author: By the Court.

text:
    The State, ex rel. Lentz et al., Civil Service Commission, v. Edwards et al.

      Office and officers—Civil service—Home rule charter provisions supersede state law, when—Constitutional law—Section 10, Ar- • ■' tide XV, and Article XVIII, Constitution of 1912—Section 486-1 ■ et seq., General Code. '•

    (No. 14499
    Decided June 23, 1914.)
    In Quo Warranto.
    . This was a proceeding in quo warranto brought in this court. The petition of the relators avers that they áre the duly appointed, qualified and acting civil service commissioners of the city of Dayton, appointed under authority of Section 4478, General Code; with authority to hold said offices until their successors are appointed and qualified; that they áre authorized to exercise the powers and duties óf the civil service commission of the city of Dayton as enumerated in Chapter 12, Subdivision 2, Division 5, Title 12, Part First of the General Code, ahd .in the act entitled “An act to- regulate the civil., service of the state of Ohio,” . etc., passed April 28; 1913.-, (103 O. L., 698 et seq.); that notwithstanding theforegoing facts the respondents, Edwards, Oswald and Smith, have usurped and unlawfully hold and exercise said offices, and as such usurping officers assume to do and perform all and singular, the . duties pertaining to the office of the commissioners of the civil service of the city of Dayton and to exclude relators from the emoluments thereof, to the exclusion and against the rights of relators, and to, the great injury of the citizens of the state of Ohio and the city of Dayton; that respondents are illegally usurping said offices and duties under appointment as such civil service commissioners by the commissioners elected under a local charter adopted for the city of Dayton; that said charter was adopted by the electors of said city on the 12th'day of August, 1913, under Article XVIII of the Constitution, of Ohio; that a copy of said charter was duly certified to the secretary of state as required by law; that for the purpose Of ■ establishing departments, divisions and offices and distributing' the functions thereof and all purposes other than nominating'and electing officers to act as commissioners under said charter the terms of said charter took effect oh'the 1st day of January; 1914; that said charter was prepared and ’adopted under authority of Sections 3,7,8 and 9 of Article XVIII of the Constitution of the state of Ohio as distinguished from the other methods of organization of government of municipal "corporactions contained in said Article XVIII; that by the Itéfms of ’said charter' the legislative functioris of said municipality were delegated to a commission of five citizens elected, at large by the people of said city; that the terms of said charter providé further tor the appointment by the commission bf a city' manager, who shall be the administrative head of the city, who shall have all the appointing power under said charter of all directors and departments and all subordinate officers and employes,, classified arid unclassified, by the civil service system adopted under said charter. The petition sets forth th'é pro1-' visions of the charter for civib service.' Sectiori 93 thereof provides that the commission shall appoint three electors of the city as a civil service board to take office January 1, 1914; that the cornrii.issibn of said city appointed respondents as a civil service board bf commissiori with powers and dutiés superseding the powers and duties of the relators, under the state laws as alleged; relators further say that-the respondents and the coirimission rrianagef refused to recognize the relatofs or their authority as1 conferred upon thern as aforesaid, claiming that the provisions of ’ the charter aforesaid, as adopted, superseded and annulled the provisions of the general law on the subject of civil ser,vice. The prayer of the petition, is that the respondents, ■ Edwards, Oswald and Smith, be required to answer by what’, warrant and authority they claim tb have, exercise' and enjoy the office of civil service commissioners of the city of Dáyton; that, they be adjudged not entitled thereto; that judgment of ouster be pronounced against them and that relators may be adjudged to be the only persons entitled to said offices and authority.

      To this petition the respondents have filed a general demurrer.

      Mr. Albert J. Dwyer and Mr. Frank S. Breene, for relators.

      Mr. Lee Warren James, city attorney, and Mr. W. S. McConnaughey, for respondents.'
   By the Court.

The civil service of the state and of its subdivisions is embraced within the executive branch of the ¡government.

• By Section 3 of Article XVIII of the Constitution, as amended in September, 1912, municipalities are given authority to exercise all powers of local-self-government and to adopt and enforce within their limits such' local police, sanitary and other-similar regulations as are not in conflict with general laws.' By Section 7 of that Article a municipality' is given authority to frame and adopt or amend á charter for its government and may; sub-' ject to the provisions of Section 3, exercise thereunder “all powers of local self-government.”

In State, ex rel. Toledo, v. Lynch, 88 Ohio St., 71, it was held that the provisions of the above-' mentioned article of the constitution continue in force the general laws for the government of dities' and villages until changed in one of three modes':-1.' By the enactment of general laws for their amendment. 2. By additional laws to be ratified' by the electors of the municipality to be - affected thereby. 3. By the adoption of a charter by thé* electors' of a municipality in the mode pointed out in the article.

In Fitzgerald v. City of Cleveland, 88 Ohio St., 338, it was decided that under the article referred tó a municipality was authorized to prescribe the form of government and define the powers and duties of the different departments, provided they did not exceed the powers granted in that article nor disregard the limitations of other provisions of the constitution.

It is provided by Section 10 of Article XV of the Constitution that appointments and promotions'in the civil service of the state and the several counties and cities, shall be made according to merit and' fitness, to be ascertained as far as practicable by competitive examinations, and that laws shall be passed providing for the enforcement of that provision.

It would not be contended that the civil service of a city is not a matter of municipal concern nor that the power of regulating that service is not one of the powers of local self-government. Those powers are referred to by Shauck, J., in State, ex rel. Toledo, v. Lynch, supra, as follows:. “They are such powers of government as, in view of their nature and the field of their operation’, are local and municipal in character.” And in Fitzgerald v. City of Cleveland, supra, it is said they “are clearly such as involve the exercise of the functions of government, and they are local in the sense that they relate to the municipal affairs of the particular municipality.”

The manner of regulating the civil service of a city is peculiarly a matter of municipal concern. One of the powers of local self-government is the power of legislating with reference to the local government within the limitations of the constitutional provisions above referred to. As long as the provisions made- in the chárter of any municipality with reference to its civil service comply with the requirement-of Section 10 of Article'XV, and do not conflict with any other provisions of the constitution, they are valid and under the cases referred to-discontinue the general law on the' subject as to that' municipality. That provisions adopted by a city might differ from the general laws within the limits defined was not; only expected blit the very purpose of the amendment was to permit such 'differ: erices ánd make them effective.

The averments of the petition show 'that the charter for the city Of Dayton was framed arid adopted under and in accordance with the terms. of Article XVIII and duly certified to the secretary of state. By the sections of the charter, which are set ■ forth in the petition, it is further shown that the' city of Dayton fully' complied with the letter and the'spirit of Section 10 of Article XV by providirig for appointments and promotions in the civil service of the city according to merit and fitness to be ascertained by competitive examinations.

The principles declared in the case of Fitzgerald v. City of Cleveland; supra, apply here and control the decision of this case. A further discussion of them is unnecessary. -

The demurrer will he sustained and the petition dismissed.

Nicitols, C: J., Johnson, Wanamaker and Wilkin, JJ., concur. :


source: Caselaw Access Project

author:
      By the Court.
      Shauck, J.,

license: Public Domain

text:
    The State, ex rel. Gongwer, v. Graves, Secretary of State.

      Referendum—Elections—Subject of political and not judicial regulation—Powers and duties of state supervisor and inspector of elections—Sufficiency and validity of referenduvt petitions— Section ic, Article II, Constitution of 1912—Secretary of state may reject petitions, when—Effect of false affidavit to part of petition—Section ig, Article II, Constitution..of 1912—Forged signatures to petition—Court cannot order submission of referendum,, when. ■■
    1. Elections belong to the political branch of the government and not to the judicial, and are. not per se the subject of judicial cognizance, but are matters for political regulation.. (The State, ex rel., v. Harmon, 31 Ohio St., 250; Chapman v. .Miller, 52 Ohio St., 166; Randall v. State, ex rel., 64 Ohio St., 57; The State, ex rel., v. Stewart, 71 Ohio St., 55; The State, ex rel., v. Joyce, .87 Ohio .St., 126; Link v. Karb, Mayor,. 89 Ohio St. 326, approved and followed.)
    2. The state supervisor and inspector of elections and deputy state supervisors and inspectors of elections are authorized by law duly enacted by the legislature of Ohio to conduct all public elections in the manner prescribed .by the provisions of Title . XIV, Part First, General Code, and to hear and determine all preliminary .questions pertaining thereto.
    3. The secretary of state, when acting as state supervisor of elections, has the authority to hear and determine the sufficiency and validity of -all petitions filed with him under the provisions of Section 1 c of Article II of the Constitution of this state, and his decision thereon is final, unless such decision has been fraudulently or corruptly made or procured, or unless he has been guilty of an abuse of discretion.

      4. Where it appears from the evidence that any circulators of parts of a petition have been guilty of a systematic course of fraud and forgery in procuring and writing,names thereon, and have wilfully and intentionally sworn to false affidavits attached thereto, it is neither fraudulent nor an abuse of discretion on the part of the secretary1 of'state to reject all parts of the petition procured by such circulators.
    5. Where evidence is offered tending to prove that manv of the parts of a petition, although purporting to be verified by affidavit, were not in fact sworn to, as required by the constitution, the state supervisor of elections may reject any or all such parts, notwithstanding there is a conflict of evidence upon that question, unless his decision in that behalf is so. manifestly and palpably against the weight of the evidence as to show fraud, corruption or an abusé,of discretion on his part.
    6. An affidavit intentionally and knowingly false, attached to any part of a petition, is not a compliance with the provisions of , Section \g. of Article II of the Constitution of the. state, and the part of a petition, to which, such false .affidavit, is attached, must be rejected entirely, the same as a part to which no affidavit is attached, whether it contains genuine names or not, for the reason- that it lacks the affidavit required by the constitution. :
    7;- Where it is admitted that 20,000 names'signed.to a petition requesting the submission of a law passed -by' the general assembly of this state to the approval or rejection of the electors of the state, are forged by the circulators, and within ten days thereafter additional names. are tendered to the -secretary of state and rejected by him, and no action in mandamus,is brought to compel the secretary of state to accept the additional names until a-time so near the next general election, occurring, more than sixty days after the filing of such referendum petition •that issue cannot be joined and the cause heard and determined in time to submit such question to the electors of the state at such election, a court is powerless to afford the relator relief, even though it should appear that the secretary of state abused his discretion-in rejecting the additional-petition.
    (Nos. 14398 and 14399
    Decided October 29, 1913.)
    (No. 14422
    Decided June 26, 1914.)
    In Mandamus.

