder as prayed for. 2. The City to be liable for lights furnished after the seventh of February, 1889, and the plaintiff entitled to recover from the defendant the value of said lighting, being $150 a month for twenty-four months, amounting- to $3,600:
    To all of which findings of fact, and to the second conclusion of law, the defendant excepted. Judg-ment was thereupon rendered for plaintiff for the amount found, with interest and costs, and as to the equitable relief prayed for the petition was ordered dismissed. A motion for a new trial was filed by defendant and overruled; exception duly taken, and this proceeding is to reverse the judgment of the circuit court on the ground, among others, that the court erred in overruling the motion to dismiss the appeal; that it erred in overruling-the demurrer to the petition; that it erred in its second conclusion of law; erred in overruling the motion for a new trial; and erred in rendering judgment against the City and in favor of Morgan.

      James M. Tripp, for plaintiff in error.

      J. W. Bannon and J. M. Me Qillivray, for defendant in error.
   Spear, C. J.

Our inquiry naturallybegins with the petition. It was the judgment of the common pleas that it did not state facts sufficient to entitle the plaintiff to any relief, and hence the sustaining of the demurrer followed, and a judgment for the defendant. The record does not disclose the ground of the ruling. The circuit court took the opposite view, and overruled the demurrer, holding . that sufficient facts were stated to entitle the plaintiff to some relief. We are of opinion that in this the circuit court was right, and that had the allegations of the petition been sustained by proof, and no countervailing facts presented by the defendant, the plaintiff would have been entitled to judgment. But the case finally made was one essentially different from that set out in the petition. The plaintiff’s theory was that he could stand on the ordinance as a valid contract (there being no other express contract), and hence was entitled to relief, legal, upon showing that he had performed the contract on his part, and thus earned the stated compensation for lighting, and equitable, upon showing that the City was violating its contract, and undertaking to make it impossible for the plaintiff to perform in the future on his part, and unlawfuby attempting to destroy his property; and further, that the former ground was an incident to the latter, and not an independent ground of action. His theory, although consistent with the allegations of his petition, was shown to be wrong upon a disclosure of the facts, because of the invalidity of the ordinance, the council being without power to contract, either for an exclusive privilege to the company for the use of its streets, or for a stipulation to purchase light at an agreed price for ninety-nine years, as the circuit court properly held. And clearly the City could not have been held to the performance of the stipulations of the ordinance, and had the right to cease operating under it, and this without reference to the motive which" induced its action; and on notice of such intention to the company it could not longer claim to act under it, and could not maintain its poles, etc., in the streets after reasonable notice to remove them. Indeed it was bound to know, and in law did know, that the ordinance was ultra vires and invalid. But the council had power, under section 2491-1, Revised Statutes (Bates), to contract in a legal way for the lighting of its streets and other public grounds, for a term not exceeding- ten years, and upon its being shown by the company that it had furnished light to the City, which it had accepted and enjoyed, a right to recover, as upon a quantum meruit, would arise in favor of the plaintiff.

The action of the City in permitting the company to place its poles, etc., in the streets, and in directing the location thereof, gave to the company the position of a licensee as to occupancy of the streets, which would forbid a ruthless or unreasonable destruction of its poles by the City. Its rights would not be based upon contract, however, but would result from the conduct of the City in giving consent and direction. Whether the judgment of the circuit court is or not erroneous in this respect we need not inquire, inasmuch as no complaint is here made of the judgment in that respect.

