author: Crew, J.

text:
    The Baltimore & Ohio Railroad Company v. Chambers.

      Action in this state — By one for wrongful death in another state —Can he maintained — When person hilled was citizen of Ohio.

    No action can be maintained in the courts of this state upon a cause of action for wrongful death occurring in another state, except where the person wrongfully killed was a citizen of the state of Ohio.
    (No. 9222
    Decided October 31, 1905.)
    Error to the Circuit Court of Mahoning county.
    Suit was brought by Elizabeth M. Chambers in the court of common pleas of Mahoning county, Ohio, against The Baltimore & Ohio Railroad Company, to recover damages from said company for negligently causing the death of her husband, Harry E. Chambers, who she alleged was killed on the nineteenth-day; of September, 1902, on the line of defendant’s railroad in the state of Pennsylvania.
    Plaintiff in her petition pleads certain statutes of the state of Pennsylvania and avers that under and by virtue of such statutes there accrued to her, because of the matters complained of in her petition, tbe right to maintain an action and recover damages in respect thereof against the defendant company in the state of Pennsylvania. She therefore claims the right to maintain such action in Ohio.
    At the trial of this cause in the court of common pleas of Mahoning county, at the May term, 1904, it was admitted by the plaintiff that at the time of the grievances complained of in her petition, and for a long time prior thereto, she and her said husband, Harry E. Chambers, were and had been citizens and residents of the state of Pennsylvania. On the trial of said cause the plaintiff, Elizabeth M. Chambers, to maintain the issues on her part, offered in evidence the deposition of J. J. Green. Thereupon, and before said deposition was read, the defendant objected to the introduction of any testimony in the case, assigning as reason therefor “that the averments of the petition do not constitute a cause of action against the defendant, and that as the plaintiff and her husband were at the time of the occurrence of' the grievances complained of, citizens and residents of the state of Pennsylvania, and the negligence complained of and the injury inflicted, occurred in the state of Pennsylvania, therefore no right of action accrued in this state.” The court overruled the objection, and the testimony offered by the plaintiff was introduced, to which the defendant at the time excepted. Further testimony was offered and received over the objection of the defendant company, and after the arguments of counsel and charge of the court the case was submitted to the jury who returned a verdict in favor •of the plaintiff, Elizabeth M. Chambers. The defendant, the Railroad Company, within three days made and filed its motion for new trial, which motion was overruled by tbe court and judgment was entered on the verdict. Thereupon the Railroad Company prosecuted error to the circuit court of Mahoning county, which court affirmed the judgment of the court of common pleas. The Company now brings error in this court.

      Messrs. Arrel, McVey & Tayler, attorneys for' plaintiff in error,
    cited and commented upon the following authorities:

      Woodard v. Railway, 10 Ohio St., 121; Hover, Admr. v. Pennsylvania Co., 25 Ohio St., 667; Brooks, Admr. v. Railway, 53 Ohio St., 655; Railway Co. v. Terry, 5 Circ. Dec., 597; 14 C. C. R.; 536; Ott v. Railway Co., 62 Ohio St., 661; Railway Co. v. Fox, 64 Ohio St., 133; Stewart v. Railroad Co., 168 U. S., 445; 18 Sup. Ct., 105; Dennick v. Railway, 103 U. S., 11; Railway v. Cox, 145 U. S., 593; Huntington v. Attrill, 146 U. S., 657; Railway v. Babcock, 154 U. S., 190; Knight v. Railway, 108 Pa. St., 250; Elliott on Railroads, sec. 1366; Ward Case, 16 Fed. Rep., 260; McCarthy v. Railroad Co., 18 Kan., 46; s. c. 26 Am. Rep., 742; Richardson v. Railroad Co., 98 Mass., 85; Armstrong v. Beadle, 5 Saw., 484; Anderson v. Railway Co., 37 Wis., 321; Mackay v. Railroad Co., 14 Blatchf., 65; 4 Fed. Rep., 617; Bruce v. Railroad Co., 83 Ky., 174; Vawter v. Railroad Co., 84 Mo., 679; s. c. 54 Am. Rep., 461; Ash v. Railroad Co., 72 Md., 144; s. c. Am. St. Rep., 461; Phillips v. Eyre, L. R. 6 Q. B. 1, 28, 29; Railroad Co. v. McCormick, 71 Tex., 660; s. c. 9 S. W. Rep., 540; . secs. 6134 and 6134a, Rev. Stat.

      Messrs. Murray & Koonce and Messrs. W. S. Anderson & Son, attorneys for defendant in error,

      cited and commented upon the following authorities :

      Heydon’s Case, 3 Rep., 76; 10 Rep., 73a; Story’s Conflict of Laws, sec. 22; Dennick v. Railroad Co., 103 U. S., 17; Railroad Co. v. Fox, 146 U. S., 604; 1 Joyce on Damages, sec. 504; Railroad Co. v. Fox, Admx., 64 Ohio St., 133; Ward v. Maryland, 12 Wall., 418; 16 How., 36; Cofrode v. Gartner, 7 L. R. A., 511; Schell et al. v. Iron Sheet & Tube Co., 26 O. C. C., 209; 4 C. C. R. (N. S.), 172; Fed. Const., sec. 2, art. 4; Const. of U. S., sec. 2, art. 4; sec. 6134a, Rev. Stat.
   Crew, J.

