author: Summers, J.

text:
    Gordon v. Steinmetz.

      Action for recovery of money in justice’s court — Defendant appeals to common pleas — And sets up promissory note as counterclaimr-Said note not due at time of original action by plaintiff — Defendant entitled to judgment for difference in Ms favor — Sections 58J¡S and SSJ/9, Revised Statutes'— Law of counterclaims and off-sets — Pleadings—Adjustment of counter rights — Question of court costs.

    1. When in an action for the recovery of money only, the defendant in his answer, sets out a counterclaim or .set-off, there may be a finding in favor of each party, hut. only one judgment is proper, and that for the difference between the ■ amounts of the findings and for the party in whose favor is the greater amount and, under sections 5348 and 5349, Revised Statutes, when not otherwise provided by statute, for costs.
    2. ' When, in an action for the recovery of money only, eom- ' menced in a justice’s court, the plaintiff recovers a judgment in that court, and the defendant appeals the case to the court of common pleas and there sets out in his answer, by way of counterclaim, a promissory note which was not due at the time of the trial in the justice’s court, and upon trial in the court "of common pleas there is a finding in his favor on the note and for the plaintiff 'for a less amount on his cause of action, the defendant is entitled to a judgment in his favor for the difference and for all of his costs in both courts.
    3. When, in an action for the recovery of money only the judgment is in favor of the plaintiff, he is, under section 5348, Revised Statutes, when not otherwise provided by statute, entitled to recover all of his costs, notwithstanding a part of them may have been made in litigating a cause of action the issue as to which is found against him.
    (No. 8672
    Decided January 31, 1905.)
    Error to the Circuit Court of Jefferson county.
    November 27, 1900, Gordon sold to Steinmetz a mare for $100.00. Fifty dollars was paid in cash, and a promissory note dne February 27, 1901, was given for the remainder.
    December 26, 1900, before the maturity of the note, Steinmetz, hereafter referred to as the plaintiff, brought suit against Gordon, hereafter referred to as the defendant, to recover damages for breach of warranty in the sale.
    The plaintiff recovered before the justice $36.25 as damages, and his costs taxed at $55.90, and the defendant appealed thé case.
    In the court of common pleas the plaintiff filed a petition setting forth his-cause of action; and the defendant, March 29,1901, filed an answer and cross-petition, for answer admitted- the sale of the mare for the price averred and denied every other allegation, and by way of cross-petition set up the note and asked for judgment for the amount of the note with interest, and for costs of suit.
    For answer to the cross-petition of the defendant, the plaintiff set up two defenses. First, the false warranty, as set out in his petition, and second, that at the time of the commencement of the action the note had been transferred to and was held by a third person.
    The jury returned the following verdict:
    “We, the jury, being duly impaneled, sworn and affirmed, find that there is due the plaintiff from defendant herein, Gordon, the sum of $30.00, and we find that there is due the defendant, Ernest Gordon, from the said plaintiff, John M. Steinmetz, the sum of $53.28, leaving the amount due the said Ernest Gordon, $23.28. ”'
    The court overruled a motion for new trial and rendered judgment against the plaintiff in favor of the defendant for the balance found due him by the verdict of the jury, and for his costs, and rendered judgment against the plaintiff for his own costs.
    A. motion to retax the costs was overruled and error prosecuted to the circuit court.
    The circuit court found that the common pleas court erred “in the awarding of judgment for all of the costs against said plaintiff below. And the said judgment of the court of common pleas is hereby modified as follows: Judgment is entered for plaintiff below for all costs of the said plaintiff on the trial of'this cause of action before the justice of the peace, and in the court of common pleas on appeal; and judgment is rendered for said defendant for all costs on his .counterclaim — that is for all costs not awarded to the plaintiff.
    “It is therefore considered, ordered and adjudged by this court that the judgment and proceedings of the court of common pleas in said action in favor of said defendant in error and against said plaintiff in error, in so far as applies to the costs aforesaid, be and the same hereby are set aside, reversed and held for naught, and the costs of said action are hereby, adjudged against the said parties as hereinbefore stated.” ■
    Error to the circuit court is prosecuted in this court.

      Mr. Emmett E. Ershine and. Mr. DeWitt Ershine, for plaintiff in error.

      Mr. John J. Watson; Mr. A. C. Lewis and Messrs. Welty & Albaugh, for defendant in error.
   Summers, J.

Sections 551 and 553 of the code of civil procedure (51 O. L., 57) are as follows:

‘ ‘ Section 551. Where it is not otherwise provided •by this and other statutes, costs shall be allowed, of course, to the plaintiff upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property.”
“Section 553. Costs shall be allowed, of course, to any defendant upon a judgment in his favor in the actions mentioned in the last two sections.. ”

In the court of common pleas this was an action for the recovery of. money only, and as the judgment was in favor of the defendant he was entitled to judgment for his costs under the above sections, it nowhere being otherwise provided.

These sections now appear, unchanged in legal effect, in the Revised Statutes as sections 5348 and 5350.

The matter is entirely a creature of statute and the construction of the statutes seems to have been settled by prior decisions.

In Beaton v. Radford, 40 Ohio St., 106, the plaintiff sued on a promissory note. The defendant admitted the making of the note, but by counterclaim charged partial failure of Consideration and breach of contract for which the note was given, and asked damages exceeding the sum due on the note. Issue on the counterclaim was tried, resulting in a verdict allowing to defendant a sum which, being credited on the note, left due the plaintiff $177.82, for which and for all the costs he recovered judgment. And it was held that under section 551, above set out, the judgment for costs in favor of plaintiff was right.

The case under consideration is the converse of that. Here the suit is for breach of warranty, the defendant denies the breach and set's up the note,' the plaintiff admits the making of the note and again sets up the breach of warranty, the issues are submitted to a jury resulting in a verdict for the defendant for the amount due on the note, and for the plaintiff on the breach for damages in a sum less than the sum found due the defendant on the note, consequently judgment upon the verdict is entered for the defendant for the difference. Section 553, the converse of section 551, applies, and it necessarily follows that, of course, costs should be allowed to the defendant.

The fact that the plaintiff commenced his action in a justice’s court does not withdraw the matter from the operation of the statute.

The action there was subject to the right to appeal to the court of common pleas, and there, under the provisions of the justices’ civil code, the action was to be tried de novo. And section 93 of the code, now section 5067 of the Revised Statutes, provides that “The defendant may set forth in his answer as many grounds of defense, counterclaim and set-off as he may have.” And section 95 of the code, now more scientifically carried in the revision of the statutes as a part of section 5348, provided that if the defendant omit to set up his counterclaim or set-off he could not recover costs in any subsequent action thereon'.

The defendant’s note was not due at the time of the trial in the justice’s court, and he could not therefore set it up as a counterclaim. Had it been due, and had the defendant failed to set it up, section 6527 would have applied, and the defendant could not have recovered costs in any subsequent action thereon.

The judgment in the justice’s court was suspended by the. appeal and superseded by the judgment in the appellate court.

The judgment of 'the court of common pleas allowing costs in an action for the recovery of money only to the party in whose favor judgment was rendered is in accordance with the uniform practice so far as it has been called to our attention, and in such cases, where costs are allowed, the rule generally is to allow costs to the party recovering.

One object of the code was and is, so far as practicable, to induce litigants to settle their differences in one suit and the losing party should pay the prevailing party’s costs unless, as he may, by tender or offer to confess judgment, he frees himself from the presumption of having made necessary the litigation.

The files of the unreported case of Saxton v. Plymire, 54 Ohio St., 622, decided on the authority of Beaton v. Radford, supra, have been examined, and, while it may not support the conclusion here reached, it may be well to state the ease. This action was commenced in the court of common pleas by Ply-mire against Saxton. Two causes of action were stated in the petition. The first was for money had and received. The second was- for breach of contract of a physician in not rendering skillful treatment. The jury found in favor of the plaintiff on the first cause of action and in favor of defendant on the second cause of action, and the court of common pleas rendered judgment in favor of the plaintiff for the amount found due him upon the first cause of action and for all of his costs in the action.

In the circuit court, where proceedings in error were prosecuted, it was found and adjudged as follows: “The court does further find that there was error in the rendition of the judgment for all the costs in the case against the said O. H. Saxton and in favor of said Martin Plymire and that the said O. H. Saxton was and is entitled to a modification thereof and to have a judgment in his favor as to all costs made by him on said second cause of action as if the .same had been determined in a separate suit; and that the judgment of said Martin Plymire and in his favor as to costs should have been for all other' costs by him made in said action except the costs made by him exclusively upon said second cause of action. It is therefore ordered and adjudged that the plaintiff in error recover of the said Martin Plymire, defendant in error, his costs as aforesaid made exclusively upon said second cause of action taxed to $--. It is further ordered and adjudged that the defendant in error recover of the plaintiff in error all other costs by him made in the said action except the costs made by him exclusively upon said second cause of action taxed to $—

In the Supreme Court this action of the circuit court was reversed and the judgment of the court of common pleas in that respect affirmed.

The judgment of the circuit court is reversed and the judgment of the court of common pleas affirmed.

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


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    The State of Ohio ex rel. Sheets, Attorney General, v. The Union Depot Co.

      Union Depot Company — May grant to Transfer Company — Exclusive right to use portion of depot grounds — For standing its hacks, etc. — All others may he excluded,, when — Sections 8446 to 3452, Revised Statutes — Rights of contract.

