author: White, J.

text:
    The State ex rel. v. Foster.
    Where the governor and secretary of state, under section 2986 of the Revised Statutes, in canvassing the returns of votes from a congressional district, aggregate the votes returned from one county for II. L. Morey with the votes returned from, the other counties for Henry L. Morey, treating the names as designating the same person, a mandamus will not be awarded requiring the votes thus aggregated to be counted as given for different persons, in the absence of an averment that the votes were intended for different persons.
    Application for mandamus.
    The relator, in his petition, claims that the vote for representative to Congress from the seventh Ohio district, at the election held on the second Tuesday of October, a.d. 1882, has been returned by the'various county canvassing boards to the state canvassing board (consisting of the defendants), as shown by the following table :

    He further recites that the defendants threaten to count the 3,517 votes above shown for H. L. Morey, as and with the 10,931 votes above shown for Henry L. Morey, and thus ascertain the votes cast for Henry L. Morey to be of the number of 11,151, instead of 10,931.
    He prays for a writ of mandamus compelling said board to ascertain the vote to be in conformity to the foregoing table, and not otherwise.
    Pending the application the relator, on leave, filed a supplemental petition, in which it is stated that since the filing of the original petition, and pending the’ application, the defendants have aggregated said 3517 votes returned for H. L. Morey, and have erroneously, and unlawfully ascertained that Henry L. Morey received 11,151 votes, and have made said erroneous and unlawful finding in writing, and have signed it, and transmitted to said Henry L. Morey a certificate showing that he received a plurality of votes cast for representative in the 18th Congress of the United States at the election held in the seventli congressional district of Ohio on the second Tuesday of October, a. p. 1882.
    "Wherefore relator prays as in his original petition, and further prays that the defendants (as such canvassing board) may be commanded by a peremptory writ of mandamus from this court to re-assemble, and correctly ascertain said vote to be as set out in relator’s original petition; and to make and sign a finding in conformity thereto ; and issue to relator a properly executed and sealed certificate showing that he received a plurality of the votes cast for representative in the 48th congress of the United States at the election held in the seventh congressional district of Ohio on the second Tuesday of October, a. p. 1882; and they be thereby further commanded to do and perform all lawful acts necessary to restore the relator to his rights in the premises.

      James E. Campbell, for relator,
    cited 64 Me. 596; 70 Me. 564; Prince v. Skillin, 71 Me. 371; 53 N. H. 640; Clark v. Board of Examiners of Hampden County, 126 Mass. 282; 20 Pick. 484, 497, 498; People v. Smith, 45 N. Y. 779; Peebles v. Commissioners, 82 N. C. 385; Moore v. Kessler, 59 Ind. 152-3; Brower v. O'Brien, 2 Ind. 423; Kisler v. Cameron, 39 Ind. 488; People v. Hilliard, 29 Ill. 420; State v. Trigg, 72 Mo. 365; State v. Steers, 44 Mo. 224; State v. Commisioners, 23 Kansas, 264; Hagge v. Stute, 10 Neb. 51; McCrary on Elections, § 81; Howard v. Schields, 16 Ohio St. 192; Phelps v. Schroder, 26 Ohio St. 549; Queen v. Campbell, 79 E. C. L. 63; Strong's Case, 20 Pick. 484; Morgan v. Qnackenbush, 22 Barb. 72; Hartt v. Hervey, 32 Barb. 55; People v. Seaman, 5 Denio, 409; Heath's Case, 3 Hill, 42; State v. Rodman, 43 Mo. 256; State v. Circuit Judge, 9 Ala. 338; O'Ferrall v. Colby, 2 Minn. 180; Taylor v. Taylor, 10 Minn. 107; Dishon v. Smith, 10 Iowa, 212; State v. Cavers, 22 Iowa, 343; Perry v. Whitaker, 71 N. C. 475; State v. Governor, 1 Dutcher, 331; State v. Clerk, 1 Dutcher, 354; Marshall v. Kerns, 2 Swan, 68; State v. Pillsbury, 3 S. C. (N. S.) 30; also cases cited in Cooley on Const. Lim. 784, note 2.

      George K. Nash, attorney-general for respondents.
   White, J.

The only question for decision in this case is, whether the defendants shall be required to re-count the votes returned for representative to Congress from the seventh district, and issue a certificate of election to the relator.

The answer to this question depends upon the construction of our own statute.

The following are the only provisions of the statute to which we need refer. Section 2949 of the Revised Statutes provides that on each ballot “ shall be written or printed the names of the persons voted for, with a pertinent designation of the office which he or they may be intended to fill.”

Section 2980 provides : The sixth day after the election, or sooner, in case the returns are made, the clerk of the court of common pleas, taking to his assistance two justices of the peace of the county, shall proceed to open the several returns made to his office, and make abstracts of the votes in the following manner, viz.: . . .

“ 2. Upon an another sheet an abstract of votes for governor, lieutenant-governor, secretary of state, auditor of state, treasurer of state, attorney-general, state commissioner of common schools, member of the board of public works, judge of the supreme court, clerk of the supreme court, and representatives to Congress.”

Section 2982 requires that, the clerk shall .... also forthwith make, certify, seal, and indorse, in manner aforesaid, a copy of abstracts Nos. 2 and 3, and transmit the same by mail to the secretary of state at Columbus.”

Section 2986 is as follows: Within ten days after the first day of December next after such election, the governor and secretary of state shall, in the office of the secretary of state, in the presence of the auditor of state and attorney-general, open the returns of abstract No. 2, made to the secretary of state, for state commissioner of common schools, member of .the board of public works, judge of the supreme court, clerk of the supreme court, and representatives to Congress for each congressional district; and if it appear that the returns have been received from all the counties agreeably to the provisions of this chapter, the governor and secretary of state shall forthwith proceed to ascertain the number of votes given for the different persons for such offices.”

Section 2991 declares that, “ the governor shall transmit to each person so elected a certificate of his election, which certificate shall be signed by the governor, sealed with the great seal of the state, and countersigned by the secretary of state.”

It is not claimed in this proceeding for mandamus, that IT. L. Morey, for whom fifty-five hundred and seventeen votes were returned from Clermont county, is in fact a different person from Henry L. Morey, for whom the votes were returned from the other counties. The claim is that the defendants, in canvassing the returns and awarding the certificate, were bound to assume that they were different persons without reference to what the fact might be ; and that the court, in acting upon the present application, is bound to make the same assumption.

It is not denied that if the returns from all the counties had been, as they were from Clei’mont county, for H. L. Morey, that the certificate should have been given to the same person to whom it was given.. So also, if the return from Clermont county had been Henry L. Morey, instead of H. L. Morey, the same person would have received the certificate as did receive it and would have received it had all the votes been returned for H. L. Morey.

The statute required the defendants to ascertain the number of votes given for the different persons for” the office; and the certificate was to be given to the “person so elected.”

We fully concede that the duties of the defendants, in the respect in question, were ministerial in their nature. But the performance of ministerial duties requires the exercise of intelligence, sense and judgment. Ministerial duties must be performed correctly; and the fact that a ministerial officer performed his duties according to his judgment is of no avail, if the duties are not correctly performed. A sheriff is bound to ascertain the identity of the person described in process, and to serve the right person. Nor would the fact that there were several persons oí the same name relieve him from the performance of the duty ; nor the fact that the Christian name of the party named in the process, was expressed by initials only.

In the case of State ex rel. v. Commissioners of Holmes County (17 Ohio St. 608), the question was whether the system of paying bounties described in the Act of April 6, 1866, had been adopted in that county. The commissioners, in answer to the alternate writ of mandamus, set up, in substance, that they had duly and fairly considered the facts and were unable to conclude that a system of paying bounties to volunteers had ever been adopted in that county. The court said that “ in determining whether such a system of paying bounties had been adopted in any county, the board acts in a ministerial, and not in a judicial capacity. It is no answer to the alternative writ, that the respondents set up that they were unable, after investigation, to conclude that the system of paying bounties described in the act had ever been adopted in Holmes county.’ If the facts existed which made the statute applicable to their county, they were bound to ascertain the facts correctly, and to perform the duty which the statute enjoined; as much as a sheriff is bound to determine correctly on whom, or on what property, to serve or execute process.”

It is true, the defendants as a canvassing board were required to ascertain the number of votes given for the different persons for the office; and the certificate of election was to issue to the “person so elected.” The person so elected was to be determined from the returns before the board. The returns are only evidence of the will of the electors expressed by their ballots. If this evidence is such as to produce reasonable conviction of what that will is, it should be allowed to have its legitimate effect.” Strong, Petitioner, 20 Pick. 494. If thqperson receiving the certificate did not receive the plurality of votes as shown by the returns, fairly and reasonably understood, the defendants have not performed the duty enjoined upon them. If IT. L. Morey and Henry L. Morey designate the same person, as appears from the returns read in the light of such facts of public notoriety connected with the election as every one takes notice of, the defendants have performed their duty correctly in giving the certificate to Henry L. Morey.

It is not averred the votes were intended for different persons ; and we understand it to be conceded, in argument, that IT. L. Morey and Henry L. Morey, were, in fact, intended to designate the same person.

The rule that should govern in canvassing the returns is thus stated by Judge Cooley, in his work on Constitutional Limitations, and we think correctly: “ The action of such boards is to be carefully confined to an examination of the papers before them, and a determination of the result therefrom in the light of such facts of public notoriety connected with the election as every one takes notice of, and which may enable them to apply such ballots as are in any respect imperfect, to the proper candidates or offices for which they are intended, provided the intent is sufficiently indicated by the ballot in connection with such facts, so that extraneous evidence is not necessary for this purpose.” Cooley’s Con. Lim. 623.