It is sugg-ested, however, that the ordinance was not absolutely void, but may be treated as good for the term of ten years, since the subject-matter is not ultra vires, and inasmuch as ninety-nine years is greater than ten years and must include it; and hence the contract in that way may be supported. This implies that the purpose of the law is only to prevent the enforcement of contracts made in violation of its terms, and not to prevent the making of such contracts. Now, the language of the statute is that the municipalities referred to shall have power to contract for light for any ttrm not exceeding ten years. This implies, with as much force as if it had been expressly stated, that the municipality shall not have power to contract for any term longer than ten years, and the natural inference is, we think, that the purpose is to inhibit such contracts entirely, for the only certain way of insuring their non-enforcement is to prevent their attempted execution. This may not be effectually accomplished unless they are held to be void. And this is in accord with the general rule which is well expressed by Professor Freeman, in his note to Robinson v. Mayor, 34 Am. Dec., 625: “As it” (the municipal corporation) “is permitted to exercise the powers which its charter authorizes, so it is prohibited from exercising those which are not authorized. Any act or attempted exercise of power which transcends the limits expressed or necessarily inferred from the language of the instrument by which its ¡lowers are conferred, is beyond the authority of a municipal corporation, and is therefore, null and void.” Attention is also called to the language of Follett, J., in Cincinnati Gas Light & Coke Co. v. Avondale, 43 Ohio St., at pages 267 and 268.

But another objection seems equally fatal to the proposition. We are dealing with the subject of contract. It implies parties and a meeting of the minds. The paper presented undertakes to stipulate for the furnishing of light and an agreed price therefor, for a period of ninety-nine years. The proposition is that we now treat it as a contract for ten years; that is, that the court shall make a new contract for the parties for ten years, and then enforce it. How can we say that the company would have incurred the great expense and outlay of money find labor, which the petition declares was incurred, for the period of ten years only? And if the court were of opinion that probably the company would have been willing to so contract, where is there any authority in the court to now alter the terms that they did agree upon and then enforce them, as changed? We are of opinion that neither in law nor reason, is there any ground for such a proposition.

Another theory of the plaintiff we think equally mistaken. Reference is had to the claim that the legal relief asked was incidental to the claim for equitable relief. At first blush it might seem that this proposition is tenable, but it will not, we think, bear examination. If the alleged contract (ordinance) had been a valid one, so that the rights of plaintiff could be founded on it, then it might possibly be said that in an action to enforce it the rig’ht to maintain the poles, et cetera, in the streets, and the right to continue to operate the plant and furnish to the City light at the price named in the contract, and for injunction to prevent the City from interfering with these rights by forcibly destroying the poles, et cetera, was the major ground of action, and that the claim for .pay for light already furnished was but an incident to it. But the moment it is ascertained that the averments of the petition alleging a contract are wholly false, and that there never was a contract, then it becomes apparent that the real g’round of action is totally distinct from the pretended one, and that the maintaining of one would not, in the slightest degree, aid the support of the other, and the defeat of one not in any manner tend to the defeat of the other. Had there been, in fact, a contract between the parties, and the plaintiff had simply failed to sustain by his proof the alleged attempted breach by the City, and the threatened destruction of his property, there might, perhaps, have been some warrant for claiming that an accounting to ascertain the amount due under the contract was an incident to the other claim. But the claimed equitable case having no basis whatever, being in fact a myth, resting only on unsubstantial averments of the petition, a claim for money could not be an incident to it.' Substance cannot in any sense become an incident to mere shadow. In other words, the petition, when the real situation was disclosed, contained, as already suggested, a ground of action cognizable at law, being upon a quantum meruit for light furnished. It also contained in form, but in. form only, a cause of an equitable nature. True, the two were conglomerated in one statement. But that affects only the form; it does not reach to the substance.

This initial error on the part of the plaintiff led him to a mistaken course as to the future. Failing in the common pleas, he appealed to the circuit court, thus attempting to carry the whole case up. As to the attempted cause of action relating to the injunction, being tested by the allegations of the petition, it was appealable, and hence the appeal as to that was effective. Therefore the overruling of the motion to dismiss the appeal by the circuit court, at that stage of the inquiry, was not erroneous. But, the action to recover pay for light already furnished, being an action to recover money only, and of right triable by jury, and not an incident to the equitable cause, neither arising from the same transaction nor transactions connected with the same subject of action, was not, standing- by itself, appealable, and the circuit court could not, under our statutes, rightfully take jurisdiction of it. Hut beyond this, if the money claim could, in any view, be treated as an incident to the other, it would necessarily depend for its support upon the other, and perforce must share its fate; and when that was dismissed, as without foundation, the claim for an accounting- should have been dismissed with it. That is, there cannot be an accounting- under a contract which does not exist.