    A Union Depot Company organized under the act of April 3, 1868 (65 O. L., 63, now sections 3446 to 3452, Revised Statutes, inclusive), may grant to a Transfer Company the exclusive right to use a designated portion of its depot grounds for the purpose of standing thereon its hacks and vehicles, and of soliciting thereon the patronage of incoming passengers; and a rule of said depot company excluding therefrom all others engaged in a like business, except for the purpose of delivering passengers or of receiving passengers who shall have previously employed them, is a reasonable rule, and may be enforced so long as said transfer company provides and furnishes at such depot adequate accommodations in the way of vehicles to meet the reasonable requirements of the traveling public and shall make no greater charge for its services in carrying passengers and baggage to and from such station than is made or may be permitted to be made by others for like services.
    (No. 8733
    Decided January 31, 1905.)
    Petition in error to the circuit court of Franklin county.
    In Quo Warranto.
    The facts are sufficiently stated in the opinion.

      Mr. Wade E. Ellis, attorney general, for plaintiff in error, and Mr. Edgar B. Kinlcead, of counsel, cited and commented upon the following authorities:
    Elliott on Eailroads, sec. 1592; Pfaff v. Railroad Co., 108 Ind., 144; State v. Railway Co., 47 Ohio St., 139; Messenger v. Railway, 37 N. J. Law, 531; Scofield v. Railway, 43 Ohio St., 601; Hedding v. Gal

      lagher, 69 N. H., 650; 76 Am. St. Rep., 204; Snyder v. Union Depot Co., 10 Circ. Dec., 645; 19 C. C. R., 368; Old Colony Railroad Co. v. Tripp, 147 Mass., 35; Indianapolis Union Railway Co. v. Dohn, 153 Ind., 10; Indian River Steamboat Co. v. Transportation Co., 28 Fla., 387; Pennsylvania Co. v. Chicago, 181 Ill., 289; 74 Am. St. Rep., 274; McConnell v. Pedigo, 92 Ky., 465; Kalamazoo Hack & Bus Co. v. Sootsma, 84 Mich., 194; 22 Am. St. Rep., 693; Cravens v. Rodgers, 101 Mo., 247; State v. Reed, 76 Miss.; 211; 71 Am. St. Rep., 528; Montana Railway Co. v. Langlois, 9 Mont., 419; 18 Am. St. Rep., 745; Godbout v. St. Paul Depot Co., 79 Minn., 191; Summitt v. State, 76 Tenn., 413; Griswold v. Webb, 16 R. I., 649; New York, etc., Railroad Co. v. Scovill, 71 Conn., 136; Fluker v. Railroad Co., 1 Ga., 461; Kates v. Atlanta Baggage & Cab Co., 107 Ga., 636; Boston & Albany Railroad Co. v. Brown, 177 Mass., 65; New York, etc., Railroad Co. v. Flynn, 74 Hun, 124; Donovan v. Pennsylvania Co., 120 Fed. Rep., 215; Camblos v. Railroad Co., 9 Phila., 411; P. Ft. W. Railway Co. v. Bingham, 29 Ohio St., 364; secs. 3446 to 3450, 3451, 3452, Rev. Stat.

      Mr. Joseph Olds and Mr. W. O. Henderson, attorneys for defendant in error, cited and commented upon the following authorities:

      Snyder et al. v. Union Depot Co., 10 Circ. Dec., 645; 19 C. C. R., 368; New York, etc., Railroad Co. v. Scovill, 71 Conn., 136; Napman v. People, 19 Mich., 352; Kates v. Atlanta Baggage & Cab Co., 107 Ga., 636; Jencks v. Coleman, 13 Fed. Cas., 443; Beadell v. Railway Co., 2 C. B. N. S., 509; Painter v. Railway Co., 2 C. B. N. S., 702; Ilfracombe Public Conveyance Co. v.
      Railway Go., 1 Nev. & McN., 61; Perth, etc., Com. v. Ross, L. R. App., 479; Railroad Co. v. Bingham, Admx., 29 Ohio St., 364, 370, 371; Barker v. Midland Railway Co., 18 C. B., 45; Hole v. Digby, 27 W. R. (Q. B. Div., 1879), 884; Old Colony Railroad Co. v. Tripp, 147 Mass., 35; Godbout v. St. Paul Union Depot Co., 79 Minn., 188; Fluker v. Railway Co., 81 Ga., 461; Cosgrove v. Augusta, 103 Ga., 835; Kates v. Atlanta Baggage & Cab Co., 107 Ga., 636; Griswold v. Webb, 16 R. I., 649; New York, etc., Railroad Co. v. Bork, 23 R. I., 218; Barney v. Steamboat Co., 67 N. Y., 301; Com. v. Power, 7 Met., 596, 600; Harris v. Stevens, 31 Vt., 79, 88; Landrigan v. State, 31 Ark, 50; Express Cases, 117 U. S., 1; Atlantic Express Co. v. Railroad, 111 N. C., 463; Barney v. The D. R. Martin, 11 Blatchf., 233; Chicago, etc., Railroad Co. v. Pullman Southern Car Co., 139 U. S., 79; Kentucky, etc., Bridge Co. v. Railway Co., 37 Fed. Rep., 571, 628; St. Louis Drayage Co. v. Railway Co., 65 Fed. Rep., 39; Alexandria Bay Steamboat Co. v. Railway Co., 45 N. Y. S., 1091; Missouri Pacific Railway Co. v. Nebraska, 164 U. S., 403; Minnesota v. Railway Co., 36 Minn., 402; sec. 19, art. 1, Const. of Ohio; Reeves v. Treasurer of Wood County, 8 Ohio St., 345; In the matter of Albany Street, 11 Wend., 149; Bloodgood v. Railroad Co., 18 Wend., 9, 59; Varick v. Smith, 5 Paige, 137; Sedgwick on Const. Law, 514, 515; Brannon on the Fourteenth Amendment, 163; 2 Tucker on Constitution, 870; Pumpelly v. Canal Co., 13 Wall., 166; Law. Ed., Book 20, 558; Missouri Pacific Railway Co. v. Nebraska, 164 U. S., 403; Brown v. Railway Co., 27 N. Y., 69; Boston & Albany Railroad Co. v. Brown, 177 Mass., 65; Boston & M. Railroad Co. v. Sullivan, 177 Mass., 230; Norfolk & Wheeling Railway

      Co. v. Old Dominion Baggage Co., 99. Va., 111; New York, etc., Railroad Co. v. Warren, 64 N. Y. S., 781; New York, etc., Railroad Co. v. Flynn, 26 N. Y. S., 859; New York, etc., Railroad Co. v. Sheeley, 27 N. Y. S., 185;. Donovan v. Pennsylvania Co., 120 Fed. Rep., 215; Montana Union Railway Co. v. Langlois, 9 Mont., 409; Cravens v. Rodgers, 101 Mo., 247; Kalamazoo Hack & Bus Co. v. Sootsma, 84 Mich., 194; McConnell v. Pedigo, 92 Ky., 465; Indianapolis Union Railway Co. v. Dohn, 153 Ind., 10; Hedding v. Gallagher, 69 N. H., 650; State v. Reed, 76 Miss., 211; Markham v. Brown, 8 N. H., 523; Cole v. Rowen, 88 Mich., 219; Lucas v. Herbert, 148 Ind., 64; Pennsylvania Co. v. Chicago, 181 Ill., 289; Ilwaco Railway Co. v. Railway Co., 57 Fed. Rep., 673; Brown v. Railroad Co., 151 N. Y., 674; Express Co. v. Railroad Co., 111 N. C., 464; Harris v. Stevens et al., 31 Vt., 79.
   Crew, J.

We learn from -the record in this case that in August, 1872, the defendant in error was incorporated and organized as a Union Depot Company under the act of April 3, 1868 (65 O. L., 63), by the Cleveland, Columbus, Cincinnati & Indianapolis Railway Company and the Pittsburg, Cincinnati & St. Louis Railway Company. About 1873 said.Depot Company became the owner in fee of the tract of land in the city of Columbus abutting on High street, upon which its union station and railroad are constructed. Prior to 1892 said station and railroad and the approaches thereto were at grade with High street adjacent to said property. About 1892 and 1893 the city of Columbus erected a viaduct on High street adjacent to said property and over the railroad tracks crossing said street, thereby raising the grade of High street on said viaduct adjacent to said station and its approaches, about twenty feet. Thereafter the Union Depot Company constructed its new union station, and the covered walk, driveway and concourse, forming the approach thereto in such manner that the same could be used in connection with and could he entered at grade from said viaduct, and it opened the same for use about August, 1897. The dimensions and arrangement of said driveway and concourse are such that they will not permit or accommodate thereon more than ten public or private hacks or carriages and two or three baggage wagons, at one and the same time. The Columbus Transfer Company is a corporation engaged in the hack and transfer business in the city of Columbus and in carrying passengers and baggage to and from said union station. On July 15,1899, the defendant in error, The Union Depot Company, made and entered into a written contract and agreement with the said The Columbus Transfer Company, which contract is as follows:

“This agreement made this fifteenth day of July, in the year eighteen hundred and ninety-nine, between the Union Depot Company, as first party, and the Columbus Transfer Company, of Columbus, Ohio, as second party. '
Witnesseth that the first party demises and leases to the second party the exclusive privilege of - soliciting upon its premises the carrying of passengers and baggage from thé union station, the property of said first party; in consideration of this, in addition to the stipulations hereinafter named the said second party agrees to provide a sufficient number of omnibuses, carriages, coupes and baggage wagons, to adequately provide for the accommodation of the traveling public, at all trains arriving, and at all hours of the day and night; the same to be kept and maintained in good order and condition. Said second party also agrees to make no greater charge for its services in carrying passengers and baggage than ■ is or may be provided for in the ordinances of the city of Columbus relating, thereto. The vehicles of •said second party are to occupy such space on the concourse as may be designated by the station officers, and its employes at all times and in all respects shall be subject to the regulation and control of said officers.
“To hold the same unto the second party as tenant at will of the first party, and for the rent or sum of six hundred dollars ($600.00) per annum to commence on the fifteenth day of July, A. D. 1899, and to be paid in monthly installments on the tenth day of the following month of each year during said tenancy.
“That said first party hereby reserves ,the right to terminate this agreement and the said tenancy, and to take possession of and re-enter upon said premises at any time hereafter, after having given to the second party, or left, upon said premises, sixty (60) days.’ notice, in writing, of. its intention so to do, -and requiring said party to quit and deliver up possession of said premises.
• “That said second party hereby agrees to become and continue to be the tenant at will of the first party, under the conditions hereof, to pay -said rent, as above provided, and to keep said premises in good order and condition, and to quit and deliver up possession of said premises to said first party upon the expiration of the time mentioned in any notice to quit, given as aforesaid; and that upon the expiration of such time, the said tenancy shall cease, and said first party shall have the right forthwith to reenter upon and occupy, said premises, without .any further „or other notice, proceeding or process whatsoever.
“The said second party hereby.agrees not to use or occupy said premises for any other purpose than is above specifically described and not to assign., or transfer this agreement, nor underlet said premises without the written consent of the first party being first obtained.
“In testimony whereof, the parties hereto have caused this agreement to he executed in duplicate as of date the day and year first above written.
“Union Depot Co., Columbus, Ohio.
. ‘ ‘ By James McCeea, President.
“ (Seal.)
‘'Attest: C. C. Coenee, Secretary.
£ Sealed and delivered in the presence of us:
“George W. Bright.
“E. F. Wood.
“The Columbus Transfer Co. (Seal.)
“By S. S. Rickley, (Seal.)
“Vice President.”

Thereafter in order to make said contract effective and for the purpose of regulating and prescribing the conduct and management of said union depot and the business thereof, said Depot Company adopted certain rules and regulations, among which were the following:

“First: The space in the concourse adjoining the covered walk, for a distance of two hundred feet west of the station, is to he occupied by the Columbus Transfer Company for receiving, delivering and awaiting 'passengers.
'‘ Second: ' Other, public hacks and other public vehicles will not be permitted to stand on the concourse between High street and the station building,, except to deliver passengers or to receive passengers who shall have previously employed them, and then for the shortest possible time, occupying such space for that purpose as may be designated by the station officers. ’ ’

The single question here for our determination is, were the contract and rules above set forth such as the Union Depot Company might lawfully make and adopt? On the trial of this case in the circuit court, that court answered this in the affirmative, and found and so adjudged that said Depot Company had the right to adopt and enforce such rules and to make and perform said contract. It is to procure a reversal of this finding and judgment of the- circuit court that this proceeding in error is prosecuted.

"While- it is contended and stated by relator in his brief that the making of said contract and^the adoption of said rules by the Union Depot Company was and is , a misuse and abuse of its corporate powers because “it is an unlawful discrimination against the traveling public,” no such complaint is made in his petition, the averment there being, “that said defendant has- misused its corporate powers and franchises by adopting through its board of managers a rule and regulation discriminating in the manner in which said concourse is to be used in favor of said The Columbus Transfer Company and against all others engaged in the hack and transfer business,” and on the trial of this case in the circuit court, so far as appears from the record, no question was made, or evidence offered for the purpose of showing, that reasonable and equal facilities were not afforded by said Depot Company to all passengers arriving at or departing from said union station, or that the performance of said contract or the observance of said regulation was any detriment or disadvantage to the traveling public. So that the particular question presented by this record is not whether the contract and rule made by the Union Depot Company is on the part of said Company an invasion or violation of the rights of the traveling public, but rather whether such contract and regulation is an unauthorized and unlawful discrimination against those persons and corporations engaged in the hack and transfer business other than the Columbus Transfer Company. However the question of whether such contract and rule is in violation of any public duty owed by the Depot Company to such of the traveling public as become its patrons, being at least indirectly or incidentally involved in this controversy, it may perhaps properly be considered in determining the validity of the contract and regulation complained of by relator. It must, we think, be conceded that the Depot Company in the erection and construction of its station, and its driveway or concourse, owed no such duty to the traveling public, as imposed upon it the obligation to so construct such driveway or concourse as to provide thereon a public hack stand. The fact that it did so construct it as to conveniently accommodate a limited number of hacks or vehicles does not divest it of its right or control over its own property, and it may therefore, if it so desires, without violation of any duty, exclude therefrom all hacks and vehicles, and that it has, and may exercise this right is conceded by the relator. If, then, it may rightfully exclude all vehicles from its station grounds, what right of the public can be said to be violated, or abridged, by the license or permission given to the Columbus Transfer Company to occupy the space in said concourse adjoining the covered walk for a distance of two hundred feet west of the station, when said company obligates itself “to provide a sufficient number of omnibuses, carriages, coupes and baggage wagons, to adequately provide for the accommodation of the traveling public at all trains arriving and at all hours of the day and night; the same to be kept and maintained in good order and condition, and agrees to make no greater charge for its services in carrying passengers and baggage than is or may be provided for in the ordinance of the city of Columbus relating thereto,” and where the license so given is, both by the rules of said Depot Company and the judgment of the circuit court in this case, limited and held to be subject to the right of other public hacks and vehicles to use and occupy such portion of said driveway for the purpose of delivering passengers, or of calling for persons who shall have previously engaged them. If the Depot Company is charged with no duty to furnish to incoming or outgoing passengers the means of transportation to and from its station, and is under no legal obligation to permit hacks or vehicles to enter its station grounds, clearly it violates no public duty when in-order that it may promote its own business and for the accommodation and convenience of its patron passengers, it grants to a transfer company the privilege or license to occupy, with its hacks, a certain portion of its concourse or driveway, even though such grant or license be exclusive in its character. That which said Depot Company may do or permit outside of its corporate obligation cannot be said to be an abuse of its corporate power, or inconsistent with its corporate duty. It is however insisted by relator in this case that even though the Depot Company may have the right to prohibit all hack-men from standing their hacks on said driveway or concourse, yet, it must either exclude all, or admit all, and that it may not elect to admit some'and exclude others, and it is contended that the grant made to the Columbus Transfer Company is an abuse of corporate power on the part of the Depot Company in that, it is an unlawful discrimination in favor of said Transfer Company, and against all others engaged in a like business. While the question thus raised has not heretofore been before this court for consideration, yet this precise question has been so thoroughly and exhaustively reviewed and discussed, and has been so many times considered and determined by the courts, both federal and state, in other jurisdictions, that we feel it would be unprofitable, even were we able to do so, to attempt, by way of reason or argument, to add to what has already been said in these adjudicated cases. Counsel in this case have shown a commendable diligence in the collection and citation of authorities in support of their respective claims, and have materially aided us in the consideration of this case by their carefully prepared and comprehensive briefs. The authorities, it would seem, are in sharp conflict upon this particular question, and a review of all the authorities cited by counsel would not be possible within the proper limits of this opinion, hence only those apparently most relied upon will be noticed. The cases cited and relied upon by relator as supporting his contention of “unlawful discrimination,” are from the following jurisdictions: Missouri, Montana, Michigan, Kentucky, Indiana and New Hampshire.

Of these the decisions in the first three states would seem to have been rested upon some constitutional or statutory provision of the particular state. In Cravens et al. v. Rodgers, 101 Mo., 247, the second clause of the syllabus is as follows: “The agreement to give the exclusive privilege is against public policy and the spirit of the state constitution (art. 12, sec. 23) which prohibits ‘discrimination in charges or facilities in transportation * * * between companies and individuals or in favor of either.’ ” In Montana Union Ry. Co. v. Langlois, 9 Mont., 419, the decision of the court seems to have been predicated in part at least, upon a similar constitutional provision of that state, against discrimination (art. 15, sec. 7, Const. of Montana).

The case of the Kalamazoo Hach & Bus Co. v. Sootsma, 84 Mich., 194, involved the construction or interpretation of a statute of that state (How. Stat., sec. 3355), requiring all railroad corporations to grant equal facilities for the transportation of passengers and freight to all persons, companies or corporations, and the decision in that case was rested upon the interpretation of this statute, although the judge in: delivering the opinion states therein, that independent of the statute and upon principle, the decision would have been the same. In this latter case the railroad company granted to the Kalamazoo Hack & Bus Company the exclusive use of a certain portion of its depot grounds most favorably located .for receiving and delivering passengers, and excluded therefrom all other hackmen, not even permitting them to occupy said space for the purpose of delivering passengers or of receiving passengers who had previously employed them, and this fact alone is sufficient to distinguish it from-the present case. In McConnell v. Pedigo, 92 Ky., 465; Indianapolis Union Railway Co. v. Dohn, 153 Ind., 10, and Hedding v. Gallagher, 69 N. H., 650, the decision of the court is not based upon any constitutional or statutory provision, but in these cases grants such as the one here under consideration were held to be illegal either on the ground of public policy or as tending to create a monopoly. These cases therefore are directly in point and it must be admitted fairly support the contention of plaintiff in error, yet these decisions are so far opposed to what we conceive to be the clear weight of authority, that we are not disposed to adopt or follow them. Opposed to the doctrine of the foregoing cases, and supporting the contention of counsel for the Union Depot Company that a grant or license such as the one now under consideration is not unreasonable or unlawful, will be found, among others, the following cases: New York, etc., Railroad Co. v. Scovill, 71 Conn., 136; Kates v. Atlanta Baggage & Cab Co., 107 Ga., 636; Boston & Albany Railroad Co. v. Brown, 177 Mass., 65; Old Colony Railway Co. v. Tripp, 147 Mass., 35; Godbout v. St. Paul Union Depot Co., 79 Minn., 188; Norfolk & Western Ry. Co. v. Old Dominion Baggage Co., 99 Va., 111; New York, etc., Railway Co. v. Bork, 23 R. I., 218; The N. Y. Central, etc., Railroad Co. v. Flynn et al., 74 Hun, 124; Brown v. The N. Y. Central, etc., Railroad Co., 75 Hun, 355; Barney v. The D. R. Martin, 11 Blatchf., 233.