The relator relies upon the case of Clarke v. Board of Examiners of Hampton County (126 Mass. 282), in which it Avas held that mandamus would not lie to compel the board to count certain votes, containing the initial letter only of the Christian name of a candidate, with other votes containing his name in full.”

But it does not follow that had the board determined to count the votes instead of to exclude them, they would have been compelled by mandamus not to count them.

Eor the reasons stated, the application for mandamus is refused.


source: Caselaw Access Project

author: Okey, C. J.

license: Public Domain

text:
    Proseck v. The State.
    1. The principal and sureties bound in a recognizance for the appearance of the principal before a court, are presumed to know -when and where the term will commence, and if the obligation, in view of such presumed knowledge, appears with reasonable certainty, the recognizance will not be deemed invalid upon the ground that the language of the statute providing therefor has not been strictly followed.
    2. Whore a statute, in prescribing the terms and conditions of a recognizance, requires that the accused shall be bound to appear at the next term, a recognizance omitting the word next, but strictly pursuing the statute in ail other respects, will not be deemed invalid for such omission.
    3. Under the provisions of the act relating to bastardy (70 Ohio L. Ill, § 7 ; Rev. Stat. g 5622), “that if the sureties on the recognizance, at any term of said court, surrender the accused, and request to be released from such recognizance,” the court “may order a new recognizance to be taken, cancel such first recognizance and commit the accused,” an answer of a surety, that he took the accused, and at a subsequent term of the court surrendered him in open court and requested a release from the recognizance, without stating whether such surrender was before the recognizance was forfeited, or before final judgment in the bastardy suit, or that the recognizance was canceled, is not merely defective in form, but insufficient in substance, and hence subject to demurrer.
    Error to tbe District Court of Cuyahoga county.
    On the hearing before a j’ustice of the peace of a complaint in bastardy against Jedlicka, he was required to and did, on August 18,1876, enter into a recognizance in the sum of $500, with Kutchta and Proseck as sureties, conditioned that he should “ personally appear before the court of common pleas, to be holden in and for the county aforesaid, on the first day of the term thereof, and continue from day to day, and then and there answer unto a complaint of bastardy made by Barbara Miller against him, and abide the order of the court thereon.”
    At the next term of the court of common pleas of that county, commencing September 4, 1876, the cause was continued until the next term thereof, when the recognizance was forfeited, and Jedlicka was adjudged to be the reputed father of the child and charged with its maintenance in the manner provided by statute.
    In an action on the recognizance in the court of common pleas of that county, Proseck alone answered. He answered, first, that the recognizance was void for uncertainty, the objection being that the accused was not required to appear at the then next term, or any other particular term. Secondly, that the accused “did afterwards personally appear before said court, on the first day of the term thereof, in compliance, strictly, with the letter of said bond or recognizance, which fully relieved and discharged this defendant from all liability upon the said bond.” Thirdly, that after the signing of the recognizance, the defendant Proseck took the accused, and at a subsequent term of said court surrendered him “ to said court, in open court, and requested to be released from the said writing and recognizance, whereby the defendant Proseck became and was and is fully discharged from obligation or liability upon the said writing and recognizance.”
    A demurrer to the defenses was sustained, judgment was rendered for the amount of the recognizance, that judgment was affirmed in the district court, and this petition in error is prosecuted to reverse the judgments of both courts.
    The provisions of the act of 1873 on the subject (70 Ohio L. Ill, Rev. Stats, § 5614 et seq.) are as follows :
    § 4. “ In case such accused person does not comply with the provisions in the first and second sections of this act contained, the justice to whom such complaint was made shall bind such person in a recognizance to appear at the next term of the court of common pleas, with sufficient security, in a sum not less than three hundred dollars, nor more than six hundred dollars.”
    § 7. “ If at the next term of said court the complainant has not been delivered or is unable to attend, or if there is any other sufficient cause therefor, the court may order a continuance of the cause, and such continuance shall operate as a renewal of the recognizance, which shall remain in full force until final judgment; provided, that if the sureties on the recognizance, at any term of said court, surrender the accused and request to be released from such recognizance, or if the court shall deem such recognizance insufficient, it may order a recognizance to be taken, cancel such first recognizance, and commit the accused until a new recognizance is given.”

      JacJeson c& Pudney, for plaintiff in error :
    * 1. The petition is fatally defective in that it sets up a cause of action not contained in the recognizance- upon which the action is based.
    2. The recognizance must contain the essential parts both as to obligation and condition. 1 Ohio St. 399 ; Washington O. C. 422.
    3. The plaintiff in error must be held upon the express terms of the recognizance if at all. 9 Ohio St. 11-22; 20 Ohio, 97, 98; 1 Ohio St. 399; 13 Ohio, 176; 23 Ohio St. 320.

      Wilson & Sykora, for the defendant in error:
    .As to the effect of the omission of the word “ next.” Id cerium est quod cerium reddi potest. Williamson v. Hull, 1 Ohio St. 190, 194; Hall v. Williamson, 9 Ohio St. 24; Milliken v. State, 21 Ohio St. 635; Clark v. Petty, 29 Ohio St. 452; Atkinson v. Sanderson, 1 Tidd’s Pr. 223; 4 Douglass, 254; Pasten v. Hunson, 2 Saunders, 59; Badger v. State, 5 Ala. 21; Minor v. State, 1 Blackf. 236; Cummingham v. State, 14 Mo. 402; People v. Hawkins, 3 Howard N. S. 1.
    Such a construction should be placed upon the contract as will prevent its failure, and will give effect to the obligation of each of the parties appearing upon it at the moment the contract itself takes effect, ut res magis valeat quam pereat. 3 Ohio St. 421; Alexander v. Jacoby, 23 Ohio St. 384.
    In determining whether the right of action on such undertaking be several or joint, not only the terms of the bond, but also the provisions of the statute which authorize its execution must be considered, for such provisions must be regarded as much a part of the bond as if they were embodied in its terms.
    As to the third defense we say: The bail having been finally discharged, and their undertaking being no longer conditioned, the sureties had no legal authority to thereafter surrender their principal in discharge of their liability. Whetstone v. Riley, 7 Ohio St. 514.
   Okey, C. J.

1. The statute requiring justices of the peace to recognize the accused to appear at the “ next term,” and the word next being omitted from the recognizance, it is insisted that the instrument is a nullity. If the condition in a recognizance be ambiguous or uncertain as to the time or place the accused is to appear, such recognizance is void. The State v. Johnson, 13 Ohio, 176. Such an infirmity cannot be cured by parol evidence. Crippen v. The State, 1 Ohio St. 399. But, while it is the duty of the magistrate in all cases to strictly pursue the statute, it is by no means indispensable to the validity of a recognizance that the language of the act should be literally followed. If the time and place of appearance be shown with reasonable certainty, the statute in those particulars is complied with, and slight omissions and inaccuracies will not, ordinarily, affect the validity of the recognizance. Moreover, persons entering into such obligations are presumed to do so with knowledge of the general statutes relating to the courts, and the orders fixing the commencement of the terms, published with the annual volumes of laws. In this view, the omission of the word next did not render the recognizance invalid, but read in the light of the aids to which I have referred, the obligation to appear at the term commencing September 4, 1876, is sufficiently certain. Kellogg v. The State, 43 Miss. 57; Mooney v. The People, 81 Ill. 134; Brite v. The State, 24 Texas, 219; The State v. Bradley, 1 Blackf. 83; Com. v. Emery, 2 Binney, 431; The State v. Wellman, 3 Ohio, 14; Williamson v. Hall, 1 Ohio St. 190; s. c., 9 Ohio St. 24; Clark v. Petty, 29 Ohio St. 452; R. v. Hodgson, Dears. 14; s. c., 7 Ex. 915; 5 Wait’s Act. & Def. 401.

There was express authority to continue the cause and the recognizance, forfeit the recognizance at the next term on failure of the accused to appear, and take judgment against him, in pursuance of the statute, on the rendition of a verdict finding the complaint to be true; and, in an action on such recognizance, the record of forfeiture is conclusive. It will be seen that the defect which was fatal in Grieve v. Freytag, 31 Ohio St. 147, does not appear in this case; and it is also proper to say that the statute in force when Porter v. The State, 23 Ohio St. 320, was decided, has been in some respects changed.

2. The defense of surrender of the principal by the surety is wholly insufficient. No compliance with the statute upon that subject is shown, and the answer is evasive. "Whether the alleged surrender was before the forfeiture, or even before final judgment in the bastardy suit, is not stated, nor is it stated whether the. recognizance was canceled. The answer is not defective in form merely, but insufficient in substance. Whetstone v. Riley, 7 Ohio St. 514 (explained and qualified in Wright v. Coller, 35 Ohio St. 131), has been cited, but has no application.

Judgment affirmed.


author: Longworth, J.

text:
    Morgan v. Kinney.
    1. Mo entry by the sheriff upon real estate is necessary to constitute a valid levy thereon.
    2. The levy of an execution from another county, when indorsed on the execution, and before entry thereof, as required by the act of 1860 (2 S. & C, 1402), is complete.
    8. Under a deed of general assignment for the benefit of creditors, the assignee takes the real estate subject to all valid liens existing thereon against the assignor.
    Error to the District Court of Morgan county.