      Messrs. Squire, Sanders & Dempsey and Messrs' Miller, Thompson S’ Dunbar, for relator.

      Mr. Timothy S. Hogan, attorney general: Mr. Joseph McGhee: Mr. James I. Boulger and Mr. Peter E. Dempsey, for respondent, '
   By the Court.

These three cases involve, substantially the .same questions. The first two were heard together. Owing to the urgent necessity for an early disposition of these two cases, they were not held to await the preparation of an opinion, bu,t, on account of their importance, a short and hurriedly prepared memorandum, giving the major reasons for the conclusions reached, was filed with the entries of the judgments in these cases, and the opinion delayed until the later case was heard and disposed of and the three cases could he reported together.

The principal question and the one common to all of these cases is the question of the authority of the secretary of state to hear and determine the validity of the petitions filed with him. That question is no longer .an open one in Ohio.

This court has repeatedly held that elections belong to the political branch of the government and not to the judicial. That proposition is fully discussed, and the authorities cited and considered, in the case of Link v. Karb, Mayor, et al., decided December, 1913, 89 Ohio St., 326; also in the case of The State, ex rel., v. Joyce, 87 Ohio St., 126, in which it is held, in a per curiam opinion, concurred in by all of the members of this court participating in that case, that “Those matters are not per se the subject of judicial cognizance, but are matters for political regulation and well within the legislative power.”

Section 4785, General Code, provides: “Except, when otherwise provided by law, all public elections in this state shall be conducted according to the provisions, of this title.” This section is part of Chapter; .1, Title XIV, Part First, General Code, entitled “Public Elections.” ■

It is, therefore, apparent that the submission of á law passed by the general assembly to the electors of the state, under the provision of the- amendments to the .constitution authorizing a referendum vote thereon, comes within the operation of the laws of this'1 state relating to all public elections.-

This court has held in the cases of Chapman v. Miller, 52 Ohio St., 166; Randall v. The State, ex rel., 64 Ohio St., 57; The State, ex rel., v. Stewart, 71 Ohio St., 55, and The State, ex rel., v. Joyce, 87 Ohio St., 126, that the decision of the secretary of state, acting as the state supervisor of elections, upon written objections to. certificate of nomination and nomination papers, whether nominated by petition or otherwise, or upon other questions arising in, the course of nomination of candidates, is final, and that in such case .the courts have no. jurisdiction of the subject-matter and any. judgment or order of the court- in reférence. thereto is void. True,.the sta'u e in this particular specifically confers shell jurisdiction on the secretary of state, acting,as .state supervisor and inspector of elections,, but the legislature has provided in Title XIV, Part First .of the General Code, a comprehensive plan and system for the conduct of all elections, general -and special, and- has committed to the state supervisor and inspector of elections and deputy state supervisors and inspectors of elections the duty and authority to conduct the same, and specific enactment has extended their authority to nomination of.-cam didates for office, or any .other question in relation thereto, but as to elections the authority conferred by the legislature of the state upon these officers is general and comprehends the entire subject-matter. These provisions in nowise conflict, with Section-1, Article IV of the Constitution, which vests all judicial power in the Courts of this state.. It is .plain that these amendments to the constitution'do- not provide for any change in the existing system of elections or the officers charged by law with the conduct and control of the same. That appears from the provisions of these amendments.

In Section. Ig, Article II, it is provided that the petition and signatures Upon referendum petitions, ‘ -so verified, shall be presumed to be in all respects sufficient, unless not- later-than forty days before the election, it shall be otherwise proved.” Section lc, Article II, provides that, when proper petitions are filed, “the secretary of- staté shall' submit to the electors of the state for their approval or rejection such law, section or item, in the manner herein provided, at the next succeeding regular or general election in any year occurring subsequent to sixty days after the filing of such petition;” it therefore appears that the language in Section lg, Article IT, “not later than forty -days .before the election,-’ means the next succeeding regular -or. general' election-in any year occurring.subsequent to sixty days after the filing, of the referendum petition. .

Construing these two sections of the amendment® together, it is very plain that a -referendum petition filed sixty and one days before the next regular or general election'in any year requires , the. secretary of state uo submit the law to the approval or rejection of electors at that election, and the proof of invalidity or insufficiency of the petition must be made not later than forty days before that election. This .would leave twenty-one days in which to máke these proofs, clearly not sufficient time for process, anh unless process were waived the courts would be powerless to grant any relief within the time liriiited. Certainly it was not contemplated by these provisions in our, constitution that this important question as' to the sufficiency or validity of referendum petitions should be left to the pleasure of an interested party to waive or insist on due process. Such conclusion is too absrird to require further discussion; The only construction of these two provisions of the constitution.possible is that the secretáry of state, acting as state supervisor and inspector of elections, should have the sartie right and authority to determine this preliminary question that he has to determine other questions preliminary to any other public election.

In view of the fact that this is a political question and not a judicial one, and the further fact that the constitution does riot specifically provide that only the courts of the state shall have the jririsdictiori to hear and determine the same, it follows that it was the intention and purpose fo leave this question to be determined by the same áuthority and in the same manner that similar questions relating to the nomination and electiori of officers and the submission of other questions fo the electors of the state are to be determined.

If these questions were of a judicial nature then that would end the controversy, for under the provisions of Section 1 of Article IV of the Constitution the courts would have jurisdiction without further or specific provision to that effect, either in. the constitution or the laws of this state, but being a political question the courts would not have jurisdiction without special delegation of such authority.

Thé argument that the validity of the election must be proved in the courts of this state, because of the insufficient machinery at the disposal of the secretary of state, must fail for the very good reason that the legislature of the state has specifically conferred jurisdiction upon the secretary of State to hear and determine questions equally important and has specifically provided that his judgment thereon shall be final, and the validity of these laws has been sustained by this court in the several cases hereinbefore cited.

Section 4785, General Code, brings elections of every kind and character within the control of the state supervisor and deputy state supervisors of elections, and, in the absence of specific legislation to the contrary, it is mere quibbling to say that these officers shall have authority to determine certain questions preliminary to an election, but that other questions similar in their nature shall be reserved for the determination of the court, and particularly is this true where the' time for the determination of sjuch questions is not sufficient for the ordinary processes of the court.

It, therefore, follows that the secretary of state, when acting as state supervisor and inspector of elections, not only has the authority to hear and determine these questions^ but it is his absolute duty to protect the state ahd the people of the state from any and all abuse of the privilege of direct legislar tiom * ...

. The demurrers to the first cause of action in the petitions in. the-first two cases are, therefore,- sustained.

■ ¡While this court has .repeatedly held that the state supervisor and deputy state. supervisors and inspectors of elections have full and final authority to hear and-determine questions of a similar nature to the ones' here presented, it by no means follows that the courts have no authority to relieve against abuse of discretion or fraudulent and corrupt judgments entered by these officers. In the case of The State, ex rel., v. Stewart, 71 Ohio St., 55, it was fsaid by this court on page 72, Davis, J., writing the opinion:

f,- “We do not know, and we have not inquired;, which of these contestants is the rightful candidate of, the Republican party. That inquiry ■is not before us in this procéeding. •

‘-The relator.charges that he has no plain or adequate remedy in the ordinary course of the law. If the relator had alleged that the decision of the chief deputy state supervisors and clerks of the election boards of the several counties comprising the district had been fraudulently and corruptly procured he might, pferhaps, be ;said to; have disclosed that he did have an adequate remedy -by the’ ordinary processes ¡of-the law in a cofirt of equity.”

b,- This correctly states the - laAv of -this state,* and, therefore, the-demurrers td the Second cause óf action in' the petition 'in the first two cases áre overruled.

; ■ Upon the charges made in the amended petitions in the first two eases and in the petition in the lást case, that the conduct of the secretary of state was fraudulent, in bad faith, an abuse of discretion and in furtherance of a state-wide conspiracy to prevent a referendum vote- on these laws, the evidence is all one way. In fact, the relator has failed to introduce any. evidence to sustain these charges. On the other hand, all the evidence offered here tends to prove that the investigation by the secretary of state was' conducted-fairly, publicly and in good faith, and that his judgment is sustained by- the evidence before him.

It further appears that the relator and his counsel refused the secretary of state any and all assistance in this investigation and Withdrew from the hearing after evidence was offered, showing beyond all-question that there was fraud iii obtaining the'signatures of the soldiers at the Soldiers’- Home at Dayton, Ohio, in the last above-named' case, and that the affidavits attached to parts of this petition were knowingly and intentionally false.-

f It further appears- that notwithstanding the relator and his counsel withdrew from these hearings he was furnished from day to day with typewritten copies of the stenographic report of the hearing before the secretary of state, and at no time during the continuance of the hearing did the relator or his; counsel call the secretary’s attention tó'any-facts; upon which they now claim to have knowledge that1 would have aided him in arriving at a correct judgment.