In Old Colony Railroad Co. v. Tripp, supra, Allen, J., says in the opinion: “We have not been referred to any decision or dictum, in England or in •this country, that a common carrier of passengers and their baggage to and from a railroad station has any. right, without the consent of the railroad company, to usé the grounds, buildings and platforms of the station for the purpose of soliciting the patronage of.passengers, or that a regulation of the company which allows such use by particular persons, and denies it to others, violates any right of the latter. Cases at common law or under statutes to determine whether railroad companies in particular instances gave equal terms and facilities to different parties to whom they furnished transportation, and with whom they dealt as common carriers, have no bearing on the ease at bar. The defendant in his business of solicitor of the patronage of passengers held no relations with the plaintiff as a common carrier, and had no right to use its station grounds and buildings.”

A comparatively recent case, and one involving the identical question involved in the present case, is that of Donovan v. Pennsylvania Co., 120 Fed. Rep., 215, decided by the circuit court of appeals of the seventh circuit in 1903, in which it would seem the court had before it most, or all, of the adjudicated cases bearing upon this question. The syllabus of that case is as follows :

“A ráilroad company is under no duty, as a common carrier, to permit hackmen to enter its stations for the purpose of soliciting business from its passengers, and therefore its granting of such right to one person or concern does not entitle others to equal privileges on the same terms.”

The following is from the opinion in that case by Baker, Circuit Judge: “Appellee has a contract with the Parmelee Transfer Company under which two agents of the transfer company are stationed within the depot building to solicit the custom of passengers. Those appellants who are hackmen have continuously asserted the right, over appellee’s repeated objections, to have two of their number enter the building to solicit custom, and have acted accordingly, and threaten to continue. These appellants who are not hackmen claim no right to enter appellee’s building for the purpose of plying their trades. The question on this branch of the cáse is the right of the hackmen to solicit business within the station, over appellee’s protest. That appellee may exclude all hackmen is not denied. But it is insisted that appellee may not lawfully give an exclusive privilege to one hackman; that, by granting the privilege to one, it has waived its right of exclusion; and that its only remaining right is to promulgate and enforce reasonable rules and regulations under which all hackmen, without discrimination, shall be afforded equal facilities in soliciting patronage within the station. (Citing many authorities pro and con.)

“The asserted right of the hackmen necessarily postulates a correlative duty on the part of the railroad company. The company owes the duty to all persons, without discrimination, to carry them on equal terms of service and compensation. As a common carrier of passengers, the company must provide facilities for the reception, carriage and discharge of its passengers, and must establish rates which are available equally to all who desire to become passengers. But the company does not owe to its passengers the duty to provide on its trains the opportunities for them to purchase newspapers, books, fruit, and the like, or to employ the services of a stenographer or of a barber, or to buy cab or ■express tickets. Much less does it owe the duty to any one to permit him to pursue his vocation on the trains. And if not on the trains, then not in the station buildings.. The relation of carrier and passenger continues not merely on the train, but within the station at the end of the journey. The right of way on which the trains run, and the lands on which the depots are built, were obtained and are held for purposes of the same general character.
“The fact that the person who asserts the right to ■carry on his business for his own profit upon the trains or within the station buildings is himself a common carrier does not affect the question.”

In the case at bar it cannot be said that the Union Depot Company has granted to the Columbus 'Transfer Company the exclusive privilege of using or occupying its driveway or concourse, or the exclusive right to carry passengers and baggage to and from its station, but the license or privilege so granted is, as we have seen, subject to the right of all other persons or companies to use said driveway or concourse for the purpose of delivering passengers, or of receiving passengers who have previously employed them. The only exclusive privilege given the Transfer Company is the privilege of soliciting on the premises of said Depot Company the carrying of passengers and baggage. The Union Depot Company has, and may rightfully exercise, over its station' and depot grounds all the rights of an owner in possession except such as are inconsistent with the public use for which it holds its franchise. This court has said in Pittsburg, Ft. Wayne & Chicago Railway Co. v. Bingham, Admx., 29 Ohio St., 370-371: “For all purposes not connected with the operation of its road, the right of the company to the exclusive use and enjoyment of the corporate property is as perfect and absolute as is that of an ownef of real property not burdened with public or private easements or servitudes. * * It is doubtless true that a railroad company, by erecting station houses and opening them to the public impliedly license all persons to enter. But it Is equally true that such license is revocable at the pleasure of the company as to all persons who are mot there on business connected with the road, or with its servants or agents.” Upon the undisputed facts «of the case now before us, we are of opinion that the •contract made, and the rule or regulation adopted hy the Union Depot Company, were and are reasonable in character and such as the Depot Company had the lawful right to make and adopt. Until such time, then, as it can be shown that the Depot Company is exercising its powers in bad faith, or to the disadvantage, hurt, or oppression of the public, the state may not, we think, rightfully question its action.

Judgment affirmed.

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

Summers, J., not sitting.


author: Price, J.

text:
    Irwin et al. v. Jacques et al.

      Will contest — Interpretation of will — Not subject for court, when —Claim will not properly signed — Under section 5946, Revised Statutes — Writing on margin of will — Question whether signature covered said marginal writing — Charge to jury — Law of wills.

    1. In an action to contest a will on the solé ground that it was not signed at the end thereof as required by section 5916, Revised Statutes, its construction or interpretation is not a subject for the consideration of the court or jury, the- • only question being, whether the will has been executed in substantial compliance with the formalities prescribed by the statute.
    2. Where,-in the trial of -such issue, the original will is in evidence, and shows the body of it to be written on horizontal lines of several pages of foolscap or legal cap paper, so that all its items and provisions are in consecutive order to the end on the last page and under which the testator’s signature appears, and it also shows that there is written in the margin of the last page to the left of and separated from the body of the instrument, a dispositive clause, extending lengthwise of the page from near the bottom to near the top thereof, and in no manner connected with the body of the instrument by any words, mark or character as a reference to indicate where the marginal matter is to be read in relation to the other provisions; and it is established by the testimony that' the marginal matter was written after all the-other provisions, at the request of the testator and before he attached his signature under, the body of the will, then such will is not signed at its end as required by statute and it is invalid for that reason.
    3. Where such will and such facts are before the jury, it -is not error for the court to charge as follows: “If you find from the evidence that the matter written upon the margin of the page upon which the testator’s signature appears, was written before the will was signed by him, and that, the testator intended such written matter on the margin to be a part of his will, then I say to you, such will is not signed at the end as required by statute and your, verdict should be for the plaintiffs and that the paper writing produced is not the last will and testament of Henry Irwin.”
    (No. 8543
    Decided January 31, 1905.)
    Error to the Circuit Court of Muskingum county..
    One of the defendants in error, Metta Elma Jacques, commenced an action in the court of common pleas against the plaintiffs in error and others, contesting the will of Henry Irwin, who died on .the fourteenth day of February, 1901. The instrument purporting to be the will bears date November 4. 1898, and it was presented for probate in the probate court of Muskingum county on the twenty-third day of February, 1901, and it was admitted to probate on the ninth day of March, 1901. Letters testamentary were issued thereon to Dr. Lewis H. Marshall, who thereupon qualified.
    .. After stating the relation which each of the parties to the suit sustained to the testator, and the provisions of the will, the petition alleges as the only ground of contest, the following: “Plaintiff further says that the said paper writing or pretended will is not the valid last will and testament of said decedent, because the same is not executed and is not signed at the end thereof as required by the statute of Ohio.”
    Those defendants who are now plaintiffs in error, except the executor, answered the petition, and averred that the said paper writing purporting to be the last will and testament of the said Henry Irwin, is his last will and testament, and that it was duly executed and signed at the end thereof as required by the statute of Ohio; and they denied each and every averment in the amended petition that is inconsistent with the statements of the answer.
    The issue being made up by these pleadings, the case came to trial by jury, and the defendant introduced and read to the jury the will of Henry Irwin, deceased, and the probate thereof, as shown by the records of the probate court, and then rested.
    The original will consisted of six pages of foolscap or legal cap paper, the last page of which exhibits the ground of controversy. The printed record contains a facsimile of the page, except that a red line, which could not be photographed, ran from top to bottom of the page, passing between the word “estate” at the end of the marginal clause, and the word “attest” and parallel with the longer sides of the page.
    The facsimile is here reproduced, but on a smaller scale:

      The contestants introduced evidence tending to-prove, that after Dr. Marshall, the scrivener, had written the various provisions of the will and the attesting clause, he read the same over to the testator, who expressed his satisfaction with what had been written, but refused to sign it as his will until another provision was inserted, to the effect that if any child or heir should be dissatisfied with his will, he should be “cut out,” and should have no-part of his estate. To express his intention and desire in this respect the clause on the left-hand margin of the last page was written by the scrivener and. when this was read to him he expressed his satisfaction and then signed the body of the will under the attesting clause, and his signature was witnessed by two witnesses. Other material facts bearing on the subject appear in the opinion.
    At the close of the testimony and arguments, the court charged the jury as follows: “This is a proceeding known as a contest of a will. You will have the will with you in your retirement. Your verdict will be either that the paper purporting to be the last will and testament of Henry Irwin, deceased, is, or that it is not the valid last will and testament of the said decedent.
    “I give you this simple instruction to govern you in the consideration of this case. If you find from the evidence that the matter written upon the margin of the page upon which the testator’s signature-appears, was written before the will was signed by him, and that the testator intended such written-matter on the margin to be á part of his will, then I say to you, such will was not signed at the end as-required by statute, and your verdict should be for the plaintiff and that the paper writing produced is not the last will and testament of Henry Irwin.”
    This charge was excepted to by the defendants. The jury returned a verdict for the plaintiff, finding that said paper produced is not the valid last will and testament of Henry Irwin, deceased.
    The court overruled a motion for new trial and rendered judgment on the verdict.
    A bill of exceptions was taken and error prosecuted in the circuit court, where the judgment was affirmed.
    Error is prosecuted in this court to reverse both judgments.