      Rees d¡ Gallaher, for plaintiff in error:
    The assignee represents the creditors, and not the assignor. Hanes v. Tiffany, 25 Ohio St. 549; Kilbourne v. Fay, 29 Ohio St. 264, 278; Lindeman v. Ingham, 36 Ohio St. 1; 16 Ohio St. 433, 440. Judgments and executions have no force as liens except what is given them by statute. McCormick v. Alexander, 2 Ohio, 65, 71.

      We think there was no valid levy on the property, for three reasons — all fully admitted by the pleadings. 1. There was personal property of the defendant in the county subject to levy. 2. No entry was made on the foreign execution docket, as required by law. 3. The levy was not made in such manner as to seize the property in execution, as required by statute. As to the first proposition, it was of course the duty of the sheriff to first take personal property. Laws of 1878, 681, § 10. And if this proceeding was to vacate the levy, the objection would certainly be good. Freeman on Ex. § 279. As to the second proposition, the statute in force in 1878 provided for entries upon the foreign execution docket; and that such entries, so made, should be notice to subsequent purchasers and creditors. S. & G. 1402, § II. (14). Unless, as a corollary to this, the failure to make such entries is a failure of notice to purchasers and creditors, then of what utility is the statute?
    As to the third proposition, the statute then in force provided, in effect, that a judgment from another county than that in which the land lay, should be a lien upon such land from the time the same was “seized in execution.” Laws of 1878, 680, § 4. As to personal property, it is, of course, unquestioned that “ seized in execution ” has a .very definite meaning. 13 Ohio St. 79; 14 Ohio St. 18. We submit that some definite meaning should be given it as to real property; and that under our law, the kind of levy required where the judgment is a lien, and where it is not, may be two very different things ; and that, consequently, the substantially doing away with a levy, by levying from the recorder’s office, if good where the judgment is a lien, is not sufficient to make a lien. Freeman on Ex. § 280; 4 Kent, *432, note f. In the only other case in which a lien on lands is obtained by act of the sheriff, he is required t® so proceed, that the public, as well as parties interested, shall have notice. Rev. Stat. § 5528.

      Geo. Duncan, for defendants in error:
    1. The provision of the statute that the sheriff first levy on goods and chattels is directory. Freeman on Ex. § 279.

      2. A return that the officer can find no goods and chattels justifies a levy on real estate. Treptow v. Buse, 10 Kansas, 170.
    3. The officer was not bound to exhaust the personal property of all the defendants before levying on the real estate of either. Barton v. Banton, 6 J. J. Marsh. 235; Drake v. Murphy, 42 Ind. 82.
    4. The execution being from another county the judgment became a lien upon the land when seized in execution. Laws 1878, 680, § 4.
    5. If the sheriff asserted on the execution that he levied on the land, it was then seized in execution. It was not necessary for the sheriff to go upon the lands. Butler, J., 3 Hill S. C. 292; Rodgers v. Bonner, 45 N. Y. 379; Perrin v. Everett, 13 Mass. 128; Freeman on Executions, § 280.
    6. The statute expressly providing that the lien takes effect on seizure in execution, the fact that the sheriff made no entry as required by section II. (14) S. & C. 1402, would not prevent the lien from having its effect. The same principle ought to apply as when a mortgage is left for record. Tousley v. Tousley, 5 Ohio St. 78, 86.
    7. The plaintiff can claim no relief by reason of the entry required to be made on the foreign execution docket not having been made, unless he was misled thereby. There is no claim of the kind in plaintiff’s petition. The fair inference is that he had knowledge of the lien independent of'the notice. Brown v. Kirkham, 1 Ohio St. 116, 118.
   Longworth, J.

The decision in this case depends entirely upon legal issues, the judgment below having been rendered upon demurrer. The facts of the case are correctly stated in the brief of the plaintiff in error, and are as follows :

On October 10, 1878, the defendants, Gray & Smith, obtained a judgment in the court of common pleas of Cuyahoga county against A. "W. Anderson and others, and execution was at once issued thereon to the sheriff of Belmont county. On October 12,1878, the sheriff, without leaving St. Clairsville, twelve miles distant from Bellaire, indorsed upon the writ of ^execution in his hands, that for want of goods and chattels whereon to levy, he levied upon certain real estate, describing the town lots in Bellaire, as the property of A. ~W. Anderson. But no record, other than this, was made in the sheriffs office; and no entry of any hind was made on the foreign execution docket, until after the filing of the assignment deed hereinafter mentioned. On October 12, 1878, there was, in Belmont county, belonging to A. W. Anderson and his co-defendants, personal property subject to levy, amply sufficient to satisfy said execution. On October 21, 1878, A. W. Anderson made an assignment for the benefit of creditors, and his assignment deed was duly filed with the probate judge the same day, and the assignee gave bond and qualified according to law ; and as such assignee brought this suit. At the time this suit was brought, the sheriff had made no return of any of his proceedings under said execution,'to the court from which the execution issued.

The suit was to enjoin the sheriff from selling the land under this execution, the petition of plaintiff was dismissed in the court of common pleas and judgment rendered for defendant which judgment was afterwards affirmed in the district court.

It seems to us that the decision of this case depends entirely upon the question whether the indorsement by the sheriff upon the writ of execution constituted in itself a valid levy upon the land. The doctrine is well settled that in respect to real estate the assignee for the benefit of creditors stands in the shoes of his assignor, and takes no greater estate than that held by him. He takes subject to all liens and incumbrances existing at the time of the assignment and is not to be regarded in equity as a bona fide purchaser without notice. See Burrill on Assignment, § 391, and numerous cases cited in the notes to the third edition.

By force of statute, an entry by the sheriff upon the foreign execution docket operates as notice to the world; and it is plain that its omission in the present case, whatever might bo its effect as against a bona fide purchaser without actual notice, cannot be taken advantage of by the assignor who cannot protect himself by want of notice, either actual or constructive.

Neither can the assignor complain that at the time of the levy he was possessed of personal property sufficient to satisfy the judgment. If he did not choose to apply such property to its payment he cannot complain that the sheriff, failing- to find goods and chattels whereon to levy, proceeded to levy upon land.

Was then this levy a valid one? Clearly it was, unless under our statute the expression “ seized in execution ” shall be construed as making an actual seizure of some kind essential. See 75 Ohio L. 680, § 4. In Gwynne on Sheriffs, 308, the law is stated thus: “ No entry by an officer on real estate is necessary to constitute a levy. The officer may remain in his own office and not even go within view of the land : he need not seize upon any twig, turf, or other part thereof as symbolical of the whole. Ilis indorsement upon the execution of a levy will constitute one to all intents and purposes.”

From the time that a valid levy is made, the land is in legal sense seized in execution,”' — that is, rendered liable for its satisfaction. Nowhere in the statutes is the officer directed to make any actual seizure, which.it would seem could only be done by taking possession of the land and ousting the judgment debtor. It would be contrary to all previous notions concerning the duties of such officers to hold that prior to sale or appraisement, and upon the mere receipt of the writ it becomes their duty to enter upon the debtor’s land and take possession.

Judgment affirmed.


author: MoIlvaine, J.

text:
    Railway Company v. Railroad Company.
    A. railroad corporation, having purchased from another railroad company an undivided interest in the latter’s railroad, under the act of April 7, 1863, in relation to insolvent railroad companies, &c.. — which authorizes such sale under certain conditions, if the same can he made without impairing the usefulness of the road to the vendor company, — whereby a tenancy in common was created between the parties, can not compel partition of the common property either under the statute in relation to partition or in equity.

      Appeal. Reserved in the District Court of Franklin County.
    This is an action for the partition of a line (or a section of a line) of railroad, and several parcels of other real estate adjacent to, and used in operating the railroad, situate between the cities of Columbus and Newark, Ohio, a distance of thirty-four miles.
    The case is submitted upon the pleadings and an agreed statement of facts.
    It appears, that in the year 1855, the Central Ohio Railroad Company completed and put in operation a line of single track railroad from Bellaire, on the Ohio river, via Newark to Columbus, Ohio, as under its charter it was duly authorized to do. The portion of that line, between Newark and Columbus, is the subject matter of this proceeding.
    In 1818, the Steubenville and Indiana Railroad Company was chartered for the purpose of constructing and operating a line of railroad from Steubenville, on the Ohio river, via Newark to Columbus, and prior to the year 1858 had completed and put in operation, under its charter, a line of railroad from Steubenville to Newark, about which time, an arrangement was made between the Steubenville and Indiana Railroad Company and the Central Ohio Railroad Company, whereby the former company was permitted to run its trains over the latter’s road between Newark and Columbus. This arrangement was continued until August 31,1861, when an undivided half interest in the line of road, from Newark to Columbus was conveyed by deed, from the Central Ohio Company to the Steubenville and Indiana Company as hereafter stated in the opinion of the court.
    On November 1, 1865, the Central Ohio Railroad Company, being insolvent, was reorganized under the statutes of this state, whereby a new corporation was created, by the name of “The Central Ohio Railroad Company as reorganized” (one of defendants), which succeeded to all the property, rights and franchises of the Central Ohio Railroad Company. And afterwards, to wit, on December 1, 1866, the Central Ohio Railroad Company, as reorganized, leased its railroad, under the statute in such case made and provided, to the Baltimore and Ohio Railroad Company for a period of twenty years, renewable for periods of twenty years indefinitely, whereby the Baltimore and Ohio Railroad Company became possessed and has ever since continued to possess all the rights of property of the said Central Ohio Railroad Company, as reorganized, in said line of railroad between the cities of Bellaire and Columbus.
    In the year 1868, the Steubenville and Indiana Railroad Company entered into an agreement with the Holliday’s Cove Railroad Company, of the state of West Yirginia, and the Pan Handle Railway Company of the state of Pennsylvania, for the consolidation of said companies, under the name of the Pittsburgh, Cincinnati and St. Louis Railway Company (plaintiff), and it is assumed, for the purposes of this case, that, under said agreement and proceedings for consolidation, the plaintiff became a duly incorporated company, and succeeded to all the property, rights and franchises of said Steubenville and Indiana Railroad Company.
    Since the organization of the plaintiff, the subject matter of this action has been in the joint possession and use of the plaintiff, and the Baltimore and Ohio Railroad Company, as lessee of the Central Ohio Railroad Co. as reorganized.
    The following is the agreed statement of facts :

      “ The parties attach hereto a copy of the deed made by the Central Ohio Railroad Company, and IT. J. Jewett, receiver, to the Steubenville & Indiana Railroad Company, dated August 31, 1864, and marked Exhibit ‘A.’
    “ Also a copy of the articles of consolidation, under which the plaintiff was organized, and claims to succeed to the property of the Steubenville & Indiana Railroad Company, and marked Exhibit £ B.’

