author: Eollett, J.

text:
    Spangler v. City of Cleveland.

      Injunction — Burden of establishing right to — When granted.

    1. The burden of establishing a right to a perpetual injunction, claimed by a party to an action, is upon such party.
    2. A court will grant a perpetual injunction only when a party shows a clear right thereto.
    Error to the District Court of Cuyahoga county.
    This ease was before this court at a former term, and was remanded to the district court. Spangler v. City of Cleveland, 35 Ohio St. 469. Some questions, as to the assessment to pay the expense of opening Hough avenue, were still in dispute, and in .the district court new pleadings' were filed.
    Plaintiff sought to enjoin the collection of such assessment to pay the expense of opening Hough avenue, and for an amendment to her petition averred:
    “ There has never, by anybody, been a valuation of any special benefits conferred by said opening of Hough avenue, nor has there ever been a determination that said assessment was apportioned in proportion to the special benefits derived from such opening, or that said assessment did not exceed said benefits, and in truth and in fact said assessment was not on the property benefited thereby, but only on the property fronting on said street.”
    The city answered as follows: “Now comes said defendant, and for its answer to the amended petition of said plaintiff, says : That it reiterates and reaffirms all and singular the statements and allegations made and contained in its answer heretofore filed in this qase, and makes the same a part of this answei’, and denies each and every allegation contained in the amendment to plaintiff’s petition, and for further answer, says: That plaintiff had knowledge of all the steps taken by the city and said village of East Cleveland in making said improvement and assessment while the same was in progress and made no objection thereto.

      “ That said premises were greatly benefited by said improvement ; the assessment therefor only covered the actual damages and cost thereof; the amount assessed is no more than was properly chargeable on said premises; the benefits conferred exceeded the amount assessed upon said premises, and the plaintiff knew the said damages and costs were to be assessed upon the lands benefited by said improvement.
    “ That after the said estimated assessment was reported to said council, the city clerk was directed to and did publish notice of the making thereof as required by law; that said plaintiff' failed to file any objection thereto whatever.
    “ That by reason of her failure to object to or remonstrate against all or any of the proceedings of said village and city, while making said improvement and assessment, .and standing by in silence while the same were being made with full knowledge thereof, she is now estopped to deny the validity of said proceedings or said assessment.
    “Defendant further says that there is another suit pending in the court of common pleas of said Cuyahoga county between the same parties, for the same cause of action set forth in said amended petition, as by the record of said court will appear.
    “ Wherefore defendant prays that the prayer of plaintiff’s petition be not granted, but that this defendant be awarded judgment against plaintiff for the amount of said assessment now found due and payable, and for such other and further relief as equity may require.”
    Plaintiff replied, denying each and every averment of the amended answer.
    On the trial the testimony was as follows:
    “ It was agreed that the assessment was levied by the city separately on plaintiff’s two parcels of land, one north and one south of Hough avenue; but that on the county tax duplicate the whole of the assessments on both parcels stood as one assessment against thetwo parcels in gross, and that there was included in the assessment an item of one per cent to pay the estimated cost of collecting the same.
    “ Plaintiff offered the resolution of 9th September, 1878, appointing an assessing committee to make án estimated assessment, contained in Journal U, page 399, and City Record, page 192; also the resolution of 9th December, 1873, directing notice of said report to bo published, contained in Journal N, page 574, and City Record B, page 257; also the notice, dated 9th December, 1873, from City Record B, page 260 ; also the resolution of 12th February, 1874, appointing an equalizing board from Journal V, page 82, aud City Record C; also the record of the filing the report of said equalizing board and setting aside the report of the assessing board 10th March, 1874, from Journal Y, page 122, City Record C, page 44; also resolution of 10th March, 1874, appointing, an assessing board from Journal Y, page 124, City Record C, page 44; also the record of filing said report 24th March, 1874, from Journal Y, page 1551, and City Record C, page 54; also the notice of such filing dated 24th March 1874, from City Record C, page 56; also the resolution of 5th May, 1874, appointing an equalizing board, Journal Y, page 261, City Record C, page 87; also the record of the filing said report 21st May, 1874, from Journal Y, page 300, City Record C, page 100; also the ordinance levying said assessment from Ordinance book E, page 52.
    “ Plaintiff further offered in evidence the original report of the assessing board appointed March 10, 1874, and a copy of the report of the equalizing board appointed May 5,1874, which was agreed to be a true copy, the original being lost.”
    The papers, resolutions, reports, notices, and records offered in evidence are as follows :
    “ Journal ‘ U,’ page 399, September 9, 1873, Bee. B, 192.
    “Whereas,II. D. Hovey, A. C. Gardner, and John Kilby, were, by the late village of East Cleveland, appointed a committee to report an estimated assessment to pay the damages awarded and costs incurred in opening Hough avenue between Giddings and East Madison avenues, upon laud benefited thereby, which said committee have failed to report, and do not wish to serve. Therefore bo it
    “ Resolved, That W. A. Neff', T. D. Peck, and George Watkins be and they are hereby appointed a committee to report to this council an estimated assessment to pay the damages awarded and the cost incurred in establishing and opening Hough avenue between Giddings and East Madison avenues, upon the lots or lands benefited thereby. Adopted.
    “Yeas, 29. Nays, O.
    “ Journal ‘ D,’ page 574, December 9, 1873, Bee. B, 257.
    “ Report of the committee of freeholders appointed for that purpose, consisting of Messrs. W. A. Neff, T. D. Peck, and George Watkins, an estimated assessment according to benefits to pay the damages awarded and costs incurred in opening Hough avenue between Giddings and East Madison avenues.
    “Referred to the city clerk, with instructions to give the notice required by law.

      " Record ‘B,’ page 260, December 9, 1873.
    “ Notice to whom it may concern :
    “ W. A. Neff, T. D. Peck, and George Watkins, three disinterested freeholders of the corporation have reported to the council an estimated assessment on the property abutting on Hough avenue.
    “ The assessment is made to pay damages awarded and expense incurred in opening Hough avenue between Giddings avenue and East Madison avenue.
    “ The said assessment is on file in the office of the city clerk.
    “All parties having objections to said assessment must file the same in writing with the city clerk within five weeks of the first publication of this notice.
    “Theo. Voges, City Clerk.

    “Cleveland, December 11, 1873.

      “ Journal V,’ page 82, February 12, 1874, Fee. C.

    “Fcsolvcci, That Thomas M. Marcy, T. D. Peck, and Charles Whitaker, three disinterested freeholders of tlio comity be and they are hereby appointed and constituted a board of equalization to equalize according to law the estimated assessment presented to this council by a committee appointed for that purpose October 11,1873, to pay the damages awarded and costs incurred in opening and extending Iiough avenue from Giddings avenue to Madison avenue, and that they be requested to meet at the Mayor’s office on Saturday the 14th inst., and enter upon their duties.
    “Journal V’ page 122, March 10, 1874, Fee. G, 44.
    “Report of the board of equalization consisting of Felix Nicola, Charles Whitaker, and T. M. Marcy, recommending to set aside the assessment upon lands on Hough avenue, to pay the expense of opening said avenue between Giddings and Madison avenues. Received and filed, and the report of assessing board set aside.
    “Journal V,’ page 124, March 10, 1874, Fee. G, 44.
    “ By Mr. Everett:
    “ Fesolved, That Felix Nieoli, Chas. Whitaker, and T. M. Marcy be and they are hereby appointed a board of assessment to report to this council an estimated assessment upon the property benefited thereby to pay the costs and expenses incurred in opening Iiough avenue between Giddings and East Madison avenues, and that they be requested to meet at the mayor’s office on Saturday next, the 14th inst., and enter upon their'duties. Adopted.
    “Yeas, 27; nays, 0.”

      The report was in form as follows, and contained a list of each lot on both sides of the avenue:

    East of Giddings. East of Garland-East of Park-East of Crawford-Bolton lot..... Doming lot — - Spangler lot-1............... 2................ 3................ 10............... 11.............. Pedrick lot... Pedriek lot-Outhwaite lot.. R. Anderson— Jackson.......... Jackson.......... Harkness....... Harkness....... Johnson.......... Strong............ Bishop........... Sechrath......... Schmidt......... FEET FRONT. 438 351 859 132 50 50 m 130 61 •99 162 130 220 170 195 250 537 100 100 153 185 RATE. OTS. 138 138 45 70 70 70 65 60 55 55 40 35 30 25 20 15 10 5 3 2 1 AM T TAX. 604 44 484 38 1,245 55 92 40 35 00 35 00 111 15 78 00 33 55 54 45 64 80 45 50 66 00 42 50 39 00 37 50 53 70 5 00 3 00 3 06 1 85 $8,291 45
    Amount of bonds issued........................................................ $6,500 00
    Interest on same................................................................. 1,040 00
    Advertising......................................................................... 125 00
    Collecting.............................. 82 00
    Expense of old assessing board............................................... 60 00
    Committee fees............................................... 75 00
    Interest.....................................................................•........ 409 45
    $8,291 45
    “To the Honorable Council of the City of Cleveland:

    “Your committee appointed to report an estimated assessment of the benefits on the lands bounding and abutting on Hough avenue to defray ];he estimated costs of opening said street between Giddings and Garland avenues, would respectfully submit this .their report.
    “ T. M. Marcy,
    “Feltx Nicola,
    “ C. Whitaker.
    “ Cleveland, March 24, 1874.