      Mr. F. H. Southard and Messrs. Granger & Granger, attorneys for plaintiffs in error, cited and commented upon the following authorities:
    29 Am. & Eng. Ency. of Law, 161-168; Page on Wills, sec. 183-187, 162-167; Ibid, sec. 102-162; Chaffee v. Missionary Convention, 40 Am. Dec., 225; Washington Park Commissioners, In Matter of, 52 N. Y., 131; 67 N. Y., 369; Younger v. Duffie, 94 N. Y., 535; 46 Am. Rep., 156; 51 Pa. St., 126; Baker’s Appeal, 107 Pa. St., 381; Barnewall v. Murrell, 108 Ala., 366; Slater v. Cave, 3 Ohio St., 80; Tonnele v. Hall, 4 N. Y., 140; McGuire v. Kerr, 2 Brad., 244; Younger v. Duffie, 94 N. Y., 534; Hays v. Harden, 6 Pa. St., 413; Willis v. Lowe, Revisers ’ Notes, 5 Not. Cas., 428; Glancy v. Glancy, 17 Ohio St., 134; Baker v. Baker, 51 Ohio St., 217; Jackson v. Jackson, 39 N. Y., 153; Roush v. Wensel, 8 Circ. Dec., 141; 15 C. C. R., 133; Crossman v. Crossman, 95 N. Y., 145; Sisters of Charity v. Kelley, 67 N. Y., 409; Cooch v. Cooch, 18 Ohio, 146; Walker v. Walker, 14 Ohio St., 157; Holt v. Lamb, 17 Ohio St., 374; Dew v. Reid, 52 Ohio St., 519; Wagner v. Zeigler, 44 Ohio St., 59; Converse v. Starr, 23 Ohio St., 491; Mears v. Mears, 15 Ohio St., 90; Bradford v. Bradford, 19 Ohio St., 546; Keyl v. Feuchter, 56 Ohio St., 424; secs. 4948, 5862, 5914, 5916, 5996, Rev. Stat.

      Mr. F. A. Durban and Mr. E,. R. Meyer, attorneys for defendants in error,, cited and commented upon the following authorities:

      Doyle v. Doyle, 50 Ohio St., 345; Bradford v. Bradford, 19 Ohio St., 546; Baker’s Appeal, 107 Pa. St., 381; Marshall v. Mason, 176 Mass., 216; 57 N. E. Rep., 340; Keyl v. Feuchter, 56 Ohio St., 424; Glancy v. Glancy, 17 Ohio St., 134; Younger v. Duffie, 94 N. Y., 535; Tonnele v. Hall, 4 N. Y., 140; Baker v. Baker, 51 Ohio St., 217; Haynes v. Haynes, 33 Ohio St., 598; Hays v. Harden, 6 Pa. St., 413; Chaffee v. Missionary Society, 10 Pai. Ch., 85; In re Walker, 110 Cal., 387; O’Neil’s Will, 91 N. Y., 516; In re Conway’s Will, 124 N. Y., 455; Wineland’s Appeal, 118 Pa. St., 37; In re Andrew’s Will, 56 N. E. Rep., 529; sec. 3948, Rev. Stat.
   Price, J.

We are not required in this case to ascertain the intention of the testator in making the will before us, nor to construe its provisions, but to determine whether it was executed according to law. The undisputed testimony shows, and counsel for the parties agree, that it was the intention of Henry Irwin to make the marginal clause found on the sixth or last page, a part of that instrument. As appears from the intended facsimile in our statement of the case, the body of .the alleged will was written on the. horizontal lines of the pages,, but leaving, at least on the sixth or last page, a consid-. erable blank space to the left of the ends of the lines. The signatures of the testator and the witnesses follow beloyr the attestation clause and are under the body of the instrument, and at its end, as if no marginal clause had been inserted. This marginal clause commences on the left edge of the page running lengthwise therewith from near the bottom to near the top thereof. The lower end of the clause is an inch or more below and to the left of the names of the witnesses, and about three inches below and to the left of the signature of the testator. Between the lower end of the clause and the names of the witnesses there is a blank space of about one inch, and between it and the attestation clause the blank space is about one inch and a half in width. Between the subscribing and attestation clauses on the horizontal lines there- is a blank space of four lines.

We think we have sufficiently described the location and relative situation of this clause which constitutes the ground of the contest. Its history otherwise is very brief and may be summed up in a few words. The will as originally prepared by the scrivener occupied and yet occupies six pages of foolscap or legal cap paper, on the last of which are the signatures of the testator and the witnesses. It was read over to the testator and he expressed his satisfaction with its provisions so far as they had been written, but refused to sign until another provision should be inserted. He desired to prevent attack on his will and litigation that might follow at the instance of dissatisfied heirs, legatees or devisees, and to this end requested that there be inserted a provision that, would impose something of a penalty upon any person who would controvert the disposition he was making of the property. The marginal clause referred to was written in the space and in the manner just described, and it reads: “My will is that any child or heir not taken with this my last will and testament shall be disinherited, cut out, and shall have not one doll of my estate. ”

- With this in, the will was read to the testator and he expressed his satisfaction and signed it at the place before stated. The party or parties contesting the will alleged in the petition and contended at the trial, that the will was void because it was not signed at the end thereof.

On this subject our statute — section 5916,.Bevised Statutes — provides: “every last will and testament (except nuncupative wills hereinafter provided for), shall be in writing, and may be hand written or typewritten, and such will shall be signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested,” etc.

We have seen that the testator intended the clause written on the margin, to be a part of his will, and that he declined to sign, until it or its equivalent was inserted somewhere in the instrument, but he did not direct where it should be inserted. If the language so written has no legal signification and has no effect on the other provisions of the will, it might be treated as mere unimportant surplusage as in Baker v. Baker et al., 51 Ohio St., 217. In that case the testator, after having signed the instrument, disposing of his property and appointing his sister-in-law as the executrix, which was duly witnessed, wrote under the attestation clause the words — “my sister-in-law is not required to give bond when probated”— and signed his name thereto, which was not attested.

It was' held that these words could not affect the construction of the will — were not dispositive in character and that the will was signed at the end thereof.

But if the clause is of a dispositive character, and may, in certain events, change the course of some or all of his property, its location in the instrument is of essential importance in deciding whether the will is signed at its end. Although the language of the marginal clause is crude and is the expression of an illiterate man, yet its meaning is not doubtful when coupled with the directions of the. testator which led to its insertion. According to the undisputed destimony he was determined that his estate should be settled in peace, and according to his will, and that if any “child or heir” should not “take” with his will he should be cut off without one dollar of his estate. Clearly the clause has a dispositive character, and this seems to be admitted by counsel for plaintiff in error. In Bradford v. Bradford et al., 19 Ohio St., 546, it is held that: “A condition in a will whereby the testator excludes any one of his heirs who ‘goes to law to break his will’ — from any part or share of his estate, is valid and binding; and effect will be given to it, as well in respect to bequests of personalty as to devises of real estate.”

■ However, they urge that, while this is true, the beneficiaries under the will have all united to uphold it, and that this appears by their joint answer in this case, wherein they allege that the paper produced as the last will and testament of Henry Irwin, is his valid last will and testament. Therefore, it is argued, the marginal clause can never have any chance for operation, and is no longer of consequence, in the settlement of the estate. ' But it must be borne in mind that the will was executed without any knowledge of what the “child or heir” might subsequently decide to do, and hence the intense desire to provide for the contingency. The will became operative when admitted to probate. The testator died leaving the instrument just as he had made it, containing within its scope this dispositive clause, and no pleading could be filed in a case contesting the will, that would change its dispositive character. It must be judged as it stood when inserted in the will, and as it was probated with the balance of the instrument.

We therefore recur to the question, was the will signed at its end, as required by statute?

The trial court submitted the question to the jury in a very. concise instruction, which covered the whole law of the case. It is this: “If you find from the evidence that the matter written upon the margin of the page upon which the testator’s signature appears, was written before the will was signed by him, and that the testator intended such written matter on the margin to be a part of his will, then I say to you, such will was not signed at the end, as required by statute, and your verdict should be for the plaintiff, and that the paper writing produced is not the last will and testament of Henry Irwin. ’ ’

This brief charge implied that the matter written in the margin is of a dispositive character, which was the decision of a question of law for the consideration of the court. The only questions of fact for the determination of the jury were: (1) Was the matter upon the margin written there before the testator signed the will? (2) Did he intend such written matter to be part of his will? If yes is answered to both inquiries, then the statute is interposed by the court, and the jury was told that the will was not signed at its end. This charge is severely criticised by counsel as a usurpation of the province of the jury, whereby the court, and not the jury decided the contest. We cannot concur in this criticism. It is true that after a will has been admitted to probate, and is contested under the statute in the court of common pleas, the will and the record of its probate, make a prima facie case for the contestees, and the burden is upon the contestants to overthrow the will, and that the ground of contest, as a general rule, is to be determined by the jury. But the court does not lose its jurisdiction to decide all questions of law that' may arise on the trial. The questions of fact were left to the jury, and the court properly charged as to the legal effect of their findings. There could be no mistake as to the findings of fact, for it was clear and beyond dispute, that the marginal matter was written before the testator signed the instrument, and that he not only intended but demanded that it be written somewhere in his will. The will was with the jury, and hence the charge of the court only applied the law to the facts, ' and this was the duty of the court.