      “ And also a copy of the mortgage from the Central Ohio Railroad Company to John W. Garrett and others, trustees, marked Exhibit £ C.’

      “ All of said copies are to be used in this case, the same as the originals thereof if offered in testimony.

      “ The said parties also agree that disputes and difficulties have arisen in the joint management of the property referred to in the pleadings herein, but which are the subject-matters of a suit now pending in the district court of this county, wherein the Baltimore & Ohio Railroad Company is plaintiff, and the Pittsburgh, Cincinnati & St. Louis Railway Company and others are defendants, and of a suit pending in the circuit court of the United States for the southern district of Ohio, eastern division, wherein the P., C. & St. L. R’y is plaintiff, and the B. & O. R. R. Co. is defendant. The original file papers and record in said cases are here referred to, and may be used on the hearing of this case, so far as necessary and competent.
    “ It is agreed that this case be submitted on the' pleadings, record and journal entries, and the foregoing exhibits and agreed statement of facts. And it is further agreed that the said railroad between Newark and Columbus, Ohio, sought to be divided herein, is in the main a single track railroad between said points.
    “ C. N. Olds, of Counsel for Plaintiff.

    “ J. H. Collins, Counsel for Defendants.

    “Sept. 20, 1882.”

      J. T. BrooJcs, with whom were C. P. Olds and P. P. Pcmney :

    Under the statute of Ohio partition may be had of the whole or any part of a railroad. Section 5754, Rev. Stats. This section defines the procedure in cases of partition as follows :
    “ A person entitled to partition of an estate may file his petition therefor in the court of common pleas, setting forth the nature of his title, and a pertinent description of the lands, tenements or hereditaments of which partition is demanded, and naming each tenant in c<ommon, coparcener or other interested person, as defendants therein.” No room is left for criticism on the ground that “ a person,” but not.“ a corporation,” may file his petition, for section 4947 of the Revised Statutes, says: “ In the interpretation of part three of this revision, unless the context shows that another sense was • intended, the word ‘person’ includes a private corporation.” Public corporations are subdivisions of the state for municipal purposes. Private corporations are associations of persons united for the purpose of gain, as a railroad company, a bank, an insurance company, &c. Field on Corporations, § 2.
    These different statutes construed together mean precisely as if they read as follows: “Section 5756. A railroad company being a tenant in common or coparcener of any estate in lands, tenements, or hereditaments within the state, may file its petition for partition of the same, &e.”
    The law takes no heed of the unwillingness of one or of several tenants in common, or of the inconvenience or hardship they may suffer, in yielding to partition. The right of a single individual to enjoy undivided possession of his property is paramount to all other considerations.
    Partition has been had of a mill, mill machinery, and water power (Cooper v. Cedar Rapids Water Power Company, 42 Iowa, 398); of a right of water power (Doan v. Metcalf, 46 Iowa, 120), of an interest in minerals where mines have been opened (73 Ills. 405), of ferry property (Sanders v. Robertson, 57 Alabama, 465); of a slave (Miller v. Frazor, 82 N. C. 192).
    The principle upon which partition is allowed, applies to estates which come by descent or purchase, and has the same force in respect to estates held by many persons acting in the capacity of a company or a corporation, as in the case of a single person. But many and strong are the reasons why railroad property should be deemed to be capable of partition. They have their origin in the peculiar nature and uses of such property, and in the peculiar character of its ownership. Not only are the interests of a vast aggregation of people, who are its owners, involved in a railroad, but the public are vitally concerned in its proper administration. Accident or design may have created a tenancy in common between two railroad companies, but public necessity may require that these interests should be divided. The public having granted the franchise to construct and operate a railroad, it is entitled to certain privileges in consideration of the grant, namely: A right to a safe and free use of the railroad on reasonable terms, and a scale of convenience and. accommodation proportioned to the value of the grant.
    The objection that the statute should not apply to a railroad, because a railroad is a highway, and is owned jointly by the company and the public; also, that if a part of a railroad is sold, the franchise respecting it is not exercised as granted, has no force, and is founded on a misconception of the nature of railroad property, and of the franchises which are granted in connection with it. A railroad is not a highway in the ordinary sense of the term. It is not owned by the company and the public jointly. It is a matter of no consequence whether franchises are or are not used and enjoyed to the full extent of which they are granted by the state.
    Railroads have been spoken of as highways, by very able and discriminating judges; but I know of no court, of high or low degree, that has invested railroad property with the incidents of a common highway. Railroads are neither acquired held, used or treated as are highways. •
    A highway cannot be partitioned, because no man or company is a co-tenant or a coparcener in respect to it, nor is he entitled to the possession of it. A railroad may be partitioned, because it may be held by two or more companies as tenants in common; each company may be entitled to the possession of it, and the right of possession is the essential element in the remedy of partition.
    The proper signification of the term “ highway,” as applied to a railroad, has been defined clearly and fairly by the supreme court of Illinois: “ As to the declaration in the Constitution that railways are public highways, they are so, as defined by this court, in 17 Illinois, 541. They are not common highways in the sense of public wagon roads, upon which every one may transact his own business with his own means of conveyance, but only in the sense of being compelled to accept of each and all, and take and carry to the extent of their ability.” T., P. & W. R. R. v. Pence, 68 Ill. 524.
    I do not attach any importance to the point made by counsel, that if partition be allowed in this case, the franchises granted by the state to the respective defendants, the Central Ohio Railroad Company, as reorganized, and the P., C. & St. L. Ry. Co., will not be exercised as the state intended they should be. This objection of counsel assumes two propositions to be true, both of which I deny. First. That the court will not allow partition, if one of the results of partition will be a change of the use to which the property is applied. Second. That the state is interested in having, or has a right to demand, that franchises granted by it shall be exercised precisely as granted.
    We have seen that courts give no heed, in suits of partition, to the wishes of parties defendant, nor to the consequences which result either to the property or to the parties, provided only the case comes within the law. The statute is remorselessly enforced in obedience to the fundamental axiom — every man shall have and control what is his own.
    In maintaining the negative of the proposition, that franchises granted by the State must be considered a unit, and exercised precisely as granted, I must not be understood as claiming that a corporation need not exercise its franchises in the manner fixed by law. I concede that the franchises, which a/re exercised by a corporation, must be exercised exactly as the law provides. But what I claim on this point, is this: There is nothing in the legislation of Ohio, under which the Central Ohio, and the Pittsburgh, Cincinnati & St. Louis Railway Companies derive existence, which makes it the legal or moral duty of either of those companies to construct or operate the whole or any part of a railroad, or to continue to maintain and operate the whole or any part of their respective railroads any longer than they are pleased so to do. Further, that there is nothing in the grant made by the State to either of these companies, which gives any citizen, or any number of citizens, a right to demand that the whole, or any part of the railroad of either of these companies, should be maintained any longer than the owners are pleased so to do. This is saying nothing more than that those who receive franchises from the State are' under no express or implied obligation to make use of them, and the deduction is, that even if the railroad between Newark and Columbus were sold under partition proceedings and should become the property of a stranger, the corporate life of the companies named would not be mortally wounded, nor their franchises materially impaired.
    But the court will observe that the plaintiff aslcs the interposition of the equitable powers of the court in this case. The petition avers in substance that the section of railroad, of which partition is asked, is one of the leading thoroughfares of the country, over which a large number of passengers and a large volume of traffic is constantly passing; that the interests of the public demand that the road should be maintained and developed to a high standard of perfection; that the plaintiff has unavailingly urged the defendant companies to unite with it in some plan for the maintenance and development of the line which will render it safe and efficient for' public necessities ; that the defendants have failed and refused to co-operate with the plaintiff in effecting such results, and that in consequence, the plaintiff has, at its own expense, maintained the property for some time past, and a large amount is due plaintiff from the defendant companies on this account; all of which is admitted by the defendants to be true.
    The court will here see and appreciate the reasons which were heretofore urged, why partition should be allowed of railroads above all other kinds of property. Public welfare combines with the interest of the owner in demanding it. The difference in policy of administration, in volume of business, in cost of construction and maintenance, in geographical position, make it impossible that the harmonious management of railroad property, which is essential to enable it to meet the wants of the public, can be attained when the property is owned by separate or rival organizations. "What one company can afford to do the other cannot help to pay for. What is indispensable to one is not needed by the other. "Whatever is expended on joint property by one instantly becomes in part the property of the other. The scale of expense on which modern railway construction and maintenance are carried on forbids the idea that joint property should be maintained and developed at the expense of one joint owner. The right of the public to have the railroad maintained in the highest state of development, necessary to public convenience and safety, cannot be doubted for a moment.