      “Journal ‘ V,’ page 155, March 24, 1874, Bee. G, 54.
    “ Report of the committee of freeholders appointed for that purpose, consisting of Messrs. T. M. Marcy, Felix Nicola, and Chas. Whitaker, an estimated assessment, according to benefit, to defray the estimated cost of opening Hough avenue between Giddings and East Madison avenues.
    ' “ Referred to the city clerk, to give the notice required by law.

      “Brinted Becord ‘ C,’ page 56, March 24, 1874.
    “ Notice to whom it may concern:
    “ T. M. Marcy, Felix Nicola, and Chas. Whitaker, three disinterested freeholders of the corporation, have reported to the council an estimated assessment on the property abutting on Hough aveuue.
    . “ The assessment is made to pay the damages awarded and expenses incurred in opening'and extending of Hough avenue between Giddings and East Madison avenues.
    “ The said assessment is on file in the office of the city clerk.
    “All parties .having objections to said assessment must file the same in writing with the city clerk within five weeks of the first publication of this notice.
    “ Theo. Yoges, City Clerk.

    “Cleveland, March 26, 1874.
    “ Journal ‘ V,’ page 261, May 5, 1874, Bee. C, 87.
    J3y Mi\ Lockwood:
    , “Whereas, T. M. Marcy, Felix Nicola, and Chas: Whitaker, three disinterested freeholders appointed forthat purpose, reported to this council an- estimated assessment to pay the damages awarded and the costs incurred in opening of Hough avenue between Gid dings and East Madison avenues; and,
    “Whereas, objection to said assessment has been filed, therefore be it
    “Resolved, That P. W. Payne, James Brokensh'ire, and Louis Ritter be and they are hereby appointed a bbard of equalization .to equalize said' assessment according to law-, and that they be requested to meet at the mayor’s office on Saturday, the 9th inst., at 2 o’clock p. m., to qualify and enter upon their duties.
    ■ “Adopted. Yeas, 34; nays, 0.”
    This report was in form like the other, and as to the above lots was as follows:
    “ SOUTH SIDE OF HOUGH AVENUE.

      Amount bonds issued............................................ $6,500 00
    Interest on same................................................................. 1,040 00
    Advertising........................................................................ 125 00
    Collecting........................................................................... 82 00
    Expense of old assessing board.............................................. 60 00
    Expense of second assessing board.......................................... 75 00
    Expense of equalizing board........................................ 75 00
    Interest on money after paying bonds...................................... 409 45
    $8,366 45
    “ To the Honorable Council of the City of Cleveland :

      “ Your committee appointed to equalize an estimated assessment of the benefits on the lands bounding and abutting on Hough avenue, to defray the cost of opening said avenue between Giddings and East Madison avenues, would respectfully submit this, their report.

      " Cleveland, May 15,1874.
    “Jas. H. Brokenshire,
    “ P. W. Payne,
    “ Louis Ritter,
    “ Board of Hqualization,

    “Theo. Voges, City Clerk.

    “Confirmed,, May 21, 1874.
    “ Journal ‘ V,’ page 300, May 21, 1874, Bee. C, 100.
    “ Report of the board of equalization, consisting of James Brokenshire, P. W. Payne, and Louis Ritter, appointed to equalize an estimated assessment to defray the cost of opening Hough avenue between Giddings and East Madison avenues. Equalized assessment confirmed.
    “ Yeas, 29. Nays, 0.”
    The plaintiff further offered in evidence the map of the south part of the seventeenth ward of the city of Cleveland, including all the land assessed for opening Hough avenue, and of part of the city of Cleveland, contained in the atlas of the city of Cleveland. To the introduction of which defendants objected, the objection was overruled, 'and defendants excepted.
    Neither party offering other or further evidence, both rested tlieir case, which was argued by counsel and submitted to the court.
    The court found that in the assessment on plaintiff’s land on the south side of Hough avenue there was illegally included for the estimated expense of collecting the assessment the sum of three dollars and eight cents, and in the assessment on plaintiff’s land on the north side of Hough avenue for the same purpose the sum of fifteen dollars and fifty-four cents; that the city of Cleveland assessed each of said parcels separately, but that both assessments had been illegally placed on the county tax duplicate as one assessment against the parcels in gross, and that there are no other illegal items in the assessment or illegalities connected therewith; and to each of said findings that there are no other illegal items in said assessment, or illegalities connected therewith, the plaintiff' excepted.
    A motion for a new trial was overruled, and a decree was rendered against plaintiff in part, dismissing the petition as to certain matters complained of, and dissolving in part an injunction theretofore granted, and rendering judgment against plaintiff’ for a part of the costs of suit. A bill of exceptions was taken, and plaintiff now asks a reversal of the judgment.

      Mix, Noble $ White, for plaintiff in error.

      Kain, Sherwood § Bunts, for defendants in error.
   Eollett, J.

Plaintiff brought her action to enjoin the collection of a special assessment to pay the expense of opening Hough avenue. The petition avers, “ there was assessed on the land abutting on said Hough avenue an assessment,” etc. The property assessed included the land of plaintiff.

As the plaintiff’s right to this relief must be clear, does the testimony given on the trial clearly show such a right? The question is not, can this land be sold for this assessment? Neither is the questiou, would a title under a tax sale- to pay this assessment be valid ? Here the plaintiff asks an injunction to prevent the collection of an assessment, and she rests her ease on the agreement and records set out in the bill of exceptions, and the presumption that these records are all the records there are, and that they show every act that, was done in the case, and how each act was done. Plaintiff claims the benefit of the facts — of what was in fact done — as opposed to presumptions; yet she did not try to show what was in fact done, and she now seeks the benefit of a conclusive presumption, that nothing was done that is not fully recorded and shown by the particular records plaintiff gave in evidence.

The facts asked by plaintiff' to be presumed are such as plaintiff could seek to establish with evidence; and, as it does not appear that any evidence was offered that the court did not receive and consider, we must disregard presumptions, and we must look only to the plaintiff’s evidence for the proof of her right to an injunction.

For a perpetual injunction the courts require that there ‘should be no doubt in the case, and that the plaintiff must make out a clear and unexceptionable right. Dan. Ch. 1681.

Coui'ts will not exercise this necessary authority when 'the right is doubtful or the facts not definitely ascertained.” Burnham v. Kempton, 44 N. H. 92.

“ The right must be clear.” Bonaparte v. Camden and Amboy R. R. Co., 1 Bald. 218.

In her amendment to the petition plaintiff averred, •1. “ There has never, by anybody, been a valuation of any special benefits conferred by said opening of Hough avenue;” 2. “ nor has there ever been a determination that said assessment was apportioned in proportion to the special benefits derived from such opening; ” 3. “ or that said assessment did not exceed said benefits; ” 4. “ and in truth and in fact said assessment was not on the property benefited thereby, but only on the property fronting on said street.” All these averments were denied; and the plaintiff had the burden of proving a clear right to an injunction; and, in proof of the averments -and of such right, in addition to the agreement about the two parcels of land, plaintiff put iu evidence certain records and papers, some that tended to prove and some that tended to disprove the averments. The paper showing.an assessment and the paper showing the equalization of the same, did not prove the assessment to be by the front foot merely, but at least that the same may have been “in proportion to benefits.” The evidence was so indefinite, limited, and uncertain, that the district court could well say the plaintiff did not clearly establish the averments in the amendment to the petitiou, and did not clearly show a right to the injunction asked for. The defendants were not called upon affirmatively to establish a right or a valid assessment. For aught that appears, there may have been record evidence of a valid assessment, which the plaintiff would not introduce, and the defendants need not introduce. It is admitted that all the facts of the case were not before the court, and the court must decide the plaintiff’s right upon what testimony the plaintiff gave the court. The case here lies within a narrow compass, and we think it best not to go outside the case.

The plaintiff asked for an injunction, she had the burden of showing her right to such an exercise of the power of the court. In the opinion of the district court, plaintiff failed to show that she had such a clear right. We think the court did not err.

We do not express auy opinion upon other questions sought to be raised in the case.

Judgment affirmed.


source: Caselaw Access Project

author: Owen, J.

license: Public Domain

text:
    Wallace v. Townsend.

      Corporation — Offer to subscribe to stock — Revocation by death.