It is undoubtedly true that a great amount pf in; competent evidence was offered on this hearing, blit the competent evidence is sufficient to show beyond all reasonable doubt that these petitions in all these cases were permeated with fraud and the affidavits to a large number of parts were knowingly 5and in; tentionally false. Some of the signaturesfre. shown to be forgeries. . Other parts contain names of persons dead long before the petitions were circulated, names of nonresidents of the state and names of persons not naturalized citizens of the? United States. The evidence of the relator himsejit., is particularly important in a determination of This question. He testifies that it was apparent to him that many of the petitions returned to his office,, containing approximately 40,000 signatures, were fraudulent and that “There were forged, names, written by one man without authority, or 'phoney’ names or something of that sort. They were, .in. other words tainted petitions, and I did riot wish to filé any'petition that was tainted.” He further testifies that he employed the highest-priced handwrit-. ing expert in Ohio to assist him in. separating the. good from the bad, and that they rejected an aggregate of 40,000 signatures, none of which was filed with the secretary of state; that his judgment and the judgment of the handwriting expert, as to which, signatures were forged and which were genuine, were predicated entirely upon the examination of the petitions brought to them, and that further than that he made no investigation. In that connection his testimony is as follows: “Apparently the early petitions, one or two or three, were good, and then he;[the circulator] leax-ned how to become crooked' or;-became, crooked,- and the -rest of his petitions were bad.” Notwithstanding he theii knew-.that! these circulators of-these petitions had become corrupt and had tried to impose upon him to the extent of- 40,000 names, he continued them in his employ. He testified, however, that in some instances different iones were employed. In that connectioh he ¡.testified as follows: “Q. Oh.the whole, were these instances few; or substantially the same? A. I believe substantially the same.” Some of these circujators of petitions testified in éffect that they were out to get names-regardless of how they got-them.' -They also -testified that there were many parts- of these petitions,. purporting to have been verified', by. them, to which they were not sworn at all. -

The evidence of M. J. Hancock, who' circulated many of these petitions, is as follows: “Well, we would walk into the office. They would say, ‘HoW many petitions have you got?’ and we would put them- down and say, so many. ‘Sign your “John Hancock” there,’ and that was all there would be of it.

“Q. And then you would get your money? A.' Get my check and walk out.

“Q. . And- there would be no .notary there at'-all? 'Ai- No notary. '

■ ‘“Q. Did you know how many solicitors- you saw treated in that way. A. I could not answer, but possibly four or five; sometimes two or thrée; sometimes five or six.”

The same witness testifies also that he swore to no petitions whatever until about the last day of July, when Mr. Castle said to him that “They are drawing pretty tight lines around here and you will have to swear to these,” and the witness replied, “All right.”

The evidence of Thomas F. Winn is to the same effect. These two men worked together. The same character of evidence was given by other solicitors.

It is true that it is agreed that the officers, said to have taken their affidavits, would swear just as positively to the contrary, yet surely the secretary of state could not be found guilty of fraud, corruption or abuse of discretion by believing some of these witnesses and disbelieving others; but even if the evidence of these circulators in this behalf is untrue, it would only go to show that these petitions were secured by men who were unscrupulous perjurers, determined to .get the relator’s money regardless of the service rendered. In fact, either way this evidence is considered, the parts of the petitions secured by these men are discredited.

It is insisted, however, that all the names upon any part of a petition should not be rejected because one or more is forged, false or fraudulent, and that is true if the verification to that part is not a perjury. These petitions and each separate part thereof depend for their efficiency and their validity upon the affidavit of the circulator that each of the signatures attached to such part was made in the presence of affiant; that to the best of his knowledge and belief it is the signature of the person it purports to be; that he believes the person who signed it to be an elector; that he signed the petition with knowledge of the contents thereof; that each signer signed the same on the date set opposite his name. If it appears from the evidence that the affidavit so attached to any petition or part of a petition is knowingly and intentionally false, then the affidavit is a perjury and can serve no purpose whatever; the whole part of the petition dependent thereon for its validity must fall.

It must be conceded that any part of a petition to which no affidavit whatever is attached would have to be rejected in toto. The constitution requires an affidavit to each part of a petition, and without that affidavit it would be as worthless as blank paper, no matter if every signature thereon were genuine. An affidavit proven to be wilfully, corruptly and intentionally false is worse than no affidavit at all, for it brands the whole part of the petition to which it is attached with the indicia of fraud. If no affidavit is fatal to the whole petition or any separate part thereof, although the lack of such affidavit is due to innocent mistake, oversight or inadvertence of the person circulating the same, and if all the signatures appearing thereon must be rejected without reference to whether they are genuine or not, upon what rule can it be said that it is the duty of the secretary of state, where it appears that the affidavit to any part of a petition is wilfully, corruptly and intentionally false, to determine upon other evidence the genuineness of signatures appearing thereon and, if he finds that there are some genuine signatures upon that particular part, to include them in the count ? Such a holding would be an invitation to commit fraud and perjury.

It is not sufficient that some of the signatures' óft some of the parts of a petition are genuine, nor is it absolutely necessary to the validity of the petition or .any part thereof that every signature thereon should be genuine; but it is absolutely necessary to the validity of the petition or any. part thereof that the circulator, when he makes affidavit certifying the signatures on these petitions, should believ'e that he is stating the truth. If it later appear that some one has imposed upon him and signed Or forged the name of another, the circulator may Still believe in the truth' of his affidavit and it -will support every genuine signature upon it, and only the ones not genuine will be stricken therefrom. But if the circulator knew that a signature appearing on such- part of a petition was not genuine; if he knew that such signature was not written on the petition in his presence; if he knew that the person whose signature it purports to be.was not an elector; if he knew that.the person signing said petition did not sign it with knowledge of its contents, yet, notwithstanding his knowledge, he wilfully, corruptly and intentionally makes a false and perjured affidavit to the contrary, then such affidavit is worthless and the petition or part of -a petition to which it ‘is attached does not fill the requirement of the constitution, and the genuine signatures thereon cannot be counted for' the reason that that part of the petition, lacks the affidavit required by the constitution. ' . ' A

■ The' relator is here seeking a peremptory writ ,of mandamus. It is the settled law of this state that before such a writ will issue the relator must show a clear right to the writ. Instead of this evidence showing that the action of the secretary of state was corrupt and fraudulent and an abuse of discretion, it is clear to a majority of this court that no other judgment could be reached in these cases, and if we were receiving this evidence de novo and determining its weight and sufficiency, a majority of this court would be compelled to the same conclusion reached by the secretary of state, for the reason that the averment in relator’s petition, that these petitions for referendum contained enough genuine signatures to require the secretary of state to submit these laws to the electors of the state for their approval or rejection, is not sustained by the evidence.

There is a further question made in case No; 14422 by the averment in the petition that, notwithstanding 20,000 signatures upon the petition' filed were forged and fraudulent, within ten days after this fact was established, the relator tendered to the secretary of state petitions containing 35,000 additional names, and he refused to receive them. The relator admits that there are 20,000 forged .and fraudulent signatures upon these petitions. The evidence shows that there is a far larger number of such pretended signatures.

Applying the rule as to genuineness of signatures ibove stated and rejecting all parts .of these petitions where it is shown that the affidavits attached thereto were wilfully, corruptly and intentionally false, there would remain but a very few parts of these petitions that would fill the requirement of the constitution.

' The evidence as to fraud in the procuring of names in these petitions is stronger in case No. 14422 than in either of the other cases. In fact, there could not be a stronger showing of wanton, reckless and criminal disregard of the law, of a more direct attempt to prostitute these provisions of the constitution of the state authorizing a referendum vote, than was attempted by the circulators bf these petitions. Any disinterested man who Wants to be fair cannot read this evidence and come to a'ny other conclusion. • There is absolutely no excise-for this particular case being in this court. There was practically nothing left to build upon. The whole foundation was so permeated with fraud and perjury that the superstructure falls of its own weight. ■

'1' The evidence is clear that the relator was not a ■'pkfty to these frauds. He was endeavoring to secure genuine signatures and file valid petitions. He was'willing to pay a fair price to'secure the signatures, but it is equally certain that he was imp'osed upon by the men employed by him for that purpose. The fact, as testified to by him, that he was compelled to throw out petitions containing 40,000 names in cases Nos. 14398 and 14399, and the further fact that it is now admitted by him that at least 20,000 names appearing upon the petitions filed in case'No. 14422 were forged and-fraudulent, demonstrate that the men employed to secure these petitions-absolutely disregarded the law and'wilfully, corruptly and intentionally perjured themselves,' and that they intended to, and almost did, perpetrate the most gigantic fraud ever attempted upon the electors of this state.