      John K. Cowen and J. H. Oollins, for defendants:
    I. The plaintiff has no such title to this property, as will sustain this action — if it has any. The predecessor of the plaintiff obtained the title which the statute authorized the Central Ohio Railroad Company to convey, and no more. Without the statute, it had no power to convey any title; for ■without such authority a railroad company cannot sell any part of its roadway. The passage of the statute shows that the legislature considered, that without it there was no such .power. See also Ohio v. Sherman, 22 Ohio St. 428; M. & C. R. R. Co. v. Campbell, 23 Ohio St. 168; Coe v. R. R. Co., 10 Ohio St. 378.
    By the provisions of the act of April 7, 1863, under which the sale was made to the plaintiff’s predecessor in title, it was enacted that such a sale might be made only in cases where it would not impair the usefulness of the road to the vendor. This was either a condition precedent or subsequent, or a reservation. If precedent, it was determined as a matter of fact, before the sale, that it would not impair the usefulness of the road to the Central Ohio Railroad Company, and if so determined, the vendee and its successor are estopped from an act which -will impair such usefulness — no matter how remote from the date of the sale, the estoppel applies to all time subsequent to the sale. If subsequent, it is a condition which goes with the title so long as the title continues. If a reservation, that which was reserved is just as valid, and just as sacred, as that which is granted. In any construction of this statute which may be made the plaintiff has no right to do any act which will impair the usefulness of the road to the Central Ohio Railroad Company, or its lessee. And a sale of this end of the road or of the whole road, not only impairs its usefulness but destroys it. But if wo look to the terms of the deed, and the contract in pursuance of which it was made, the same conclusion follows. The statute under which this deed and contract were made, must be taken as a part of the contract between tbe parties in our endeavor to arrive at what the agreement was which the parties made.
    The statute requires that the road must be used in common, and the lease or sale must be an interest in such part of the line of road as is common to both, under their charters, and then the sale can be made only in cases where it will not impair the usefulness of the road to the company owning the same.
    The contract and deed state that all these conditions existed, and that the sale was made for the purpose of having the road used in common, and to avoid the building of another road.
    Eor wise purposes the legislature has withheld from railroad companies the power to sell their property, except in certain specified cases, and within certain limitations, which are carefully guarded ; but if the plaintiffs claim in this case be well founded, the absolute sale of a part or all of the property of a railroad company may be accomplished by means of this statute, by doing indirectly what cannot be done directly.
    Before this partition can be made, this real estate, described in the petition, must be severed from the other joint property of the two companies, and the separate property of each.
    A railroad is an entirety. It consists of real estate and personal property — the latter being tangible and intangible. The cars, engines, machinery, <fee., are tangible property, the franchises intangible. The franchise to construct and operate a railroad is generally regarded as a grant of a part of a sovereign power of the state, partaking of the nature of a public trust; and the cars, engines, &c., are ordinarily personal property ; but taking the road as a whole, it is neither the one nor the other, strictly speaking. It is only when these different classes of property are combined, so as to form a railroad, that they become valuable ; either, without the other, is useless. «
    And it is not only proposed to wreck the Central Ohio Railroad, as indicated, but it is proposed to cut off one end and sell it, and leave the company in possession of the other end, which cannot be done. Railroad Co. v. Lewton, 20 Ohio St. 401.
    It is claimed that section 5754 of the Revised Statutes authorizes this proceeding, and sustains the claim here made for partition.
    The question here made is: Does this section authorize the wrecking of the road, first, by separating the real from the personal property, and second, the partition or sale of the real estate, leaving the parties the joint and several owners of the personal property ?
    But it is said that this section of the statute authorizes a partition in all cases of real property held by tenants in common ; but as already shown, this is not real estate, as now situated, neither is it personal, but it is a combination of both, and useful and valuable only because of such combination. See Peoria & Springfield R. R. Co. v. Thompson, 7 Am. & Eng. Railway Cas. 101; advance sheets 103 Illinois Reports; Hammock v. Farmer’s Loan & Trust Co., 7 Am. & Eng. Railway Cas. 474, 475; Coe v. Railroad Co., 10 Ohio St. 403.
    Second, the property will not be partitioned, because it is a public highway, and because of its peculiar situation. These in their order.
    1. Have the parties here, plaintiff and defendant corporations, the corporate power to make or suffer partition % The plaintiff corporation is seeking to compel the defendant corporation to suffer partition, and the question is with regard to the corporate capacity of each in that regard. As already stated, this is an equitable proceeding for partition, and the powers of the court of equity are sought for the purpose of accomplishing the object sought, but an equitable partition is based on the idea of mutual conveyances, and such is always the decree in such cases. 1 Story Eq. 652.
    The question then is, have the parties the corporate power to make mutual conveyances to each other ? The mere asking of the question would seem to be its sufficient answer. If it required ■ an act of the legislature to authorize the Central Ohio Railroad Company to sell one-half of this part of its road, will it not require an act of the legislature to authorize it to sell the other half ? And if it required an act of the legislature to enable the Steubenville and Indiana Railroad Company to buy one-half of this road, will it not require another act to enable it to sell it ? This also seems to be the theory of our statute, and the want of capacity to make such mutual conveyances is recognized and provided for in some cases. Sections 5772, 5775 and 5776, Rev. Stats.
    2. This property is a public highway, and, therefore, cannot be partitioned. The order here sought is an order of partition, and the property sought to be partitioned is a single track railway, and to partition it is to destroy it as a highway — to divide it either crosswise or lengthwise, in the one case, giving each 16J miles of track, in the. other, giving each a single rail. This may seem absurd, but it is what is asked. If a section of a railroad will not be sold, because such sale will destroy it as a highway, will a section of a railway be divided in this way ? See Railroad Co. v. Lewton, 20 Ohio St. 401.
   MoIlvaine, J.

In the pleadings are found many charges and counter-charges of bad faith and violations of duty in regard to the joint management and use of this railroad, such, no doubt, as would authorize a court of equity to interfere between the parties and control their conduct, to the end that the property might be preserved, the rights of the respective owners enforced and the public welfare secured; but as these charges and counter-charges are all denied, and no proof offered in respect thereto, and especially as it is agreed that the disputes and difficulties which have arisen in the joint management of the property have become the subject of litigation between the parties in other courts, we have considered this case solely with reference to the right of the plaintiff as a co-tenant, to demand partition of the common property ; which indeed is the prime object in prosecuting the action.

The railroad sought to be aparted, as agreed, “is in the main a single track railroad,” and was, originally, the sole property of the Central Ohio Railroad Company. But on the 31st of August, 1861,. an undivided half interest in the property was conveyed to the Steubenville and Indiana Railroad Company, under authority of an act of the general assembly of the state of Ohio entitled, “ An Act to provide for the adjustment of the affairs of insolvent railroad companies, and for their reorganization without a sale of the property thereof,” passed April 7, 1863. This statute provides, that in case judicial proceedings are or may be pending in any of the courts sitting, or which may sit, in said state, for the sale of any railroad, and the same is in the hands of a receiver or receivers appointed by such court; and in case the railroad involved in such judicial proceedings may be used in whole or in part by said company in common with any other railroad company on the same track between the points on the line common to both, and within the limits of termini established by the charters of both companies, it shall be lawful for the company owning the said railroad, if the same can be done without impairing the usefulness thereof to the company owning the same, to lease for a period of years, for an annual rentage, or to sell for a fixed sum to the said railroad company to which the said line of road in whole or in part is common, an undivided interest in the same upon such terms and conditions as may be agreed upon; such lease or sale to be reported to and approved by said court.

The parties and the property being within the statute, a sale of an undivided half interest in the line of road between Newark and Columbus was made, and approved by the court having jurisdiction in the matter, and upon its order a deed of conveyance was executed to the Steubenville and Indiana Railroad Company, thus creating an estate in common between the parties to the transaction, to which common estate the parties to this suit have succeeded under authority of statutory provisions. The common estate thus created, however, is held by the owners for the sole use of maintaining and operating a railroad, as a public highway, without any power in either or both the owners to sell the same or any part thereof.

Of this estate the plaintiff demands partition, and to that end invokes the power of the court under the statute, if the case falls within the statute, and if not, then by virtue of its equitable jurisdiction in partition.

The partition statute provides, “ Tenants in common, and coparceners, of any estate in lands, tenements, or hereditaments within the state, may be compelled to make or suffer partition thereof in the manner hereinafter prescribed.” Sec. 5754, Rev. Stats. It is also provided, that if the court in which an action for partition is pending, shall find that the plaintiff has a legal right to any part of the estate, it shall order partition thereof and appoint three disinterested and judicious freeholders of the vicinity to be commissioners to make the partition. Sec. 5757, R. S. And it is further provided that if the commissioners be of opinion that the estate cannot be divided without manifest injury to the value thereof, they shall return that fact to the court, with a just valuation4 of the estate. Sec. 5762. And further, that if no election be made by any of the parties to take the estate at its appraised value, then the court, at the instance of a party, may order the sale of the estate at public auction. Section 5764.