    An offer in writing to subscribe to the capital stock of a railroad companj', conditioned upon the construction of its line of road along a designated route, is revocable at the option of the party making such offer at any time before its delivery to and acceptance by such company; and his death before such delivery and acceptance works such revocation.
    Error, to the District Court of Jefferson county.
    The Cleveland, Tuscarawas Valley and Wheeling Railway Company brought its action in the court of common pleas of Jefferson county, upon the subscriptions set out in the findings of fact which appear below, against William II. Wallace and Spalding K. Wallace, executors of Henry Wallace, deceased, for the recovery of the amount claimed to be due upon such subscriptions. The trial court, upon the request of each party, stated its findings of fact and conclusions of law separately, as follows:
    “ That in the early part of the year 1877,- The Cleveland, Tuscarawas Valley and Wheeling Railway Company, being a railroad company duly incorporated under the laws of the state of Ohio, owning and operating a railroad from the mouth of Black river on Lake' Erie, to Uhrichsville, in Tuscarawas county, and contemplating an extension of its road beyond Uhrichsville, propose to make such extension by way of the valley of Stillwater, and the valley of Wheeling creek to the Ohio river, at Bridgeport, opposite the city of Wheeling, provided that subscriptions to the capital stock of said company would be made by persons residing along the line of such proposed extension, and in the neighborhood of the southern terminus thereof, aggregating the sum of .15250,000.00; that citizens of Wheeling knowing of such proposition, and being desirous to promote such extension, held a public meeting, and at such meeting appointed a commitee to solicit subscriptions to the capital stock of said company; that Henry Wallace, the testator of the defendants, then in full life, was present at the meeting, and thereafter at the solicitation of said committee, subscribed in a book furnished by the committee, a paper writing of which the following is a copy: " We, the undersigned, do hereby respectively subscribe to the capital stock of The Cleveland, Tuscarawas Valley and Wheeling Railway Company, the number of shares, (50) fifty dollars each, we have set opposite our respective signatures, upon the conditions that the contemplated extended line of the railroad of said railway company shall be located in the valleys of Stillwater and Wheeling creeks to the Ohio river, in the town of Bridgeport, Ohio, opposite the city of Wheeling, and thence along the west bank of said river to a point on said river in the town of West Wheeling, Ohio, and as soon as said railroad shall be so located, and the work of construction commenced in Wheeling creek valley, we agree to take the number of shares aforesaid, and then agree to pay five (5) dollars on each share of said stock, so by us subscribed, and the residue thereafter in such installments and at such times and places as may be required by the directors of said company, but said installments shall not exceed ten (10) per cent per month from the time when said first payment shall become due as aforesaid. It is hereby farther conditioned that these subscriptions shall not be binding unless the work of construction shall be commenced on or before July 1, 1877, (signed) II. Wallace, 20 shares,’ and delivered said book to said committee, such paper writing having been previously subscribed by divers other persons. And said Henry Wallace afterwards at the solicitations of said committee, subscribed in another book furnished by the committee, another paper writing, of which the following is a copy: ‘We, the undersigned, do hereby respeetivety subscribe to the capital stock of the Cleveland, Tuscarawas Valley and Wheeling Railway Company, the number of shares set opposite our names of fifty dollars each, on the conditions that said railway shall be constructed to the Ohio river, opposite the city of Wheeling, by the valley of Wheeling creek; and as soon as the work of construction is commenced of said railway, on said creek, before July 1, 1877, we agree to pay five dollars on each share so subscribed, and the residue thereafter in such installments, at such times and places, and to such person or persons as may be required by the directors of said railway,
      bat said installments shall not exceed ten per centum per month, after said first payment shall become due as aforesaid. Wheeling, West Va., March 1, 1877. (Signed), H. Wallace, by D. O. L., 20 shares’; and delivered said last mentioned book to said committee, such last mentioned paper writing having been previously subscribed by divers other persons. Afterwards the said Henry Wallace departed this life, said books still remaining in the custody of said committee. After the death of said Henry Wallace, and all the subscriptions to the capital stock of said company which could be procured along the line of said proposed extension, and in the neighborhood of the southern terminus thereof, had been obtained, and which aggregated, a sum less than $250,000.00, at the instance of surviving subscribers, the evidences of all subscriptions which had been so procured, including the books aforesaid, were tendered to said company, and said company accepted the same as subscriptions to the capital stock of the company, and agreed to extend said railroad as had been proposed as aforesaid, and from the town of Bridgeport along the west bank of the Ohio river to a point on said river in the town of West Wheeling, Ohio. That at the time when said company accepted of said subscriptions, aud agreed to make such extension, the officers of the company had no notice or information whatever of the death of Henry Wallace; and that the company did, before the first day of July, a. d. 1877, commence the construction of said railroad in the valley of Wheeling creek, and did, within a reasonable time thereafter, fully complete the same. Aud the court being of the opinion that upon the facts so fouud the law of this case is with the plaintiff, does consider and adjudge that the plaintiff recover of the defendant the sum of twenty-six hundred and four dollars and forty-four cents, and also their costs herein expended, taxed at $-, to be made of the goods and chattels and effects which were of the said Henry Wallace, remaining in their hands to be administered.”
    The district court affirmed the judgment so rendered upon these findings of fact. To reverse these judgments, the present proceeding is prosecuted against Oscar Townsend, receiver of the plaintiff below.

      Daniel Peck and William, P. Hayes, for plaintiffs in error:
    The subscriptions sued on were conditional. At the time of the subscriptions they were not effective, and might never become so, for they might never be delivered to the corporation, and if tendered might not be accepted.
    When Wallace signed the papers, the subscriptions were not made in the company’s book, and the coi’poration made no promise to award the stock. There were no contracting parties at the time of the making of the subscription, nor could there be until the papers were accepted by the corporation. There was no mutuality. Lawler v. Burt, 7 Ohio St. 349; Turnpike Co. v. Coy, 13 Ohio St. 90 ; Fanning v. Insurance Co., 37 Ohio St. 342.
    The contracts were not absolute, but conditional. Burnet v. Bisco, 4 John. 237; Comstock v. Smith, 7 John. 87 ; Lake Ontario Shore R. Co. v. Curtiss, 80 N. Y. 219; Trustees Hamilton College v. Stewart, 1 N. Y. 581; Livingston v. Rogers, 1 Caine’s Rep. 583.
    We refer to the case of Utica & Schenectady R. Co. v. Brinckerhoff, 21 Wend. 139. This was an agreement to locate a road in a particular place. The court in the opinion, say : “ The fact that they afterward located the road agreeably to the terms of the proposition is, of itself, nothing; it should have appeared that they had agreed with the defendant thus to locate it as a consideration for the promise. The promise of each must be concurrent and obligatory at the same time to render either binding,- and should be so stated in the declaration.”
    The death of Wallace revoked all authority any one had as his agent over his signature. A delivery of such paper is as necessary a part of the execution of the contract as though it had been a promissory note. How much better was the delivery than if a stranger, finding it in the street, had delivered it ?

      Tho power to deliver the paper to the corporation was a naked power, and such power died with tho party creating it. Megary v. Funtis, 5 Sandf. (N. Y.) 376; Bergen v. Bentnett, 1 Caine’s Cas. 14.
    An agent can not delegate his authority to another unless expressly directed by tho power to do so; nor can one, by any act of his own, make himself the agent of another. A dissolution of a firm, by death or otherwise, terminates the agency. Martine v. International Life Ass. Co., 5 Lansing, 535; s. c., 62 Barb. 181; s. c., affirmed, 53 N. Y. 339; Grinnell v. Buchanan, 1 Daly, 538.
    Where the authority is conferred upon several, they must all act together. Hawley v. Keeler, 53 N. Y. 114.
    Acts, after the termination of the authority, are void. Kip v. Howes, 2 Sweeney, 106; Van Vlieden v. Welles, 6 Johns. 89.

      J. TY. Tyler, for defendant in error :
    This is a stock subscription to a railroad company duly incorporated and organized under the laws of Ohio. Each subscriber had an interest in the subscription of every other subscriber, and in all the subscriptions, so that the amount thereof might be applied to the accomplishment of the object, which was the location of a railroad in a certain place, and the construction thereof to be commenced before July 1,1877.
    No subscriber could withdraw his name from that subscription without the consent of all the subscribers thereto. It being a contract between the subscribers to do so much, each and all for an object jointly desired, which might not be accomplished unless all should be bound; any arrangement even to release one or more would be fraudulent and void. Anderson v. New Castle & Rich. R. Co., 12 Ind. 376.
    These subscription books were left in the hands of a committee of subscribers who had an interest in the acceptance of the same by the railway company; and the subscribers, with whom these books were left, had power to deliver them to the company.