The record in this case presents the question, whether the widow of a decedent, who at the time of his death was neither a citizen of nor resident in the state of Ohio, can maintain an action in the courts of this state to recover damages for his wrongful death occurring in another state, where the statutes of the state in which he was killed gives her the right to maintain such action in that state. Or differently stated, the question here to he determined is, will the courts of this state take and entertain jurisdiction of actions to recover damages for wrongful death under the statutes of a sister state, where, as in this case, the decedent and his next of kin were, at the time of the injury and death for which a recovery is sought, all citizens of, and residents in, such sister state. As appears of record in this case, the cause of action relied upon and pleaded by plaintiff in her second amended petition, is not one arising in, or founded upon any statute of, the state of Ohio; but said cause of action is one that accrued to her in the state of Pennsylvania, and is founded upon certain statutes of that state set forth and pleaded by her in said amended petition as follows :

“That by reason of the premises a right of action accrued to plaintiff upon the death of her husband, the said Harry E. Chambers, in the manner aforesaid, by the means aforesaid, under and by virtue of the act of the general assembly of the state of Pennsylvania, approved April 15,1851, and the act of the general assembly of said state, approved April 26, 1855. Sections 18 and 19 of the act of April 15,1851, are as follows:
“Sec. 18. No action hereafter brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff, and prosecute the suit to final judgment and satisfaction.
“Sec. 19. Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured, during his or her life, the widow of any such deceased, or if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned.”

Sections 1 and 2 of the act of April 26, 1855, are as follows:

“Sec. 1. The persons entitled to recover damages for any injury causing death, shall be the husband, widow, children or parents of the deceased, and no other relative, and the sum recovered shall go to them in the proportion they take his or her personal estate in case of intestacy, and that without liability to creditors.
“Sec. 2. That the declaration shall state who are the parties entitled to such action; the action shall he brought within one year after the death and not thereafter. ’ ’

Plaintiff further says that by section 21, article 3, of the constitution of the state of Pennsylvania, of 1874, it is provided as follows, to-wit:

“Sec. 21. No act of the general assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to person or property, and in case of death from said injuries, the right of action shall survive and the general assembly shall prescribe for whose benefit such actions shall be prosecuted.”

A comparison of the foregoing statutes, with the wrongful death statutes of our own state, independent of section 6134a, which is hereinafter specially considered, will disclose the fact, that although they belong to the same general class of legislation, they are nevertheless, in many of their provisions, wholly unlike the Ohio statutes. And while in the present case we entertain the opinion that this dissimilarity in provision is not such as of itself to defeat jurisdiction, yet the fact that such dissimilarity exists, is at least, we think, worthy of note. The following are some of the points of difference. Under the Pennsylvania statute the . action for causing wrongful death must be brought by the widow, if there be one; — under the Ohio statute (6135, Rev. Stat.) such action can only be brought by the personal representative of the deceased person. In Pennsylvania the action must be brought within one year from decedent’s death and there is no limit to the amount of the recovery. In Ohio (sec. 6135, Rev. Stat.) the action must be brought within two years from the death of the decedent and the amount that may be recovered is expressly limited to a sum not exceeding ten thousand dollars. Plaintiff’s action in the present case being in its nature special, and one founded exclusively upon the statutes of the state of Pennsylvania, and being for a cause of action arising wholly within that state for wrongfully causing the death of a citizen of that state, even though such cause of action be held to be transitory in its nature, the only principle upon which plaintiff may invoke the jurisdiction of, or may maintain such action in, the courts of this state, in the absence of express legislative permission so to do, is that of comity, and if her action be not sustainable upon that ground she must be held to be without right to bring or maintain the same in the courts of Ohio, for it must be conceded that the statutes of Pennsylvania can not operate to confer upon her any such right, they being without authority or binding force beyond the territorial limits of that state.