But it is contended that the question of the jurisdiction of the circuit court cannot be raised in this court because the case was tried below as though that court has jurisdiction; that it was practically so conceded in argument and hence the conduct of the City amounts to an acquiescence, and the case of Kershaw v. Snowden, 36 Ohio St., 181, is cited in support of the contention. In that case an administrator was sued for money alleged to have been placed in the hands of his intestate upon the express trust to be repaid to the plaintiff on the death of the intestate, but retained by her as, trustee of the express trust, viz: to retain the same in trust until her death, and then to execute the trust by the return of the sum, and the petition prayed that the administrator be ordered, adjudged ahd decreed, to pay plaintiff out of the estate the amount he is equitably entitled to. A demurrer to the petition was overruled, and then an answer filed traversing the facts alleged, and setting up the six years’ limitation. On trial in the common pleas the court found for the plaintiff and rendered judgment. Both parties gave notice of appeal. Plaintiff perfected his appeal by giving bond; the administrator was not required to give bond. In the district court a larger sum was recovered. A motion for new trial was made on the ground that the finding was not supported by the evidence. A bill of exceptions was taken containing all the evidence. The errors assigned in this court by the administrator were that the petition does not show a cause of action,. and that the evidence does not support the finding, the latter being the principal ground. The court found the judgment excessive and reduced it, and rendered judgment for the proper amount. The court also found that the case was one of a legal, and not an equitable, nature, but, inasmuch as the case was tried on its merits in the district court without objection, this court did not feel called upon sua sponte, to consider the question of error in entertaining the appeal. That point does not appear to have been presented by the plaintiff in error, but seems to have been first noticed by the court here, and the statement of it made as an explanation of the court’s ruling in affirming the judgment notwithstanding the nature of the action.

Clearly this holding does not cover the case at bar. In this case the defendant interposed a motion to dismiss the appeal at the threshhold on the ground that the case is a.t law and not in equity, and excepted to the order overruling it. True upon the face of the record as it then stood, the motion was properly overruled. But it was probably the best the defendant could do to express its objection to the effort to try the case over again in the circuit court. At least it showed that the City did not intend to give away its rights; and had the petition contained a true and full statement of the exact case as it existed, and of the ground on which the plaintiff -must finally rest his claims, the motion to dismiss would have properly raised the real question of jurisdiction, and, in such condition of the record, would have been well taken. The answer followed setting up the invalidity of the ordinance. The City also excepted to the second conclusion of law. It then moved for a new trial because the judgment was contrary to law, and error is urged here because the circuit court erred in the particulars named and because of error in rendering judgment for the plaintiff. Just what argument was made to the court we cannot know, as of course the record does not disclose that. But, inasmuch as the answer pleaded that the ordinance was invalid, which the court found, and that, therefore, there was no contract, it may he inferred that the point was made by counsel in argument also, and its legal effect pointed out. However, this matter of argument is not of much consequence. Suffice it to say that we cannot find from this record that the City’s action was such as to estop it from now questioning the jurisdiction of the circuit court. We think that court was without jurisdiction and that its judgment should be reversed and judgement entered for plaintiff in error.

Reversed.


author: By the Court :

text:
    City of Piqua v. Geist, a Minor.

      County commissioners — Not required to construct or repair bridges on city streets not part of state or county road — Duty of city— Act of February 8, 1894 — Construction of law.

    Under the amendment made February 8, 1894, of section 860, Revised Statutes (91 Laws, 19), county commissioners are not required to construct and keep in repair bridges over natural streams and public canals, on streets established by a city or village for the use and convenience of the municipality, and not a part of a state or county road, though the city or village receive no part of the bridge fund levied on the property within the same. It is the duty of the city or village to construct and keep in repair such bridges, and is liable in damages to one injured by its neglect to do so.
    (Decided November 1, 1898.)
    Error to the Circuit Court of Miami county.

      L>. 8. Lindsay and M. U. & W. D. Jones, for plaintiff in error.