Notwithstanding that those interested in Securing this referendum may have been, and undoubtedly were, actuated by proper motives, the fact remains that they called to their assistance many men who had neither character nor integrity and continued them in their employ, after they were fully advised of their dishonest and fraudulent conduct and after it was known to the relator that they had-perpetrated upon him the colossal fraud of returning to his office with the. purpose of filing with the secretary of state parts of petitions containing 40,000 false, forged and fraudulent signatures. Undoubtedly there are upon these petitions the genuine signatures of many electors of this state who honestly and intelligently desired a referendum vote upon these laws, but it is equally clear that many parts of these petitions contained so much fraud, Corruption and perjury that they cannot be taken into account in determining-the number of genuine-signá-' tures filed. -

There is. another reason why no relief could be' given to the relator in this last case. The constitution requires the secretary of state to submit • a' law to the electors for their approval dr rejection at the next general election occurring more than sixty days after the filing of the referendum petitions/" In this case that would be the November election of 1913. These additional names were tendered to the secretary of state within ten days after he found against the validity of the original petitions. If thé' secretary of state abused his discretion, or -was guilty of any fraud in the rejection of these additional names, it was the duty of the relator to apply forthwith to a court of competent jurisdiction to compel, the secretary by mandamus to perform the duty imposed upon him by the constitution and submit, this question to the electors at the general election, specified in the constitution itself. The relator, by, delaying to file his petition for a writ of mandamus until a day or two before that election, could not delay the law from going into operation .for a year next after the general election specified in the constitution. This last petition was not filed until October 24, 1913, and by no possibility could issue be joined or the matter heard and determined by this court in timé for a writ in mandamus to. issue .commanding the secretary of state to do and perfqrm the duties required of him by the constitution of the state. Before such a writ could issue the election designated by the constitution, at which this question must be submitted, would have passed into history and the. secretary could not comply with the commands of such writ; so that, whether the action of the secretary of state in this case was right or wrong, the relator acquiesced in it until too late for this court or any other court to afford him the relief asked.

For these reasons, the writ is refused in each of the above-entitled cases.

Writs refused.

. Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.

, Siiauck, J., dissents front the judgment rendered in the first two cases. He does not participate in the last,

Shauck, J.,

dissenting. In two cases! under the above title original petitions in mandamus' were filed here, one to compel the secretary of state to place upon the ballot to be . voted at the general election in November, 1913, an act popularly known as the Kilpatrick act, and the other to compel him to place upon the ballot an act popularly known as the Warnes act, in order that the electors might, in the exercise of the power reserved in the recent amendments to the constitution, determine whether the said acts should become laws or not. Petitions for the referendum of both of said acts had been filed with the secretary of state in due time, one of them bearing as the signature of .electors 17,916 names more than the per cent, required by the constitution and the other 20,619 in excess of that requirement. In his petition for mandamus the relator first relied upon the proposition that such petitions for referendum having been filed as to both acts in due form and appearing to be signed by a sufficient number of the electors, and neither of them having been impeached by any tribunal authorized to subpoena witnesses or determine the competency of evidence, or to administer oaths,1 or to exercise any other judicial power, the defendant was without authority except to place the , acts . upon the ballot in order that the electors of the state might exercise their reserved right- to determine whether they should become laws.

■ On demurrer,. six of the seven members of this court concurring, it was held that the defendant, although a mere ministerial officer clothed with;no judicial authority whatever, might for himself, de- ■ termine that the petitions for referendum were in- : valid because of the presence of spurious signatures and genuine signatures of persons not electors, and a vote of the electors. That the conclusion of the .¡majority in that regard is erroneous is, I think, . upon that finding might refuse to submit the acts to ■ made entirely clear by the constitutional provision defining the effect of a referendum petition filed with the secretary of state and by an unanswerable ' authority. The constitutional provision, being in • Section 1 g of Article II, is: “The petition and signatures upon such petitions, so verified, shall be pre- ' sumed to be in all respects sufficient, unless not later than forty daj^s before the election, it shall be otherwise proved.” It cannot be otherwise “proved” except by the determination of a tribunal authorized ■ to compel- the attendance of witnesses and the production of all material evidence, to determine its ■ competency and to judicially determine its probative value.

Since an original statement of my reasons for this conclusion might, under the circumstances, ,: make them appear to be peculiarly my own, and as ' I find them very satisfactorily expressed in the au- ' thoritative decision referred to, I quote them from that decision at some length. It is the case of The State, ex rel., v. Olcott, 62 Or., 277. The state of • Oregon is the home of the referendum and its supreme court has a high standing among the courts ’ of the country. The precise question under consideration in the case cited was, whether a court of equity had jurisdiction to determine the legal suf•ficiency of a petition for a referendum and to enjoin the secretary of state from placing a statute, upon the.ballot if it should, judicially determine that the petition was legally insufficient, that is, determine that it was “otherwise proved.” The lawyers co,m-. posing. that court were mindful of, the rule that. a court of equity may not intervene if legal remedies are adequate and that the suit.in equity to enjoin, could not be maintained if the secretary of staters, vested with authority to determine that a petitio,n apparently sufficient was nevertheless legally .insuf-, ficient. And the court recognized that it resulted from that obvious view that the suit in equity must fail if the secretary of state had authority to cletermine that it was “proved” that a petition, ap-, parently sufficient was really insufficient, so that the, logical question there considered was precisely, the question presented in these cases. It demonstrated the impotency of the secretary of state to conduct such inquiry in the following language: “On be-.. half of defendant it is contended that, by the words ‘legally sufficient,’ as here used, it is meant that the pétition shall be regular upon its face, and that, if a. petition, regular upon its face, shall, be presented,’’ the court cannot go behind its apparent regularity, to inquire into its genuineness. We cannot assent to this view. It is conceded that there is no power granted to the secretary of state to call witnesses and examine into the facts to determine the validity of any petition. His powers are not judicial, but, ministerial; and if.this power does not reside in the. courts a petition, consisting wholly of forged.names, can be presented, and the public put to the- expense of printing the measure and:submitting it to a vote, This would' be giving a forced and unnatural construction of the law in favor of fraud. The legislature never contemplated such a vicious construction. We are of the opinion that by the term ‘legally sufficient’ the legislature meant to describe a valid petition, signed by legal voters, and complying substantially, not necessarily technically, with the requirements of the law.” Having thus demonstrated that'the court was authorized to determine the sufficiency bf the petitions because the secretary of state was impotent in that regard, they proceeded to a review of the questions affecting the sufficiency of the petitions in the case before them. That the constitutional provision gave to these petitions prima facie effect of enjoining .upon the defendant the imperative ministerial duty of placing these acts upon the ballot and that they have never yet been challenged before any tribunal authorized to determine their sufficiency in fact, or to purge them of spurious names, are propositions of such obvious soundness as to show without further inquiry that peremptory writs should have issued in both of these cases. Indeed, it appears in the case of Pfeifer et al. v. Graves, Secretary of State, 88 Ohio St., 473, decided October 14, 1913, that this court is unanimously of the same opinion. In that case suit was brought in the court of common pleas to enjoin the secretary of state from placing a legislative act upon the bállot to be voted at the same election in order thát by a referendum vote the electors of the state might determine whether it should or not become ¿'law. That'the injunction in that case should be denied was the conclusion in the court of commbn •¡pleas, in the circuit court and here, but-the propriety of the‘-remedy by injunction to restrain'the secretary-of state- from placing upon the ballot-ah-act of the-legislature,--which is not the proper subject ■of a referendum' vote, was • recognized in alb the courts and' by all the judges. Even the novitiates at the bar are aware that if the- secretary -of state has authority -to-determine a question of this character, the courts are without authority to control him by injunction. Why the majority .in ¡these two cases rejected the view taken by the supreme-court of Oregon, which they accepted in the decision and ..report-in Pfeifer v. Graves, published in-the following Ápril, has not been stated, nor is it within the -range of my-¡conjecture. In view of the decisions of the supreme court of Oregon and-this court, ' in the cases cited, the conclusion of this court with respect to the Warnes and Kilpatrick acts seems to be clearly violative- of both principle and precedent.

It is opportune .to advert briefly to some considerations which were -developed before the secretary ,,of state, and here, after that official started out to ■usurp the authority.of -the courts. To an understanding of his conduct, which seems to have the commendation of the majority of this court, it is not necessary to analyze the tomes which record what transpired before him or to point out the multiplicity of challenges to the same alleged defects in the petition, or. how the apparent ■consideration of three petitions for the referendum of three different statutes were blended so as to create confusion, or to repeat the narratives of thdse ■ investigators” who took copies of petitions, sometimes with the signers’ names incorrectly given, and went out to see how many of the signers, and their residences they could not find, or the testimony which was mere hearsay, or statements concerning facts which from their nature the narrators could not know. The relator’s request that witnesses who personally knew the facts to be contrary to those statements should be called to testify to the truth was met by the defendant’s statement that he was without power to subpoena witnesses—a fact perfectly well known before he started upon the pretended inquiry. It was in general a proceeding conducted in defiance of the rules of orderly procedure by which the competency of evidence and its probative value are determined. The character of this pretended inquiry is sufficiently apparent from the testimony of the defendant himself before us and from the entry which he saw fit to make respecting his conclusion after many days of such pretended inquiry. Both his alleged finding and his testimony show that he did not attempt to determine from the so-called evidence that had been presented to him that it had been proved that these petitions, which apparently bore many more signatures than were required, were not sufficient in fact because of improper signatures which they contained. His finding contains no analysis of the “testimony” to show that the valid signatures to the petitions were insufficient, and he concludes “that all the petitions filed are so permeated with fraud, corruption and crime that they constitute one solid mass of wrongdoing and it ought to be so held.”

In his testimony before us occurs the following: “Q. And you didn’t consider the valid signatures that were upon the petitions that had not been questioned, in making up your decision? A. Well, now, I will tell you. When you asked me if I didn’t consider the valid signatures my conclusion was that the whole thing was so rotten that there was no validity attached to it at all as a whole.”

A ministerial officer, having started upon a career of usurpation, seems to have assumed the jurisdiction which in this state belongs originally only to the court of common pleas, and he also assumed authority to deal with the moral aspects which he supposed were involved in the subject before him and then to exercise the jurisdiction of the probate court by constituting himself the guardian of “the principle of the referendum,” for he finds: “Again, it is clear that the forces who interested themselves in the procuring of these petitions and their filing in this office are the very forces who strongly opposed the adoption of the constitutional amendments that authorized the initiative and referendum, indicating clearly that the only purpose in their whole procedure was to attempt to discredit the principle of the referendum.” It is quite apparent that in his capacity as guardian of the principle of the referendum he has dissipated the estate of his ward, for if the referendum of legislative acts can be defeated by methods which have prevailed in these cases, then certainly the referendum is a delusion.

