author: By the Court.

text:
    Carey v. The State of Ohio.

      Petition for an election on saloon question — Section JfS6Jr20a— Applies to hamlets existing prior to municipal code of October 22, 1902 — “Offense” means ,conviction, when — Affidavit charging separate sales is charge of first offense only, when■ —Jury trial — Three hundred dollars an excessive fine, when..

    1. Sections 4364-20® and -206, Revised Statutes, which, provide for an election in any municipality to determine whether or not. the sale of intoxicating liquors as a beverage within the-limits of such municipality shall be prohibited, and prescribes-punishment for violations of said act where such sales are so- • prohibited, apply to hamlets as the same existed in this state-prior to the adoption of the municipal code, October 22, 1902.
    2. The term “offense,” as used in the last-named section, is the equivalent of conviction. Hence an affidavit for prosecution under said act which charges three separate sales to different 1 persons on the same day, but does not allege a previous conviction, is in legal effect a charge of a first offense only, and the party so charged is not entitled to be tried by a jury.
    3. The maximum fine provided by the act for the first offense being two hundred dollars only, a fine of three hundred dollars is in such'ease excessive and erroneous.
    (No. 4902
    Decided April 12, 1904.)

      Motion for leave to file petition in error to the Circuit Court of Cuyahoga county.
    The plaintiff in error was tried before the mayor of the village of Bedford, in Cuyahoga county, upon a charge of violating section 4364-20&, popularly known as the Beal law. The affidavit on which the prosecution was founded embraced three counts, each charging an unlawful sale of intoxicating liquor to be used as a beverage on July 22,1903, to three separate purchasers. The sales were averred to have occurred at the village of Lakewood, Cuyahoga county. It appeared in evidence that Lakewood, prior to May 4, 1903, was a municipality known as a hamlet, and that on November 24, 1902, upon a vote of the qualified electors of the hamlet held under the statute referred to, a majority of said electors voted against the sale in the municipality of intoxicating liquor as a beverage. On the appearance of the accused he interposed a motion to dismiss on the grounds of ■want of jurisdiction of the person and of the subject-matter, and of the insufficiency in law of the affidavit. Also a certificate of prejudice. This motion being overruled and the affidavit ignored, accused demanded that the action be tried to a jury. This demand was overruled and the trial proceeded. Record proof of the election in the hamlet of Lakewood was offered by tbe state and admitted over the objection and exception of defendant. The state offered testimony as to the sales; the defendant offered testimony in contradiction, the state gave rebuttal evidence, and the cause was submitted on briefs by counsel. At the conclusion of the state’s testimony a motion was interposed to dismiss the case, which was overruled. After consideration the court found the defendant guilty as charged and sentenced him to pay a fine of three hundred dollars, being one hundred dollars on each count, and to pay costs of prosecution, and to stand committed to the workhouse of the city of Cleveland until fine and costs should be paid.
    Error being prosecuted to the court of common pleas the judgment of the mayor was affirmed and that judgment being affirmed by the circuit court, the defendant below brings error to this court.

      Mr. Vernon H. Burke and Mr. Clifford B. Haskins, for plaintiff in error.

      Mr. G. N. Shaver; Mr. Charles A. Niman and Mr. W. B. Wheeler, for defendant in error.
   By the Court.

A number of grounds of error are urged which will be considered seriatim.

1. As to the mayor’s jurisdiction. It is insisted that the mayor of the village of Bedford could have no jurisdiction over an offense committed in the village of Lakewood, and if the claim of jurisdiction is believed to be based on section 1536-876, then that section is .in conflict with article 4, section 10 of the constitution. The clause referred to provides that “the judges other than those provided in this constitution shall be elected by the electors of the judicial district for which they may be created.” The point is not well taken. Section 18 of the same article provides that “the several judges of the supreme court * * * and of such other courts as may be created, shall respectively have and exercise such power and jurisdiction, at chambers or otherwise, as may be directed by law. ” It is apparent that the provision of section 10 applies to the district for election purposes, and does not affect the matter of jurisdiction, power to provide which is specifically given to the-general assembly by section 18. Steamboat Northern Indiana v. Milliken, 7 Ohio St., 383; The State v. Peters, 67 Ohio St., 494.

2. The affidavit of prejudice. This proposition of' error, is based on section 550, Revised Statutes. This section applies to judges of the court of common pleas. It has no application whatever to mayors;, nor is there, so far as we are aware, any provision of like character which affects mayors. The affidavit, of prejudice was properly ignored.

3. Joinder of counts. The law in Ohio is well settled. There was no error in overruling the motion, to require the state to elect. Bailey v. The State, 4 Ohio St., 440; Eldredge v. The State, 37 Ohio St., 191; State v. Bailey, 50 Ohio St., 636.

4. The demand for a jury. This demand was made. upon the claim that as there were three counts in the-affidavit, there were three separate offenses charged, and inasmuch as a party on conviction of a third offense may be imprisoned as part of the sentence, he-would be entitled to be tried by a jury. This claim rests upon a misconception of the statute. The term “offense” in the statute embraces the entire-charge though there may be a number of counts. The provision as to punishment is that the convicted, party shall “be fined not more than two hundred dollars nor less' than fifty dollars for the first offense,, and shall for a second offense be fined not more than five hundred dollars nor less than one hundred dollars, and for any subsequent offense be fined not less-than two hundred dollars and be imprisoned not. more than sixty days and not less than ten days.” The manifest purpose is to increase the penalty for offenses after the first because the party has per■sisted in violating the law. With this purpose in mind it seems clear that the term “second offense” means second conviction. Hence, as this was the first trial for the violation of the law there could he no imprisonment as part of the sentence, and the party was not, therefore, entitled to a jury.

5. The objection to the admission of record evidence respecting the election in the hamlet of Lakewood presents the question whether the statute, sections 4364-20a and -20b, which makes provision for such election applies to hamlets. We are of opinion that its terms are broad enough to embrace hamlets. The opening clause covers in plain terms “any municipal corporation.” By the provision of statute then in force a hamlet was a municipal corporation. It is true that the statute uses the term “council” as the governing body, and the term “mayor” as the executive, yet in hamlets there were trustees who stood to the hamlet as the council stands to the village or city, and the president of the board of trustees stood to the hamlet as the mayor stands to the village or city. The statute is a police regulation enacted in the interest of good order in municipalities, and should receive a reasonable construction. No reason exists for such a regulation in a village which would not equally apply to a hamlet, and the terms of the statute, except in the particulars named, are broad, and clearly include all municipalities.- This conclusion is in accord with the holding of the circuit court of the eighth circuit In re Annexation of Territory to Township of Newburgh, 8 Circ. Dec., 24; 15 C. C. R., 78; and in The State v. Keeler, 10 Circ. Dec., 160; 19 C. C. R., 149.

6. Complaint is made that the rulings of the mayor respecting the cross-examination of some of the state’s witnesses worked prejudice to the defendant in that he was prevented from showing interest on the part of such witnesses in the event of prosecution. The extent to which cross-examination may be conducted is usually a matter of discretion oh the part of the trial court. The questions refused were mainly repetitions of questions which had been put in another form and answered. We fail to discover that the discretion was abused or that the limit placed on the cross-examination was an unreasonable one. We find no prejudicial error in the rulings as to testimony.

7. It is further contended that the trial court erred in not dismissing the complaint at the conclusion of the state’s testimony because the case was rested by the state on the uncorroborated testimony of private detectives in the employ of the Anti-Saloon League. It is true that the testimony of hired detectives should be received with caution and carefully scrutinized, but it is not, as matter of law, error for the court to found a conviction upon such testimony. The sufficiency of the evidence in this case has passed the scrutiny of the common pleas and the circuit court, and it is not important that it be further discussed here.

8. The sentence. It is insisted that it was excessive. We think this point is well taken. For reasons stated under paragraph four, the conviction which resulted was the first conviction. For this the maximum fine provided by the statute is two hundred dollars. The sentence of three hundred dollars being excessive the judgment of sentence will be reversed and the cause remanded for resentence, in conformity with the direction herein.

Judgments of the circuit court and the court of common fleas, and of the mayor’s court, reversed and cause remanded to the latter court for sentence.

Spear, C. J., Davis, Shauck, Price, Crew'and Summers, JJ., concur.


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    The Gas Co. v. Eckert and The Gas Co. v. Kull.

      Grant of oil rights to corporation — Grantee agrees to drill well, etc. — Conditions of reconveyance hy grantee — Contract is a lease at option of lessee — Interpretation of contracts.

    A grant to a corporation, its successors and assigns, without limitation as to time, of “all the oil, etc.,” upon the following terms: “First. Second party agrees to drill a well upon said premises within six months from this date, or thereafter pay to the first party one hundred and sixty dollars annually until said well is drilled, or the property hereby granted is reconveyed to the first party. Seventh. Second party may at any time remove all their property and re-convey the premises hereby granted, which conveyance said first party agrees to accept, and thereupon this instrument shall be null and void,” after the expiration of six months, and until a well is drilled, is a lease at an annual rental of one hundred and sixty dollars, at the option of the lessee only.
    (Nos. 8250, 8251
    Decided April 26, 1904.)
    Error to the Circuit Court of Fairfield county.
    The principal question in each of these cases, viz.: (No. 8250) The Central Ohio Natural Gas & Fuel Co. et al. v. Henry S. Eckert et al., and (No. 8251) The Central Ohio Natural Gas & Fuel Co. et al. v. Lewis Kull, is the interpretation of a gas and oil lease.
    The lease in the first case is in the words and figures following:
    “In' consideration of the sum of one dollar and of the covenants and agreements -hereinafter contained, we, Henry S. Eckert, Catharine Eckert and Clara Eckert, first party, hereby grant unto the Central Ohio Natural Cas & Fuel Co., second party, successors and assigns, all the oil and gas in and under the following described tract of land, and also the said tract of land, for the purpose and with the exclusive right of operating thereon for said oil and gas, together with the right of way, the right to lay pipes over, to use water from, and also the right to remove at any time all property placed thereon by the lessee, which tract of land is situated in the township of Berne, county of Fairfield, and state of Ohio, and is bounded and described as follows (description omitted), containing three hundred and twenty acres, more or less.
    “The lessor shall select a square acre of land on said tract on which the first well shall be drilled, and no other well shall be drilled on said premises without the consent of the lessor.
    “The above grant was made on the following terms:

      “First. Second party agrees to drill a well upon said premises within six months from this date, or thereafter pay to the first party one hundred and sixty dollars annually until said well is drilled, or the property hereby granted is reconveyed to the first party.
    “Second. Should oil be found in paying quantities upon the premises, second party agrees to •deliver to first party in the pipe line with which, it may connect the well or wells, the one-eighth part of .all the oil produced and saved from said premises.