      Long <& Kyle, for defendant in error.
   By the Court :

The plaintiff below sued the city of Piqua by her next friend forjan injury received by reason of a certain bridge in the city being out of repair, and recovered damages. The bridge was over a natural stream of water, buUnot on a state or county road, free turnpike, improved road, abandoned turnpike or plank road, in common public use. It was simply on a street that had been laid out and established for the use and convenience of the municipality. The city for a defense, claimed that, under section 860, Revised Statutes, as amended February 8, 1894 (91 Laws, 19), it was the duty of the commissioners of the county to keep the bridge in repair, as it received no portion of the bridge fund; and that it cannot, for this reason, he made liable to any one for the bridge being out of repair. The court below held otherwise. We are of the opinion that there is no error in the judgment. The amended section reads as follows:

‘ ‘Section 860. The commissioners shall construct and keep in repair all necessary bridges over streams and public canals on all state and county roads, free tu/rnpikes, improved roads, abandoned turnpikes and plank roads in common public use, except only such bridges as are wholly in such cities and villages having by law the right to demand, and do demand and receive, part of the bridge fund levied upon property within the same; and when they do not demand and receive said portion of bridge tax the commissioners shall construct and keep in repair all bridges in such cities and villages. Provided, that in all cases, except counties containing a city of the first grade of the first class, the granting of the demand, made by any city or village for its portion of the bridge tax, shall be optional with the said board of commissioners. ” (The italics are ours for the purpose of indicating important words.)

It was not, as we think, intended by this amendment to extend the duty of county commissioners to the construction or repair of bridges which before the amendment they were not required in any case to construct or keep in repair. The phrase “all bridges” employed in the amendment, simply relates to and includes all the necessary bridges over streams and public canals, on all state and county roads, etc., first enumerated in the section, being the bridges that it is the general duty of county commissioners to construct and keep in repair, except where a city or village receives a portion of the bridge fund authorized to be raised by section 2824, Revised Statutes; and the only change intended by the amendment was to give an option to the commissioners to allow or not, a demand made by a city for a portion of the bridge fund, except in counties having a city of the first grade of the first class. In so construing this amendment, we but follow an established rule of construction, which requires the intent of a statute to be gathered from all the language employed, in connection with its apparent object and purpose; and, in doing this, it not infrequently happens, that words of a general sense must be restrained to a more limited one, or the real intention of the legislature will be defeated.

Judgment affirmed.


author: By’the Court.:

text:
    Keefer et al. v. Myers et al.

      Printed record — Jurisdiction in error — Section 6711, 'Revised Statutes —Court will not, on motion, consider merits oj case, when— Stipreme Court practice.

    When a printed record has been filed with the clerk of this court for the purpose of complying with the requirements of section 6711, Revised Statutes, that “ so much of the record to be reviewed as will show the error complained of shall be printed, ’ ’ the court will not, on motion of the defendant in error, enter upon a consideration of the merits of the case to determine, whether enough of the record has been printed, for a failure; in that regard can in no event operate to his prejudice.
    (Decided November 1, 1898.)
    Error to the Circuit Court o^ Stark county.
    The defendant in error files a motion to dismiss the printed record filed in this ease by the plaintiff in error for the following reasons:

      1. Because said record does not contain all of the testimony offered and admitted in said cause, necessary to be reviewed upon the errors complained of. in said plaintiff’s petition in error, to-wit: the deposition of Charles W. Robinson, the assignor, which was used in said cause in the court below and which was part of the bill of exceptions allowed by the court in this case.
    2. Because of other, testimony offered in said cause necessary to be reviewed upon the error complained of in said petition in error and which -does not appear in said printed record.
    The motion is supported by affidavits showingthat upon the trial of the cause, below the defendants in error relied upon, the testimony not printed.

      Baldwin & Shields, for the motion.

      Stealing & Werntz, contra.