This record leaves no doubt whatever but that the conclusion just stated was attractive to the defendant and that he reached it only because of its attractiveness, because nothing occurred during the whole examination to impel his mind in that direction.' On the contrary, the voluminous petitions, the long struggle to secure the submission, to a .'refer r endu'm vote; the labor, time and money expended in procuring'petitions largely iri: excess pf; those. required by the constitutional provision, show only the great desire of the petitioners that a referendum upon these acts should be had.

- ' The memorandum filed with the clerk of- this .cóürt by a majority of - its members to explain the •decision naturally partakes largely of the nature :cf the proceedings beforé the defendant. : From the1 wide 'domain of the law and the; supplemental ■system of equity the six who compose the-majority have gathered a fund of learning, so vast that, without confusion, it cannot be exhausted in the determination'of a single case. First, it.-is said that)orie who seeks a writ of mandamus must show a,-clear legal right thereto. This is a correct arid lawyer-like statement of the only test known to the law-iof this state.." With that requirement the relator in the present cases shows his compliance" by presenting petitions for the referendum containing many more signatures of electors than were required, and ■although there were attached to the petition names that'were riot entitled to be-co'unted,' nooftepretends “that the excess above the" six per cent, required was ¡equaled or approached in numberstby those .that were not entitled’ to be counted,. and- no '.tribunal, authorized or unauthorized, has., found that it was proved that 'these petitions were not .sufficient, wit ■may have been’in recogriition- d'f ■ th'e 'relator’s .-full ■.'ebm'pH^Ne with that réquirement that, a- step fur■ther‘."is taken, and it is said “It is a fundamental principle of equity that he who seeks the aid of a court of equity must come into court with clean ■hands.” That this maxim of equity cannot with propriety be applied to a prerogative writ needs no demonstration, for it appears from its own terms. This maxim of equity throughout the generations has contributed most efficiently to'the administration of justice in the field of equity, but it will not submit .to impressment into an alien and menial service. The attempt by which this maxim of equity ■is .sought to be made applicable to the present case might, I think, with entire safety be left to what has been said upon the subject by the majority. They recognize that' so careful was the relator in these cases that'he withheld petitions containing'40,000 names because he suspected the genuineness or validity of' some of them. The suggestion that for thé sake of obtaining signaturés largely in excess ■of those'required by the constitutional provision-he ■ perpetrated or connived at fraud with respect to even one name would hardly commend itself to.one who considers the evidence in the case impartially. Indeed,'such care was taken to present only genuine signatures' to the secretary of state that the real mysteryof the case is, how it came about that there ómdeniably' aré some signatures not entitled to.be •counted.1 The so-called evidence in these, cases does nbt'disclose how they -found their way into the petition1.' One engaged in showing the superiority of the judicial modes of inquiry-is not permitted to¡ indulge in1 conjecture; This mystery must be/left to .théjjistórianá!bf the nether wdrld,/ >' >'■ ■

The opinion which the majority has filed with the clerk attracts some further attention. A court may, if it thinks it worth while, bestow compliments upon the personal character and conduct of a litigant to whom it denies relief because of some imperative and harsh rule of law, but not when it denies him relief because of his misconduct. Both the selection of this maxim of equity and the effort to make it appear relevant to the present case are irreconcilable with the rational administration of. justice.

No progress toward the conclusion announced is made when it is said that the defendant did not act fraudulently, for fraud is not bold, and it was well known when he undertook what he calls an .investigation that he was without authority to subpoena witnesses, or to administer oaths, to contradict the narratives of the “investigators.” Nor does it aid the conclusion announced to say that the defendant did not abuse his discretion, for it is entirely clear from the general principles of the law applicable to the duties of administrative officers that he had no discretion; and this is inade entirely clear in State, ex rel., v. Olcott and Pfeifer v. Graves. When the safe guidance offered by the landmarks of these cases was rejected by the majority, naturally the opinion and the conclusion which it accompanies, but does not sustain, should recall the “Hunting of the Snark,” where is recorded the grotesque failure which attended an attempt at navigation in exclusive reliance upon a “lárge map representing the sea without the least vestige of land.”

It would be difficult to overestimate the consequences which would naturally follow this plain departure from the constitutional provision. Whether it was intended by those who promoted the referendum or not, its undoubted effect is to relieve legislators of a sense of responsibility for the acts which they pass. Philosophically, legislative acts upon which a referendum may be had are only proposals of legislation, and members vote for them with the understanding that if they are not satisfactory to the electors of the state, they may by referendum defeat them. It is pertinent to inquire whose will is represented in these enactments. They now stand upon the books as laws of the state. They do not represent the will of the legislative bodies of the state, and the expression of public opinion with respect to them has been defeated by official action in plain violation of law, permitted by the judgment of this court.

These cases will never be cited by those who delight in the assurance that we have a government of laws. Perhaps it should not have occasioned surprise that when the majority announced in these cases a conclusion which disregarded all the precedents, an unprecedented mode of breaking the information to the public should be adopted by filing an opinion with the clerk instead of the reporter.

The regret with which I at first regarded this unprecedented course in filing an opinion with the clerk has yielded somewhat upon reflection. Since those who control the national reporting of judicial opinions have no arrangements with our clerk for procuring copies, such as they have with our reporter, we may be spared some humiliation by the reflection that the judicial literature respecting this discreditable incident in the history of the state is confined to its own borders.

Since the foregoing statement of reasons for rqy dissent was filed with the clerk, and eight months after the court announced its decisions in the two cases to which it refers, the majority have furnished to the reporter an opinion containing some addition to the statement of views which they then filed with the clerk. With commendable fairness the responsibility for this opinion is distributed equally among the majority by giving it the form of a per curictm. It includes, case No. 14422, in which I did not participate and respecting which I express no opinion.

In the later opinion there is some addition to the volume of that originally filed with the clerk by the majority, but no justification of the conclusions announced. The provision of the statute relating to the duties of the secretary of state when “acting as state supervisor of elections” and the cases cited are, by their express terms, made inapplicable to duties which the constitution imposes upon the secretary in his general character as an administrative officer of the state. It surely cannot be necessary in this connection to say that words respecting provisions and rules of law which are entirely clear do not add to their clearness. They may, however, add to the impressiveness of the admonition .thqt subordination to the law is most important rin. a court which is not otherwise subordinate.


text:
    Meyer v. O'Dwyer et al., Lucas County Liquor Licensing Board.

      Intoxicating liquors—Issuance of licenses—Injunction will b$ refused, when. . ,,
    (No. 14448
    Decided June 26, 1914.)
    Error to the Court of Appeals of Lucas county.

      Mr, Allen J. Seney; Mr. P. J. Phelan and Mr. Frank A. Boyer, for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general; Messrs. Fell & Schaal and Messrs. Kohn, Northup, Ritter & McMahon, for defendants in error.
   By the Court.

On the 7th day of November, 1913, plaintiff, in his own behalf and interest as well as on behalf of a large number of other persons having a common and general interest in the matters involved in the action, filed a petition in the court of common pleas of Lucas county against the defendants as members of the Lucas county liquor licensing board.

He had been conducting a saloon for a number of years in the city of Toledo. In accordance with the provisions of the act entitled riAn act to provide for license to traffic In Intoxicating liquors and to further regulate the traffic therein,” etc. 7103 O. L., 2Í6), he, with numerous other persons, "filed his application for what is Known as a saloon license. Section 9 of Article XV of the Constitution and the act of the legislature above referred to provide that only one person or association of persons out of every five hundred in any locality of this state, within territority where it is authorized, shall be licensed or permitted to traffic in intoxicating liquors, and it is further provided in said act that those who were' engaged in the sale of intoxicating liquors prior to the fourth Monday of May, 1912, or their bona fide successors in title, shall be preferred provided they are otherwise qualified by law. At the time plaintiff filed his application for license and for a long time prior thereto there were in operation in the county of Lucas about six hundred and twenty-six places wherein said business was being conducted as authorized by law.

It was alleged further that the defendants, in pursuance of section 28 of said act, had announced the names of those applicants whom they proposed to license and those whose applications they proposed to deny, and that the name of plaintiff appeared as one of those proposed by defendants to be denied.

It was further alleged that the defendants proposed, according to said announced names, to license the individuals and persons who were then conducting said business at some three hundred and sixty-three different localities, and among that number were some thirty-five or forty corporations, incorporated under the laws of different states, which were not citizens of the United States, and that defendants were about to grant licenses to corporations to the exclusion of natural, persons and to prefer those who had been engaged in the business prior to the fourth Monday of May, 1912; that they were about to discriminate between applicants for licenses by reason of certain standards of moral character which they arbitrarily sought to establish and were about to discriminate in the granting of licenses by reason of that provision of the amended constitution of 1912 and the license' law which provided that only one license should be issued for each five hundred of inhabitants in any political subdivision of the state where the traffic in intoxicating liquors was authorized by law. Plaintiff prayed that defendants be enjoined from .doing any one of. these things and that upon final hearing they be required by the mandate of the court to license all applicants within their jurisdiction who would conform to so much of said license law as was found and determined by the court to be consistent with the constitutions of the United States and of the state of Ohio.

A demurrer to the petition, upon -the grounds that plaintiff had no legal capacity to sue, that the court had no jurisdiction of the subject of the action and that the petition did not state facts sufficient to constitute a cause of action, was filed by defendants and sustained by the court of common pleas, and plaintiff not desiring to further plead or amend, his petition was dismissed and judgment was rendered against him for costs.