      “Third. Should gas be found, second party ■agrees to pay to first party one hundred dollars annually for every well from which gas is used off the premises.

      “Fourth. First party shall be entitled to enough gas free of cost to heat and light one dwelling house ■on said premises as long as second party shall use ;gas off said premises under this contract, but shall lay and maintain the service pipes at his own expense, and use said gas at his own risk. The said party of the second part further to have the privilege ■of excavating for water and of using sufficient water, gas and oil from the premises herein leased to run the necessary engines for the prosecution of said business.

      “Fifth. Second party shall bury, when requested so to do by first party, all gas lines used to conduct gas off said premises, and pay all damages to timher and crops by reason of the burying, repairing or removal of lines of pipe over the said premises.

      “Sixth. No well shall be drilled nearer than six hundred feet to any building on said premises.

      “Seventh. Second party may at any time remove all their property and reeonvey the premises hereby granted, which conveyance said first party agrees to accept, and thereupon this instrument shall be null and void.
    “In witness whereof, the parties have hereunto set their hands and seals this twenty-third day of January, A. D. 1894.”

      It is signed by both parties, attested by two witnesses, and was duly acknowledged by the lessors and delivered and recorded.
    The lease in the second case is exactly the same as-that in the first, except that it is for one hundred and ten acres, and the payment stipulated in the first clause was fifty-five dollars, and the lessor is a different person.
    In each case the company paid the sum or rental stipulated by the first section of the lease in each of the years, 1895, 1896, 1897 and 1898, and on the. twelfth day of July, 1899, tendered the amount for the year thereafter ending in that month. This the first party, in each case refused to accept, and on the eleventh day of July, 1899, served notice upon the gas company that it had no further right under the lease, and that the first party had elected to and did terminate the lease.
    On the twelfth day of July, 1899, the gas company moved onto the property and undertook to erect a. derrick for the purpose of drilling for oil. The first party then brought suit and obtained an injunction against the gas company doing anything upon the premises. In the petition in each case it was also averred that the lease was a cloud upon the title, and the plaintiff asked that the title might be quieted; and, in each case, for a second cause of action, the plaintiff averred that his signature to the lease had been obtained by misrepresentation and fraud, and a cancellation, upon that ground, was prayed for.
    The circuit court in each case found that after the six months stipulated in the written instrument, it was merely a lease from year to year, at the rental therein stipulated, and might be terminated by either party at the end of any year. A decree was entered quieting plaintiff’s title and perpetually enjoining the company from asserting any estate or interest in the premises or in any way disturbing plaintiffs in the possession of the same.

      Messrs. Nash, Lentz, Addison & Fritter and Mr. George E. Martin, for plaintiffs in error,
    cited and commented upon the following authorities:

      Home Ins. Co. v. Lindsey et al., 26 Ohio St., 348; Raudabaugh v. Hart, 61 Ohio St., 73; Insurance Co. v. Reed, 33 Ohio St., 283; 1 Modern Law of Contracts, sec. 792; 2 Bates on Pleading, 707; Hastings v. McGee, 66 Pa. St., 384; 2 Jones on Real Property, sec. 1598; Barringer & Adams on Law of Mines and Mining, 30; 1 Pingrey on Real Property, sec. 3; 1 Kerr on Real Property, sec. 27; Kelley v. Ohio Oil Co., 57 Ohio St., 317; Williamson et al. v. Jones et al., 39 W. Va., 231; Gas Co. v. DeWitt, 130 Pa. St., 235; Harris v. Oil Co., 57 Ohio St., 129; Edwards v. McClurg, 39 Ohio St., 41; Hosack v. Crill, 53 Atl. Rep., 640; Gas Co. v. Browning, 8 Circ. Dec., 188; 15 C. C. R., 84; Oil Co. v. Crawford, 55 Ohio St., 165; Oil Co. v. Guffey et al., 43 S. E. Rep., 101; Brown et al. v. Fowler et al., 65 Ohio St., 507; Van Etten et al. v. Kelly, 66 Ohio St., 605; Gas & Oil Co. v. Gas & Fuel Co., 64 Ohio St., 573; Wettengel v. Gormley, 160 Pa. St., 559; Lessee of Boyd v. Talbert, 12 Ohio, 212; Webster et al. v. Insurance Co., 53 Ohio St., 558; Thompson v. Christie, 138 Pa. St., 230; Marshall v. Forest Oil Co., 198 Pa. St., 83; McKnight v. Gas Co., 146 Pa. St., 185; Hubbard et al. v. Norton, 28 Ohio St., 116; Hukill v. Meyers, 36 W. Va., 639; Thropp v. Field, 26 N. J. Eq., 82; Smith v. Whitbeck, 13 Ohio St., 471; Henderson
      v. Coal & C. Co., 140 U. S., 27; Garnhart v. Finney, 40 Mo., 449; 12 Am. & Eng. Ency. Law (1 ed.), 75 L.; 2 Kerr on Real Property, p. 1151, sec. 1278; Insurance Co. v. Diggs, 8 Baxt., 563 ; Hill v. Carter, 101 Mich., 158; Core v. Petroleum Co., 43 S. E. Rep., 128; Ammons et al. v. Oil Co., 47 W. Va., 610; Harness v. Oil Co., 49 W. Va., 232; Freeland v. Oil Co., 189 Pa. St., 54; Steiner v. Marks, 172 Pa. St., 400; McCarty v. Mellon, 5 Pa. Dist. Rep., 425; Westmoreland Gas Co. v. DeWitt, 130 Pa. St., 235; Lynch v. Gas Co., 165 Pa. St., 518; Stone v. Oil Co., 188 Pa. St., 602; Mactier v. Osborn, 146 Mass., 399; Foley v. Cowgill, 5 Blackf., 18; Gatling v. Newell, 9 Ind., 572; Bigelow on Fraud, 18, 66; Mayhew v. Insurance Co., 23 Mich., 105; Moore v. Turberville, 2 Bibb, 602; Saunders v. Hatterman, 2 Ired., 32; Farrar v. Alston, 1 Dev., 69; Fulton v. Hood, 34 Pa. St., 365; Anderson v. Burnett, 5 How., 165; Salem India Rubber Co. v. Adams, 23 Pick., 256; Hall v. Thompson, 1 S. & M., 443; 1 Story’s Equity (10 ed.), sec. 207; 1 Story on Contracts (5 ed.), sec. 636; Lewis v. St. Louis, 69 Mo., 595; Wilson v. Jones, 1 Bush, 173; Atkins v. Chilson, 11 Metc., 112; Koch’s and Balliet’s Appeal, 93 Pa. St., 434; McKnight v. Kreutz, 51 Pa. St., 232; Janes v. Oil Co., 1 Pa. Supr. Ct. Rep., 242; Blair v. Peck, Ib., 247; Paschall v. Passmore, 15 Pa. St., 295; Woodland Oil Co. v. Crawford, 55 Ohio St., 161; Roberts v. Bettman, 45 W. Va., 143; 1 Pomeroy’s Equity Jurisprudence, secs. 450, 451, 453; Pomeroy on Specific Performance of Contracts, secs. 378, 379; Perkins v. White, 36 Ohio St., 530; DeCamp v. Hamma, 29 Ohio St., 467; Ross v. Doland, 29 Ohio St., 473; Winchell v. Crider, 29 Ohio St., 480; Yeoman v. Lasley, 40 Ohio St., 190; Parmlee v. Adolph,
      28 Ohio St., 10; Sexton v. Seiberling, 48 Ohio St., 554; Evans v. Consumers’ Gas Trust, 31 L. R. A., 673; 2 Taylor on Landlord and Tenant, sec. 494.

      Mr. M. A. Daugherty, for defendant in error,
    cited and commented upon the following authorities :
    Wood’s Landlord and Tenant, 601, note 2, to sec. 285; Taylor’s Landlord and Tenant, secs. 62, 75; Oil and Gas Co. v. Jennings, 84 Fed. Rep., 850; 3 Washburn on Real Property, 466; Martin v. Jones, 62 Ohio St., 525; Edwards v. McClurg, 39 Ohio St., 41; Brown v. Fowler, 65 Ohio St., 507; Gas Co. v. Tiffin, 59 Ohio St., 420; Gas Co. v. George, 161 Pa., 47; Cassell v. Crothers, 193 Pa., 359; Oil Co. v. Oil Co., 47 W. Va., 84; Van Etten v. Kelly, 66 Ohio St., 605; 1 Washburn on Real Property, 615; Wood on Landlord, 44; 18 Am. & Eng. Ency. Law, 186; 2 Blackstone, 145; 4 Kent, 110; Doe v. Richards, 4 Ind., 374; 2 Washburn on Real Property, 17; Walker’s American Law, 331; Sperry v. Pond, 5 Ohio, 388; Wood’s Landlord and Tenant, 583, 1192; Harris v. Oil Co., 57 Ohio St., 118; Oil Co. v. Crawford, 55 Ohio St., 177; Donahue on Petroleum and Gas, 149; Gas and Oil Co. v. Gas and Fuel Co., 64 Ohio St., 573; Henderson v. Coal & Coke Co., 140 U. S., 25.
   Summers, J.

The contention of counsel for plaintiffs below is, First, that the term granted by each of these instruments was for only six months, and that, thereafter, the gas company could continue to hold only by agreement or consent of both parties. Second, that the gas company having the right to terminate the grant, the first party had the same right by operation of law; and, third, that the grant was upon the express condition of development, and that the company having failed to develop the territory, the grant terminated by the terms of the instrument itself.

In Oil Company v. Crawford, 55 Ohio St., 161, a lease similar to the one in these cases, except that the time within which the oil company was to exercise its rights was limited to five years, and also except in that it contained a forfeiture clause, was interpreted, and it was there held: “First, that such instrument is a lease of the land, oil and gas for the limited time and purpose expressed therein. Second, that the forfeiture is for the benefit of the lessor and at his option. Third, that the promise to drill a well or pay rental cannot be discharged by a mere failure to perform the promise. Fourth, upon failure to drill the well, or instead thereof to pay the agreed rental, such rental may be recovered by action as rental, and need not be sued for as unliquidated damages.”

And in the opinion Burket, J., says: “So that whether the instruments in question are regarded as leases, options or licenses, the plaintiff below is entitled to receive the considerations or rentals agreed to be paid.”