   By’the Court.:

It is required by section 6711, Revised Statutes, that “When a petition in error is filed in the Supreme Court, so much of the record to be reviewed as will show the error complained of, shall be printed and ten of the printed copies thereof filed with the papers, which printing the plaintiff in error may have done, or he may deposit with the clerk sufficient money to pay the costs thereof,” etc. The result of a failure to file a printed record for the purpose of complying with this requirement is declared by the statute to be that the petition in error] shall be dismissed, unless for cause the court orders the omission of such printing or the extension of time '.therefor. But when there is an attempt to comply with this requirement of the statute, the court will not on motion, enter upon a consideration of the merits of the case to determine whether sufficient portions of the record have been printed. Whether upon the submission of the cause the judgment is affirmed because enough of the record to show the error complained of has not been printed, or the court examines other portions of the record to see whether an error apparent upon the portion printed was cured, does not concern the defendant in error. A failure to comply fully with the requirement of the statute can in no event operate to his prejudice. The motion, therefore, anticipates the consideration of the case upon the merits. It will be

Overruled.


author: By the Court:

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    State ex rel. Springer v. Hadley et al.

      County auditor elected to succeed one appointed to fill vacancy — Commencement and term of office.

    A county auditor elected to succeed one appointed by the county commissioners to fill a vacancy is elected for the full term of three years, commencing on the third Monday in October next after the election.
    (Decided November 1, 1898.)
    In Mandamus.
    The petition of the relator alleges that at the general election of November, 1895, one Frank L. Niterhouse was duly elected auditor of Fayette county for a full term, of three years, to commence on the third Monday of October, 1896; that he died prior to the commencement of said term, to-wit, on the thirtieth of September, 1896; that on the third Monday of October, 1896, the commissioners of said county appointed to fill the vacancy in said office one J. L. Lindsay, who qualified and entered upon the discharge of the duties of said office and continued therein until the filing of this petition, October 4, 1898. That at the general election in November, 1897, one John F. Craig was elected auditor of said-county, received a certificate of election and a commission entitling him to enter upon the discharge of the duties of said office on the third Monday of October, 1898, and to continue therein until the third Monday of October, 1899, but not longer.
    The relator further alleges his eligibility to said office and that his nomination thereto as a candidate to be voted for in the election in November, 1898, was properly, certified to the defendants, who refuse to print his name on the ballot because they were of the opinion that Craig’s official term will continue until the third Monday of October, 1901, and that no election to said office is to be held in November, 1898. He prays for a writ of mandamus compelling the defendants to print his name on the official ballot to be voted at said election. The allegations of fact are admitted.

      J. D. Post, for relator.

      John Logan, contra.

   By the Court:

The contention of counsel for the relator is that on the third Monday of October. 1896, in view of the expiration cf the official term of the auditor, and the death of Niter house, who had been elected to succeed him, there happened a vacancy in the office for the definite term of three years, and that as the vacancy occurred less than thirty days before the general election of that year, it would require both an appointment by the commissioners and an election by the people to fill it. This view does not seem to-be warranted. As to this particular vacancy it was held in State ex rel. v. Dahl et al., 55 Ohio St., 195, that it did not happen upon the death of Niter house, but on the third Monday in October, 1896, and that as this was less than thirty days before the general election of that year it could not then be filled by the people. It therefore became the duty of the county commissioners, under section 1017, Revised Statutes, to fill the vacancy by appointment. By the terms of section 11, Revised Statutes, the appointee was entitled to hold until “his successor is elected and qualified, and such successor shall be elected at the first proper election that is held more than thirty days after the occurrence of the vacancy. ” The first proper election was that of November, 1897. State v. Barbee, 45 Ohio St., 347. It is admitted that the election of Craig to the office at that time was proper. For what term was he elected? This question is explicitly answered in section 1013, Revised Statutes: “A county auditor shall be chosen triennially in each county, who shall hold his office for three years, commencing on the third Monday in October next after his election.” The adverb “triennially” cannot have the determining effect claimed for it by counsel for the relator. The auditor of Fayette county having been properly elected in 1897, an election to that office in 1898 would not be triennial. Auditors are elected triennially if vacancies do not happen. But there is not, nor was there in 1897, any authority of law for the election of a county auditor for a term shorter than three years.

Writ refused.


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    Carter, Admx., etc., v. City of Zanesville et al.

      Penalty for having unlawful possession of corpse — Section $764, Revised Statutes, is not directed against cemetery associations— Does not relate to decomposed persons.