On the 21st day of November, 1913, plaintiff filed a petition in the court of appeals asking for a reversal of this judgment. On the 1st day of December, 1913, defendants, by leave of the court of appeals, filed an answer to the petition in error in that court in which they admitted the rendition of .the judgment in their favor and alleged that the city of Toledo had a population of about 181,909, and that on the 5th day of November, 1913, they announced the names of the applicants to whom they proposed to issue licenses to traffic in intoxicating liquors in said city at retail and at wholesale and also the names of the persons, firms and corporations whose applications they proposed to deny, and that since said 5th day of November. 1913, they issued and delivered to three hundred and sixty-three separate and distinct persons, firms and corporations licenses to traffic in intoxicating liquors at retail in said city and that such delivery had been made to the several persons, firms and corporations whose names appeared in said licenses as such licensees. They asked that the petition in error be dismissed.

Thereupon defendants in error moved the court for judgment in their favor on the pleadings in error, and on the 2d day of December, 1913, this motion was sustained and the court of appeals affirmed the judgment of the court of common pleas and the cause was remanded to said’ court upon the ground that the licenses having been issued plaintiff was not entitled to the relief sought. Plaintiff in error is here asking for a reversal of the judgment of the court of appeals.

No objection was made by plaintiff in error to the filing of the answer by defendants in error-in the court of appeals and it appears from the record that counsel did not desire to file a reply to this answer.

If the court of appeals was correct in its ruling on the motion for judgment in favor of defendants in error on the pleadings, the judgment should, be affirmed. It appears from the answer filed in the' court of appeals that all licenses which were permitted to be granted in the city of Toledo had been granted and delivered. This fact was brought into the record in the court of appeals by the answer to the petition in error. An injunction under the circumstances could not have been enforced by the court and would have been ineffectual.; ■ Wie are therefore of the opinion that the court of appeals did hot err in rendering'judgment for the defendants in error upon the pleadings in error, and its judgment is affirmed. . !

Judgment affirmed:.

Nichols, C. J., Johnson, Donahue,-Newman and Wilkin, JJ., concur.


author: Donai-iue, J.

text:
    The State, ex rel. Donahey, Auditor of State, v. Roose, Auditor.

      Constitutional law—Referendum—Act for state highway levy (103 O. L., 863)—Sections ic and id, Article II, Constitution—County auditor—State taxes—Sections 5626 and 6859-1, General Code— Mandamus.

    1, Section 1 of the act of April 8, 1913, as amended April 16, 1913. (103 O. L., 863), is a law providing for a tax levy, and, by thé provisions of Section Id of Article II of the Constitution,- is expressly exempted from the referendum provisions of Section lc of Article II of the Constitution of Ohio.

      2'. Section lc of Article II of the Constitution of Ohio expressly provides for a referendum not only upon any law but any see--tion of a law. All sections of a law not subject to the referendum provisions of this section of the constitution go into immediate effect when approved and signed by the governor.
    3. The duty of a county auditor to place on the tax lists of the county the rate required by law for state purposes, as certified to him by the auditor of state, and to enter the same in one column denominated “state taxes,” as provided by Section 5626, General Code, is a ministerial duty specifically enjoined by law, the performance of which may be required by mandamus.
    (No. 14580
    Decided April 30, 1914.)
    In Mandamus.
    This action was brought in this court on behalf of the state of Ohio on the relation of the auditor of state against the defendant, John E. Roose, auditor of Putnam county, Ohio, praying for a peremptory writ of mandamus to compel the defendant auditor of Putnam county to place on the tax lists and duplicate of Putnam county the tax levied for state purposes by section 1 of the act of April 8, 1913, as amended April 16, 1913 (103 Ohio Laws, 863). The respondent answered, admitting that on the 28th day of May relator certified this tax to him as county auditor of Putnam county; that he failed, refused and still refuses to place this levy of one-half of one mill upon the duplicate of all taxable property of that county, and that he did not notify the relator of his refusal so to do, but did notify other officials of the state of Ohio of his intentions in that behalf, and denied each and every other allegation in the petition. He further avers that the relator is a ministerial officer of the state, that his act of certifying this levy was a ministerial act and that the same was without attthority of law. ITe further avers that the law levying the tax .did not go into effect until ninety days after it was filed in the office of the secretary of state, that the ninety days did not expire until-the 13th day of August, 1913, and that, therefore, this levy did not attach as a lien upon the real and personal property of the state of Ohio for the year 1913. He further avers that, at the time of the commencement of this action, it was impossible for respondent to place this levy upon the tax duplicate of Putnam county and legally impossible to collect the same. A reply was filed, denying every averment of the answer which did not constitute an admission of the allegations of the petition. The issue so joined was heard upon the pleading and the first and second agreed statement of facts. The agreed statements of facts are as follows:
    “First Agreed Statement of Facts.
    “The relator, and the defendant, by their respective counsel, agree that, subject to the right of either party to object to the competency of any part thereof as evidence in the above-entitled action, the following facts may be taken and accepted as true:
    “First. All the allegations of the petition admitted to be true by the answer.
    “Second. Neither the relator nor any other officer of the state knew that the defendant had not placed the levy of one-half of one mill to which the pleadings refer on the tax duplicate of Putnam county until the relator received the certificate and abstract of the semi-annual settlement between the defendant and the treasurer of Putnam county, to-wit, on or about the fourth day of March, 19145’
    “Second Agreed Statement of Facts.
    “The relator, and the defendant, by their respective counsel, agree that, subject to the right of either party to object to the competency of any part thereof as evidence in the above-entitled action, the following facts may be taken and accepted as true:
    “First. That a sum equal to seventeen per cent, of the'total taxes to be collected on all the taxable property for all purposes upon the duplicate of Put4 nam county, Ohio, for the year 1913, was paid' at the December payment, 1913, and prior to the commencement of this action. ■ •
    “Second. That a sum' equal to ninety-five percent. of the first half of the 1913 taxes to be collected on all the -taxable property for all purposes upon the duplicate of- Putnam county, Ohio, for the year 1913, was paid-at the December payment, 19.13, and prior to the commencement of this action.

      Mr. Timothy S. Hogan, attorney general; Mr. Charles Follett and Mr. Clarence D. Laylin, for relator.

      Mr. A. A. Slaybaughj prosecuting attorney, for respondent.
   Donai-iue, J.

The principal questions presented by the pleadings and the agreed statement of facts in this action have been fully; considered and discussed.in the case of The State, ex rel., v. Edmondson, 89 Ohio St., 93, in which; case it was held that the act of April 8, 1913 (103 O. L., 155-158), providing for a levy and to create a fund for the purposes provided in the act passed May 31, 1911 (102 O. L., 333-349), is a valid and constitutional exercise of the authority of the general assembly of this state to levy taxes for state purposes, and that it is not within the power of the budget commissioners of the county to increase, diminish or in any manner change the sum or sums levied by law for such purposes, and, therefore, further discussion of these questions is unnecessary.

While perhaps some of the sections of this act ttiay have been subject to the referendum provisions of'Section lc of Article II of the Constitution, yet- Section Id of Article II expressly exempts laws providing for tax levies from the operation of the preceding provision of the Constitution. There-fore section 1 of this act, providing for a tax levy of one-half of one mill on all taxable property . within the state, went into immediate operation when approved and signed by the governor, , : >,

The contention of counsel that an act containing some sections subject to the referendum will take .effect only as a whole after the expiration of ninety days from the date it is filed in the office'of the secrer tary of state, is not sustained by the provisions of Section lc of'Article II of the Constitution. .That section of the constitution expressly authorizes a referendum upon any section of a law or any 'item of a-'law appropriating money. It follows,, that, such'sections of a law as are not subject to the referendum will go into immediate effect notwithstanding other sections or other items may be sub*ject td the delay incident to a referendum or the right1,to petition therefor. However that may be, the question is no longer of any importance.in this cáse, for no referendum was in fact had upon any section of the law. The law in its entirety was in full force and effect before the auditor had placed the tax levy for state or local purposes upon the tax -lists of the county. It is, therefore, of no importánce whether or not the certificate of this tax was prematurely issued by the auditor of state to the various county aúditors. The fact remains that it was in the possession of the county auditor before that official had in fact completed his tax lists, and before the law required him to complete the same, for it is impossible for the county auditor to make or complete his tax lists before the report of the budget commissioners is filed in his office.

■ The placing of this levy on the tax duplicate is a mere ministerial duty. In the discharge of this duty the county auditor has no discretion. If he did not perform this official duty within the time the law directed him to do it, he must do it now. That this will give rise to confusion and impose additional labor upon the auditor in reforming his tax lists and upon the county treasurer in.collection of the same is unfortunate, but it does not repeal the law, defeat the levy or destroy the lien of the tax upon the property subject thereto. The same conditions would have arisen had he failed to place any other levy for state or local purposes upon the tax lists within the time and manner provided by law, and yet the state or any political division of the state cannot be permitted to become bankrupt merely because of the default of a ministerial officer in the perfortftance of a plain duty specifically imposed upon hirn by law.