      This power, then, was coupled with a common interest, and was, therefore, irrevocable. 1 Par. Con. (7th ed.), *72-76; Bromley v. Holland, 7 Ves. Jr. 28; Hunt v. Rousmanier, 8 Wheat. 201.
    But payment to an agent in ignorance of the death of the principal is good. Cassiday v. McKenzie, 4 W. & S. 282; Smout v. Ilbery, 10 Mees. & Wels. 1; Tate v. Hilbert, 2 Ves. Jr. 118; Galt v. Galloway, 4 Pet. 333; Coney v. Sanders, 28 Ga. 511.
    The credit arising in such cases from an ostensible employment sometimes continues, with regard to those who have been accustomed to deal on the faith of the employment, until they have notice of its termination. Trueman v. Loder, 11 Ad. & El. 589; Williams v. Birbeck, 1 Hoff. Ch. 359. There is also an exception to the general rule where the agent has a power coupled with an interest. Knapp v. Alvord, 10 Paige, 205.
    But if we treat these subscriptions in the hands of this committee as an offer or proposition to the company for its acceptance, then this offer, having been accepted without the knowledge of the death of Wallace, is binding upon his legal representatives as a valid contract. Mactier v. Frith, 6 Wend. 103 ; Tayloe v. Mer. Fire Ins. Co., 9 How. (U. S.) 890; Levy v. Cohen, 4 Ga. 1; Vassar v. Camp, 11 N. Y. 441; Dunlop v. Higgins, 1 H. L. Cas. 381.

      Alexander § McDonald, also for defendant in error :
    The papers signed constitute a subscription to the stock, and not an agreement to take stock; it certainly was an abso-. lute subscription to the stock upon the performance, by the company, of the conditions named in the subscription. See 1 Potter on Corp., sec. 229; Chamberlain v. Painesville & H. R. Co., 15 Ohio St. 225; Ashtabula & N. L. R. Co. v. Smith, 15 Ohio St. 328.
    Any subscription made in whatever form it may be, and whether made on the regular subscription books of the company or not, is binding on the subscriber. Brownlee v. Ohio, Ind. & I. R. Co., 18 Ind. 68.

      After subscribing to the stock Wallace delivered the books containing-his subscription to the committee. He parted with all control over his subscriptions for some other person to use; and to what other person could it be than the company for whom they were intended ?
    Where a party executes a deed or contract and delivers it to another person for the grantee, on certain conditions, if such third person deliver the same to the grantee, even after the death of the grantor, although such third person was not authorized by the grantee to receive it, it would be a good delivery. Mather v. Corliss, 103 Mass. 568; Simonton’s Est., 4 Watts (Pa.) 180; Ford v. Flint, 40 Vt. 382.
    There was a perfect delivery. Ish v. Crane, 8 Ohio St. 521; s. c., 13 Ohio St. 574; Bish. Con., sec. 766; Farley v. Palmer, 20 Ohio St. 225; Martindale Con., sec. 211; Slingsby’s case, 3 Coke Rep. 35; Wheelwright v. Wheelwright, 2 Mass. 447; s. c., 3 Am. Dec. 66; Stone v. Duvall, 77 Ill. 475; Foster v. Mansfield, 3 Met. 412.
   Owen, J.

As we rest the disposition of this case upon the single question, whether the facts found bjr the trial court were sufficient to authorize the judgment rendered by it, none of the other numerous questions which the record presents are discussed in this opinion. By the findings of fact it will be seen that the railroad company proposed to extend its line of road over a designated route to the Ohio rivei’, opposite the city of Wheeling, provided that subscriptions to its capital stock would be made by persons residing along the proposed line and near the southern terminus thereof, aggregating the sum of $250,000. That Ilenry Wallace, with other citizens of Wheeling, knowing of such proposition and being desirous to promote such extension, held a public meeting and appointed a committee to solicit subscriptions to the capital stock of the company. That Wallace thereafter, at the solicitation of this committee, signed the two papers declared upon, each in a book furnished’ by the committee. That other persons had previously signed these subscriptions. That upon his signing these writings, respectively, he delivered them to the committee. That he soon thereafter died — these books remaining in the hands of the committee.

That after his death, and when all the subscriptions to stock had been procured along the proposed line and near the southern terminus that the committee was able to secure, and which aggregated less than the proposed $250,000, the evidences of all these subscriptions were, at the instance of the surviving subscribers, tendered to and accepted by the company, which then agreed to extend its line of road as had before been pi’oposed. That at the time of such acceptance and agreement the officer’s of the company had no notice or information of the death of Henx’y Wallace. That before July. 1, 1877, the company commenced the construction of the proposed^ extension, and did, within a reasonable time thereafter,.fully, complete it.

Did the estate of Henry Wallace become bound by these subscriptions upon their delivery to and acceptance by the railroad company ?

The proposition of the company was made at lax’ge,. and not to these subscribers, mox’e than to any others, who .should first subscribe the required $250,000. It does not even appear that the company knew, at any time prior to Wallace’s death, of the existence of this committee, or that these subscriptions wex’e being procured. The company was not bound to accept Wallace’s subscription at any time during his life. It had made no agreement with Wallace or with his co:subseribers. So far as the findings show, the company had no knowledge that Wallace ,had subscribed, and nothing was done by it on the faith of his subscription prior to his death. Suppose that another committee, having heard of the proposition of the company, had succeeded in procuring the requisite $25.0,000 in subscriptions, tendered it to the company, which had accepted it, and agreed to perfox’m its conditions before this committee had tendered its subscriptions; would it be contended that the company -would have been under any obligation to accept them ? If any thing is claimed from the proposition of the company and its acceptance by the subscribers, it is a sufficient answer, to say that the conditions of the proposition have never to this day been performed; that after the death of Wallace his surviving subscribers, finding that they had failed to raise the amount which the company had demanded in its proposition, proposed new terms to the company, tendered a less amount in subscriptions, which was accepted; and thereupon, for the first time in the history of these transactions, the company agreed, on its part, to perform the conditions upon wffiich the subscriptions were made. And this was a new contract, to which Wallace was never a consenting party. Thus we see that the negotiations which actually led to the creation of mutual .and binding obligations between the company and the surviving subscribers transpired after the death of Wallace. It is maintained, however, that various persons subscribed after Wallace and on the faith of his subscription. This does not appear from the findings of fact. For all that is shown by this finding, Wallace may have been the very last subscriber. If these surviving subscribers consented to the delivery to the company of a dead mao’s subscription, they are in no situation to- complain. It is also maintained that the company built the road on the faith of the subscription of Wallace and his co-subscribers. It appears that at the time of the company’s acceptance and agreement, its officers had no knowledge of Wallace’s death; but so far as the record shows to the contrary, it began the work with full knowledge that this committee had teudered it a dead man’s paper. Counsel for the company maintain that the committee so often referred to, which took these subscriptions, was rather the agent of the railway company than of Wallace, . . the company having ratified their action.” If this view is tenable, then, by a familiar rule, notice to this committee, was notice to the company of the death of Wallace ; for it will be observed that there is no finding that the company had no notice of Wallace’s death, hut that its officers had none. Ordinarily notice is carried to a corporation through its officers, hut not necessarily so. While its officers are in a sense agents, its agents are not necessarily officers. Hence if this committee was the agent of the company, by reason of the ratification of its acts by the latter, notice to the committee was notice to the company; and it would be incumbent upon the latter to show that its agent had no notice of the death of Wallace. This is not shown. We do not deem it necessary, however, to rest our determination upon this view.

Until some action is taken on the basis of a subscription to a benevolent or other enterprise, it may be revoked. The promise in such case stands as a mere offer, and may? by necessary implication, be revoked at any time before it is acted on. It is the expending of money, etc., or incurring of legal liability, on the faith of a promise, which gives the right of action, and without which there is no right of .action. Until action upon it there is no mutuality, and being only an offer, and susceptible of revocation at any time before being acted upon, it follows that the death- (or insanity) of the promisor, before the offer is acted upon, is a revocation of the offer. Pratt v. Trustees, 93 Ill. 475. See also Beach v. Church, 96 Ill. 179; 1 Wharton Con. §§ 12, 528; Pollock Con. 20 ; Dickinson v. Dodds, L. R. 2 Ch. Div. 475; Tayloe v. Mer. Fire Ins. Co., 9 How. (U. S.) 390; 1 Redfield Railways, *203.

Here was an unaccepted conditional subscription by Wallace to the capital stock of the company. Indeed, looking to its substance and plain intent rather than to its form, we find it to be no more than an offer to subscribe to stock upon certain named conditions. It was not a subscription to stock in the ordinary sense of that term. The company was not a party to it, and was under no obligation to accept it at any time during the life of Wallace. It was at best an unaccepted proposal. Before its acceptance, and indeed (so far as it is made to appear to us) before the party do whom it was made had notice of it, the proposer died. It was a proposal capable of revocation at any time before acceptance, and death worked its complete revocation. There was error in rendering judgment upon it against the defendants below, for which error the

Judgments below are reversed.


author: Atherton, J.

text:
    Daggett v. Hudson.

      Elections — Registration of voters — Constitutionality of act May 4, 1885— Reasonableness of provisions.