And in the case of Brown et al. v. Fowler et al., 65 Ohio St., 507, where the lease provided that the lessee should have the right, at any time, to surrender the lease, the right or option to terminate the lease was said to be in the lessee, and the fourth paragraph of the syllabus is: “Held also that as the consideration of one dollar paid for the whole lease was also a payment for this clause, the lease is not void for want of mutuality. ’ ’

. It would seem to follow that the option to terminate these leases or to keep them in force by payment of the stipulated rental is in the lessee and that the one dollar and the agreement to pay the rental is a good consideration for the option.

The cases of plaintiffs below seem to have been suggested by, and based upon, the statement made by Burket, J., in Brown et al. v. Fowler et al., supra, on page 523, that, “a tenancy at the will of one party is a tenancy also at the will of the other. ’ ’ Assuming that the statement is correct in cases of mere tenancy at will, it has no application in these •cases. This is no mere tenancy at will. There is a good and valid consideration for the option .granted by these instruments, and it is immaterial whether they are called leases, deeds,- or written agreements. The intention of the parties is to control and it is manifest that it was not the intention of either party that the right granted by the instrument should be a mere license that could be terminated by the grantor at any time.

In Warner v. Tanner, 38 Ohio St., 118, a written instrument like the instruments under consideration in this case, in that it was in the nature of a lease and for no definite term and with an option in the lessee to terminate it at any time, was under consideration, and it was held:

“T and B executed an instrument under seal, signed by two witnesses, and acknowledged by T before a justice of the peace, in which instrument it is covenanted that T leases to B two acres of land (described in the instrument), with the use of water in adjoining lands of T and privilege of conducting it in pipes ‘to a cheese house to be erected on said premises, T reserving enough water to accommodate the stock kept on the farms of T. And B is to bnild a cheese house on the premises, and agrees to pay T for the use of the premises and the privileges aforesaid, thirty dollars per annum on the first day of October, in each year, while the premises shall be used as and for the manufacture of cheese; and when the premises shall no longer be used for such purpose, the premises, together with the privileges aforesaid, shall revert to T, said B having the privilege of removing all buildings and fixtures put upon said premises by him.’ Held, that this was a lease to B for life, provided he continued to use the premises for the manufacture of cheese thereon and paid rents, with the right at any time to remove the buildings and fixtures placed on the premises by _ such lessee. ’ ’

In that case the instrument contained no words of inheritance, and, presumably for that reason, it was held to be a lease for life, only.

In Delhi School District v. Everett, 52 Mich., 314, it is held, in an opinion by Cooley, J.: “A lease to a school district, to hold the property ‘during the time it is used for school purposes,’ is a lease in perpetuity at the will of the lessee; and as the lessee is a corporation, and words of inheritance are not required, the lease, if a present consideration is paid, really operates as a bargain and sale, and conveys a base or determinable fee'. ’ ’

In Foltz v. Huntley, 7 Wend., 210, the syllabus is as follows: “A demise to A B, his heirs and assigns, for such term of time as he pays rent, etc., he, on his part, covenanting for himself and his heirs, etc., to pay rent and perform covenants, is a perpetual lease. The lessor, but not the lessee, may elect, on default, to consider it forfeited.”

In Lowther Oil Co. v. Guffey et al., 52 W. Va., 88, 43 S. E. Rep., 101, it was held that, “Where a grant, of oil and gas, and oil and gas privileges, in consideration of one dollar, without limitation as to time, contains a forfeiture clause in these words: ‘In-case no well is completed within two years from this date, then this grant shall immediately become null and void as to both parties: provided, that second, party may prevent such forfeiture from year to year by paying to the first annually in advance eighteen and seventy-five one-hundredths dollars, at-her residence, until such well is completed, ’ such lease is thereby converted into a lease from year to year, at the option of the lessee, until a well is completed. It would then continue so long as oil or gas is produced in paying quantities.”

See also Alexander v. Tolleston Club, 110 Ill., 65; Gilmore v. Hamilton, 83 Ind., 196; Hosack v. Crill, 204 Pa. St., 97; 53 Atl. Rep., 640.

It is true that at common law a lease at the will of one party was at the will of either, and for the reason that an estate at the will of the lessee, his heirs or assigns, was the equivalent of the fee-simple, which could not-he granted by a lease.

But in this state, at an early day it was provided,, by statute, that permanent leasehold estates, renewable forever, should descend as estates in fee, and they were made subject to he taken on execution as-real estate.

• Why the common law rule is not the law in this-state is well stated by Lowrie, C. J., in Effinger v. Lewis, 32 Pa. St., 367. He says: (368) “This lease-is for one hundred years, with the right in the lessee, his heirs or assigns, to hold the premises at the same rent, as long thereafter as he or they shall think proper; and the counsel insists that, after the hundred years, this becomes a lease at the will of one party, and therefore of either. He urges that ■such was, for several centuries, the common law of England; and that, therefore, it is now a part of our ■common law, and that we have assumed legislative functions in setting it aside.

(369) “Now if the law relied on here depended on -a custom that has passed away, it is not we, but the people themselves, that have set aside the law; and it would be mere usurpation in us to declare that it is still in force.

‘(That law did depend on a custom that has passed away. An estate at the will of the grantee, his heirs and assigns, is equivalent to a fee simple, and such an estate could not, by the old customs, be conveyed without livery of seisin. By the same customs, there could be no livery of seisin under a lease, but a mere taking of possession. Land granted by livery of seisin, without defining the quantity of the ■estate, was treated as a life estate. Where there was merely a delivery of possession, without defining the term, there arose only a tenancy at will. For want of livery of seisin, and the form of conveyance proper to that ceremony, it was necessary to treat an estate at the will of the grantee, as being also at the will of the grantor, else a fee simple might be granted in a form that pertained to the lowest order of estates; and this the customs of that •day did not allow.

“Now and here, it is otherwise. With us, a fee ¡simple may be granted without livery of seisin, as well as a lease for years, or at will.

(370) “There is nothing, therefore, to prevent us from giving effect to this contract according to the intention of the parties. If they meant to create an •estate that should endure so long as the grantee, his heirs and assigns, should desire to keep it at the rent agreed upon, then such is its character; and this silences all the minor objections brought to bear on the title. That they did mean such an estate, is •quite plain from their agreement.

“It is, in terms, a demise and grant to James Crozer, his heirs and assigns, for one hundred years, and as much longer as he and they may think proper, at an annual rent of three pounds, and with leave to him or them to surrender the premises at any time during the term, on giving one year’s notice; and the grantor, for himself, his heirs, executors, and administrators, covenants with the grantee, his heirs and assigns, that they shall quietly enjoy and hold the premises and privileges granted, against the grantor or any person claiming under him.

“It would be darkening counsel with words to attempt to prove that this means to grant an estate to be held and assigned at the will of the grantee and those holding 'under him. The parties have so contracted, and the law does not forbid it.”

The judgment is reversed and the cause remanded to the circuit court for further proceedings.

Judgment reversed.

Spear, C. J., Davis, Shauck, Price and Crew, JJ., •concur.


author: Crew, J.

text:
    The American Strawboard Co. v. The State of Ohio.

      Person or corporation rendering impure any watercourse or stream — May be prosecuted — Under section 6920, Revised'. Statutes — By inhabitants of county through which such-watercourse passes — Offenses against public health — Constitutional law.

    1. A person or corporation, in this state, who- corrupts and renders unwholesome and impure, any watercourse, stream, or-water, to the injury and prejudice of others, may, under favor of sections 6920 and 6921, Revised Statutes, be indicted and prosecuted therefor, in any county into which such-stream or watercourse passes whose inhabitants are injured' and aggrieved thereby; although the refuse or other unwholesome substance causing such corruption and pollution* may have been introduced into said stream or watercourse' in. another county in this state.
    2. Section 6920, Revised Statutes, which provides that certain offenses (nuisances), “shall be construed and held to have-been committed in any county whose inhabitants are or have-been injured or aggrieved thereby,” is a constitutional enactment, and is not in conflict with section 7263, Revised Statutes.
    (No. 8568
    Decided April 26, 1904.)
    Error to the Circuit Court of Sandusky county.
    At the April term, 1902, of the court of common, pleas of Sandusky county, the plaintiff in error, The American Strawboard Co., was by a grand jury of said county, indicted under favor of sections 6920' and 6921, Revised Statutes, for creating and maintaining a nuisance, by the corrupting of a certain stream of water known as the Sandusky river. The-indictment found and presented by said grand jury was as follows:

      “The State of Ohio, Sandusky County, ss.

    “In the court of common pleas, Sandusky county, Ohio, of the term of April, in the year of our Lord one thousand nine hundred and two (1902):
    “The jurors of the grand jury of the state of Ohio, within and for the body of the county of San-dusky, impaneled, sworn and charged to inquire of crimes and offenses committed within the said county of Sandusky, in the name and by the authority of the state of Ohio, on their oaths do find and present, that the American Strawboard Co., a corporation duly' organized and doing business in the state of Ohio, late of Seneca county, on the twenty-fourth day of February, in the year of our Lord one thousand nine hundred and two, with force and arms, in said county of Sandusky and state of Ohio, and from the said day to the day of the finding of this indictment, knowingly and unlawfully did corrupt a certain stream of water, which said stream of water was then, and during all the time aforesaid, running and being in the counties of Seneca arid Sandusky, and running and being in the said county of San-dusky and state of Ohio, and commonly called the Sandusky river, by allowing a great amount of refuse water, containing certain deleterious ingredients to-wit, large quantities of lime, fine particles of boiled straw, and a certain acid, from a certain strawboard mill owned and operated by the said The American Strawboard Co., the same being situated upon lot number five hundred (500) in the Riverview addition' to the city of Tiffin and Seneca county, state of Ohio, and upon the right bank of the aforesaid stream of water called the Sandusky river, to flow and empty into the said Sandusky river, by reason of which, the waters of said Sandusky river are rendered noxious, •unwholesome and impure, to the great damage,, prejudice, and common nuisance, of the citizens of Sandusky county, and of the state of Ohio, there being and abiding, contrary to the form of the statute in such case made and provided, and against the-peace and dignity of the state of Ohio.
    “George H. Withey,

      “Prosecuting Attorney, Sandusky County, Ohio.”

    To this indictment and by way of challenging the-jurisdiction of said court over the subject-matter and the person of the defendant, the accused filed the following motion:
    “The defendant in the above entitled cause, The American Strawboard Co., not intending in any manner, or form, to enter its appearance in, or to the said cause, or plead therein, or thereto, now comes for no purpose other than to state:
    “That the said court has no jurisdiction herein, either of the subject-matter, or of the person of the-defendant.
    “Wherefore the defendant prays judgment.
    “ George E. Seney,

      “Attorney for Defendant.”