In Wagner v. Zeigler, 44 Ohio St., 59, this court held that — “In the trial of a contest of a will, where the testimony introduced does not tend to prove the issues on the part of the plaintiffs, showing incapacity of decedent to make a will at the time the will was made, it is not error for the court, at the conclusion of the plaintiff’s testimony, to direct the jury to find a verdict sustaining the will.”

• That holding simply means that the powers, duties and functions of the court, in the trial of will contests are practically the same as in other jury trials of civil cases.

Taking the instrument, the original last page containing the marginal matter as there found, and the undisputed evidence as to its insertion before the signing by the testator' and the witnesses, and that the testator intended it to be a part of the will, did the trial court correctly apply the law? We think it did.

The statute — section 5916 — prescribes the formalities to be observed in the execution of a will, and we think the intention of the legislature, as thus expressed, is very plain. The history of this and similar legislation evinces a purpose that such dispositions of property, real or personal, should be so executed as to prevent, far as practicable, unauthorized and fraudulent additions and interlineations, before or after the , execution of the will. There should be some continuity in the expression of the testator’s wishes, and if a part of the will is aside from the continuity of the language, such as the marginal matter in this case, there should be some word or character used as a reference to the place it should occupy in relation to the other provisions, so that the end of the will may be ascertained. The authorities sustain this degree of liberality towards the work of incompetent persons who sometimes are called upon to draft wills, but beyond this the rule of strict observance of the statute is seldom if ever relaxed. The law-making body — our legislature— has the power to set the guards against fraudulent dealings with such solemn instruments, and it has done so, and we are not at liberty to disregard them.

The will before us has no reference by word or character to the marginal clause'. There is nothing to show in what connection, if any, it should be read in relation to the other items, or provisions. ■ It might be taken as a stray,- but for the parol testimony adduced at the trial, to the effect that it was written before the testator signed the will and that he intended it to form a-part of it. Evidently it was the last provision written and was so written immediately before the testator and witnesses signed their names. The witnesses so testify and the jury so found. Is the marginal clause the end of the will? If so, the testator did not sign it at the end thereof. There were blank marginal spaces on each of the six pages constituting the whole instrument. On. the •last'or sixth page a space of four, lines was left for -testator’s signature just preceding the attestation clause. There is no reference by word or character in that space to indicate that the marginal matter belongs there ; nor is there any mark or reference in the1 entire instrument to indicate where it belongs. Hence, beginning at the first page and reading the items and provisions in their consecutive order, down to the signature, we see nothing else until we have concluded, and. then see off to the left on the margin the matter quoted, standing alone and unidentified. Yet the- testimony and agreement are that the testator intended this matter to be a part of his will.

As said in Baker’s Appeal, 107 Pa. St., 381-392, “where, however, the continuity of a writing otherwise complete is attempted to be broken by the insertion into it of a clause or paragraph, written upon the same or a different page or sheet, the clause to be inserted must be plainly referred to and be susceptible also of certain identification. The reference must, as we have already shown, be complete in the body of the will. The testator’s intention cannot otherwise appear. * *”

An inspection of the will in contest here, and a. consideration of the uncontroverted facts lead us to the conclusion, that the charge of the trial court, is sound and that the will was not signed at its end.

Bearing upon the construction of our statute and similar statutes of other states, may be cited Glancy v. Glancy et al., 17 Ohio St., 135; Keyl et al. v. Feuchter et al., 56 Ohio St., 424; The Sisters of Charity, etc. v. Mary Kelly et al., 67 N. Y., 409; In Matter of Will of James O’Neil, 91 N. Y., 516; In Matter of Will of James Conway, 124 N. Y., 455; Appeal of John Wineland, 118 Pa. St., 37; In re Andrew’s Will, (N. Y.) 56 N. E. Rep., 529; In re Walker, 110 Cal., 37.

The doctrine of these cases seems to be that as to-the manner of the execution of a will, the courts look to the intention of the legislature and not the intention of the testator. The intention of the latter is sought in the interpretation of wills, but the purpose of the legislation must be looked to as to the formalities prescribed for their execution. The application of these rules may in some cases work hardship and thwart an intended disposition of property; but the safeguards cannot be frittered away because of the unfortunate work of an incompetent who has been given the grave responsibility of writing a will. The protection of wills from fraudulent and unauthorized changes, additions and interlineations,, seems to be the paramount object of the statute, and its enforcement will no doubt work the greater good.

The judgment- of the circuit court is affirmed.

Judgment affirmed.

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


author: Shauck, J.

text:
    The State of Ohio v. Bair et al.

      County commissioner — Without wilfulness or corrupt motive— But through ignorance — Disregards provisions of statute— Regulating his duties — Not guilty of misconduct — Duties of public officials — Section 6915, Revised Statutes.

    A county commissioner who, without wilfulness or a corrupt motive, hut through ignorance, disregards the provisions of a statute regulating the exercise of his official duties, is not thereby guilty of misconduct in office within the meaning of section 6915 of the Revised Statutes which prescribes a fine and the forfeiture of office for such misconduct.
    (No. 9263
    Decided January 31, 1905.)
    Exceptions to rulings of the Court of Common Pleas of Sandusky county.
    Numerous questions raised in the record and in the brief presented on behalf of the state have been considered, but the only question upon which it is thought a report would be of value is presented by the following statement:
    Bair and Overmyer were commissioners of San-dusky county. They were indicted under section 6915 of the Bevised Statutes for misconduct in office. The question arises on the first count of the indictment whose substance is:

      ‘1 That said Winfield S. Bair and B. B. Overmyer, as such county commissioners of said Sandusky county, aforesaid, acting in their said official capacity, did on said eighteenth day of July, 1903, aforesaid, in Sandusky county and state of Ohio, then and there unlawfully, wilfully, knowingly, and corruptly enter into, make and sign a certain false, fraudulent, unlawful and illegal contract by and between the Bellefontaine Bridge & Iron Company and the county commissioners of Sandusky county* Ohio, they, the said Winfield S. Bair and B. B. Overmyer, then and there well knowing the same to he false, fraudulent, unlawful and illegal, at the time they so as aforesaid made, entered into and signed the same, which said contract aforesaid, was and is in the words and figures following, to-wit:
    (Here follows contract for a bridge over Muscalonge creek in said county.)
    “'’They, the aforesaid Winfield S. Bair and B. B. Overmyer, then and there well knowing said contract was fraudulent, unlawful and illegal in this, to-wit, that there was then and there no certificate of the auditor of the aforesaid county then and there on file, or issued from the' said auditor of the aforesaid county, certifying that the money required for the payment of such obligation so as aforesaid contracted was then and there in the treasury of said Sandusky county to' the credit of the fund from which it was to be drawn, in payment of the aforesaid contracted obligation, or had been levied and placed on the duplicate of Sandusky county, Ohio, or was in process of collection, and was not then and there appropriated to any other purpose and they the said Winfield S. Bair and B. B. Overmyer, then and there well knowing said contract to be false, fraudulent, unlawful and illegal, made and signed the same as aforesaid, on the aforesaid eighteenth day of July, 1903, in the aforesaid county and state, in the manner and form aforesaid, and then and there the said Winfield S. Bair and B. B. Overmyer knowingly, wilfully and corruptly and with intent to defraud said Sandusky county, Ohio, then and thereby violated the statutes of the state of Ohio, and then and thereby were guilty of misconduct in office as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio. ’ ’
    The defendants entered a plea of not guilty. Evidence having been offered by the state in support of the allegations of the indictment and by the defendants to show their good faith and their want of knowledge of any statute requiring such certificate of the auditor to be on file before the making of such contract, the court instructed the jury that “to constitute any acts or omissions of the defendants or either of them ‘misconduct in office’ within the meaning of this statute, such acts or omissions must have been wilful or corrupt.” To this instruction and to others of like import counsel for the state excepted. They also requested a number of instructions to the contrary which were refused and they excepted to the refusal. The following instruction so requested and refused is pertinent to the question so considered.
    “I charge you that ignorance of the law is no defense, if you find that the defendants were guilty of wilful or gross neglect in failing to familiarize themselves with the laws pertaining to their duties as such commissioners.”
    The jury returned a verdict of not guilty and the. case is brought here on a bill of exceptions with a view to determine the law for the government of future cases.

      Mr. H. C. DeRan, special counsel for the State.
    The main question in this case and the issue paramount in the trial was the proper construction of the intent and meaning of section 6915, Revised Statutes.