Independent of the statute, the right of a co-tenant to have partition does not depend upon the fact that a division of the property will not injuriously affect the value thereof; but under the statute, actual partition cannot be made where it appears, in the opinion of the commissioners, that manifest injury would result from such division.

It is claimed on the part of the defendant that under this rule, the property in controversy could not be aparted between the owners. But conceding this to be so, it is claimed, on the other hand, that a case then arises under the statute for the sale of the property.

While it must be admitted that the power of sale extends to all cases in partition under the statute, wherein actual division of the estate would manifestly injure the value thereof; it must also be admitted that the existence of the power to sell in such cases, does not enlarge the right of partition given by the statute to cases which would not be within it, if the power to sell did not exist. Hence, the question arises, is the partition of such railroad within the purview of the statute? In the solution of this question the effects and consequences of a sale may be considered. The general policy of the state has been to withhold from railroad companies the power to sell their roads. True, a general power to mortgage has been given, and as a consequence ■ a sale on foreclosure maybe made. Such consequence must have been contemplated by the legislature; but it does not follow that a partition or sale on proceedings in partition of a railroad, was contemplated when authority was given to create a tenancy in common in such property. On the other hand, as it has been the policy of the state to perpetuate the ownership in severalty of a railroad without power of alienation, it is more reasonable, that, when a tenancy in common in such property was permitted, the intention was a perpetual ownership in common, especially as the power of alienation was withheld from the tenants in common.

Again, as the chief value of such property consists in its use as a public highway, and as it is the interest of the public that each tenant in common should maintain its highway from terminus to terminus, as well over the common right of way as beyond it, we cannot believe, that the legislature contemplated or intended, by permitting such joint ownership and use, to provide thereby a means for the destruction of both or either of the roads, in whole or in part, owned and operated by the parties, by a partition or a sale in partition proceedings, under the statute regulating partitions, passed many years before this species of property had an existence.

Surely this is no ordinary estate in common or coparcenary, either as to the subject matter or manner of holding.

But it is claimed that, independent of the statute, the plaintiff is entitled to have partition in equity, where, ms at common law, the right to demand actual division is acknowledged to be absolute and inseparable from an estate in common, coparcenary or joint tenancy, without regard to the fact whether the division of the estate will prove advantageous or ruinous to the co tenants. The question, however, is still open to inquiry, whether the estate in controversy is within that rule.

It must be recollected, as above stated, that the case, as presented to us, involves no equitable consideration, other than the mere right of co-tenants to have partition of the common property, so that each may hold his own interest in severalty.

The difficulty in the case mainly arises from the fact that the public has an interest in the use to which the property is perpetually devoted, and no one will deny that equity will recognize and protect the public interest, and to that end will consider the state of legislation on the subject.

We concede that a railroad company is a private corporation, invested with private rights, among which is the right to own and operate its railroad. Nevertheless, its duty is to manage and operate its road in the transportation of passengers and freight, for the use and benefit of the general public. To enable it to perform that duty, it is invested with the power of eminent domain, whereby private property may be taken and devoted to the public use. It is also authorized to purchase property necessary and convenient for the construction and maintenance of the highway; and property thus obtained is as much devoted to public use, as that condemned in the exercise of the power of eminent domain. All its powers and duties are prescribed by statutory law. As well its power to dispose of, as to acquire property. Neither of the parties to this suit has power to sell and convey, for any purpose, its interest in the subject matter of the suit. They have no power to make partition between themselves, for this would involve the power to make mutual releases and conveyances. Hence, we come to this question, Will equity compel partition between co-tenants, sui juris, who have no power to partition their common property amicably ? Partition is completed in equity by mutual releases. Will equity decree mutual releases between the parties, where, by law, the power to execute them is withheld from the parties ? We can find no precedent of the kind. In partition between infants, the execution of releases is postponed, by the decree, until the majority of the co-tenants. In Freeman on Co-tenancy and Partition, it is said, “ Rut courts of equity never professed to act directly on the title. Their decrees operated i/n¡personam only. A decree of partition did not purport to invest the parties with titles to their several allotments. The final action of a court of equity in reference to a partition, was based upon the hypothesis that it was just and equitable that a certain allotment should be made between the parties. The court, therefore, directed that the parties should do that which it had determined they ought to do; in other words, that they should make partition between one another, by executing mutual conveyances. Without such conveyances, the legal title to the property remained unaffected. A partition in chancery, like a voluntary partition made by the parties, must be consummated by mutual conveyances. Therefore, no effectual partition can be had in equity against any person not competent to execute a conveyance.” Section 427.

Assuming that in states where power to sell is given in cases of statutory partition, if actual partition would injure the property, a court of equity, in like cases, would follow the analogy of the statute, and modify the form of its remedy, still, the subject matter of its jurisdiction would not be enlarged ; and we understand it to be a fundamental principle in the doctrine of partition, that partition cannot be demanded as a matter of right, either under the statute or in equity, if the co-tenants are excluded from the power to make voluntary partition of the subject matter, from considerations of public policy or by positive law.

This brings us to consider the force and effect of the statute of April 7, 1863, under the authority of which, the tenancy in common now sought to be severed, was established. This statute, when construed in the light of other legislation in pari materia, we think excludes the parties before us from the power of making voluntary partition between themselves by mutual releases, and consequently from the right to compel partition under the statute or in equity.

The section of road now sought to be partitioned, at the date of the passage of this act, was owned and operated by the Central Ohio Railroad Company as a part of its line of road, extending from .Bellaire to Columbus, via Newark. At the same time, the Steubenville and Indiana Railroad Company owned and operated a road from Steubenville to Newark, with power under its charter to extend its line of road to Columbus. The statute authorized the sale of an undivided interest in the road between Newark and Columbus, by the Central Ohio Company to the Steubenville and Indiana Company, “ if the same could be done without impairing the usefulness thereof” to the Central Ohio Company. This condition was unquestionably inserted in the statute upon considerations of public policy. In the deed of conveyance it was recited that the sale did not impair the usefulness of the section to the vendor company. It was not meant, either by the statute or the deed, that the exclusive use of the section was preserved to the Central Company; but that, in the joint use of the section reasonable facilities were and would be afforded the Central Company for conducting its business over this line of the road. In other words, that one half of the capacity of the road was sufficient to supply the necessities of the vendor company. We do not understand that any implication arises that the Central Company should be entitled to the use of the road to the full extent of the requirements of its traffic, however great its volume might become; but we do understand it to be implied that the one half of the capacity of the road was and should be subservient to the uses of the vendor; and that the vendee acquired no right, in any way, to deprive the vendor thereof. It was the use of an undivided road, not the half of the road when divided, that was thus secured to the vendor; and this, not for a time limited at the pleasure of the purchaser, but for all time. This is inferable from the fact that no further power to alienate existed in either party; save such only as might result from the power to create debts.

Our conclusion, therefore, is, that the provisions of this statute, when considered in connection with the fact that power of alienation was withheld from these co-tenants, is inconsistent with the absolute right to demand or compel partition, whereby the usefulness of a part of this section of the road to the successor of the Central Ohio Railroad Company would undeniably be impaired. The legislature did not contemplate or intend that a partition of this property should be made; but, on the other hand, did intend a perpetual joint use of the highway.

Petition dismissed.


author: Johnson, J.

text:
    Meek v. The Pennsylvania Company.
    1. In an action to recover for an injury alleged to have been caused by cars moving on a railroad track, proof that the company was moving its cars in violation of a city ordinance at the time the injury was inflicted, while not sufficient per se to create a liability, is yet competent to go to the jury as tending to show negligence.
    2. In such an action, where the circumstances necessarily impose upon the injured party the exercise of proper care for his own safety, and when in the exercise of such care there is no apparent danger from moving cars, proof of such an ordinance is competent as reflecting on the degree of care required of him to avoid injury.
    3. Where injury is caused by a failure of the railroad company to use ordinary care in moving its trains or cars, it is liable, unless there be contributory negligence by the person injured. Hence it is error to charge the jury that the company is liable only for gross neglienae, where it may have been understood by the jury that this term was used as the equivalent of fraud or intentional wrong, and not as meaning the want of the ordinary care required under all the circumstances of the case.
    Error to the District Court of Belmont county.
    This was an action to recover damages for causing the death of George W. Meek. The allegations . of the petition, which were in issue, were, that the defendant by wrongful act, neglect and default, and without his fault, caused the death of Meek, while he was walking on the railroad track in the city of Bellaire. The injury was caused by two gondola ears, which were detached from the train, and were moving south on a side track, in charge of a brakeman. These cars had been part of a train that was coming down the main track from the-north, but, some distance above, had been detached, and turned on the side track at a switch, while the locomotive and other cars continued on the main track. These two cars were moving by their own momentum.
    The plaintiffs evidence tended to show that when deceased entered upon the side track no train was visible, though the view of the track was unobstructed for half a mile ; that these detached cars were moving at a dangerous rate of speed, exceeding eight miles per hour; that deceased was north of and near a public crossing which people were in the habit of using; and that these detached cars moved at this dangerous rate of speed against deceased, and so continued beyond the public crossing, before the brakeman could get them under control.
    On the trial the plaintiff offered in evidence an ordinance of the city of Bellaire, which forbids trains moving at a higher rate of speed than eight miles per hour, and also forbids trains of cars and sections of trains, from crossing any street or crossing within the limits of the city, without sufficient motive power attached to start and stop the same without delay. The court rejected this evidence, and plaintiff excepted.
    ■ The parties having offered evidence tending to support the issue on their respective parts, the case was submitted to the jury under the charge of the court.
    Exceptions were • taken by plaintiff to the charge, and to the refusal to charge.
    The judgment in favor of defendant was affirmed in the district court.
    The charge of the court touching the degree of care the defendant should use under the circumstances of the case, and the liability of the deceased for contributory negligence, to which the plaintiff excepted, is as follows:
    “ The court will say to you as the law that will govern you in your deliberations in this case, that if you find that the agents and servants of said railroad company were guilty of any wrongful act, neglect or default, or in other words, were guilty of gross negligence which occasioned the injury, then the plaintiff would be entitled to recover in this action; but if the undisputed facts satisfy you that by the exercise of ordinary care on the part of the decedent, he might have avoided the accident, then in such case the plaintiff cannot recover in this action.