    1. The general assembly, under the general grant of legislative power, secured to it by the constitution, has power to provide by statute for the registration of voters, and to enact that all electors must register before-being permitted to vote.
    2. Such an act, however, to be valid, must be reasonable and impartial, and calculated to facilitate and secure the constitutional right of suffrage, and not to subvert or injuriously, unreasonably, or unnecessarily restrain, impair, or impede the right.
    3. The.registration act of May 4,1885 (82 Ohio L. 232), relating to elections in Cincinnati and Cleveland,' requiring registration in all cases as a. condition to the right of suffrage in those cities, and allowing the voters only seven specified days within the year in which to register and correct the registration, which contains no provision for registration after-the seven days (though five days thereafter intervene before election day), and no regulation whereby those constitutionally qualified, may, upon proof of their qualifications, and a reasonable excuse for not registering in time, be allowed to vote, and where no other means are provided whereby persons necessarily absent at the time fixed for registration may have their names registered, is unreasonable, and has a direct tendency to impair the right of suffrage, and may disfranchise without their fault a large body of voters necessarily absent from the place of registry during the allotted time for registration, and is, therefore, unconstitutional and void
    On November 30, 1885, Edward Daggett filed in this court a petition alleging that he was imprisoned and unlawfully restrained of his liberty by one Edwin Hudson, superintendent of police of the city of Cincinnati, and he asked that a writ of habeas corpus might be granted, and that he might be discharged from such unlawful imprisonment and detention.
    A writ of habeas corpus was issued, and on the return day thereof, to wit, November 10, 1885, in obedience thereto, defendant produced the body of Edward Daggett in court, and made return to the writ, and therein averred that he held, and had in custody the said Daggett by virtue of a warrant duly issued by the police court of the city of Cincinnati, as follows :
    The State of Ohio,)
    Hamilton County,)
    City of - Cincinnati.)
    ss. The Police Court of the City of V. Cincinnati J Cincinnati.

    Before me, George E. Richards, clerk of the police court of the city of Cincinnati, personally appeared John Clear, who, being duly sworn according to law, says, that on or about the 13th day of October, 1885, at the city aforesaid, one Edward Daggett, L. D. Eletcher, and W. Roberts, were the duly qualified judges of election of precinct C of the Fifth ward in said city at an election for state and county officers, and while acting as said judges aforesaid, did unlawfully and knowingly receive and deposit the vote of one A. II. Bugher, who was then and there an elector and resident of said precinct C of said Fifth ward in said city aforesaid, but who from, absence had not registered his name with the registrars of said precinct and ward before said election, as was required by the laws of Ohio, contrary to the fornq of the statute in such cases made and provided as deponent verily believes; and further deponent says not. John Clear.
    Sworn to and subscribed before me the 2nd day of November, a. d. 1885.
    George E. Richards, Cleric P. C. C.

    By George Trummiter, Deputy.

      “ The State of Ohio)

    County,)
    n., j? n- ■ ,• City of Cincinnati.)
    ss‘ The Police Court of the City of Cincinnati.

      To the Superintendent of Police of the City of Cincinnati. Greeting:
    . You are hereby commanded to take the bodies of Edward Daggett, L. D. Fletcher, and W. Roberts, and have them before the honorable judge of the police court of said city forthwith, to answer unto the state of Ohio, charged with receiving and depositing an unlawful vote. And of this writ make legal service and due return.
    Given under my hand and the seal of said court this 2nd day of November, a. d., 1885.
    George E. Richards,
    [seal.] Clerk of Police Court of the City of Cincinnati.

    By Geo. Trummiter, Deputy.”

    Wherefore the respondent having fully answered, prayed that the writ be dismissed, and that Edward Daggett be remanded to his custody, and that he might have his costs, etc.
    To this return the petitioner demurred generally, alleging the return to be insufficient to warrant his arrest and detention.

      Follett, Hyman $ Kelley, and Jordan, Jordan ‡ Williams, for plaintiff:
    The registry act of May 4, 1885 (82 Ohio L. 232) contravenes section 1, article 5 of the constitution, inasmuch as it abridges and restricts the qualifications of voters as fixed by that provision.
    The legislature has not the power, under the guise of regulation, to restrain, abridge or unnecessarily impede the citizen in the exercise of the elective franchise. Monroe v. Collins, 17 Ohio St. 665; Capen v. Foster, 12 Pick. 485; State v. Baker, 38 Wis. 71; Dells v. Kennedy, 49 Wis. 555 ; Brightly Elec. Cas. 62, note.

      The act is unreasonable as a regulation because it disfranchises those who may be unable through sickness or otherwise to attend on the days assigned for registration, but who are present at the polls, and'desirous of voting on election day.
    Upon an examination of the authorities, it wdll be seen that where registration laws have been upheld by the courts, the decisions have either been based upon constitutional provisions specially authorizing such legislation (People ex rel. v. Kopplekom, 16 Mich. 342; State v. Bond, 38 Mo. 425 ; Ensworth v. Albin, 46 Mo. 450; Auld v. Walton, 12 La. Ann. 129), or the act itself was a reasonable regulation of the right to vote, and authorized registration on election day (Capen v. Foster, supra; Byler v. Asher, 47 Ill. 101; Edmonds v. Banbury, 28 Iowa, 267 ; Patterson v. Barlow, 60 Pa. St. 54.)
    The only restrictions upon the right of suffrage are those imposed by section 6, article 5 of the constitution relating to idiots and insane persons, and the authority given to the general assembly by section 4, article 5, “ tb exclude from the privilage of voting • • • any person convicted of bribery, perjury, or other infamous crime.”
    The act can not be permitted to stand with respect to electors who can comply with its provisions, and to fall as to those who can not. Kelley v. State, 6 Ohio St. 269.
    The act is general in its nature and should have a uniform operation throughout the state, and inasmuch as it applies to the cities of Cincinnati and Cleveland alone, it is in contravention of sec. 26, art. I, of the constitution. State v. Powers, 38 Ohio St. 54; McGill v. State, 34 Ohio St. 228; Kelley v. State, supra; Falk, Exp., 42 Ohio St. 638; Pavonia Horse R. Co. v. Jersey City, 45 N. J. Law, 297.

      E. W. Kittredge, for defendant.
    The constitutionality of the law in- question is impugned upon two grounds; first, because it places restrictions upon the elective franchise additional to those imposed by the constitution; and second, that it is a' law of a' general nature, and‘should have a uniform operation throughout the state.’ ‘
    1. The question is, whether the registration law is an act limiting the elective franchise, or simply an act providing for the manner of its exercise.
    While the constitution has prescribed the qualifications of an elector, it has provided no means for ascertaining those qualifications, and nothing in respect to the evidence by which they are to be established, or the persons whose judgment and determination shall bo applied in passing upon the right of an individual citizen to exercise the franchise of an elector at any given election. All of these questions are left to the broad discretionary power of the general assembly, and are included in the express provision that the election of all officers “ shall be made in such manner as may be directed by law.” Lehman v. McBride, 15 Ohio St. 595 ; Monroe v. Collins, 17 Ohio St. 686.
    The case of Capen v. Foster, 12 Pick. 485, cited with approval in Monroe v. Collins, supra, is the leading authority in this country upon the question whether a registration law, in its substantial provisions like the one under consideration, is a reasonable regulation of the exercise of the franchise of electors to protect it from fraud, or is an' unwarrantable restriction of the franchise, as defined by the constitution. And the coui’t upheld the law there under consideration as a just exercise of the power of the legislature to provide suitable and reasonable regulations for the exercise of the elective franchise.
    There are numerous provisions of the laws of Ohio that have been enacted for the purpose of' regulating, by protecting, the elective franchise, and that have been enforced many years without question ; such as providing, in certain cities under certain circumstances, that the voting places for the election of representatives to congress shall be fixed at a distance-of not less than two hundred feet from the voting places for other officers; provisions for particular kinds of ballot-boxes; discriminations as to the length of residence within the voting precitict that’ shall be required from the voter'who is' the'head of a family, and from the voter who is not such head of a family, as a qualification for the right to vote in such precinct; and divers other provisions of like general character.
    While there are two decisions, by divided courts, that are more or less not in accordance with the'views expressed in Capen v. Foster, supra, it will be found that the great weight of authority outside of the state of Ohio, and since the decision of Capen v. Foster, has been in accordance with the decision in that case. The two cases referred to which were decided by divided courts, were the cases of Dells v. Kennedy, 49 Wis. 555, and Page v. Allen, 58 Pa. St. 338. The latter court having in the meantime changed two of its judges in the subsequent year, in the case of Patterson v. Barlow, 60 Pa. St. 55, again by a divided court, but the new judges changing the majority opinion upon the subject, reversed the decision in Page v. Allen.

    The enactment of such laws is within the constitutional power of the general assembly. Edmonds v. Banbury, 28 Iowa, 267; In re The Polling Lists, 13 R. I. 729 ; McMahon v. Mayor of Savannah, 66 Ga. 217; State of Kansas v. Butts, 31 Nan. 537; Cooley Const. Lim. *601.
    2. The regulation of the elective franchise is a proper subject for classification, within the requirements of the constitutional provision, that laws of a general nature shall have a uniform operation throughout the state. Lehman v. McBride, supra; McGill v. The State, 34 Ohio St. 249 ; The State ex rel. v. Parsons, 40 N. J. Law, 8.
    The presumption in favor of the constitutionality of statutes when challenged under this provision, is entitled, to peculiar weight. The State v. Powers, 38 Ohio St. 63.