      The correct interpretation of the scope, meaning and intent of this law involves,—
    First: A correct definition and understanding of the phrase “any misconduct in office,” and, ■
    Second: What is a defense and what is an excuse for a failure to perform official duty according to law?
    Misconduct in office has been defined as “any unlawful behavior in relation to the duties of an office, wilful in its character.” 20 Am. & Eng. Ency. Law, ••801.
    The phrase misconduct in office is broad' enough to embrace any wilful malfeasance, misfeasance or nonfeasance in office. State v. Slover, 113 Mo., 208.
    As a general rule a public officer is liable criminally for malfeasance, misfeasance, or nonfeasance in his •office. /
    Every culpable neglect of. duty enjoined on such •officer, either by common law or by statute, is an indictable offense. 23 Am. & Eng. Ency. Law (2 ed.), • 382, and cases there cited.
    It is clear that when the law imposes on an individual a ministerial office, then not only is disobedience to the requirements of the law in respect to such office indictable, but an indictment lies for such wilful or negligent misconduct in such office as works injury to the public, or to an individual. Wharton’s Criminal Law (10 ed.), sec. 1568, and cases cited.
    It is perfectly well settled that the neglect, failure, ■or omission of a public officer to perform any duty while in office which by law he is required to perform, is a crime for which he may be indicted, convicted and punished. Every culpable neglect of duty enjoined on such officer, either by common law or by statute, is an indictable offense. Commonwealth v. Coyle, 40 Am. St. Rep., 708; State v. Buxton, Swan, 57; Robinson v. State, 2 Cold., 181; State v. Williams, 12 Ired., 172; State v. Startup, 39 N. J. Law, 423; State v. Kern, 51 N. J. Law, 259; Palmer v. St. Albans (Vil.), 6 Am. St. Rep., 130; Citizens' Ins. Co. v. Marsh, 41 Pa. St., 394.
    Misconduct is a violation of definite law, carelessness an abuse of discretion under an indefinite law. Misconduct is a forbidden act, carelessness a forbidden quality of an act and is necessarily indefinite. 20 Am. & Eng. Ency. Law, 20. Gross negligence in the discharge of a fiduciary duty is evidence of fraud which itself amounts to misbehavior. Commonwealth v. Rodes, 45 Ky. (6 B. Mon.), 171.
    An omission on the part of a public officer to comply with the provisions of the statute regulating' the discharge of the duties of his office may amount to-a misdemeanor for which he is liable to punishment, notwithstanding such provisions are, as respects the public, merely directory. Case v. Dean, 16 Mich., 12.
    Where a public officer entrusted with definite-powers to be exercised for the benefit of the community, abuses or fraudulently exceeds them, he is. punishable by indictment, though no injurious effects to any individual from his misconduct. State v. Glasgow, 1 Conf. Rep., 38; 2 Am. Dec., 629.
    Where a public law imposes a public duty, the omission to perform the duty is indictable. State v. Williams, 12 Ired., 172.
    A statute making the wilful omission, neglect, or refusal of an officer to discharge his duty a misdemeanor corrupt intent need not be shown. State v. Hatch, 116 N. C., 1003; 21 S. E. Rep., 430.

      Any failure or neglect of an officer to discharge a duty imposed by law upon him renders him guilty of a misdemeanor. State v. Baldwin, 39 Tex., 155.
    As to misconduct in office and what constitutes the offense. State v. Leach, 11 Am. Rep., 172; Colburn (v. Neufurth, 9 Dec. Re., 638; 16 W. L. B., 54.
    As to the interpretation of this statute in Ohio. Hatch v. Sheriff, 1 Circ. Dec., 421; 2 C. C. R., 163; Stahl v. State, 5 Circ. Dec., 29; 11 C. C. R., 23; Knight v. State, 54 Ohio St., 365; Patton v. State, 6 Ohio St., 468.
    None of these cases discuss or consider the meaning or scope of our present statute, section 6915, Revised Statutes. While the statute is an old one it has not been judicially considered. The definitions cited and authorities quoted are from states having statutes similar to our own and therefore are in a sense determinations of the precise questions involved in this action.
    It was over the question what constitutes a defense to the charge of misconduct in the violation of the law that the chief contention was waged in the trial of this case. Nearly all the requests for charge on both sides were directed to the issue “is ignorance of the law a defense?” Wharton’s Criminal Law,, sec. 84, and cases there cited; Wharton’s Criminal Law, sec. 1582, and cases there cited.
    Under particular statutes which are found in many of the states, it has been held criminal to let a contract on disadvantageous terms, without advertising for bids. 2 McClain’s Criminal Law, see. 905; State v. Kern, 51 N. J. Law, 259; Duty v. State, 9 Ind. App., 595.
    Habitual neglect to comply with the law by a public official is misconduct and a gross and persistent negligence in his official conduct instead of rebutting such presumption strengthens and supports it. Commonwealth v. Rodes, 45 Ky., 171; s. c. digested, 37 Am. Dig. (Cent. ed.), 2003.
    This is plainly -the rule in Ohio' also (Doll v. State, 45 Ohio St., 445), where it is held that the fact that the contract by reason of failure to comply with' the law, was void, does not excuse a recreant official.
    It has been held that to issue a warrant on a claim for an amount more than was due, or to vote to allow such a claim was misconduct. State v. Corning, 44 Kan., 442; State v. Spidle, 44 Kan., 439. Or to allow a. claim not due. State v. Crowley, 39 N. J. Law, 264. Again, “A public officer may not neglect a duty imposed by law.” 2 McClain’s Criminal Law, sec. 909, and cases cited.
    A clerk who failed to publish a report as required by law, has been held indictable for “misconduct.” Moose v. State, 49 Ark., 499.
    To constitute criminal misconduct on the part of an officer, there must be an intentional act, unless the. penalty be removal from office. In that case as the object is to rid the public of an incompetent officer intent may be immaterial. McClain’s Criminal Law, sec. 913, and numerous cases cited there; State v. Leach, 60 Me., 58.
    A ministerial officer is presumed to know the law. People v. Burns, 75 Cal., 627; People v. Brooks, 1 Denio, 457. He will not be protected against mistake of law, even by reliance on the opinion of the attorney general. Dodd v. State, 18 Ind., 56.
    Ignorance of the law is no defense. Therefore one who does a criminal act will not be excused by the fact that he had legal advice that the act would not. be criminal., 1 McClain’s Criminal Law, secs. 114 and 115.
    The general proposition that every one is presumed conclusively to know the law, and that ignorance or mistake of law, will not constitute a defense or excuse for an unlawful act, is recognized in civil as well as criminal jurisprudence. 1 McClain’s Criminal Law, sec. 132, and cases cited.
    Tbe justice knew wbat was asked of him and he knew what he refused. There was nothing like surprise, inadvertence or misapprehension on his part. He refused to administer the oath and he intended so to refuse. This was a wilful violation of duty for “every intentional act is necessarily a wilful one.” People v. Brooks, 1 Denio, 457; s. c. 43 Am. Dec., 705; 4 Blackstone’s Commentaries, 227.
    Good faith of officer charged with misconduct, is no defense. Clark v. Miller, 47 Barb., 41; s. c. 54 N. Y., 534; Gardner v. People, 3 Hun, 222; s. c. 62 N. Y., 299; Cowley v. People, 8 Abb. N. C., 37; s. c. 21 Hun, 429; Morris v. People, 3 Denio, 402.
    In the light of these authorities and under our statute, section 6915, Revised Statutes, can it be said that the trial court charged the jury the law in this case? Every proposition requested by the state to be charged to the jury in advance of the argument is the language of the law as expressed by the text writers on the subject and as declared by the highest courts in the various states. They were all refused by the court and the refusal, was error prejudicial to the state.
    The defendants requested and the court gave nine charges to the jury in advance of the arguments,, every one of which hammered home the erroneous and iniquitous doctrine that ignorance of the law and mistake of the facts are a defense.
    Then in the general charge of the court appears the following as the most glaring examples of the erroneous and prejudicial character of the court’s instructions to the jury.

      Ordinarily ignorance of the law will not excuse a violation of its requirements. Every man is presumed to know the law. A construction has however been given by the courts to the penal statute involved in this action, which somewhat qualifies the general rule to which I have referred. That statute provides a punishment for what it broadly terms “misconduct in office,” but offers no definition of this phrase.
    The act is so broad in its scope, if literally construed, as to require some construction to determine its real intent, and the penalties imposed are of such character that the section can hardly be understood as applicable to every trivial inattention to or carelessness concerning legal requirements, where there is no wrongful intent.
    This fact has led to the only judicial constructions of the statute in this state which have been brought to my attention. In the light of these interpretations, I therefore instruct you that to constitute any acts or omissions of the defendants or either of them “misconduct in office” within the meaning of this statute, such acts or omissions must have been wilful and corrupt.
    From the authorities cited the fixed policy as well as the settled body of the law is clear. In an age when commercialism and official corruption are twin vultures preying upon the body politic, courts cannot temporize with' crime. The appalling and brazen assumption with which public officials betray their trusts is a reproach upon human nature and integrity and a menace to civil liberty. The disastrous and far reaching effect of official misconduct and corruption in its immediate destruction of respect for government and institutions and remotely by the example which successful crime ever is to the young and ambitious cannot be calculated. Courts and officers of the law cannot be too zealous in the discharge of their official duties to the public and to the state in matters of enforcing punishment against offenders for official misconduct.
    Fortunately our own court of highest jurisdiction has already indicated in a civil case, the position of this tribunal upon this question. The Buchanan Bridge Co. v. Campbell, 60 Ohio St., 406; State v. Commissioners, 10 Circ. Dec., 532; 19 C. C. R., 627.

      Mr. J. D. Finch, attorney for defendants in error.
    This proceeding is under section 7306, Revised Statutes. Its object is defined in section 7308, and being not to reverse the decision of the common pleas, but only to determine the law applicable to other cases yet to come, it is of less consequence to the defendants, Bair and Overmyer, what the decision of this court may be than it is to the general public. To the public it of special importance as to the main questions raised, viz;: whether an evil and corrupt motive must be shown by the state on the part of the county commissioners in the doing of an act not malum in se, to constitute that act criminal misconduct. Or whether they may be punished as criminals for a mere inadvertence, stupidity, carelessness, bad judgment, want of knowledge, or for Want of a correct understanding of statutory rules governing the making of contracts.
    If they are to be treated as criminals when acting with pure motives for such shortcomings as above mentioned then none but men reckless of consequences to themselves will dare to accept the office of county commissioner. The careful and conservative man will be too careful and conservative to take such chances'; and this effect will be felt throughout the state in every county.
    Section 6915, Revised Statutes, does not merely provide that some specified act shall be ground for removal.
    If it did, there might be grounds for claiming that the motive for the act was not material. McClain’s Criminal Law, section 913, and cases cited.
    This section 6915 is penal, in addition to working a forfeiture. ■ It is crime to violate it.
    One might be rightfully removed from office under a proper, statute for mere carelessness in conducting it, or for such ignorance as would disqualify, but the legislature, having in addition, provided a' punishment as for crime, it cannot be that it was the intent to make mere ignorance of duty, mere misguided judgment, mere mistake in construction of the law, or inadvertence, or mere ignorance of the existence of section 2834b, a crime.
    We do not contend that one may defend against a charge of stealing, by being ignorant of the law which punishes larceny, but we think he could by showing a real mistake as to the meaning of another law, by reason of which he believed the property to be his own. This would relieve the act of its felonious character and make it mere trespass.