      “ If you find that the decedent, when the accident occurred, was on the track of the defendant’s road, that his being there, away from a public or a private crossing, required of him the due exercise of care on his part, and in such case the jury, in determining the question of contributory negligence, will pass upon all the testimony that has been given before them.
    “ It was the duty of decedent, in the place he was walking, on the track of the company, to make use of his senses to ascertain if there was a train in the vicinity, and if, when in full possession of his faculties, he failed to see or hear the approaching train when a prudent man exercising his senses and using his eyes and ears with ordinary care would have discovered a train in close proximity, and he was thereby injured, he is guilty of such negligence as will prevent a recovery in this action. The omission to ring the bell or sound the whistle at the time would not have been sufficient to authorize a recovery, if decedent, notwithstanding such omission, might by the exercise of ordinary care, have avoided the accident.”
    At the same time, the court refused to give the following request, among others, except so far as this proposition was included in the charge, to wit:
    “If the jury shall find from the testimony that the plaintiffs intestate was guilty of negligence in going upon the track, yet that the defendant, by the use of ordinary care, under the circumstances, could have avoided the injury, the negligence of plaintiff’s intestate in going upon the track will not prevent a recovery.”

      Rees & Gallaher, for plaintiff in error:
    "We submit that the court erred.
    I. First in ruling out the ordinance, for, without multiplying authorities, “ In an action to recover damages for alleged negligence, proof of the violation of a city ordinance does not establish negligence per se; it is competent evidence upon the question to be submitted to the jury, but not conclusive.” Knupfle v. K. Ice Co., 84 N. Y. 488; 32 Ohio St. 494, 499; 29 Md. 253; 111 Mass. 136, 138, 140; 63 N. Y. 523, 530; 64 N. Y. 521, 525, 531-533.
    II. In the charge as given, in the following particulars:
    Making the liability of the defendant depend on its being guilty of gross negligence. 37 Ohio St. 312; 28 Ohio St. 388. Requiring of the decedent “ extraordinary efforts ” to avoid the accident in case the jury should find he had been warned of the approach of the train. 8 Ohio St. 570; 24 Ohio St. 631. And, generally, in not making the care and negligence on the one side and the other dependent on the circumstances of the case.
    III. In refusing to charge as requested. We respectfully submit that it was the duty of the court, whén asked in this cause, to have called the attention of the jury directly to the relative duties and rights of the plaintiff’s intestate and the defendant in the circumstances. If the track of the defendant was habitually used as a thoroughfare, the agents and servants of the defendant were bound to take notice of it and use a precaution commensurate with it. Wharton on Negligence, 352, in notes, 651, § 388, n. 3. That the plaintiff’s intestate was a trespasser did not absolve the defendant from the use of ordinary care under the circumstances to avoid the injury. Wharton on Neg. 309, § 348, 388 ; 2 Redf. on Railways, 246. That the negligence of the plaintiff’s intestate must be the proximate cause of the injury to prevent a recovery, is settled. 3 Ohio St. 172: Wharton on Neg. §303. The negligence to bar a recovery must be not a condition of the injury, but its juridical cause. Wharton on Neg. § 323; Id. § 388, in notes. The fifth instruction, we respectfully submit, states only what should be a conclusion of law, if the facts should be found as stated. Wharton on Neg. 670' in notes, citing 21 Wis. 256. See Whart. on Neg. 668, citing Ill. Cent. R. R. v. Bachles, 56 Ill. 379; § 798, n. 2. “ Eor a railroad to make what is denominated a ‘ running switch ’ over the crossing of the track by a public road, in the populous part of a village, is, of itself, an act of gross and criminal negligence on the part of the company.” 32 N. Y. 597; Brown v. N. Y. C. R. R. cited in Lacey’s Digest, 474, § 300.

      J. B. Smith, for the defendant in error:
    As to negligence. 83 Ill. 510; 46 Ill. 82; 52 Ill. 325; 64 Ill. 510; 81 Ill. 45; 70 Ill. 106; 87 Ill. 222; 46 Ind. 239; 33 Ind. 307.
    As to contributory negligence. 39 N. Y. 358; 40 Ill. 218;
      Booth v. Hodgson, 6 T. R. 409; Penna. Co. v. Rathger, 24 Ohio St. 66; Railroad v. Picksley, Id. 655; Davis v. Railway, 47 N. Y. 400; Railroad v. Methoven, 21 Ohio St. 586; Gorten v. Railroad, 45 N. Y. 664; Arts v. Railroad, 34 Iowa, 154; Railroad v. Terry, 8 Ohio St. 585; Wharton on Negligence, § 384; Railroad v. Elliott, 28 Ohio St. 340; B. & O. R. R. Co. v. Whitacre, 35 Ohio St. 627; 1 Hilliard on Torts, 140, 141; 2 Redfield on Railways, 200; Illinois Central R. R. Co. v. Godfrey, 59 Pa. St. 129; 10 Allen, 373; 14 Allen, 429; 44 Pa. St. 375; 14 Am. L. Reg. 290; Owing v. Jones, 9 Md. 108; Dyer v. Talbott, 16 Ill. 300; Railroad Co. v. Hiatt, 17 Ind. 102; Carsby v. Perysene, 21 Pick. 255; Parker v. Adams, 12 Met. 417; Amos v. Railway Co., 6 Gray, 64; 1 Allen, 190; 8 Allen, 137; 21 Barb. 339; 18 N. Y. 466; 4 McLean 333; 18 Ohio 398; 22 Ohio St. 9-21-22; 1 Cowen, 78; 6 Hill 592; 19 Wend. 339; 6 Cowen, 184; 5 Hill 282; 27 Barb. 221, 534; 5 Barb. 338; 13 Barb. 9; 25 Barb. 600; L. R. 1 Ex. 13; 49 Pa. St. 60.
    As to speed of train being faster than allowed by city ordinance. 22 N. Y. 191; 19 Wis. 489.
   Johnson, J.

I. As to the admissibility of the ordinance. It contained two provisions: 1st. It prohibited a greater rate of speed than eight miles per hour; 2nd. It prohibited trains, or sections of trains, from crossing public streets or crossings without sufficient motive power attached to control them. The evidence tended to show that deceased was injured by these detached cars, while moving at a forbidden rate of speed, and that these detached cars were not under sufficient control at the time the injury was inflicted, and when they crossed the street, to stop or start them without delay.

As the injury complained of was done while deceased was walking on defendant’s track, he, as well as the defendant, was charged with active duties for his own preservation. If he omitted these duties, and such omission contributed to the injury, he could not recover, unless such omission was without his fault. His position required great care for his own safety, and the evidence, tending to create a liability against the railroad, necessarily involved the question of proper care on his part. His action in going upon the track immediately preceding the injury, put in question his due exercise of care for his own safety. In such a case the burden is on the plaintiff to show he exercised such care. Railroad Co. v. Whitacre, 35 Ohio St. 627; Robinson v. Gray, 28 Ohio St. 241; Waters v. Wing, 79 Pa. St. 211.

In the absence of knowledge of apparent danger from an approaching train, or that these detached cars were moving toward him, and were about to cross the public street near which he was, without sufficient motive power to control them, the deceased had the right, having used due caution in going upon the track, to act on the assumption that the defendant would conform to the requirements of the ordinance.

It was the duty of the deceased, if he went on defendant’s track, to look out for approaching trains, and the violation of the ordinance by the railroad agents would not relieve him from this duty; but in the absence of apparent danger, the deceased may not have been guilty of contributory negligence, if he was lulled into security by knowing of the regulations prescribed by the ordinance, and by assuming that the company would exercise such care. Correll v. B. C. R. & M. R. R. Co., 38 Iowa, 120; Jetter v. N. Y. & H. R. R. Co., 2 Keyes (N. Y.) 454; Baker v. Pendergrast, 32 Ohio St. 494.

This ordinance was admissible as reflecting upon the question of the care exercised by the deceased in view of the fact that the defendant was guilty of an act forbidden by an ordinance, which he had no reason to anticipate. Again, proof that defendant was violating this ordinance, was in its nature evidence tending to show defendant’s liability, where the injury resulted from not observing it. The statute gives a right of action where death is caused by wrongful act, neglect or default, — in other words, for an injury negligently or intentionally caused.