    This motion was overruled by the court and the-defendant was put upon trial on said indictment with the result that it was, by the jury impaneled to try-said cause, found guilty, in manner and form as it stood charged in and by said indictment. A motion for new trial was made and overruled and the defendant was sentenced to pay a fine of fifty dollars and the costs, of prosecution, and was ordered toábate said nuisance.

      Error was prosecuted to the circuit court of San-dusky county, where the judgment and sentence of the court of common pleas was affirmed. It is here sought, by this proceeding, to have this judgment of conviction reversed, and this sentence set aside.

      Mr. George E. Seney, for plaintiff in error,
    cited and commented upon the following authorities:

      Foster v. State, 19 Ohio St., 417; Work v. Massie, 6 Ohio, 503; State v. Shelby Co. (Comrs.), 36 Ohio St., 326; State v. Halliday, 63 Ohio St., 165; Buckingham v. Railroad Co., 10 Ohio St., 25; 2 Bates’ Digest, 3158-9; Kelley v. State, 6 Ohio St., 269; art. 11, sec. 26, Constitution; State v. Ferris, 53 Ohio St., 314; art. 1, sec. 10, Constitution; State v. Behimer, 20 Ohio St., 577; Black’s Constitutional Law, 571; Declaration of American Independence; Federal Constitution; Cooley’s Constitutional Limitations, 391; McClain’s Criminal Law, sec. 1177; State v. Lord, 16 N. H., 357; In re Eldred, 41 Wis., 530; Commonwealth v. Lyons, 1 Pa. L. J., 497; State v. Bowen, 16 Kan., 475; Railroad Co. v. Ward, 2 Black, 485; State v. Carter, 27 N. J. Law, 500; State v. Kelley, 76 Me., 331; Riley v. State, 9 Humph., 646; Green v. State, 66 Ala., 40; Guiteau’s Case; Ex parte McNealy, 14 S. E. Rep., 438; Wheeler v. State, 24 Wis., 52; Osborn v. State, 24 Ark., 629; Kirk v. State, 1 Colo., 344; secs. 6919, 6920, 6921, 6922, 6923, 6924, 6925, 6926, 7263, Rev. Stat.

      Mr. George II. Withey; Mr. H. C. DeRan and Mr.. M. W. Hunt, for defendant in error,
    cited and commented upon the following authorities:
    Article 2, sec. 26, Constitution; Robbins v. State, 8 Ohio St., 131; State v. McGraw, 87 Mo., 161; Watt
      v. People, 126 Ill., 9; Carhart v. Gas Light Co., 22 Barb., 297; Seaman v. Lee, 10 Hun, 607; Chapman v. Rochester, 110 N. Y., 273; Breadmore v. Treadwell, 7 L. T. (U. S.), 207; Poynton v. Gill, 1 Rolle Abr., 140; Wood on Nuisances, 802, 3802; Fertilizing Co. v. Hyde Park, 97 U. S., 668; Bates’ Digest, 407; Graham v. Cooper, 17 Ohio, 605; Archer v. The State, 4 West. Rep., 726; 1 Hale P. C., 430-431, 615, 617; Regina v. Michael, 9 C. & P., 356; People v. Adams, 3 Denio, 207; Bulwer’s Case, 7 Coke, 28b; Rex v. Burdett, 4 B. & Ald., 175; Commonwealth v. Andrews, 2 Mass., 14; Commonwealth v. Holder, 9 Gray, 7; Simmons v. Commonwealth, 5 Binn., 619; Simpson v. State, 4 Humph., 461; State v. Pauley, 12 Wis., 537; Commonwealth v. Parker, 2 Pick., 558; Tyler v. People, 8 Mich., 320; Commonwealth v. McLoon, 101 Mass., 1; State v. Johnson, 38 Ark., 568; Green v. State, 109 Ind., 175; Hanks v. State, 13 Tex. App., 655; Hanks v. State, 13 Tex. App., 289; Ex parte Rogers, 10 Tex. App., 655; Adams v. People, 1 N. Y., 173; State v. Conner, 30 Ohio St., 406; State v. Batson, 31 Mo., 343; Mackey v. State, 3 Ohio St., 363; Bishop on Statutory Crimes, 383; Stoughton v. State, 2 Ohio St., 553; 1 Wharton’s Criminal Law, sec. 390; Commonwealth v. Eaton, 15 Pick., 273; Kain v. State, 8 Ohio St., 306; Fouts v. State, 8 Ohio St., 123; Lindsey v. State, 38 Ohio St., 507; Sparf v. United States, 156 U. S., 51; Stanley v. State, 24 Ohio St., 166; 1 Bishop on Criminal Procedure, sec. 63; People v. Hulse, 3 Hill (N. Y.), 309; Manly v. People, 3 Seld., 295; State v. Timmens, 4 Minn., 325; Commonwealth v. Hill, 11 Mass., 136; Mack v. People, 82 N. Y., 235; Lovelace v. State, 12 Lea, 721; Barkhamstead v. Parsons, 3 Conn., 8; Fletcher v. Ryland, L. R. I. Ex., 265;
      Kiser v. Woods, 60 Ind., 538; Nash v. State, 2 Greene, 286; Gile v. Stevens, 13 Gray, 146; Francis v. Schoelhopf, 53 N. Y., 152; Cole v. State, 16 Tex. App., 461; Reed v. State, 16 Tex. App., 586; State of Ohio v. American Strawboard Co., 13 Dec., 373; Stat. Geo. 4, c. 64, sec. 13; Reg. v. Sharpe, Dears., 415; 24 Law Jour., N. S., M. C., 40; 29 Eng. L. & Eq., 532; 1 Bishop’s Criminal Procedure, sec. 65; Attorney General v. Leads, L. R. 5 Ch., 583; Tipping v. Smelting Co., 4 Ch., 608; Attorney General v. Colony Hatch, Lien Asg. L. R. 4 Ch., 148; 2 Pick., 557; Steerman v. State, 10 Mo., 503; Wood v. Steamboat Fleetwood, 27 Mo., 159; Archer v. Indiana, 4 West. Rep., 726; Tippins v. State, 14 Ga., 422; People v. Adams, 3 Denio, 207; 1 Chitty on Criminal Law, 155-191; United States v. Davis, 2 Sumn., 485; The King v. Brisac et al., 4 East, 164; The King v. Johnson, 6 East, 583; 7 Ib., 65; People v. Rathbun, 21 Wend., 528; Railroad Co. v. Commissioners, 31 Ohio St., 338; Heddleston v. Hendricks, 52 Ohio St., 466; secs. 6712, 6920, 6921, 6922, 6923, 6924, 6925, 6926, 7213, 7214, 7231, 7263, Rev. Stat.
   Crew, J.

The pertinent provisions of section ■6921, Revised Statutes, under which section the indictment in this ease was framed, are as follows: “Whoever erects, continues, uses, or maintains, any building, structure, or place for the exercise of any trade, employment or business, * * * which, by occasioning noxious exhalations, or noisome or ■offensive smells, becomes injurious to the health, comfort, or property of individuals, or the public, * * * or corrupts, or renders unwholesome or impure, any watercourse, stream, or water * * * to the injury or prejudice of others, * * * shall be fined not more than five hundred dollars.” By section 6920, Revised Statutes, it is provided that an offense charged under said section 6921, “shall be construed and held to have been committed in any county whose inhabitants are or have been injured or aggrieved thereby. ” It is the contention of plaintiff in error here, that the indictment in this case is insufficient, and that the court of common pleas of Sandusky county was without right or jurisdiction to-try the plaintiff in error thereon, because: 1. It is-claimed that it affirmatively appears from the averments of said indictment, that if any offense was-committed by it, such offense was committed in Seneca, and not in Sandusky, county. 2. That section. 6920, Revised Statutes, which was passed April 22, 1865, is in conflict with and contradicts, section 7263, Revised Statutes, which was passed May 6,1869, and provides that, “All criminal cases shall be tried in the county where the offense was committed,” and therefore, effect must be given to the later enactment. 3. That said section 6920, Revised Statutes,, is unconstitutional and void, and could not operate to give said court jurisdiction of the offense charged,, because, as claimed, the indictment being for an offense committed in Seneca county, said section is-repugnant to, and is in conflict with, that part of section 10, article 1, of the Constitution of Ohio, which ordains that the party accused shall be allowed a trial “by an impartial jury of the county or district, in which the offense is alleged to have been-committed.” These several objections are but different forms of presenting the question of venue and jurisdiction, and we are of the opinion that none of them is well grounded. The fallacy in the first of the above propositions of plaintiff in error, lurks in the premise upon which it is predicated, viz.: that, the offense charged is one committed only and wholly, within the county of Seneca. To give to the averments of this indictment such a construction, is to wholly ignore the particular offense thereby and therein specifically charged. The gravamen of the complaint made in this indictment, is not that the American Strawboard Co. polluted a watercourse known as the Sandusky river; but the gist of the complaint is, that it so corrupted and polluted the same, to the “damage, prejudice and common nuisance of the citizens of Sandusky county.”

While the offense so charged may grow out of, and may result from, an unlawful act of said strawboard company, done or committed in Seneca county, yet the specific crime charged, is consummated, completed and takes effect, only in Sandusky county. Until such consummation, the crime charged was incomplete; and until such time as the rights of the citizens of Sandusky county were actually invaded, the particular crime charged in this indictment was not committed. The crime is deemed to have been committed in the place where the criminal act takes effect. It was said by this court in Robbins v. The State, 8 Ohio St., 166, that “where a criminal act is corñmenced in one county, but consummated in another, the jurisdiction to try the offender is in the county where the criminal act is consummated, or becomes complete.” McClain, in his work on Criminal Law, in discussing the question of venue in cases of criminal nuisance, says, at section 1177: “It is the place where the nuisance is caused, and not the place where the act is done causing the nuisance, that determines the venue.” The doctrine or principle thus announced, by analogy, finds frequent illustration in other cases, especially in cases of homicide.

Robbins v. The State, 8 Ohio St., 131; Simpson v. State, 92 Ga., 41; Commonwealth v. McLoon, 101 Mass., 1; State v. Wyckoff, 31 N. J. Law, 65; 21 Am. & Eng. Ency. Law, 128; State v. Chapin, 17 Ark., 561; Brown on Jurisdiction, sec. 92.