      Boynton § Hale and F. T. Dickman, also for defendant.-
    Legislation is manifestly required to carry into effect sec. 1, art. 5, of the constitution relating to the qualifications of electors. No person has the unqualified right to vote at any election. Certain- things -or facts are to exist as essential and indispensable “ qualifications ” of the right, and until these “ qualifications ” are ail possessed, the right to vote is not conferred and hence does not exist; and whether they all exist is and always remains a question of fact to be determined by evidence or proof; and the mode and kind of proof and the tribunal or board before which it is to be made, are necessarily the subject of regulation by the law making power.
    The only condition or restriction that the constitution places on the legislature in the designation or means, is the implied one that they shall be uniform, impartial, and not so unreasonable as to defeat the right. And in determining whether the regulations are such as to invade or destroy the right, much is to be allowed to legislative discretion and judgment. Monroe v. Collins, 17 Ohio St. 686.
    The act provides ample and convenient times to register, and prevents only those persons from voting who fail or neglect so to do. A voter may be unable to attend the election, or, if he attend, he may be unable to make the required proof of his right to vote, and is therefore denied the privilege. He would in either case lose his vote, not by any fault in the law, but by his own fault or misfortune. The loss of his vote is incident to the administration of the law, as it may to the act requiring registrations. But this is in no sense a ground for pronouncing the law invalid. Capen v. Foster, 12 Pick. 485 ; Patterson v. Barlow, 60 Pa. St. 78.
    The following cases will be found to bear directly on the question under consideration : Webster v. Byrnes, 34 Cal. 273 ; State ex rel. Wood v. Baker, 38 Wis. 71; Edmonds v. Banbury, 28 Iowa, 271; In re McDonough, 105 Pa. St. 488; Ensworth v. Albin, 46 Mo. 450; People v. Laine, 33 Cal. 55 ; Kansas v. Butts, 31 Kan. 537; McMahon v. Mayor of Savannah, 66 Ga. 217; Davis v. School District, 44 N. H. 398.
    That the act was one of a general nature under the power of classification, is quite thoroughly settled. State v. Brewster, 39 Ohio St. 653; State v. Powers, 38 Ohio St. 63; Exp. Falk, 42 Ohio St. 644; The State v. Pugh, 43 Ohio St. 98; Bronson v. Oberlin, 41 Ohio St. 476; McGill v. State, 34 Ohio St. 228; The State v. Parsons, 40 N. J. Law, 123; Wheeler v. Philadelphia, 77 Pa. St. 338; People v. Wright, 70 Ill. 388; Iowa R. L. Co. v. Soper, 39 Iowa, 112; C. B. & Q. R. Co. v. Iowa, 94 U. S. 155; In re N. Y. Elevated R. Co., 70 N. Y. 350; In re Application of Church, 92 N. Y. 4; Kilgore v. Magee, 85 Pa. St. 401.

      E. G. Hewitt, E. F. Noyes, and Thos. McDougall, also for defendant in error, filed no briefs.
   Atherton, J.

The ground upon which the return is claimed to be insufficient is that the act passed May 4,1855, (82 Ohio L. 232), entitled “ an act to provide for ascertaining the citizens who shall be entitled to vote in cities of the first and second grades of the first class, by amending and supplementing section 2926 of the Revised Statutes,” is unconstitutional and void.

It is claimed that the provisions of that act are in violation of section 1, article 5 of the constitution, which reads :

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

In Pennsylvania the supreme court held that a registry law was unconstitutional on the ground that it impaired the free exercise of the right of suffrage as conferred by the constitution, and that “no constitutional qualification of an elector can in the least be abridged, added to, or altered by legislation, or the pretense of legislation.” Page v. Allen, 58 Pa. St. 338, 347.

And the supreme court of Wisconsin held:

“ That part of section 8, chapter 235, Laws of 1879, which provides that no vote shall be received at any general election unless the name of the person offering to vote be on the register completed by the board of registry, as previously provided in said act, excepting only the case of persons who may ¡have become qualified voters before such election, but after the completion of such register — is in violation of section 1, article 3 of the state constitution, which defines the qualifications of electors; and that provision being an essential part of the act, without which it can not be supposed that the statute would have been enacted, the whole act is invalid.” Dells v. Kennedy, 49 Wis. 555.

In these states, like ours, there was no constitutional provision requiring or expressly authorizing registration.

Registration laws are in terms either authorized or required to be enacted by the constitutions of the following states: Alabama, Arkansas, Florida, Georgia, Illinois, ¡Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Noi’th Carolina, Rhode Island, South Carolina, Virginia, and West Virginia. The constitutions of the following states are silent on the question: California, Connecticut, Delaware, Iowa, Maine, Massachusetts, Minnesota, Nebraska, New Hampshire, New Jersey, Ohio, Pennsylvania, Tennessee, Texas, and Vermont.

The question here presented is whether, in the absence of constitutional provisions expressly authorizing it, the legislature can by its general grant of legislative power, and for the purpose of “ ascertaining the citizens who shall be entitled to vote,” enact registration laws.

The leading case upon this subject is admitted on all sides to be Cayen v. Foster, 12 Pick, 485, and as will be seen by the foregoing list, was determined by the court of last resort of a state whose constitution was silent on the subject of registration. ■

A statute was enacted establishing the city of Boston, and in section 24 of the act it was provided that prior to every election it should be the duty of the city officers of that city to make a registration of voters, and that no person should be entitled to vote whose name was not borne on the list. The supreme court held that the provisions of that act were not to be regarded as prescribing a qualification in addition to those which .by the constitution, entitles a citizen to vote, but only a reasonable regulation of the mode of exercising the right- of voting, which it was competent for the legislature to make.

So, in Wisconsin, where the constitution was also silent on the subject of registration laws, the supreme court held that although the constitution, section 1, ■ article 3, prescribed the qualifications of electors, and that a statute could not impair the right of those possessing them, they might require proof thereof, consistent with the right itself, and that the registry law of that state was valid so far as it provided for a register of qualified electors to be made in the manner thérein prescribed, and constituted such register one mode of proof of the elector’s right, and so far also as it requires the elector whose name is not upon such register to make other reasonable proof of his right to the inspectors of the election at the time of offering his vote. State ex rel. Wood v. Baker, 38 Wis. 71.

So, in Iowa, it was held that while the right to vote by one possessing the qualifications of an elector, as prescribed by the state constitution, can not either be, destroyed or impaired by the legislature, yet that the legislature may regulate the exercise of the right by enacting provisions for determining the age, length of residence, etc., of persons offering to vote, and that the registry law of that state providing for the registration of voters, was not in conflict with the constitution, prescribing the qualification of electors. Edmonds v. Banbury, 28 Iowa, 267.

This court has adopted the doctrine laid down in the case of Capen v. Foster, supra. Monroe v. Collins, 17 Ohio St. 666, 687.

Other decisions of like character might be cited; and we think the current of authority is opposed to the decisions in Page v. Allen and Dells v. Kennedy, in so far as they may be understood to pronounce against the constitutionality of all registration laws, and that -it is competent for the legislature, under the general powers of legislation granted to it by the constitution, to provide for a general registration of voters, and making the fact of registry a condition to the exercise of the right of voting.

The power being conceded, the legislature is supposed to know best the wants of the state in that regard, and it is not for the courts to question the wisdom of making such enactments.

Registration is one of the modes in which purity in elections may be attained, and every honest and qualified voter has an interest in securing the integrity of the ballot and excluding the ballots of the dishonest and unqualified.

Every honest voter is as much injured by the reception of a fraudulent vote as by the exclusion of his own, and it makes but little difference to him whether his vote is wrongfully excluded or completely neutralized by the ballot of a person unqualified. Among the safeguards that we deem most efficacious to prevent fraud, insure integrity at the polls, and enable the honest and qualified elector to exert his just influence, and control the result, is a wise system of registration; and we are satisfied that it is within the constitutional province of the legislature to enact a wise registration law, that, without in any way abridging the rights of qualified electors, or adding any unlawful qualifications to the voter, may secure the purity of the election by a registry law, so framed as to be a reasonable regulation of the mode of exercising a constitutional right.

But it is claimed in the case at bar that, admitting the general right to enact a proper registration law, the act under consideration is unconstitutional, because it does not contain reasonable regulations as to the right to vote, but imposes on the voter unreasonable and unnecessary restrictions, and “under the pretense and color of regulating, subverts and injuriously restrains the right itself.”

In Capen v. Foster, supra, 489, the court, after declaring the enactment of a registry law to be clearly within the just and constitutional limits of legislative power, as a reasonable and uniform regulation to secure and facilitate the right of voting in a prompt, orderly, and convenient manner, yet say that such a construction would afford no warrant for such an exercise of legislative power as, under the pretense and color of regulating, should subvert or injuriously restrain the right itself.”