While the violation of a law or ordinance is not, per se, conclusive proof of negligence that will render the company liable, yet it is competent to be considered with all the other evidence in the case. The ordinance was enacted for the purpose of rendering the streets more safe and convenient for the public. It is a police regulation defining what is a legitimate use of the streets by the railroad company. It was a command to those operating trains within the city limits which it was their duty to obey, and a disobedience, either willfully or negligently, resulting in injury, is some evidence to be considered in determining the defendant’s liability. It served to give character to the act causing the injury. McCarthy v. Wolfe, 40 Mo. 520; Lane v. Atlantic Works, 111 Mass. 136; St. Louis & S. E. Railway Co. v. Mathias, 50 Ind. 65; B. & O. R. R. Co. v. State, 29 Md. 252; McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 522; Haas v. Ch. & N. Railway Co., 41 Wis. 50; Correll v. B. C. R. & M. R. R. Co., 38 Iowa, 120; Balt. City Pass. R. v. McDonnell, 43 Md. 534; Wabash R. R. v. Henks, 91 Ill. 406.

II. Did the court err in charging, and in refusing to charge, as appears in the statement of the case ? The charge uses the term, “ gross negligence,” as the measure of defendant’s liability. Whether this implies more than a want of ordinary care, is not clear if we consider the charge by itself. When taken in connection with the refusal to give the third request of the plaintiff, the meaning of the judge becomes clear.

That request was to charge, that if the defendant, by the use of ordinary care under the circumstances, could have avoided the injury, the negligence of the deceased in going upon the track would not prevent a recovery. By refusing this, it is implied, that the defendant is not liable for want of ordinary care.

What is the meaning of the term “gross negligence?” Whether it is synonymous with the term “ want of ordinary care,” or equivalent to fraud or intentional wrong, is not easily ascertained from the books.

This subject is discussed in Wharton on Negligence, chap. 11, §§ 26-50, and in Telegraph Co. v. Griswold, 37 Ohio St. 311, 312, and in the cases cited.

If the charge stood alone, we might conclude, in accordance with the current of the later cases, that the term gross negligence meant only want of ordinary care, “ with a vituperative epithetyet taken in connection with other parts of the charge, and the refusal to charge, that if the defendant, by the use of ordinary care, could have avoided the injury, it was liable, notwithstanding the deceased was negligent in being upon the track, it is evident that the judge meant by the use of this term, the equivalent of fraud or intentional wrong. This meaning is supported by high authority. Jones on Bailments, 8-46, et seg. In this sense it was not the measure of liability.

It is insisted, however, that plaintiff has not been prejudiced, as the facts show there was no right of recovery. This does not appear upon the record. We have not got the evidence, only what it tends to prove. In such case, where there is error in the rejection of evidence, or in the charge of the court, it will be presumed that it was prejudicial to the losing party.

Judgment reversed.


text:
    Warder v. Commissioners.
    The levying of taxes by the county commissioners, under the statute, for the purchase of toll roads in order to make them free to the public, is a constitutional exercise of the taxing power. So, also, is the levying of a tax to refund assessments as provided for in section 3501 of the Kevised Statutes.
    Reserved in the District Court of Clark county.
    The questions in this case arise upon the general demurrer of the defendants to the plaintiff’s petition, which asks an injunction restraining the defendants from making a contract for the purchase of four miles of turnpike road in the southeast part of the county of Clark, and from issuing bonds and levying a tax to pay for tlie same, and for refunding assessments, under sections 3498, 3499, 3500, 3501, of the Revised Statutes, as amended March 25, and April 12, 1880 (77, Ohio L., 83, 187).
    These statutes provide, in substance, that upon the petition of fifty freehold citizens of the county, the question of purchasing all or any of the toll roads of the county shall be submitted to a popular vote, and if the proposition carries, there shall be appointed three appraisers to make a valuation of each of the toll roads of the county and those parts of toll roads which may lie within the county, and return the same to the board of county commissioners, who, if the report be satisfactory and be approved as to all or any road or parts thereof, shall cause an entry to that effect to be made in their journal, and may thereupon purchase the same at a price not exceeding such valuation, and thereupon such roads shall become free roads and be kept in repair in the manner prescribed in chapter X., title 7, pt. 2, of the Revised Statutes. That in order to pay for such roads or parts of roads, and for refunding assessments to residents of the county who have been or may be assessed for improved roads under the act of March 29, 1867, or the acts amendatory thereof or supplementary thereto, and who are required to pay taxes for the purchase of the toll roads, the commissioners are directed to issue bonds for the amount of said purchase, and an amount sufficient to refund said assessments and to levy taxes to pay the bonds.
    The petition avers, “That said Board of Commissioners of said county are proceeding to purchase the said turnpike roads, and to issue bonds for the payment of the same, and for the refunding of the said assessments for improved roads, and to levy taxes upon the real and personal property of said county for the payment of the same, without regard to whether the same be required by the public welfare, and because, as they claim, the said statutes of Ohio peremptorily require them to do so, provided the said turnpike roads be appraised at a fail-value, and that, unless restrained by the order of this court, they will proceed to buy said turnpike roads at an aggregate price of not less than forty thousand dollars, and issue bonds therefor, and levy a tax to pay for said bonds and interest, and for the refunding of the assessments as provided in section 3501 of the Revised Statutes of Ohio, which said tax, if allowed to be levied, will be partial and unequal, and will not be levied upon the property of said county at a uniform rate, and will be unconstitutional and beyond the authority of said defendant to levy.”
    The petition states that the said turnpike roads now confer every benefit upon the public which an improved road can confer excepting the exemption of the traveler upon the road from the payment of toll.
    Also that the commissioners have had appraised and are about to purchase a part of a turnpike road, four miles in length, lying between the village of South Charleston and the south line of said county, and prays that they be restrained from making such purchase, and from issuing bonds, etc., and from purchasing any other of the toll roads of the county or parts thereof, under said statutes.
    In the court of common pleas a perpetual injunction was granted. On appeal, the district reserved the case for decision by this court.

      S. A. Bowman, for plaintiff in error.

      George Arthur and Harrison, Olds c& Marsh, for defendants in error.
   White, J.

The only ground upon which the proceedings of the county commissioners are sought to be enjoined, is that the statutes under which such proceedings are had are unconstitutional. No objection is made that the proceedings are not in accordance with the statutes.

The validity of the statutes is sought to be impeached on two grounds.

1. That the taxes that the commissioners are required, by the statute, to levy for the payment of the turnpike roads which they are about to purchase, is not levied for a public purpose.

The basis on which counsel rests this proposition is that the turnpike roads are already highways for public use: and that the only effect of the purchase is to relieve those using them from the payment of tolls, and to subject the roads to public management.

It seems plain to us that the accomplishment of these ends is the securing of a public purpose. It transfers the proprietary interests of the former owners, the turnpike companies, to the county, to be controlled by public authority, and opens the roads to the use of the public without charge.

2. The second ground on which the prooceedings are sought to be impeached, is that the refunding of assessments under section 3501 of the Revised Statutes, is in conflict with section 2, art. 12 of the constitution, which requires taxes to bfe levied by a uniform rule upon “ all real and personal property according to its true value in money.”

The section of the Revised Statutes referred to, provides, that for the payment of the roads and for the refunding of assessments as thereinafter specified, the commissioners shall levy, annually, on the taxable property of such counties, in addition to the taxes they are otherwise authorized to levy, such sum as will fully pay such bonds and the interest thereon, and for the refunding such assessments.” The persons to whom the assessments are to be refunded are thus described in the section : All persons resident of such counties who have paid or may pay any assessment for the construction of any roads under the act of March 29, 1867, or the acts amendatory thereof or supplementary thereto, which road has not been converted into a toll road, and who are required to pay the tax levied for such purpose, or any part thereof, shall be entitled to have repaid to them, out of any tax they are required to pay for such purchase, the amount of such assessment so paid by them, which, repayment shall in no instance exceed the amount of such tax they may have so paid ; . . . and in no instance shall a greater amount be refunded to any person than the assessment paid by him, and no tax shall be refunded but on the order of the auditor.” . . .

All the taxes the commissioners are authorized to levy, as well the amount to be refunded as the amount to be paid as the price of the road, are required to b& levied alike on all the taxable property in the county. There is, therefore, no lack of uniformity in the levy; hence the only question is whether the tax for the refunding of the assessments can be constitutionally levied. The roads which such assessments were made to construct were in their nature similar to turnpike roads; they were built, not by general taxation, but by special assessments on the land-owners in the vicinity; and the right to have the assessments refunded only exists where such roads have not been converted into toll roads. In adopting the policy of allowing the counties to purchase the toll roads, by general taxation for the purpose of making such roads free, it was deemed unjust by the legislature, not to make provision for refunding assessments to those who had been required to pay them for the construction of such free roads. It was to avoid such injustice that the provision in question was made. There was no legal obligation, prior to the passage of the act in question, to refund the assessments; but the justice of doing so arose from the inauguration and enforcement of the new policy. The power of taxation is not limited to the payment of legal claims; but extends to those founded only in justice and moral obligation. State ex rel. v. Huffman, 35 Ohio St. 435; State ex rel. v. City of Circleville, 20 Id. 362; Board of Education v. McLandsborough, 36 Id. 227; State ex rel. v. Board of Education, ante, 3; People ex rel. v. Burr, 13 Cal. 343; Beals v. Amador County, 35 Cal. 625.

The fact that the refunding tax is limited to residents of the county who have paid assessments, does not affect the question of the power of the legislature to authorize the tax. That is a question of legislative discretion as to the extent to which the power shall be exercised; the act cannot be held invalid on the ground that the legislature have not provided for all who might or ought to have been.

The case of Fields v. Commissioners (36 Ohio St. 476), on which plaintiffs rely, was decided on the ground that the act there in question did not require all the real and personal property' to be taxed by a uniform rule, according to its true value in money. We have shown that this objection does not apply to the present case.

Demwrrer sustained and petition dismissed.