    Section 3764, Revised Statutes, prescribing a penalty against persons, etc., having the unlawful possession of the body of a deceased person, is not directed against cemetery associations or their trustees ; nor does it relate to the remains of persons long buried and decomposed.
    (Decided November 1, 1898.)
    Error to the Circuit Court of Muskingum county.
    The plaintiff in error filed in the court of common pleas of Muskingum county the following amended petition:
    ‘ ‘The State of Ohio, Muskingum county, court of common pleas, Sarah S. Carter, as administratrix, etc., v. The City of Zanesville, Wm. Morrison, George Kerner, John Nepp, C. Stolzenbach and David Hahn, defendants. Amended petition.
    “The plaintiff, for her amended petition, says, that she is the administratrix of Alice T. Carter, deceased, duly appointed and qualified by the probate court of said county.
    “That one Jehu W. Carter, late of said county, deceased, was the father of said Alice T. Carter and he died on May 27, 1880, intestate, leaving said Sarah S. Carter his widow, and the following children, Charles R. Carter, James W. Carter, Mary I. Carter and Edward S. Carter, who still survive and together are the sole next of kin or said Jehu W. Carter and said Alice T. Carter, who died intestate and unmarried on July 16, 1852. That about said last named date, said Jehu W. Carter purchased from said city of Zanesville, for a valuable consideration then paid, lot No. nine (9) in the twelfth (12) tier of the east center square, in what was then called the Zanesville cemetery, which is the same as is now called Greenwood ■cernetery. Said grant of said lot was to Jehu W. Carter, his heirs, and assigns, to be held and used .as a burial place.
    “On the eighteenth of July, 1852, the body of said Alice T. Carter was buried in said lot No. nine (9) and remained there till about the first of June, 1890, when it was, by the said city of Zanesville ,and said Stolzenbach and said Hahn and their superintendent, agents and employees, and who (with Thos. Lindsay, who is now deceased), composed the then board of trustees of said cemetery and represented said city in the management of the same, none of which acts, were within their statutory powers as such trustees, unlawfully and forcibly and fraudulently taken up and taken into their possession and by their carelessness and negligence, commingled with many other remains, so as to make identification impossible, and carted off to some unknown spot in said cemetery and is now still held by defendants, said city and said Morrison, Kerner and Nepp, who are now the trustees of said cemetery, and represent said city in its management. Said unlawful having of the possession of said body and remains and the said disinterring and removal thereof and all of said acts, were done when defendants had the means of identifying- said remains and without any notice whatever to the said owners of said lot and next of kin of said descendants (although they or some of them lived in. said city all the time), and against their wish.
    “That the plaintiff and next of kin never found out said unlawful disinterring, taking and holding by defendants, of said body or remains, until about June 12, 1895. Said Morrison, Kerner and Nepp are, and then were the board of trustees of said cemetery, and plaintiff and said next of kin, have several times, since said June 12th, requested and demanded said body or remains, and they have failed and refused to surrender the same, or locate same.
    “And plaintiff further says, it was the duty of defendants to afford repose and security to said body or remains, and they held said cemetery upon that, among other sacred trusts, for the benefit and solace of the lot owners, their heirs and next of kin, and the next of kin of those buried therein.
    “Wherefore the plaintiff says a cause of action has accrued in her behalf against the said defendants, in the sum of five thousand dollars, for the benefit of the said next of kin of said Alice T. Carter, for which sum she asks for judgment, and also for all other relief to which she may be entitled.”
    The court of common pleas sustained a general demurrer to this amended petition, and the plaintiff, not desiring to plead further, a final judgment was rendered against her, which on error was affirmed by the circuit court. The cause was thereupon brought to this court for review.