The personal presence of the accused at the place where a crime is committed is not essential to make him liable for its commission. It would seem to be a well settled principle, and an established theory, of the law of criminal procedure, that where one puts in force an agency for the commission of crime he, in legal contemplation, accompanies the same to the point where it becomes effectual. That, in the case at bar, was in Sandusky county. That being the place of consummation of the offense charged, the court of common pleas of that county had jurisdiction. The conclusion thus reached disposes, also, of the second and third contention of plaintiff in error, for having determined that the offense charged in this indictment may rightfully be considered as having been committed in Sandusky county, it follows as a sequence, that section 6920, Revised Statutes, cannot, in this case, be held to conflict with section 7263; neither can it be said to in any manner violate the constitutional guaranty that a person charged with an offense is entitled to be tried therefor in the county in which such offense is alleged to have been committed. Section 6920, Revised Statutes, does not purport to do more than to give to the injured or aggrieved inhabitants of a county the right to institute a prosecution in the county in which such injury or grievance is committed, hence it is but declaratory of the rule of the common law, and in nowise conflicts with section7263, Revised Statutes. But if it should be admitted that section 6920, Revised Statutes, changes the rule of the common law as to jurisdiction, yet we think, that such enactment would be, and was, clearly within the scope, and was but the exercise of, a legitimate legislative power, and is, therefore, constitutional. The sovereign right of a state to enact jurisdictional laws of this kind, though often questioned, has been generally, if not uniformly, sustained; and we have found no case where statutes of this character, when subjected to judicial interpretation, have been held or declared to be unconstitutional.

We find no error in the record in this case, and the judgment of the circuit court is, therefore,

Affirmed.

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


author: Price, J.

text:
    The State of Ohio ex rel. Keller et al. v. Waite, Probate Judge.

      Appropriation of property for_ railroad purposes — Assessment for compensation in probate court proceedings — Railroad may prosecute error in common pleas court — Section 6JfS7, Re- ■ vised Statutes — Undertaking—Mandamus of railroad to deposit compensation — Will not lie, when — Court proceedings in condemnation.

    Where a railroad company institutes and prosecutes in the pro-hate court, a proceeding for the appropriation of property for railroad purposes, and the court approves and confirms the verdict of the jury, assessing compensation to the landowner, the railroad company, under section 6437, Revised Statutes, may prosecute error in the court of common pleas from the judgment of the probate court, within thirty days thereafter, to obtain its reversal, and not having taken possession of the premises appropriated, the company may stay the execution of the judgment so sought to be reversed until the case on error is determined, by giving an undertaking according to law; and while the proceedings in error are pending, accompanied by such undertaking, mandamus will not lie requiring the probate judge to order the railroad company to deposit the amount of the verdict ot pay the same to the landowners.-
    (No. 8690
    Decided April 26, 1904.)
    Error to the Circuit Court of Lucas county.

      Mr, James M. Brown; Mr. W. F. Brown and Mr. Frank G. Crane, for plaintiffs in error,
    cited and commented upon the following authorities:
    Article 1, sec. 19, Constitution; State v. Railroad Co., 17 Ohio St., 103; Burlington v. Railroad, 15 Neb., 367; secs. 6414, 6432, 6433, 6434, 6435, 6437, 6718, 6725, Rev. Stat.

      Mr. Clarence Brown and Mr. Charles 'A. Schmettau, for defendant in error,
    cited and commented upon the following authorities:

      Pancoast v. Ruffin, 1 Ohio, 381; Medical College v. Zeigler, 17 Ohio St., 52; Meily v. Zurmehly, 23 Ohio St., 627; Railway Co. v. Railway Co., 3 Circ. Dec., 566; 6 C. C. R., 521; Railway Co. v. Electric St. Ry. Co., 3 Circ. Dec., 493; 6 C. C. R., 362 (affirmed, 50 Ohio St., 603); Railway Co. v. Barcalow, 2 Circ. Dec., 413; 4 C. C. R., 49; secs. 6414, 6434, 6437, 6438, 6718, 6725, Rev. Stat.
    The facts are stated in the opinion.
   Price, J.

The plaintiff in error commenced an action in mandamus, against the defendant in error, in the circuit court, alleging in substance, that the relators, on and prior to the eighteenth day of June, 1903, were the owners in fee simple of a certain lot in Sprague addition to Toledo, together with the “buildings and appurtenances thereto belonging, and that on that day the Toledo, St. Louis & Western Railroad Co., a corporation having its line of railway in that city, filed its petition in the probate court of Lucas county, the object and prayer of which was to appropriate for railroad purposes, the lot of relators. Summons was issued and served upon them; -that the preliminary hearing, provided for by the statute in such cases, was had, and it was found and determined by the court that the right to appropriate the premises existed; that there was a necessity therefor, and that the parties had been unable to agree upon a price to be paid. Thereupon a jury was duly ordered by the court, to assess compensation for the premises appropriated. A jury was drawn, summoned and impaneled for that purpose, which, on the thirteenth day of August, after due deliberation, returned into court a verdict for $8,411. Each party filed a motion for new trial. These motions for new trial were overruled, and upon the twenty-fifth day of August, 1903, the probate court entered an order approving and confirming the verdict.

Thereafter, on the twenty-first day of September, 1903, the railroad company filed its petition in error in the court of common pleas, for the purpose of obtaining a reversal of the order and judgment of the probate court, and to procure a stay of further proceedings in the probate court, caused to he filed a bond for such stay in double the amount of the judgment, under the provisions of section 6718, Revised Statutes.

It is further alleged, that ever since the entry of the judgment confirming the verdict, the railroad company has failed and neglected and still fails and neglects to pay the relators the amount of the verdict, or deposit the same with the probate judge.

After the expiration of thirty days from the judgment of confirmation, and within ten days thereafter, the relators filed their motion in the probate court, ashing that it order the railroad company to pay or deposit the amount of the verdict, and costs, as required by law. Of this motion the company had due' notice, and it brought to the knowledge of the probate judge that the error proceedings were then pending in the court of common pleas and stay bond given, and on the thirtieth day of September, 1903, the motion was overruled, and the court refused to-make or enter the order prayed for, to which relators excepted. The relators insist that it was the plain and mandatory duty of the probate judge, upon hearing said motion, to have granted the same, and that by reason of the failure of the court to enter the order desired, they suffer and will continue to suffer irreparable injury, for which they have no adequate remedy at law; that they cannot sell or exchange their property so appropriated, and that the refusal of the court casts a cloud and unjust burden upon their premises. It is alleged that defendant in error, Richard Waite, now is, and on all dates mentioned herein, was the duly elected and qualified probate judge of Lucas county, before whom all of said proceedings were had..

The prayer of the petition is for an order on the probate judge to correct the journal of that court,, and that he be required to make and enter the order asked for in the above motion.

• The petition sets out by exhibit, the entry of the order of the probate court overruling the motion of relators, from which it appears that the court found as a fact, that the railroad company, on the twenty-first day of September, 1903, had filed its petition in. error in the court of common pleas, to reverse the order and judgment confirming the verdict, and that on. the twenty-sixth day of the same month it had filed, in that court an undertaking in supersedeas under-section 6718, Bevised Statutes, and on that account, overruled the motion of relators.

The case came on for hearing in the circuit court, and in the opinion of that court, a new bond should, be given as provided for in section 6725, Bevised Statutes, in order to more fully protect the interests-of defendants in error in the common pleas court,, and gave permission to the railroad company to apply to the court of common pleas for leave to give such undertaking, and it was given, and by leave the-same was set up by answer of the company in this case in the circuit court.

Thereupon the circuit court found the latter bond sufficient in law to. stay all proceedings in the probate court, until the petition in error of the railroad company, filed in the court of common pleas, could be-heard, and refused to grant the writ of mandamus.

Did the circuit court err?

It would seem from the mere statement of the case, that its judgment is sound. It is not the purpose of mandamus to control the judgment of an inferior court, nor can an application for the writ be treated as a petition in error to bring in review alleged errors. A judge may be required to exercise ■ a judgment in causes before bim, but not to exercise it in any particular way.

Tbe relator’s motion in tbe probate court brought ■on a controversy. The railroad company having taken the case on error to the court of common pleas, and furnished an undertaking for stay of further proceedings on the judgment confirming the verdict, ■contended that it could not be lawfully required to deposit the condemnation money, or pay it to the landowner, until after judgment in the error proceedings. The company did not take possession of the .property appropriated. Therefore the probate .judge decided, and rendered the judgment, that the landowners were not entitled to the money while proceedings in error were pending. If he is mistaken, it is an error of judgment which cannot be reviewed or controlled by mandamus.

But it is urged in argument that the probate judge had but one course to adopt when the landowner, •thirty days after judgment confirming the verdict, ■demands an order that the railroad company deposit or pay the money, and that is to grant the order, and disregard the error proceedings. That might be true, if no undertaking in supersedeas or for stay of execution of the judgment has been filed and approved. Section 6437, Revised Statutes, provides:

“Either party may file a petition in error in the court of common pleas of the proper county, within thirty days from the rendition of the final judgment in the probate court and the proceedings in error ■shall be conducted as in civil actions; * # *

The right to prosecute error carries with it all the auxiliary accompaniments of proceedings in error, ■such as a suspension of the execution of the judg.ment sought to be reversed, and the holding it in abeyance until the errors assigned are heard. In this respect the probate court is not independent of the law governing error cases, for such “proceedings in error shall be conducted as in civil actions.” We are all familiar with the practice in civil actions, and we can perceive no reason to regard the probate •court as above the restraints which pertain to error proceedings in general.

The railroad company being out of possession of the premises, it would be a harsh rule that, notwithstanding pending error proceedings, accompanied "by ample bond to protect all the rights of the landowner, the company could be compelled to deposit the amount of the verdict and judgment, or pay it •over to the landowner. If deposited with the probate judge, the landowner could lift it and appropriate it. It was so decided in Meily et al. v. Zurmehly, 23 Ohio St., 627. And if the judgment should be reversed and a less verdict returned on a retrial, the company might have some trouble to get back the difference between the two verdicts. Such .a disadvantage is not contemplated by the law.

Again, when we heard counsel in oral argument -of this case, it was stated and admitted in open court, that since the decision of the circuit court, the court of common pleas has heard and decided the error case, reversing the judgment of the probate court, so that there is now no judgment there, and it would be folly to require the probate judge to order the railroad company to deposit the condemnation money. There is none due or payable now, and we would not command that court to do a foolish or •fruitless thing.

We agree with the circuit court and affirm the judgment.

Judgment affirmed.

Spear, C. J., Davis, Shauck, Crew and Summers, JJ., concur.


author: Shauck, J.

text:
    Lancaster v. Hamburger.

      Patron of street railway — Incurs no liability to conductor — Por reporting conductor’s misconduct — III will of reporter not culpable.