It is further insisted on behalf of respondent that by reason of the provisions of Section 5671, General Code, this tax cannot be legally levied for the year 1913, because that section provides that “The lien of the state for taxes levied for all purposes, in each year, shall attach to. all real property subject to such taxes on the day preceding the second Monday of April, annually.” This same objection would apply with equal force to all tax levies for state and local purposes made after the date preceding the second Monday of April of each year. The fact is that practically all levies, especially those for local purposes, are made after this date. Section 5627, General Code, directs the county commissioners at their March or June session to determine the amount to be raised by taxes. Section 5646, General Code, directs the township trustees to determine on or before the 15th day of May annually the amount of taxes necessary for all township purposes, and Section 5649-3a, General Code, directs that on or before the first Monday in June of each year the county commissioners of each county, the council of each municipal corporation, the trustees of each township, each board of education and all other boards or officers authorized to levy taxes within a county, except taxes for state purposes, shall submit or cause to be submitted to the county auditor an annual budget, and under the provisions of Section 5649-3&j as amended February 16, 1914, the budget commissioners are not required to complete their work until-the third Monday of Atigust. While Section 5671, General Code, fixes the date in each year that the lien of the state for taxes shall attach, yet it by no means follows that this ¡requires'that the tax levy shall be made on or-before'that date. In fact all the legislation upon that, subject is in direct conflict with such construction: ■ On the contrary, it is clear that the amount-of taxes is to be determined subsequently, and ¡the .assess-:, ment then relates back’ to the., date at' which' the taxes became a lien. This question is fully- discussed and the correct conclusion ■ reached >in the case of Loomis, Trustee, v. Von Phul et al., 2 N. P., N. S., 423.

Peremptory zvrit fallowed. • i"

Nichols, C. J., Johnson, Wanamaker., Newman and Wilkin, JJ., concur.


text:
    Komito v. The State of Ohio.

      Criminal law—-Embezzlement—Possession—Section 12467, Generaf Code—Larceny—Receiving stolen goods.

    1; The possession referred to in the embezzlement statute;1 Section- ■ 12467, General Code, is more than a mere custodianship,, .or naked possession. It is a possession for the time and purpose exclusive of the owner’s possession.
    2. Where goods are in the possession of the lawful owner, and a. mere custodian, “storekeeper” or watchman takes them and. removes them from the premises wrongfully, and sells the same without authority, such custodian, “storekeeper” or'’watchman is guilty of larceny, and' any one receiving such goods, with! full knowledge, .of - the circumstances, is guilty of knowingly] receiving stolen goods.
    (No. 14463
    Decided June 23, 1914.)

      ■Error to the Court of Appeals of Cuyahoga county.

      Messrs. Westenhaver, Boyd & Brooks; Mr. S. S. Ford and Mr. Max P. Goodman, for plaintiff in error: : .....

      ■Mr. ■Cyrus Locher, prosecuting attorney; Mr. Samueh Doerfler,: assistant prosecuting attorney, and Mr. Charles Follett, assistant attorney-géneral-, for defendant in error.
   By the Court.

The plaintiff in error, Nathan Komito, was indicted and convicted of receiving -stolen' property, knowing the same to have been stolen. Said property was received through one Peter Seiss, a “storekeeper” of The Cleveland Furnace Company. The goods were largely junk, composed of copper and bronze plates, tuyeres and valve seats and the -like. There was no question but what the property involved was, at the time in question, in a storeroom owned and controlled by The Cleveland Furnace Company, and that the property belonged -to- The Cleveland Furnace Company,' and, according to Seiss’ statement, he, Seiss, had no authority whatsoever to sell any of the goods. ’ Komito, however, claims that Seiss told him the contrary. That leaves it as a question of disputed fact for the determination of the jury.

On Seiss’ statement, however, it is quite apparent that his so-called possession of the goods was a mere naked custodianship, similar to that of a night-watchman. If the night-watchman were unlawfully to take rhe goods of his master, the prinoipal, clearly it would be larceny. Even so here, the so-called possession of the goods in question by Seiss is not the legal possession referred to, or required, in the statute. At the time in question The Cleveland Furnace Company was the owner of the goods and the possessor of the goods. Seiss’ taking was larceny, to which he pleaded guilty, and Komito’s getting was clearly receiving stolen property knowing the same to have been stolen.

Courts sometimes indulge in an ethereal refinement between larceny and embezzlement that in .practical operation very often nullifies these statutes. The only benefit accruing from such a policy results in the rather doubtful advantage of the criminal escaping his just punishment.

The jury were fully justified under all the evidence in returning a verdict of guilty against Komito. He has had a fair trial, according to due process of law, and the judgment below, therefore, is affirmed.

Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


author: Johnson, J.-

text:
    Evans et al. v. Mannix, Treasurer, et al.

      Intoxicating liquors—Unlawful sales—Assessments against real estate—Owner not liable, when—Section 6ojz, General Code-Constitutional law.

    Section 6072, General Code, in so far as it requires that the tax on the traffic in intoxicating liquors shall be assessed against real estate, when illegal sales have been made therein by a tenant in possession under a lease' of the premises which was made for a legal purpose other than such traffic, and when such ■illegal sales were made without the knowledge or consent of the owner and without his participation in any way, is unconstitutional and void.
    (No. 14158
    Decided June 26, 1914.)
    Error to the Court of Appeals of Trumbull county.
    This was a proceeding brought in the court of common pleas of Trumbull by Margaret E. Evans and her husband against the treasurer and auditor of Trumbull county. The plaintiffs in error’s petition alleges that they are and have been, since the 3d of November, 1898, the joint owners in fee simple of a certain piece of land in the city of Niles in said county; that on said land a two-story brick building, the ground floor of which is arranged and adapted for business purposes and the second floor of which is arranged and adapted for residence or housekeeping purposes, was erected; that in November, 1908, they rented the above real estate,to one Bowen, from month to month by a verbal contract, for the purposes of conducting a restaurant in the ground-floor room, the said Bowen and his family ^o pccupy the §econc{ floor as a yesidepce; that said Bowen and his family entered into the possession of said premises and continued to occupy them for the purposes aforesaid until the happening of the events complained of.
    The petition then contains allegations that Bowen was afterwards indicted for keeping a place where intoxicating liquors were kept for sale in the premises above referred to and that Bowen afterwards entered a plea of guilty to the indictment; that thereafter the Said auditor, on account of the facts above stated, levied and assessed on the plaintiffs’ premises a proportionate part of the tax upon the trafficking in intoxicating liquors under authority of .Sections 6071 and 6072, General Code, and certified the said assessment with the penalty thereon to the treasurer of the county for collection in accordance with law as a lien upon the plaintiffs’ described real estate. .
    The plaintiffs further allege.that if the premises were at any time during the occupancy thereof by Bowen used for the purpose of keeping a place for. selling .or giving away intoxicating Jiquors in viola-; tion.of .law,, such use was at all times unknown to. the plaintiffs and was. done without their knowledge or consent and'.without the knowledge or consent of. either of them. . ; ( ,,
    Plaintiffs further aver that on said 17th of April, 19ÍQ, the trafficking in intoxicating liquors in. Trumbull county was prohibited by virtue of the votes of the electors of said •county .under the ..provisions of lqw. . . r
    The allegations,, of want of knowledge or consent „ by the plaintiffs were, further amplified in the peti-, tion, followed by the averment that the levy and assessment of said tax on the plaintiffs’ premises is unlawful, illegal and void, and that Sections 6071 and 6072, General Code, under authority of which the tax is levied and attempted to be enforced, in ■ so far as said sections may or do authorize or em-' power or attempt to authorize or empower the levy and assessment of said tax and penalty and the enforcement thereof as a lien against plaintiffs’ prop- ■ erty, are contrary to and violate the provisions of the constitution of Ohio, the guaranties contained in Sections 1, 2 and 19 of the Bill of Rights, and are contrary to Section 1 of the 14th Amendment of the Constitution of the United States.
    The petition contains a prayer for an injunction to prevent the enforcement by the defendant officers ■ of the pretended lien on the plaintiffs’ said real estate.
    A demurrer to the petition was sustained'by the-court of common pleas, and the cause having been appealed to the court of appeals a like judgment was entered by that court. Error is prosecuted; here to reverse the judgments below.

      Mr. L. F. Hunter, for plaintiffs in error. ■

      Mr. A. L. Phelps, prosecuting attorney,- and Messrs. Gillmer, Gillmer & Gillmer; for -defendants in error. -
   Johnson, J.-

The allegations of the petition being admitted by the demurrer the question presented is whether the tax upon the traffic in intoxicating liquors can be assessed against real estate, when illegal sales have been made therein by a tenant in possession, under a lease of the premises, which was made for a legal purpose other than such traffic, when such illegal sales were made without the knowledge or consent of the owner and without his participation in any way. Section 6071, General Code, provides for the assessment of the tax and Section 6072 provides: “Such assessment, with any penalty thereon, shall attach and operate as a lien upon the real property on and in which süch business is conducted, as of the fourth Monday of May each year, and shall be paid at the times provided for by law for the payment of taxes on real or personal property within this state, to-wit: one-half on or before the twentieth day of June, and one-half on or before the twentieth day of December of each year.”

It is unnecessary to refer to all of the cases in which the legislation involved in this case has been examined. An instructive review of the history of the state’s treatment of the subject may be found in The Simon Linser Brewing Co. v. The Village of New Concord et al., 89 Ohio St., 135, in which a different section of the act was involved, and in which it was held that a fine resulting from the violation of a local option law prohibiting the sale of intoxicating liquor may be charged upon the real property where the unlawful act was committed when the owner has knowledge of the violation, although the terms of the section in their unrestricted meáning embrace the real property of one who is without such knowledge.

The exact question made here has not been decided by this court, although in the early cas,es? in which the validity of the.tax itself and of the lien on the real estate in which the business is conducted are sustained, it is referred to. Adler v. Whitbeck, 44 Ohio St., 539-575; Anderson v. Brewster, 44 Ohio St., 576. In the latter case it was held, that; under, the Dow law a valid lien is created on real estate when the tenant holds under a lease, written or parol, made after the passage of the statute. • r

In that case the tenant “occupied the premise? only as a monthly tenant” .and had been “engaged in the business of trafficking in intoxicating liquors in the premises for several months.” • It is. pointed out in the opinion that the owner could have térn^y nated the tenancy and recovered possession of. tfie premises at any time after the statute was passed. The court say: “If, with eyes open, he provide? a building or premises for another to. conduct q business marked by the constitution and laws.qs. a source of evil, and opposed to public policy, fie should.not be permitted to evade the operation;of the statute.”