      King & Browning, for plaintiff in error.
    The misleading headline, probably taken from the headline of section 3763 by some clerk or printer, “Penalty for having unlawful possession of corpse,: ’ is well disposed of in the ease of Huntington v. Attrill, 146 U. S., 657.
    But it has been claimed, that 3764 is supplemental to 3763, or should be construed in connection with 3763.
    If it (3764) was aimed exclusively at colleges, and professors of anatomy, like 3763, why not say so and not go on and name “Any person, association or company? Colleges are usually corporations. The defendant, the city, is a municipal corporation. All corporations are, at least, artificial persons, but the word “persons” includes both natural and artificial persons, and hence is more comprehensive. And that more comprehensive word is the one used to begin section 3764 with; and it is significantly followed by the words “association or company,” andjneither of these are artificial persons.
    Is not the digging up of a dead body, by any person for any improper purpose, the mischief aimed at; and by well recognized rules of construction (Broom’s Legal Maxims, p. 570) included in the remedy afforded by 3764? 42 Ohio St., 543.
    W e claim that 3764, is a remedial statute and as such, to be construed liberally, if, indeed, it is not too plain and comprehensive, to permit a court, to go outside of it.
    If 3764 only relates to the “bodies” or “corpses” named, in 3763 then we have the monstrosity of having a statute giving substantial damages for unlawfully taking the bodies of tramps, paupers and convicts, but giving no damages for unlawfully taking bodies of those who are not tramps,’ paupers and convicts. 39 Ohio St., 661.

      Manifestly it would not be as painful shock to-the next of kin of a decedent for defendants to-dig- up and cart off a body which has been buried forty years, as to dig up and cart off a body which had been buried but one day. Common sense-would say, that the latter was tern times worse than the former, and this act fixes the highest recovery, ten times more, in dollars, than the lowest. A. & E. E. of law, p. 298.
    Some stress is laid upon the use of the word “remains”- in these petitions as thoug-h it was-synonymous with “skeleton,” not at all. Webster defines “remains” tobe “a dead bodjq a corpse.” Bouvier, on page 368, defines “corpse” to be “the dead body of a human being.”
    Recurring again to the liability of the city. If section 3764 gives an action against it in terms, then the common law rules, of respondant superior-do not require consideration.
    The petitions say, the city, by its trustees, etc., not only failed to discharge these ministerial duties of protecting the repose of these bodies, but wrongfully themselves dug- up, and took, and hold the possession of the body or remains of Alice Carter and Wm. S. Carter.
    It is both misfeasance and malfeasance, and therefore clearly within the rule laid down by Dillon on Municipal Corporations, section 764. 41 Ohio St., 148.
    As to the statutes of limitations, we insist that the statute does not begin to run, so long as the defendants are having- the unlawful possession of the body. The wrong- complained of and the wrong section 3764 provides a remedy for, is the taking and having, the unlawful possession. The petitions charge the present and continuing having-of these bodies. 40 Ohio St., 27; 46 Ohio St., 319; 50 Ohio St., 1.
    Section 7034 makes it a crime to open a grave “without lawful authority.” Who under our laws and civilization, would have this lawful authority. Manifestly the next of kin and the city and trustees, both consenting, would be lawful authority. But could the next of kin consent without notice? The petitions charge, it was done without notice, although the next of kin lived in the city all the time, also, that the defendants had the means of identifying the bodies. 31 Ohio St., 338; 35 Ohio St., 8.