The language of this case is adopted by our own court in Monroe v. Collins, supra. And on page 685, Welch, J., delivering the opinion of the court, says:

“ What the legislature can not do directly it can not do by indirection. If it has no power expressly to deny or take away the right, it has none to define it away, or unreasonably to abridge or impede its enjoyment by laws professing to be merely remedial. The power of the legislature in such cases is limited to laws regulating the enjoyment of the right, by facilitating its lawful exercise, and by preventing its abuse. All reasonable latitude should be allowed to the legislature in the exercise of this power of regulation, and every reasonable intendment in favor of the constitutionality of laws enacted for that purpose, should be made by the courts. Such laws are not to be held unconstitutional unless clearly so, and if they will at all bear a construction which makes them consistent with the constitution, they are to receive that construction, and so to be upheld. The true line between laws which take away or abridge the right of suffrage, and those which may lawfully be enacted to regulate its exercise, is laid down by the supreme court of Massachusetts in Capen v. Foster, 12 Pick. 488. It was there held, substantially, that laws of the latter description must be reasonable, uniform; and impartial, and must be calculated to facilitate and secure, rather than to subvert or impede the exercise of the right to vote.”

In Capen v. Foster, the court further say, p. 494: “ Still, if the provision of this law is such as to afford the voter no opportunity to know seasonably whether his name is on the list or not, and to have it inserted if previously omitted, it would constitute a serious objection to its validity;” and this is thequestion nowpresented for our determination.

In discussing the legislative power to regulate the right. of voting, the supreme court of Pennsylvania say: “ The right must not be impaired by the regulation. It must be regulation purely, not destruction. If this were not an immutable principle, elements essential to the right itself might be invaded, frittered away, or entirely exscinded under the name or pretense of regulation, and thus would the natural order of things be .subverted by making the principal subordinate to the accessory.” Page v. Allen, supra, 347.

The supreme court of Wisconsin, in discussing the registry law of that state assert:

“ The statute must be so construed as to reconcile all its provisions to the unimpaired, unincumbered right of suffrage at the election.” State ex rel. Wood v. Baker, supra, 88.

Judge Brewer, pronouncing the opinion of the supreme court of Kansas, declares:

“Doubtless, under the pretense of registration and under the pretext of securing evidence of voters’ qualifications, laws might be framed which would cast so much burden as really to be imposing additional qualifications. . As for instance, suppose the law required all voters in the state to be registered on personal attendance at the state capítol, on the first day of the year, for every election taking place during the year. The legislature can not by in form legislating concerning rules of evidence, in fact overthrow constitutional provisions.” The State v. Butts, 31 Kansas, 554.

“No registry law can be sustained which prescribes .qualifications of an elector additional to those named in the constitution, and a registry law can be sustained. only, if at all, as providing a reasonable mode or method by which the constitutional qualifications of an elector may be ascertained and determined, or as regulating reasonably the exercise of the constitutional right to vote at an election.” Dells v. Kennedy, supra, 558.

The above declarations of courts of last resort might be multiplied and indicate the true tests of the constitutionality of statutes relating to the subject of registration where the voter’s name must be found on the registry to entitle him to vote.

The legislature has full power to regulate the right to vote, but no constitutional power to restrain or abridge the right, or unnecessarily to impede its free exercise. Under the pretense of regulation the right of suffrage must be left untrammeled by any provisions or even rules of evidence that may injuriously or necessarily impair it, and so the citizen can not forfeit the right except by his own neglect or by such peculiar accidents as are not attributable to the law itself. So upon this part of the case our conclusion is that the legislature may enact registration laws, but they must be for regulation only, and must not unnecessarily abridge or impair the fight of suffrage secured to every elector by the constitution.

With that view we are to examine the provisions of the act in question, and by the tests given it must stand or fall.

Sec. 2926 provides for constructing election precincts.

Sec. 2926a provides for the appointment of registers.

Sec. 29266 provides that the registers shall attend at the usual places for holding elections on the third Thursday preceding every general election, from 8 a. m. to 9 p. M., for the purpose of registering voters, and be in attendance there for a like purpose for five successive days.

Sec. 2926c provides the mode of recording the names.

Sec. 2926d. ITow registers are to prepare lists to be posted up.

Sec. 2926e provides that registers shall be'in attendance again on the Wednesday preceding a general election,-for the purpose of revising and correcting the lists of voters, adding the names of those who will be entitled to vote at the ensuing election, etc.

It will be seen by the above there are but seven days in the year when voters can register. These are the six days commencing on the third Thursday preceding the election and the Wednesday preceding the election.

There is no provision for registering at pleasure during the earlier part .of the year, and no provision for proving qualifications on election day, and voting; and by sec. 2926e it is declared that “no vote shall be received at any election aforesaid unless the name of the person offering to vote be on the registry,” etc.

A voter who is the oldest inhabitant of the ward, and an elector in it for the greater part of his lifetime, if from absence, however necessary or unintentional, during the seven days, can not vote if his name is not on the registry. Many absentees may get home to vote, and if they were afforded opportunities during the year might also register, whose right of suffrage must necessarily be lost under the act.

How many mechanics may be absent, pursuing their trades during the seven days. A large number of persons will be away on steamboat and other sailing craft, and elsewhere earning a support. A large number of students, a great many of the class usually termed commercial travelers will be away, perhaps planning their trips to be home on election day. A large number of citizens in government employ, at Washington and elsewhere, will be at their post of duty, and may return to vote, but would hardly have the opportunity to return on a different day to register. Even the members of this court might be unable to register without a decided detriment to the public business, and might be compelled to elect between the neglect of important official duties and the loss of suffrage.

Is it a proper regulation of the constitutional right and privilege to say that the right shall be lost unless the elector appears in person during these seven days to register ? Is it reasonable to say that all these persons can not register either before or after the seven days; that they can not make application for- registration in writing upon oath, however well known, but must appear at these arbitrary times in person or lose their rights? As to this large class of persons necessarily absent during the time allotted for registration by the act, is this reasonable regulation, or is it an abridgment and impairment of the right to vote under the guise of regulation ?

What the legislatures have deemed reasonable regulation elsewhere may be learned by reference to the provisions of the registration laws of other states, especially where these acts have been upheld by the courts.

The Massachusetts registration statute, construed and favorably considered in Capen v. Foster, supra, required lists to be made of all electors of each ward qualified to vote, and that no person should be entitled to vote whose name was not borne on the list. But it was specially required that the selectmen and assessors should be in session immediately before or on the day of election, so as to give the voter an opportunity to then place his name on the lists if it had been omitted.

The Pennsylvania registry law provided that the assessors, on the first Monday of June, annually, should revise the transcripts received by the county commissioners and strike off those who have died or removed, and add to the list any one entitled. Copies of these lists are to be posted up where the elections are to be held by August 1, and that an unregistered voter otherwise qualified could on election day make an affidavit of his qualifications, and prove by the affidavit of a qualified voter his residence, and by filing the same could vote at the election. In re Election of McDonough, 105 Pa. St. 488.

The registry law of Iowa prohibited all persons from voting unless the name appeared upon the registration list, but an elector unregistered but otherwise qualified was permitted to vote upon a proper reason being furnished for not having registered in time and furnishing the affidavit of a registered voter as to his proper residence. Edmonds v. Banbury, 28 Iowa, 267.

The registry law of California, though prohibiting a citizen from voting whose name did not appear on the registry, yet permitted a qualified voter, though unregistered, on furnishing proofs of his right, and on the day of election furnishing the board of registration his affidavit setting forth satisfactory reasons why he did not register prior to the thirty days provided by law for registration before the election. People v. Laine, 33 Cal. 55 ; Webster v. Byrnes, 34 Cal. 273.

The election law of New York, of 1865, provides that the board of registry shall be in session on the Monday before the election for the purpose of making corrections in and revising the lists of voters, and the act of 1872 provides the registry shall be completed on the Saturday before the election — but neither of these acts have been subjected to judicial tests as to their constitutional validity.

The election law of Illinois prohibits the ballot of unregistered voters, except that it allows such voters, on making proof of their constitutional qualifications on election day, to vote without even requiring proof of a reason for not registering. Byler v. Asher, 47 Ill. 101.

The election law of Kansas provides for closing the registry ten days before the election, but permits the voter to register at all times during the year except the last ten days. State v. Butts, 31 Kansas, 537.

The registry act of Missouri requires the registration of voters to be completed ten days before the election, but the same simply follows the requirement of the constitution of that state.

In the state of Maine the selectmen are required to make lists of voters, and in towns' of over five hundred electors the names of legal voters may be added during the three days next preceding the election, and to the hour of five of the secular day prior to the election — and in towns of less population, the selectmen must be in session on the day of election for the purpose aforesaid. Revised Stat. of Me. 95.

In New Jersey, in cities of over a hundred thousand population, no person is permitted to vote unless registered ;■ but his name may be placed on the registration list upon the personal appearance of the elector before the board, or upon the production of his affidavit, or the affidavit of some other voter in the precinct, showing him to be a legal voter therein. Revision of Statutes of New Jersey, 364, section 152.