    A patron of a street railway company incurs no liability to a conductor by reporting to the superintendent of the company such conductor’s misconduct while on duty, toward a passenger, though in making the report he is prompted by ill will and a desire to secure the conductor’s discharge from the service of the company.
    (No. 8197
    Decided April 26, 1904.)
    Error to the Superior Court of Cincinnati.
    Lancaster brought suit against Hamburger, the substance of the allegations of his petition being, that he had, for a long time, been in the employ of the Cincinnati Street Railway Co. in the capacity of a conductor on its Madison avenue line; that at some time prior to December 31, 1898, the defendant, who had conceived a violent dislike to him, and who had repeatedly threatened to procure his discharge from said employment, did, without excuse, cause, or justification, and actuated solely by a malicious desire to injure plaintiff, falsely and maliciously say to the superintendent of said company that plaintiff, while ■on duty as conductor, had been guilty of misconduct and of violation of the rules of the company, in consequence of which charge plaintiff was, on that day, •discharged from said employment, to his damage in the sum of ten thousand dollars. The defendant, .answering, denied the allegations of malice, and .averred that while he and others were traveling as passengers on the car of said company which was in •charge of plaintiff as conductor, the plaintiff was .guilty' of rude and ungentlemanly conduct towards them, which defendant reported to the superintendent of the company, and that the superintendent, ■after investigating the subject, discharged the plaintiff from the company’s service. The bill of exceptions taken upon the trial is as follows:
    “The plaintiff to maintain the issues on his behalf •offered evidence tending to prove that prior to the month of December, 1898, he was employed by the ■Cincinnati Street Railway Co. as conductor, that on •or about the thirty-first of December, 1898, he was •discharged; that with continued service and good behavior his wages would, had he remained in said employment, have been increased, according to a ■uniform and regular system of promotion then and thereafter practiced by said company and its successor ; that he was not able after his said discharge, though having used diligent and reasonable effort in that behalf, to earn as much as he had earned prior to his discharge; that prior to said discharge, ■during November and December, 1898, the defend.ant made complaint two or three times to the superintendent, or other officer of said street railway company, of the plaintiff and of Ms manner of performing his duties as such servant, of said company, and represented that he had been guilty of misconduct, impoliteness or rudeness and of the-violation of some rule of said company while on duty as conductor, and that he did not perform his duties, as such servant of said company according to certain of the rules of said company then in force; that in consequence of said complaints and representations of defendant the plaintiff was discharged as-aforesaid; that said complaints and representations were induced by the dislike and ill feeling of the defendant for the plaintiff, and a desire to eause his. discharge without justification and were not warranted by the facts; that the defendant said to or in the presence of third persons in November and December, 1898, that he would have the plaintiff discharged, even if it cost him all he was worthy that during said months he threatened and informed the plaintiff that he would have him discharged and that after said threats and avowal of said purpose the defendant complained of the plaintiff to the superintendent, or other officer of said company, with the purpose of causing and procuring his discharge, and did thereby cause and procure his* discharge; that the plaintiff and defendant had two or three disputes during said months of November and December, 1898, in which disputes the defendant had threatened to have the plaintiff discharged, as aforesaid, and on one of the occasions a personal encounter was threatened between the plaintiff and the brother-in-law and friend of the defendant, then in defendant’s company; and that the plaintiff did not violate any of the rules of said company then in force in his dealings with the defendant.
    “And to maintain the issues on his part, the defendant offered evidence tending to prove that tho complaints made by the defendant were made absolutely, entirely and completely without malice and', in the best of good faith and were true in every respect and particular; that the plaintiff had repeatedly been guilty of rudeness and impoliteness-to the defendant and his wife while on duty as conductor, and that he had in reference to the defendant, and in his presence violated the rules of said company governing its servants, or some one or more of' said rules, particularly the rule against permitting-smoking; that no threats were made at any time by defendant with the purpose of causing the discharge* of the plaintiff from the employment of said street railway company, neither to the plaintiff nor to any third person; that the defendant had no ill will against, or dislike of the plaintiff, but on the contrary, that he refrained from complaining of the-plaintiff ón many occasions when the facts would have warranted such complaint; that the discharge-of the plaintiff was caused in no respect by the defendant or by any complaints or representations, made by him, but was caused by the plaintiff’s own. neglect of his duties and by his disobedience of the rules of the said street railway company, and that the plaintiff had violated certain rules of the company in his relations as an employe of the company with the defendant and his wife. ’ ’
    The portion of the charge which is now material is the following instruction, given at the request of the defendant: “It was the duty of the plaintiff' not to conform to any fanciful degree of conduct, nor to observe that degree of conduct which, perhaps, we would like to observe at all times as ideal,, but he was obliged to observe such degree of deportment, decorum, politeness and courtesy as is* common among ordinary men in their dealings with one another; and if he failed to observe such a standard, then he would be guilty of rudeness and the defendant in the case would have a right to make complaint. If, therefore, he was guilty of failure to enforce the rules in respect to smoking or guilty of impertinence, or if in enforcing the rulés of his employers he did so in such a manner that would intentionally cause defendant to be held up to the ridicule of fellow passengers, then if the defendant in the case made complaint, it made no difference what his motive was in making the complaint. He had the right to make the complaint and defendant would be entitled to the verdict. ’ ’
    The jury returned a verdict for the defendant and, the plaintiff’s motion for a netv trial having been overruled, judgment followed the verdict. The judgment was affirmed by the superior court at general term.

      Mr. Charles B. Wilby; Mr. Charles E. Tenney and Mr. Oliver S. Bryant, for plaintiff in error,
    cited and commented upon the following authorities:

      Dial v. Holter, 6 Ohio St., 228; Hayner v. Cowden, 27 Ohio St., 292; Keeble v. Hickeringall, 11 East, 574; Carrington v. Taylor, 11 East, 571; Lumley v. Gye, 2 E. & B., 216; Temperton v. Russell, 1893, 1 Q. B., 715; Allen v. Flood, 1898, A. C., 1; Quinn v. Leathem, 1901, A. C., 495; Steamship Co. v. McGregor, 1892, A. C., 25; 23 Q. B. Div., 598; Frazier v. Brown, 12 Ohio St., 294; Chipley v. Atkinson, 23 Fla., 206; Lucke v. Clothing Cutters’ Association, 77 Md., 396; Barr v. Trades Council, 53 N. J. Eq., 101; Van Horn v. Van Horn, 52 N. J. Law, 284; Graham v. Railway, 47 La. An., 214; Ertz v. Produce

      Exchange, 79 Am. St. Rep., 433; Bohn Mfg. Co. v. Hollis, 54 Minn., 223; Walker v. Cronin, 107 Mass., 555; Plant v. Woods, 176 Mass., 492; Moran v. Dunphy, 177 Mass., 485; Steamship Co. v. McKenna, 30 Fed., 48; Blumenthal v. Shaw, 77 Fed., 954; Connell v. Stalker, 20 Miscel. (N. Y.), 425; Curran v. Galen, 22 N. Y. Supp., 826; Doremus v. Hennessy, 52 Ill. App., 391; State v. Huegin, 85 N. W. Rep., 1046; Moores & Co. v. Bricklayers’ Union, 10 Re., 665; 23 Bull., 48; 46 Am. Law Reg. and Rev. (O. S.), 273; 16 Harv. Law Rev., 237; Perkins v. Pendleton, 90 Me., 166; Delz v. Winfree, 80 Tex., 400; Olive v. Van Patten, 7 Tex. Civ. App., 630; Robinson v. Land Association, 40 S. W. Rep., 843; Jackson v. Stanfield, 137 Ind., 592; Lally v. Cantwell, 30 Mo. App., 524; Morgan v. Andrews, 107 Mich., 33; Dannerburg v. Ashley, 5 Circ. Dec., 40; 10 C. C. R., 558; Mattison v. Railway Co., 5 Dec., 125; 3 N. P., 190.

      Messrs. Kelley & Hauck, for defendant in error,
    cited and commented upon the following authorities :

      Keeble v. Hickeringall (1707), 11 East, 574; Moran v. Dunphy, 177 Mass., 485; Kelley v. Ohio Oil Co., 57 Ohio St., 327; Townsend on Slander and Libel (4 ed.), sec. 42; Racroft v. Tayntor, 68 Vt., 219; Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St., 198; Traction Co. v. Parish, 67 Ohio St., 189; Letts v. Kessler, 54 Ohio St., 73; Frazier v. Brown, 12 Ohio St., 294; Jenkins v. Fowler, 24 Pa. St., 308; Boyson v. Thorn, 98 Cal., 578; Fisher v. Fielding, 67 Conn., 106; Thornton v. Thornton, 63 N. C., 211; Chambers v. Baldwin, 91 Ky., 121;
      Bourlier v. McCauley, 91 Ky., 135; Ency. Law and Proced., 645, 650, 663; Rice v. Albee, 164 Mass., 88; 172 Mass., 172; Cooley on Torts, 690; Hunt v. Simonds, 19 Mo., 583; Anderson v. Public Schools, 122 Mo., 67; Randall v. Hazleton, 12 All., 415; Bowen v. Matheson, 14 All., 499; Bank v. Bank, 27 Vt., 505; Glendon Iron Co. v. Uhler, 75 Pa. St., 467; Payne v. Railway Co., 13 Lea, 507; Heywood v. Tillson, 75 Me., 227; Perkins v. Pendleton, 90 Me., 166; Lally v. Cantwell, 30 Mo. App., 524; Glencoe Co. v. Hudson, etc., 138 Mo., 439; 16 Am. & Eng. Ency. Law, 1109 to 1116; 18 Am. & Eng. Ency. Law, 87.
   Shauck, J.

In addition to the instruction set out in the foregoing statement of the case, the court gave to the jury a general charge, devoting much time to definitions and details, portions of it suggesting that there must have been some evidence’ whose tendency is not clearly shown in the bill of exceptions. The evidence not being before us we are. confined to the statement contained in the record with respect to its tendency. Counsel for the plaintiff now insist that the court erred in the general charge when it instructed the jury that no evidence had been offered by the plaintiff that the defendant, had solicited his discharge. In support of the criticism, it is said that such solicitation might properly be inferred from the evidence tending to show that the defendant bore ill will toward the plaintiff and, that prompted thereby, he had threatened to have him discharged, and had made complaints of his misconduct. The force of this criticism seems to be completely averted by the suggestion that the court might have added that the petition did not charge; that the defendant had made such solicitation.

Not being willing to give apparent approval to all that was said in the general charge, and not desiring to consider questions whose solution would not aid in determining the rights of the parties, we observe that the portion of the charge which related to the measure of damages has been rendered immaterial by the finding of the jury that the plaintiff was not entitled to recover at all, and that with respect to his right to recover the general charge contained nothing to detract from the force of the instruction requested and given, that if the plaintiff was guilty of the misconduct charged in the complaints made by the defendant to the superintendent of the company there could be no recovery, whatever motive prompted the defendant to make the complaints. The rights of the parties depend, therefore, upon the correctness of that instruction.