In The Pioneer Trust Co. v. Stich et al., 71 Ohio St., 459, it was held: “By force of our tax laws,, the assessments upon .the business of trafficking in intoxicating liquors which it is the duty of the icounty auditor to place upon the tax duplicate, as. well those for previous years which may have,.beep omitted as those for the current year, become, a lien upon the property in and on which such traffic has been conducted, superior to that of a mortgage given and duly entered of record prior to the entry of such tax on the duplicate and prior to the her ginning of such traffic on the premises. Such priority of lien is not affected by the fact that at the date of such mortgage no sale of liquor was ever known • to have taken place on the premises; that the premises were not adapted to the traffic; that the mortgagee had no knowledge at any time of any sale of liquor thereon, or of any intention to sell on the part of any one, and that he loaned his money in good faith and had no reason to suspect or fear that any sales of liquor would ever be made on the mortgaged premises.” In that case the owner of the fee of the premises, who was the mortgagor, made the sales which were the basis of the levy of the tax. The ground upon which the decision in that case was placed was that the assessment upon the traffic is a tax which, if omitted, may be entered upon the duplicate and collected as other taxes, and that, by the statutes touching the subject, the lien of the state for taxes levied for all purposes in each year attaches to all real property subject to such taxes and continues until such taxes with any penalty shall be paid; that in all judicial sales the court shall order taxes, penalty and interest thereon to be discharged out of the proceeds of the sale, and that by the same provisions the state is not only given a lien for all unpaid taxes but that such lien is given precedence over all others.

It is insisted by the defendants in error that the case just referred to is decisive of the case we have here. We think not. In that case the owner of the fee, in whose name the property stood on the tax duplicate, himself used the premises for the sale and brought himself and his property clearly within the provisions of the law. There could be no doubt as to the validity of the levy of the tax on the property of the owner who thus made the sale, and the question in that case was one of priority only, between the lien of the state and the lien of the mortgage. The validity of the tax lien having been established, the statutes for the collection of taxes themselves determined the question of priority and gave that priority to the tax lien. In this case a different question is presented. When the owner of property is wholly innocent in the matter, has not given his consent and has not the knowledge of any violation of the statutes with reference to the traffic or of any other act which if done with his knowledge and consent would make the property the subject of the tax, may the tax be levied and assessed against it ? If it may lawfully be, then its lien would be entitled to the same priority as other taxes.

In the consideration of the contention of plaintiffs in error, that the enforcement of the lien of the assessment under the circumstances set out in the petition is a violation of the constitutional guaranties referred to, we are mindful that statutes providing for taxation and the collection of taxes are not affected by those provisions of the constitution in the same manner as are statutes relating to other matters. The taxing power inheres in the sovereignty. It is necessary to the existence of the government, and when fairly exercised no one has any right to complain. It is well settled that in the raising of the general revenue the requirement of equality and Uniformity must be followed, but that this does not preclude the legislature from adopting other niethods of taxation in' the exercise' of the police power and, when required, for the public good. 1 Cooley on Taxation (3 ed.), 254; Western Union Telegraph Co. v. Mayer, Treas., 28 Ohio St., 521; Anderson v. Brewster, 44 Ohio St., 585. It'is 'equally well recognized that such provisions must not be arbitrary or unreasonable and must not unnecessarily interfere with the rights of citizens. The very existence of such broad and elastic powers in the state imposes the duty on the courts to scrutinize their exercise to the end that guaranteed rights, of citizens may not be improperly infringed.

This court applied these principles in Mirick v. Gims, Treas., etc., 79 Ohio St., 174, in. which a tax lien was asserted under circumstances of notice and knowledge similar to those in this case.

' In that case it was held that Section 2833, Revised Statutes, as amended and in effect April 4, 1906 (98 O. L., 87), so far as it requires the levy of the per capita tax on dogs upon the real estate Upon which the dogs may have been kept and harbored, and the collection thereof as other taxes upon real estafe, notwithstanding the owner of such real estate had no knowledge that the dogs had been harbored thereon and was not consenting thereto, is an, arbitrary and unreasonable exercise of police power not required by the general' welfare and 'therefore unconstitutional and void.

. We think the petition in this case stated a good ..cause of action and the .demurrer should have been overruled,

The judgments below will be reversed and judgment for plaintiffs.in error.

Judgments reversed and judgment for plaintiffs in error.

Nichols, C. J., Shauck, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    Renschler v. The State, ex rel. Hogan, Attorney General.

      Burial insurance—Undertaker executing contracts with mutual notes—Subject to state regulation, when—Section 670, General Code. .

    (No. 14518
    Decided June 26, 1914.)
    Error to the Court of Appeals of Franklin county.

      Messrs. Axline, Betts & Kerns, for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general; Mr. Prank Davis, Jr., and' Mr. Chas. J. Pretzman, for defendant in error.
   By the Court.

In February of 1913, the relator, Timothy S. Hogan, attorney general of Ohio, filed his petition in quo warranto in the court of appeals of Franklin county against John Renschler, resident of Hancock county, Ohio, charging the respondent with unlawfully exercising the franchise and privilege of writing life insurance.

It appears from the agreed statement of facts set forth in the record that the respondent, Renschler, was, at the time of the institution of this action and at the time of making the contracts hereinafter mentioned, engaged as an individual in the undertaking business in the city of Findlay, Hancock county, Ohio; that in connection with such business and to further its volume, Renschler, during the last two years, not acting as a corporation, partnership, firm or association, or as the agent or member of any such, but wholly in his individual capacity as a natural person, entered into certain written contracts with certain other parties, of the following nature:

The contract was termed a mutual note whereby the party of first part promised to pay to respondent during the natural life of first party the sum of fifteen cents (termed “interest”) on or before the 10th of each month in advance. The face value of the note varied from $50 to $100. The contract or note provides that if the said first party be not in default at time of his or her death, the second party, Renschler, agrees to furnish funeral for said first party.

There are many stipulations in the so-called mutual note, among which are these provisions:

1. That any person in good health from one to sixty years of age can purchase one note as follows: one to ten years of age shall pay eight cents interest per month on a $50-note contract; ten to sixty years of age shall pay fifteen cents interest per month on a $100-note contract.

. 2. . The object of. the note is to provide the holder with a respectable burial, .such funeral to be - furnished and conducted by the respondent his heirs Or assigns only., < ■ '•••.'

1 3. After period of one year’s payments has been completed; .the holder may discontinue payments and will receive a credit slip* which slip may be applied on his or her funeral expenses, provided the funeral be conducted by respondent. '• •'

., 4.'' Note not payable in cash and'redeemable for ite.face in such goods as handled by the respondent to b'e .selected by his ór hen heirs, or-friends' making., funeral arrangements.- • •’ - ;•'" ■ •■••

5:. ■. If holder'.of' note was not in good health at time, of’issue or if obtained through fraud, itahall be deemed void. .; ■ •

; It further appears from the'agreed'statement-of facts that the respondent' has entered into a number of such contracts, all, however, confined to1 the territory .within which he operates as undertaker; that he is receiving monthly payments, termed .“interest,” on mutual notes from many parties, both young and old, and has been ready, able and willing to comply with the terms'of the contract,"and as an individual undertaker has in fact complied with the terms thereof on the death of any holder of such- mutual, note and is now furnishing funeral outfits whenever any of the holders of such notes decease,

It is also made to appear that the: respondent has never, applied, for or received any license or permission to transact any insurance .business; from the superintendent of insurance of Ohio, or. from any other officer or branch of the state government, nor has he made any report of the nature or extent of his business to the said insurance department.

In February, 1914, the court of appeals of Franklin county, on the foregoing agreed facts, entered its decree of ouster against the respondent, and error was thereupon prosecuted by respondent ,(o this court.

Held,: The so-called mutual note is clearly insurance. By all the tests to which the contract may be subjected, it unerringly leads one to the conclusion that the intention of the parties was on the one hand to receive and on the other to provide a fund to pay the burial expenses of the insured.

The contract being naked insurance and nothing else, it is subject to regulation by the insurance department. State, ex rel., v. Wichita Mutl. Burial Assn., 73 Kans., 181; Fikes v. State, 87 Miss., 251; State v. Willett, 171 Ind., 296; Guenther on Insurance, section 191; 1 May on Insurance (4 ed.), section 27; Robbins v. Hennessey, 86 Ohio St., 181.

Even if individuals, acting as purely natural persons, can carry on the business of insurance and exercise the functions of such, they must comply with all of the laws of Ohio on the subject of life insurance, Section 670, General Code, reading: “The provisions herein relating to the superintendent of insurance shall apply to all persons, companies and associations, whether incorporated or not, engaged in the business of insurance,”

It may well be questioned whether a franchise of this character, which by its very nature presupposes perpetuity, could be granted to an individual. See Robbins v. Hennessey et al., 86 Ohio St., 181; State, ex rel., v. Ackerman et al., 51 Ohio St., 163. But if it be granted that Section 670, General Code, above quoted, would authorize the issuing of such a franchise to an individual, such individual would be bound by all the restrictions and- requirements of an incorporated company.

To hold otherwise would work a far-reaching hardship on that part of our population most needful of the protection of the state and lead to a recrudescence of the old wildcat insurance days, now happily a thing of the past.

Judgment affirmed. ■

Nichols, C. J., Shaucic, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.