In Maryland, a list is to be made of all legal voters by registration officers, and such lists are thereafter to be corrected, but the lists so made are declared to be the legal and qualified electors and entitled to vote at all future elections, and annual registration is not required. The statute provides, however, for making additions to and corrections of the lists to within three days of the election. Supplement to Maryland Code, 240, et seq.

In Alabama l’egistration is required as a condition to vote, but the assistant registers are required to be present on election. day, at the election precinct, to register such voters as may have failed to register on any previous day. Code of Alabama, 23, section 233.

In Mississippi registration is required, and the registration lists are to be kept by the clerk of the circuit court: “ and any person not on the lists may appear at any time before the clerk and be registered.” Code of Mississippi.

The code of Arkansas provides for registration; but if the voter’s name does not appear on the lists he may still vote by taking an oath showing to the satisfaction of the election judges he is a qualified voter. Arkansas Stat. 471, section 2328.

We have been unable to find any case where a registration act has been upheld as constitutional which contained provisions similar to our statute. The necessary absence of a voter, on the seven days provided in the statute for registration, either by sickness, business, imprisonment, or other lawful reason, absolutely forfeits for the time being his constitutional right of suffrage. He can not anticipate expected absence, and register at an earlier period. He can not prove his right by his affidavit, or the affidavit of others, and excuse his personal presence at the place of registration. He can not on the day of election, or within five days prior thereto, by any proof of constitutional qualification, supply the want of former registration.

A foreigner who has taken out his first papers, and made his necessary declaration to become a citizen, and whose rights to full citizenship and the elective franchise will ripen during the five days before or on the day of election, can not secure registration or the right to vote, because he can not prove in advance that the action of the court will naturalize him.

We have deeply felt the gravity of the question here presented, and the importance to every citizen of its correct determination, and had hoped to find the provisions of the statute of such a nature that they might be upheld. We believe it an easy task so to frame a registry law that, while protecting the election from fraudulent votes, and securing the integrity of the ballot, it will in no practical way impede or injuriously restrain the constitutional right of the voter, but, in the language of Welch, J., in Monroe v. Collins, supra, the law must be reasonable, uniform, impartial, and calculated to facilitate and secure, rather than to subvert or impede, the exercise of the right to vote. Believing the act in question unnecessarily, unreasonably, and injuriously to impair and impede the right of suffrage to the voter who is necessarily absent at the times fixed by the act for registration, we ate unanimously of opinion that, we are compelled to declare it to be subversive of constitutional rights, and, therefore, void.

It has been suggested that while the act may be unconstitutional and void as to the voter necessarily absent, it might be upheld generally and as to all other classes of voters.

That question, we think, however, has been determined otherwise by this court.

It has been held that an ordinance of a municipal corporation prohibiting under a penalty the opening of a store or shop for business on Sunday, without exempting persons who conscientiously observe the seventh day. of the week, was opposed to the policy of the state law and void, and that a person may avoid it without showing lie belonged to the excepted class. City of Canton v. Nist, 9 Ohio St. 439; Thompson v. Mt. Vernon, 11 Ohio St. 688.

“Although a statute may be unconstitutional in part and constitutional in part, yet where only one object is aimed at, and the same is unconstitutional, and all the provisions are contributory to it, and would not have been enacted but for the main object, the whole statute is void. Darby v. City of Wilmington, 76 N. C. 133; The State v. Sinks, 42 Ohio St. 345; The State v. Perry County, 5 Ohio St. 497.

This act is therefore unconstitutional and void as to all classes.

It has been strenuously and ably argued that the act in question relating as it does, to the regulation of the right of the citizen to vote, is of a general nature and must therefore, under the constitution, have a uniform operation throughout the state under that clause, requiring all acts of a general nature to have such uniform operation.

But the conclusions we have arrived at are conclusive of the case, and upon this and other questions raised in the argument, we prefer to express no opinion now.

The petitioner is ordered to be discharged from custody and to recover his costs.

Judgment accordingly.


author: Bx the Court.

text:
    Mayo v. The State.

      Child stealing — Revised Statutes, section 6825 — Construction.
    It is an essential element of the crime of child stealing, under section 6825, of the Revised Statutes, that the intent unlawfully to detain or conceal accompany the act of taking the child.
    Error to the Court of Common PleaB of Franklin county.

      Mayo was tried, convicted, and. sentenced to the penitentiary, in the court of common pleas of Franklin county, at the April term, 1885, upon an indictment framed under section 6825 of. the Revised States, which defines the crime of and prescribes the punishment for child stealing. This is a petition in error to reverse the judgment.
    On the trial there was testimony tending to show that in December, 1884, Mayo, who lived in Delaware county^ came to the city of Columbus for the purpose of drawing an installment of pension money, payable to him by the federal government on account of disabilities incurred in the war of the rebellion. He spent several days in Columbus, stopping as was usual with him on such occasions, at the house of his sister-in,-law, Fannie Long, the prosecuting witness. It appeared that the latter’s husband had, about a year previously, abandoned her with four small children, leaving them in destitute circumstances and dependent solely upon the labor of Fannie for support. It was Mayo’s custom when stopping with them to expend a portion of his pension money in the purchase of provisions and clothing for the family; and upon the occasion of his visit in. December, 1884, he not only purchased articles of clothing for them and gave them money, but proposed to Fannie that she should move to Delaware, where he could be near and help her. Upon her refusal he asked permission to take some of the children with him to Delaware, and finally one of them to keep through the winter. When he was ready to depart he took the youngest child, eighteen months old, in his arms, and urged for permission to take it, to which he claims the mother acceded, and he thereupon left with the child; but it is claimed, upon the other hand, that he did so under the pretense of taking it out to purchase clothing for it, and that even for that purpose the mother refused to consent to its accompanying him. Upon arriving at the depot, Mayo found that the train for Delaware had gone. He then concluded to visit an uncle living in Greene county, and took another train going in that direction. On his arrival lie found bis uncle sick, and it became necessary that he should remain there, which he did, with the child, where it received proper attention, until the month of March following, writing several times during the winter to Fannie Long as to the whereabouts and welfare of her child, which letters, however, she claims not to have received, and that she had no knowledge of its whereabouts until March 4,1885, when Mayo, coming to Columbus to draw his pension, was arrested. He had walked from Greene county, being out of money, and intended, after receiving his pension, to return and bring the child home.
    The court, among other things, charged the jury: “If the evidence satisfies you beyond a reasonable doubt that defendant took, or led, or carried the said child away from the mother without her consent, and against her will,'it was an unlawful taking. And if you further find from the evidence beyond a reasonable doubt that when the defendant so carried away said child, he intended unlawfully to detain or conceal said Florence Long from her mother, Fannie Long, the defendant is guilty as charged in the indictment, and such should be your verdict.” And further, “ If you find from the evidence beyond a reasonable doubt that defendant unlawfully carried the child way (and I have described to you what an unlawful taking and carrying away is), then and in that case any detention or concealment of said child by defendant (if you find that defendant did conceal or detain said child), was an unlawful detention within the meaning of the statute.”

      John J. Chester, for plaintiff in error.

      Robert B. Montgomery,, prosecuting attorney, for the state.
   Bx the Court.

The Revised Statutes provides: “ Sec. 6825. Whoever. leads, takes, carries, decoys, or entices away a child under the age of twelve years, with intent unlawfully to detain or conceal such child from its parent, guardian, or other person having the lawful charge or custody thereof, and whoever, with the intent aforesaid, knowingly harbors or conceals any such child so led, taken, carried, decoyed, or enticed away, shall be imprisoned in the penitentiary not more than twenty years nor less than one year.”

The gist of the crime of child-stealing under this section is the “ intent unlawfully to detain or conceal ” the child from its parent or person entitled to its custody. But the court instructed the jury that if the child was taken away from its mother without her consent and against her will, such taking was unlawful, and any detention thereafter completed the crime. This instruction was misleading. Plainly, the intent unlawfully to detain must be present at the time of the taking. A child might be taken from its home without the consent, and even against the will, of its parent, without intending any detention or concealment, such as for the purpose of taking it to a place of amusement, and under the charge, any detention, however brief or accidental, would constitute the offense. The tendency of the charge was to lead the jury to eliminate from their minds all considerations with respect to the motive and intent of the accused at the time of the taking, and to look to the naked faets as to whether the child was taken without the consent and against the will of the mother, and was followed by any detention.

The crime of child-stealing is one of the most cruel and heartless in the calendar. It strikes a blow at the tenderest and most sacred affection of the human breast, and is usually resorted to for purposes of revenge or extortion. It is never the outgrowth of kindly and charitable feelings, such as the evidence tended to show animated Mayo in his effort to help his sister-in-law and her family in their struggle for existence.

By the Jewish and the civil law, kidnaping was punishable with death, and by the common law with fine, imprisonment, and the pillory.

Fortunately, child-stealing is now an offense of rare oceurrenee, the records of the state showing but a single conviction in ten years.

Where the crime is proven in all its elements, punishment should be exemplary, but the intent unlawfully to detain or conceal is an essential element, and must accompany the act of taking.

Judgment reversed.