The ground of the present controversy, though lying near, is not within that covered by Allen v. Flood, 1898, A. C., 1 to 81. That case was reported at such great length that it is difficult to rescue the principles of the decision from the ocean of words in which they are submerged. But it is obvious that in the opinions favorable to the right to recover much weight was given to the fact that Allen, having control of so large a number of the workmen of the employers that he was able, by withdrawing them from their service, to occasion serious injury to their business, used that power to coerce the employers to discharge the complainants, with whose service they were entirely satisfied. In that case a recovery'was denied, and, following counsel for the plaintiff in an examination of the dissenting opinions, it seems quite clear that they proceeded upon considerations which are not presented here. Although a civil liability was held to have been incurred in the somewhat similar case of Quinn v. Leathem, 1901, A. C., 495, where Allen v. Flood was much discussed, it was because of “a combination of two or more without justification or excuse, to injure a man in his trade.” Neither of these cases, nor any of the others cited by counsel for the plaintiff,! can have the effect to disturb the rule generally recognized and well established in this state, that it isj immaterial by what motive one is prompted in thej exercise of a clear legal right or the performance of a duty. Frazier v. Brown, 12 Ohio St., 294; Letts v. Kessler, 54 Ohio St., 73; Kelley v. The Ohio Oil Company, 57 Ohio St., 327. Certainly the motive which prompts one to the commission of a wrongful act may be very material, for it may determine whether the injured party may recover exemplary, or only compensatory damages. The record does not admit a doubt that the defendant exercised a legal right, if, indeed, he did not perform a duty in making complaint to the superintendent of the company of the plaintiff’s misconduct. The evidence tended to show, and the instruction required the jury to find, that the plaintiff had been guilty of the misconduct of which complaint was made. The defendant and his wife were patrons of the street railway company, a common carrier of passengers, and entitled, in common with the public generally, to civil treatment while aboard its cars, and to the benefit of the rules designed for the safety and comfort of passengers. The plaintiff was the representative of the company who came in contact with its patrons, and through whom it discharged some of the most important duties it owed the public. Since it would not be practicable for the company to institute and maintain such supervision of the conduct of all its conductors as would secure the full performance of all their duties toward passengers, the patrons of the road should be encouraged to report their misconduct fairly and justly; nor should a patron of the company be required, by the consciousness of ill will toward the offender, to abstain from making a truthful report of such misconduct. Seeing that such misconduct naturally arouses resentment in all who observe it, it would result, from the contrary rule, that a conductor’s immunity from complaint would be in proportion to the offensiveness of his misconduct.

To prevent a possible misunderstanding of the point decided, it seems proper to say that we have no occasion to determine whether the instruction was as favorable to the defendant as it should have been. It required, as a condition to a verdict for the defendant, that the evidence should show that plaintiff had been actually guilty of the misconduct charged against him. It did not permit the defense to be made out by evidence that the defendant had made the complaints in the belief that they were true, and with < reasonable grounds for such belief. Another question might be presented if the instruction had been requested by the plaintiff and it had been followed by verdict and judgment in his favor. Restricting ourselves to the requirements of the case, we conclude that the instruction was not affected by any error prejudicial to the plaintiff.

Judgment affirmed.

Spear, O. J., Davis, Price, Crew and Summers, JJ., concur.


author: Davis, J.

text:
    The Cleveland, Lorain & Wheeling Railway Co. v. Shanower.

      Engineer and brakeman on same train — In same department and fellow servants — Section 3365-22, Revised Statutes — Superior officer and fellow servant defined — Accidental parting of train — Conductor still in control, when.

    1. An engineer and a brakeman, the latter not being under the actual direction and control of the former, being upon the same train of cars and engaged in the common purpose and employment of operating the same train of cars, are in the same branch or department, and not in separate branches or departments, within the meaning of section 3365-22, Revised Statutes (87 O. L., 149); and they are fellow servants.
    2. The conductor of such train being in control of the same and the other employes thereon, in the absence of rules or proof of a custom or express authority to the contrary, is not deposed from such control by the accidental parting of the train en route, nor is the engineer thereby made the superior in direction and control of a brakeman who happens to be with him on a section of such divided train.
    (No. 8655
    Decided April 26, 1904.)
    Error to the Circuit Court of Tuscarawas county.
    Plaintiff by his petition; after certain formal allegations, alleged that on the twelfth day of December, 1899, he was directed by the defendant, plaintiff in error here, to act as brakeman on one of its freight trains, which train consisted of about thirty-two' cars, a locomotive engine, and caboose; that on said date, while the train was in motion and running northward on said railroad, a short distance north of Flushing, the train of cars parted about twenty-two cars from the locomotive engine, leaving about ten cars and the caboose following the engine and twenty-two cars; that the engineer, with full knowledge that the train had parted, and that the said ten cars and caboose were following, carelessly and negligently permitted the said ten cars and caboose to overtake and collide with the twenty-two cars and the locomotive engine, wrecking the said cars, and thereby injuring the plaintiff to such an extent that his left leg had to be, and was, amputated; that the plaintiff was in the exercise of ordinary care and without fault or negligence on his part; and that the engineer was employed by the defendant and actually had power and authority, as such employe, to direct and control the fireman employed by the defendant and working upon said locomotive engine attached to and hauling said train; and that the plaintiff, as such employe, had no authority to direct and control any employe or person in the service of the defendant.
    This petition was demurred to, for the reason that it does not state facts sufficient to constitute a cause of action in favor of the plaintiff against the defendant. The demurrer was overruled, and, after answer and reply, trial was had in the court of common pleas; and at the close of the plaintiff’s testimony, as well as at the close of all the testimony, the defendant requested the court to instruct the jury to return a verdict in favor of the defendant, which was refused; and the court charged the jury, among other things, as follows: “If you find by a preponderance of the evidence that the engineman actually had power or authority to direct or control the fireman, and that the plaintiff, a brakeman, had no power or authority to direct or control any employe in the branch or department in which he was employed, then I charge you that the engineman and the plaintiff were not fellow servants.”

      The court of common pleas overruled the motion for a new trial, and, on petition in error in the circuit court, the judgment was affirmed. Defendant below prosecutes error to reverse both of the judgments below.

      Mr. J. M. Lessick and Messrs. Healea £ Healea, for plaintiff in error,
    cited and commented upon the following authorities:
    Article 1, secs. 1 and 2, and art. 2, sec. 26, Constitution; 14th amendment to U. S. Constitution; Froelich v. Railway Co., 13 O. D., 107; Maltby v. Railway Co., 13 O. D., 280; Kehle, Admr. v. Railroad Co., ---- (by Judge Wing, U. S. Circuit Court, Northern District of Ohio; Western Div.); Froelich v. Railway Co., 24 O. C. C., 359; Pierce v. Van Dusen, 9 O. F. D., 419; Tullis v. Railroad Co., 175 U. S., 348; Book 44 L. C. P. Co., 192; Harmon v. State, 66 Ohio St., 249; State v. Gardner, 58 Ohio St., 599; Railroad Co. v. Margrat, 51 Ohio St., 130; Hill, Admx. v. Railway Co., 12 Circ. Dec., 241; 22 C. C. R., 291; 12 Am. & Eng. Ency. Law (2 ed.), 971; Whaalan v. Railway Co., 8 Ohio St., 249; Mooney v. Railroad Co., ---- (U. S. Circuit Court, Northern District of Ohio, Eastern Division); Gerwe v. Fireworks Co., 5 Circ. Dec., 616; 12 C. C. R., 420; Crawford v. Railway Co., 13-23 O. C. C., 208; Railway Co. v. Andrews, Admr., 58 Ohio St., 426; Railroad Co. v. Marsh, 63 Ohio St., 236; sec. 3365-22, Rev. Stat.

      Mr. Robert T. Scott and Messrs. Bowers £ Buchanan, for defendant in error,
    cited and commented upon the following authorities:
    Article 1, secs. 1 and 2, and art. 2, sec. 26, Constitution; 14th amendment to U. S, Constitution;
      Slaughter House Cases, 83 U. S., 36; Bradwell v. Illinois, 83 U. S., 130; Tullis v. Railroad Co., 175 U. S., 348; Railroad Co. v. Montgomery, 152 Ind., 1; Pierce v. Van Dusen, 9 O. F. D., 419; Railway Co. v. Margrat, 51 Ohio St., 130; Railway Co. v. Irwin, Admr., 56 Ohio St., 743; act of April 1, 1890, sec. 3; Railroad Co. v. Murphy, Admr., 50 Ohio St., 137; Dick v. Railroad Co., 38 Ohio St., 389; sec. 3365-22, Rev. Stat.
   Davis, J.

This case is not controlled by the' decision in Railway Co. v. Margrat, 51 Ohio St., 130. The facts of that case were held to justify the application of the statutory rule provided in the last clause of section 3365-22, Revised Statutes. Inasmuch as the engineer and the injured brakeman were engaged in distinctly separate enterprises, that is, the operation of separate trains, it was held that the engineer was a person “having charge or control of employes in any separate branch or department” and therefore the superior and not the fellow servant of the brakeman on another train who had “no power to direct or control in the branch' or department” in which he was employed. There may be reasons for doubting the soundness of that interpretation of the words “separate branch or department,” but that question does not necessarily arise here.

The statute is in derogation of the common law, and therefore it cannot be enlarged beyond its terms. It declares that it is intended to add to the liability already recognized by law. It does this in two particulars : First, it makes obligatory upon the courts of this state the superior servant rule, which was first announced in this court in Little Miami Railroad Co. v. Stevens, 20 Ohio, 415, and which was afterwards approved and followed in a number of other cases in this and other states, although it has been repudiated in many others. Second, it creates by force of the statute a relation of superior and subordinate where none exists in fact, and brings it within the operation of the rule mentioned. The contention in this case is to bring the engineer and brakeman within the second particular; for it does not seem to be seriously contended that the brakeman was actually under the direction or control of the engineer. There is in evidence a rule of the railway company which contains this sentence: “"When there is no conductor, or he is disabled, the engineman will have charge of the train, and will be governed by the rules prescribed for conductors.” But there was a conductor on this train, and he was not disabled. Shall we assume that the mere breaking of a link or a coupling pin dethroned him, and delegated from the master to the engineer authority to control the brakeman? The rules which are in evidence disclose no such provision, and we discover no foundation in fact or in reason, for making such an assumption. Upon cogent reasoning this court held in Railway Co. v. Ranney, 37 Ohio St., 665, that the relation of superior and subordinate, as between an engineer and a brakeman, is not created by a rule which requires the engineer to give certain signals, and which also requires brakemen to work the brakes in response to the signals. And much less could such a relation be implied from, or created by, the brakeman signalling to the engineer the information that the train had parted, and by the answering signal of the engineer.