      And in this case, we do not contend that these defendants conld defend by showing ignorance of this criminal statute, section 6915, which punishes for misconduct in office.
    But section 2834b is in no way a penal statute. It points out what is necessary to hind the county in a contract involving the expenditure of money.
    It seems clear that the propriety of treating ignorance of legal duty as an excuse for a nonperformance rests solely upon a proper construction of section 6915, Revised Statutes.
    Ignorance of a rule of duty whether statutory or not, negatives the idea of 'wilfullness or corruption in its breach.
    One may illegally violate a rule of which he is ignorant, hut he cannot wilfully or wickedly violate a rule without knowledge of the rule.
    Hence if wilfullness and corruption of motive are of the essence of criminal misconduct, they must he alleged in the indictment and proved on the trial. •
    And ignorance of the rule violated repels the very idea of even intentional violation, and without such intent there can he no wilful, defiant, or corrupt motive in violating it.
    The indictment in this case avers that the act of contracting without the certificate was with knowledge of the requirements of the law, and was wilfully and corruptly done.
    Where the motive with which an act is done is material in determining its criminality, then ignorance of the rule of duty should excuse the act, and in such cases the act being not criminal, without the evil intent, the state must prove the intent as well as the act. The motive was material in this case, the act charged being not malum in se. People v. Stevens, 109 N. Y., 163.
    It is, of course, not contended by defendants ’ counsel, that ignorance on the part of the commissioners as to legal rules of contracting would make valid a contract made in violation of them, but such ignorance is not criminal in character, not bad in itself.
    ■ The state’s attorney cites many authorities which we think sustain the circuit and the trial court. The following are some of them.
    First: The definition of misconduct in office, “Any unlawful behavior in relation to the duties of an office, wilful in its character. ’ ’ 20 Am. & Eng. Ency. Law, 801.
    Second: The phrase “Misconduct in office” is broad enough to embrace any wilful malfeasance, misfeasance or nonfeasance in office. State v. Slover, 113 Mo., 208.
    Third: Where a public officer entrusted with definite powers to be exercised for the benefit of the community abuses or fraudulently exceeds them he is punishable by an indictment, though no injurious effect to any individual result from his misconduct. State v. Glasgow, Conf. Rep., 38; 2 Am. Dec., 629.
    Each of the foregoing citations by the state implies knowledge of the rule, which was violated, by' the officer, and in each case the act was either wilful or bad in itself.
    No act of a public officer can be called official misbehavior unless wilfully and corruptly done.
    This has been the law, even in civil eases, since time out of mind. Drew v. Coulton, 1 East, 563; Buller’s N. P., 63; Stewart v. Southard, 17 Ohio, 402; Gregory v. Small, 39 Ohio St., 348.

      Section 6915 punishes official misconduct without defining it. We must therefore presume that the legislature meant to punish that which had theretofore been recognized as official misconduct.
    The intent was to make such misconduct as involved moral turpitude, wickedness, evil and corruption of motive a crime. A legal phrase, not mere misconduct, but “Misconduct in office” is used.
    And here we have an unbroken line of decisions in Ohio, defining what is culpable misconduct in office. The circuit court of Hamilton county followed this idea in the case of Hatch v. St. Clair, 1 Circ. Dec., 421 (2 C. C. R., 163). The circuit court for Wood county followed it again in the case of Knight v. State, 5 Circ. Dec., 29 (11 C. C. R., 23). The trial court could do no less in this ease.
    No case in Ohio is' cited contradicting this idea, and many authorities cited by the state outside of Ohio, support it, and many stronger ones can be cited.
    If wilfullness and corruption of motive must be averred and proved then it follows that knowledge of duty must also be shown. This knowledge may, of course, be shown by circumstances and is a legitimate question for a jury.
    The kind of ignorance we contend for is after all but ignorance of a fact. Ignorance of. the fact that there was a statutory rule as to contracts such as is contained in section 2834b. Wharton’s Criminal Evidence (8 ed.)', secs. 85 and 724; R. v. Reed, C. & M., 306; State v. Scates, 43 Kan., 330; s. c. 23 Pac. Rep., 479.
    To depart from this doctrine and adopt the one advocated by the state in the case at bar would be to punish as a criminal any county commissioner who misinterprets a section of the statutes.
    This would he a harsh ‘rule if applied to. attorneys in the case at har. Four attorneys combated before the trial court five weeks, and two of them are now here claiming the attention of this court, all for the purpose of determining the intent and meaning of section 6915, and yet it is claimed that these two farmers should be punished for not knowing the meaning of section 2834b when they did not even know of its existence.
    Suppose that section 6915 had mentioned judge instead of county commissioner, what would become of some of our very honest judges who misinterpret the law or fail to keep pace with the legislature as to new laws, under such a construction as is contended for by the state ?
    To he criminal misconduct the act must he corrupt. Com. v. Shed, 1 Mass., 228; State v. Gardner, 2 Mo., 22; People v. Coon, 15 Wend., 277.
    Evidence that others in the same office have never followed section 2834b was admitted, not to justify its omission by defendants hut as throwing light on their motives as to whether their acts were corrupt and wilful or the result of ignorance, inadvertence or negligence.
   Shauck, J.

The indictment was found under section 6915, Revised Statutes: “Whoever, being a county commissioner, is guilty of any misconduct in office, shall he fined not more than $400.00, and shall forfeit his office.”

The alleged misconduct of the defendants consisted of the violation of section 2834b, which, omitting irrelevant portions thereof, is as follows:

“The commissioners of any county * * * shall enter into no contract, agreement or obligation involving the expenditure of money * * * unless the auditor * * * shall first certify that the money required for the payment of such obligation or appropriation is in the treasury to the credit of the fund from which it is to be drawn, or has been levied and placed on the duplicate, and in process of collection and not appropriated for any other purpose; which certificate shall be filed and immediately recorded, and the 'sums so certified shall not thereafter be considered unappropriated until the county * * * is fully discharged from the contract, agreement or obligation * * * and all contracts, agreements or. obligations * * * en_ tered into * * * contrary to the provisions of this section shall be void.”

Much of the argument advanced in support of the exceptions is answered by the familiar proposition that in this state there are no crimes except those which are created by statute; and much that is urged as authority must, for that reason, be regarded as inapplicable here.

There is also a vigorous insistence that the rulings below involve a denial of the maxim, ignorance of the law excuses no one. This is so peculiarly a maxim of the criminal law that its application to other departments of the law has been sometimes denied. • In all criminal cases to which it properly applies it has the conclusive effect which counsel claims for it. It would be entitled to that effect in the present case if the defendants were seeking-immunity from punishment because of their ignorance of the provisions of the section under which the indictment was found; They do not, however, claim that they were ignorant of the statute providing that they should pay a fine and forfeit their offices if they should be guilty of misconduct in office. The view urged in their behalf is that being ignorant of the provisions of the section of. the statute regulating the performance of their duties in the making of contracts which involved the expenditure of money, they could not have disregarded its provisions wilfully, and as they received no benefit from their act, they did not disregard the statute corruptly; and, therefore, that they were not guilty of “misconduct in office” within the meaning of that phrase as it is used in the section of the statute under which the indictment was found.

Whether the judge of the court of common pleas in the instructions given and in refusing instructions requested by counsel for the state erred to the prejudice of the state in defining that phrase is the only question for determination. Since the disregard of the requirements of section 28346 is urged as misconduct in office, whether the disregard was wilful and corrupt or not, it will be helpful to observe that the section itself defines the consequence of its violation to be that the contract so made shall be void. Certainly it will not exceed the legitimate force of this provision to say that the violation of this section cannot be regarded as within the contemplation of section 6915 in any view which would not include all of the numerous statutory provisions relating to the duties of these officers, whatever may be their relative importance. Nor does it seem that any discrimination is practicable whereby, if knowledge of the existence of these numerous provisions is required, their correct-interpretation could be excused, however obscure they may be. These suggestions make apparent the magnitude of the undertaking to maintain the proposition that conduct which is neither wilful nor corrupt may he misconduct in office within the contemplation of a criminal statute. Even in civil actions the contrary rule has been held by this court. In Stewart v. Southard, 17 Ohio, 402, it was said:

‘ ‘ This is in the nature of an action for misbehavior by a public officer in the discharge of his duty. The acts complained of are not charged to have been done wilfully or maliciously. The most that can be made of the averments of the declaration when tried upon a demurrer is, that the plaintiffs in error, while acting in their corporate capacities as directors of a school district, misjudged the law and acted erroneously. ‘There is no instance of an action of this sort maintained, for an act arising merely from an error of judgment.’ Harman v. Tappenden, 1 East, 555. In Ramsey v. Riley, 13 Ohio, 157, this court held that an officer acting within the scope of his duty is only responsible for an injury resulting from a corrupt motive. These principles are clearly applicable, and must be conclusive of the merits of this declaration, unless we should depart from them. "We are not inclined to do so unless required by the authority of our own decisions.”

Our attention has not been called to a better definition of the phrase in question than the following: “Any unlawful misbehavior in relation to the duties of an office, wilful in its character.” To the suggestion that the view taken by the judge of the court of common pleas offers these officers an easy and safe mode of evading their statutory duties, little attention need be given. It is answered in nearly every case in which a court declines to exercise legislative power by arbitrarily enlarging tbe definitions of terms wbicb tbe legislature bas employed.

Exceptions overruled.

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