      C. A. Maxwell; Durban & McDermott and Charles O. Griffith, for defendants in error.
    This is an action brought to recover upon the provisions of section 3764 of the Revised Statutes. There was no right of action of this kind at common law. It was not a right of the intestate that was invaded and it was not a thing that could at common law become assets- in the hands of the administrator and it is agreed that the liability claimed depends entirely upon the statute.
    But it is said that the wrong done was not discovered until about two months before the filing of the petition and that until that discovery the statute did not begin to run.
    That ignorance by the plaintiff or by parties interested of the existence of a cause of action will not prevent the bar unless the statute itself expressly saves the cause, is too well settled to admit of discussion. Townsend v. Eichelberger, 51 Ohio St., 213; 4 Ohio, 31; 37 Ohio St., 583; 6 Ohio St., 276; 10 Ohio, 469; 48 Ohio St., 194. And this was even true in the ease of a civil action for money-stolen. Howk v. Minnick, 19 Ohio St., 462. And section 4983 does not provide that the cause of action shall not accrue until after the discovery of the wrong.
    The effect of conduct may be felt forever and the next of kin may feel indignation resulting from the wrong yet for many years; but since that day in June, 1890, defendants have done no new wrong and have continued no situation it was in their power to change. They may continue wrongdoers justly chargeable with the consequences of their offense, but it is not now in their power to remove the-wrong. Williams v. Pomeroy Coal Co., 37 Ohio St., 583.
    In the Amer, & Eng. Ency. of Law, vol. 18, page 270, a penal statute is defined as “a statute imposing a penalty for doing that which the statute prohibits, or for omitting to do that which the statute requires.” Of course, this prohibition or requirement is sufficiently expressed by the enactment of the penalty for the act or omission. Hadsell v. Hadsell, 7 C. C., 196, 3 C. D., 725; Smiley v. Bartlett, 6 C. C. 234, 3 C. D., 427; Cooper v. Rowley, 29 Ohio St., 547; Lawler v. Burt, 7 Ohio St., 340, Hollenback v. Getz, 28 Atl., 519; Rd. Co. v. Tanner, 36 Pac., 541; Stoddard v. Malone, 22 S. W., 469; Beadle v. Rd., 29 Pac., 696; Merchants Bank v. Bliss, 35 N. Y., 412; First Nat. Bank v. Price, 33 Md., 487; Halsey v. McLean, 12 Allen, 438; Derrickson v. Smith, 27 New Jersey Law, 166. Also numerous cases cited in note in 14 Amer. State Report, 352. C. S. & C. R. R. Company v. Cook, 37 Ohio St., 265. The second question arising is, whether or not, waiving the statute of limitations, facts are charged showing the liability of either of the defendants under' section 3764. We contend that the possession of the dead body, here charged, is not the unlawful possession contemplated by the statute.
    If the court shall agree with what we have hereinbefore claimed, there is then no cause of action pleaded against either of the defendants. There is, however, additional reason for claiming that Morrison, Nepp and Kerner, the members of the board of cemetery trustees, at the time of the beginning of this action, are not liable. It should be borne in mind that they are sued as individuals, and not as a board, or in their official capacity.
    It is suggested that the policy of the law is to make them liable, so that the party wronged or aggrieved can always find some one to respond to his demands. There might be some plausibility in this claim if the present board was sued as a board, but not when they are sued as individuals.
    Is the city liable for alleged unlawful acts? The rule is well settled that a city may be liable for the negligent doing of an unauthorized ministerial act by its agents, but is never liable for the doing of , an act that it is unauthorized by law to do, or the doing of which is made a crime. Smith v. Rochester, 76 N. Y., 507; Goddard v. Harpell, 24 Atlantic, 958; Tiedeman on Municipal Corporations, sections 92 and 338; Thomas v. Findlay, U. S. Circuit Court; Rowland v. City of Gallatin, 42 Amer. Rep., 395.
    A city is not within the grasp of section 3764, notwithstanding the term person may in some in- ' stances include a municipal corporation, because the wrong contemplated by the statute cannot be perpetrated by the city in such a way as to make it liable under the statute, whatever its common law liability may be.
   By the Court:

The plaintiff found her right of recovery on section 3764, Revised Statutes, which reads as follows:

“Section 3764. Any person, association or company, having unlawful possession of the body of any deceased person shall be jointly and severally liable with any and all other persons, associations and companies, that had or have had unlawful possession of such corpse in any sum not less than five hundred dollars and not more than five thousand dollars, to be recovered at the suit of the personal representative of the deceased in any court of competent jurisdiction, for the benefit of the next of kin of deceased.”

This statute is directed against such persons, et cetera, as have unlawful possession of a “body” of a deceased person. The section further refers to the “body” as such “corpse. ” The terms “body” and “corpse” found in this statute do not include the remains of persons long buried and decomposed. Nor is the penalty imposed by it directed against cemetery associations (or their trustees) where such remains may be quietly reposing'. On the contrary the object of the statute is to secure to the bodies of dead interment and that secure repose which natural affection and a decent respect for the remains of a human being demand.

Judgment affi/rmed.