It is conceded that the fireman is subordinate to the engineer; but in.order that this ease may be controlled by the last clause of section 3365-22, Revised ■Statutes, it is necessary that the engineer and the brakeman should be in different branches or departments of service. Whatever may be the exact definition of the words “branch or department,” as used in the statute, it seems clear to us that ■ the engineer and the brakeman were associated in a common employment and in the same branch or department, viz.: that of operating the same train of cars. It does not appear that as between them there was any relation of superior and subordinate, either in fact or in law. Therefore, if there was negligence on the part of the engineer which produced the injury complained of, it was the negligence of a fellow servant. It follows that the plaintiff has neither alleged nor proven a cause of action against the defendant.

It is insisted by counsel that this conclusion involves an injustice to somebody. For example, if we may suppose that the same act of negligence by the engineer, which caused the injury to the plaintiff, also caused an injury to another brakeman on another train; yet the latter may recover under Railway Co. v. Margrat, while the former may not. This is true, and assuming that Railway Co. v. Margrat correctly construes the statute, the result is attributable to the statute itself. While attempting to modify the common law, it has not entirely abrogated it.

The court of common pleas erred in refusing to direct a verdict for the defendant below, and also erred in the charge. The judgment of the circuit court affirming that of the court of common pleas, and the judgment of the court of common pleas are both

Reversed and judgment rendered for plaintiff in error.

Shatjck, Price, Crew and Summers, JJ., concur.


author: Spear, C. J.

text:
    Kenton et al. v. The Board of Education of Mad River Township et al.

      Appeal from, common pleas to circuit court — Non-signing of notice of appeal sufficient, when — Act March 35, 1903 — Applicant need not himself sign appeal.

    1. Under the act of March 25, 1902 (95 O. D., 66), regulating appeals from the common pleas to the circuit court, a notice of appeal filed within three days after the entry of judgment is a sufficient notice as to time.
    2. It is not essential to the sufficiency' of such notice that it be signed by the appellant himself. If the paper purports on its face to be a notice of such appellant expressive of his desire to appeal, and is signed by his attorney of record in the case, it shows a sufficient compliance with the statute.
    (No. 8312
    Decided April 26, 1904.)
    Error to the Circuit Court of Champaign county.
    The plaintiffs in error, residents and taxpayers of Mad River township, Champaign county, some eighty-six in number, commenced action in the court of common pleas of that county against the Board of Education to perpetually enjoin that body from erecting a certain school house in that township, and against the auditor of the county from placing a levy of some eight thousand dollars upon the tax duplicate. On trial the court found for the defendants and dismissed the plaintiffs’ petition at their costs. From this judgment the plaintiffs undertook to appeal to the circuit court and gave bond therefor. Of its own motion the circuit court dismissed the appeal, and the plaintiffs bring error.

      Mr. J. M. Lewis; Messrs. Waite é Deaton and Messrs. Warnock ds Eichelberger, for plaintiffs in error.

      Mr. T. J. Frank and Mr. L. D. Johnson, for defendants in error.
   Spear, C. J.

The order of the circuit court dismissing the appeal was on the ground of “lack of jurisdiction of the court to try the appeal herein, the same not having been perfected according to law.” In determining its correctness we are controlled by the record.

It is shown by the record of the common pleas that at the May term 1902, to-wit: July 21,1902, an entry was made showing that the cause was tried to the court and judgment rendered for the defendants; also that the “plaintiffs give notice of appeal to the circuit court and the bond therefor is fixed at $800.” Also that July 23, 1902, “Notice of appeal filed,” and July 28,1902, “Appeal bond filed.” The notice of appeal is as follows:

‘ ‘ Gabriel Kenton et al., Plaintiffs, v. The Board of Education of Mad River Township, Ohio, et al., Defendants. Cause No. 12253. Court of Common Pleas, Champaign County, Ohio.
‘1 NOTICE.
“Now comes the plaintiffs herein by their attorneys and hereby give notice of their intention to-appeal this cause to the Circuit Court of Champaign County, Ohio.
“J. M. Lewis,
“Waite & Deaton,
“Warnock & Eichelberger,
“Attorneys for Plaintiffs.”

It is insisted by plaintiffs in error that this record shows that they complied with all the requirements, of statute necessary to perfect an appeal, while defendants in error contend that the record fails to show compliance in two particulars: 1, that there-was no notice of appeal filed within the statutory time, and 2, that the notice which was filed is insufficient in law.

The statute in force at the time was the act of March 25, 1902, 95 Ohio Laws, 66, which provides that a party desiring to appeal “shall, within three days after the judgment or order is entered on his docket by the trial judge file a written notice of such-intention,” etc.

It seems to have been the opinion of the circuit court that inasmuch as the record does not affirmatively show that the notice was filed within three days after the trial judge entered the judgment on his trial docket that the filing of the notice of appeal July 23d was not within time. With due respect we-are of opinion that this conclusion does not follow. Either one of two views we think will show that it is. not correct. As matter of fact it does appear affirmatively that the judge ever made such entry. Nor is there any requirement of law which makes. it his duty to enter the judgment on the trial docket. In some jurisdictions it is common to make a brief minute on the trial docket; in others not. And nowhere, so far as we are aware, has it ever been customary for the trial judge to write out on the trial docket the judgment rendered. And nobody would doubt that a judgment announced from the bench and entéred by the clerk on the journal would be absolutely beyond question though not a mark had been made upon the trial docket. The statute quoted seems to have been a hasty and inconsiderate effort in the direction of securing what the writer expected would be an earlier time for the giving of notice of appeal than had prevailed in some jurisdictions under the former statute. But it failed of its purpose and was repealed the following October at the special session. The statute, taken altogether, shows clearly that it cannot have been the intention of the legislature to prevent appeals from the common pleas to the circuit court, but to provide for appeals, and such construction should be given to the whole act, if practicable, as will.carry out that intention. When, therefore, we find an incongruous provision it is our duty to reconcile it, if it can be done, with the other provisions, and carry out the spirit of the entire statute. That spirit manifestly is to provide a reasonable method of procedure for appeals, but not a method impossible of execution, or plainly impracticable. There being no requirement, statutory or otherwise, making it the duty of the trial judge to enter the judgment on the trial docket, and there being no power on the part of the defeated party to compel such entry, the condition respecting that matter is clearly impracticable, and the spirit of the law is, we think, satisfied by the entry of the judgment generally and the filing of the written notice of appeal within three days thereafter.

But if it should be determined that there is such duty to so enter the judgment on the trial docket, then the presumption that the judge performed that duty would follow, and this is not inconsistent with the record since the record does not show that the entry of judgment was not upon the trial docket. It is not stated that the entry which appears was made on the journal nor that it was not made on the trial docket. It is true that the entry is of greater length and more full than is common in jurisdictions where it is customary to make some minute on the trial docket, but that fact is not of consequence, for manifestly, if we conclude that a duty rested upon the judge to enter such judgment on that docket and we are to give effect to the literal wording of the statute, then the whole judgment should be entered there, and the presumption would then follow that this entry of judgment is upon that docket. In either view we are of opinion that the conclusion reached by the circuit court on this proposition was not sound. It is urged by counsel that all presumptions favor the circuit court’s judgment and that this court cannot indulge in presumptions against it. But this suggestion ignores the fact that this court has the same record before it that the circuit court had, and the whole question is one of law arising on the record.

Another question bearing, upon this phase of the case may be noticed in passing. At the time the action below was commenced the notice of appeal required by statute was simply an entry on the journal. Therefore, if the entry of judgment made in the present case is to be held as made on the journal rather than on the trial docket, then the statute in force at the commencement of the action was complied with. Whether the old or the new statute applies to.this case we do not determine.

Was the notice itself insufficient? The complaint is that it was not signed by the plaintiffs themselves. It purports to be a notice by the plaintiffs, and is signed by their attorneys of record. Can anybody doubt that this paper in reality conveyed sufficiently to the adverse parties notice of the intent of the parties appellant ? But it is said that It was insufficient in form. It was followed up five days later by the filing of an appeal bond the sufficiency of which is not questioned There was, therefore, an exercise of due diligence, and a persistent effort to perfect an appeal. Why should a mere technical objection as to form of notice prevail against it? To give full effect to the objection the notice would require the signatures of all the plaintiffs, eighty-six in number. It is suggested by counsel for defendants in error that the requirement as to signatures might possibly have been satisfied had the notice been signed “Gabriel Kenton et al.” But how would this help the matter? While the action is brought in the name of all of the plaintiffs there is no real joint interest. That is, no plaintiff is interested in the desired relief from taxation of his fellow-plaintiff, and this being so, it is difficult to see how Mr. Kenton could bind the others by appending “ et al. ” And if this be so then the proposition of defendant in error is baldly that the signatures of eighty-six persons should be obtained,a requirement manifestly impracticable and unreasonable. It is said that the notice is not that of the parties appellant. But the notice in terms, says that the plaintiffs come and give notice. The statute has no provision requiring that the notice be signed by the party. In State v. Bowman, 10 Ohio, 445, it is held that, under a statute requiring that the county treasurer “shall give bond with four or more freehold sureties,” a bond is good against the sureties who signed it although the treasurer himself neither signed nor sealed it. And in Johnson v. Johnson, 31 Ohio St., 131, it is held that under section 38 of the probate act (now section 6408, Eevised Statutes), “an undertaking in appeal, signed by sufficient sureties, is good without the signature of the appellant thereto.” It is further held that “Where the undertaking is defective in omitting by mistake, some of the conditions required by the section, the court of common pleas has power to allow an amendment of the undertaking. ’ ’ The latter holding is in effect that a failure to show absolute technical compliance with all the terms of a statute is not necessarily fatal to the appeal. In the opinion, by G-ilmore, J., it is remarked that: “Where, therefore, the statute giving the right to appeal, does not in express terms require the appellant to sign the appeal bond, courts never require it.” In the same spirit of reasonable construction we think it just to hold, as we do hold, that where the statute giving a right of appeal does not in terms require the appellant to sign the notice of appeal, the courts ought not to require it, and that a notice purporting in the body thereof to be the notice of the party expressive of his intention to appeal, and signed by his attorneys of record in the case, is a sufficient notice under the statute.

As conclusion we are of opinion that the order dismissing the appeal was erroneous and that the cause should be remanded to the circuit court with direction to reinstate the case on the docket and for further proceedings according to law, and judgment will he entered accordingly.

Reversed.

Davis, Shauck, Price and Crew, JJ., concur.

Summers, J., hot sitting.