Judge Story in his treatise on the conflict of laws, lays down as the basis upon which all reasonings on the law of comity must necessarily rest, the following maxims: First, “that every nation possesses an exclusive sovereignty and jurisdiction within its own territory.” Secondly, “that no state or nation can by its laws directly affect or bind property out of its own territory, or bind persons not resident therein, whether they are natural born subjects or others.” The learned judge then adds: “From'these two maxims of propositions, there follows a third, and jthat is, that whatever force and obligation the laws of one country have in another, depend solely upon the laws and municipal regulation of the latter; that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent.” Story on Conflict of Laws, sec. 23. And Minor in his very recent work, Conflict of Laws, page 10,- sec. 6, in discussing the exceptions to the enforcement of a foreign law in the state of the forum, says: “Few general principles of private international law are so well settled as the rule that no foreign law (even though, under ordinary circumstances it be the proper law’) will be enforced in a sovereign state, if to enforce it will be to contravene the express statute law or an established policy of the forum, or is injurious to its interests. ” The doctrine of the foregoing authorities, — and many more might be cited to the same effect, — leads to the conclusion, that an action may only be brought and maintained in a jurisdiction other than that in which the cause of action arose, when the cause of action is itself transitory, and its enforcement not inconsistent with, or obnoxious to, the laws or public policy of the jurisdiction in which the suit is brought. In other words, the law of comity, so called, is not a law of absolute obligation, and its principles can never properly be invoked in aid of the enforcement of a foreign statute, where the effect of the enforcement of such foreign statute would be, or is, to set at naught the positive law or public policy of the particular forum to which resort is had. Logically, then, the inquiry suggests itself in the present case: is it in harmony and accord with the laws and public policy of the state of Ohio, to permit the enforcement in the courts of this state of a cause of action arising under the wrongful death statutes of the state of Pennsylvania, in favor of the next of kin of one who at the time of his death was neither a citizen of nor resident in the state of Ohio? Primarily, the legislature must be held to be the judge, of questions of public policy, and if it has spoken plainly, either for or against the enforcement of a statute of a sister state in a given case, the courts must obey its mandate. It is well understood that at common law, in pursuance of the maxim actio personalis moritur cum persona, no right of action existed in favor of the heirs, distributees, or personal representative of a deceased person, for damages for his wrongful death. The right of action which the injured person had abated with his death. This, unsatisfactory state of the common law with respect to the right to recover for death due to negligence or wrongful act, led to the passage of statutes giving a right of recovery in such eases. The earliest of these statutes was the English act of 1846, 9 and 10 Vict., c. 93, commonly known as Lord Campbell’s Act, and this enactment has served as the model for much of the subsequent legislation on this subject, now to be found in most, if not in all, of the states of the Union. 8 Am. & Eng. Ency. Law, 854, 858. By an act of the general assembly of the state of Ohio passed March 25, 1851 (S. & C., 1139), Lord Campbell’s Act was adopted into, and became a part of the legislation of this state, and the right was thereby given for the first time, in Ohio, to recover for a death caused by wrongful act, neglect or default. This statute, in the form in which it was originally enacted, was several times before this court for review, and it was uniformly held that the act gave no right of recovery in those cases where the wrongful act which caused the death, occurred outside of the state of Ohio. This court so held in Woodard v. Railroad Co., 10 Ohio St., 121; Hover, Admr. v. Pennsylvania Co., 25 Ohio St., 667; Brooks, Admr. v. Railway Co., 53 Ohio St., 655, and Railroad Co. v. Fox, Admr., 64 Ohio St., 133. In Hover, Admr. v. Pennsylvania Co., supra, the court says: “The act of March 25, 1851 (S. & C., 1139), allowing an action by the representatives of a party whose death was caused by the wrongful act of another, does not extend to eases where the wrongful act which caused the death was committed outside the state of Ohio.” In Railroad Co. v. Fox, Admr., supra, Spear, J., at page 141, referring to section 6134, Revised Statutes, which section differs in no essential particular from the original act of March 25,1851, says: “It is established law in Ohio, however, that section 6134 does not extend to wrongful acts causing death outside of this state, and that prior to the passage of section 6134a, Revised Statutes, no action by an administrator for such cause could be maintained in our courts. ” This, then, was the status of the law of Ohio up to, and until, the enactment of original section 6134a, Revised Statutes, which was passed May 21, 1894 (91 O. L., 408), and is as follows:

“Whenever death has been or may be caused by a wrongful act, neglect or default in another state, territory or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory or foreign country, such right of action may be enforced in this state, in all cases where such other state, territory or foreign country allows the enforcements in its courts of the statute of this state of a like character; but in no case shall the damages exceed the amount authorized to be recovered for a wrongful neglect or default in this state, causing death. Every action brought under this act where the death has already occurred shall be commenced within one year from the passage of this act; and in all other cases, within the time prescribed for the commencement of such action by the statute of such other state, territory or foreign country. ’ ’

This legislation is supplementary in character, and presupposes, and is in effect a legislative declaration, that without it no action could be maintained in Ohio to recover damages for wrongful death occurring in another state, territory or foreign country; for if such right already existed under favor of the provisions of section 6134, Revised Statutes, then section 6134a was a vain and useless enactment. We think therefore it must be conceded that this statute created, and was intended to create and give, a new right of action which theretofore did not exist. But it will be observed that the right or authority thereby given, to enforce such new right of action in this state, for a death occurring in another state, is a qualified and conditional right, and is, by express provision, subject to the limitation that the courts of the state in which the death occurred shall enforce the statute of this state of like character. In Railroad Co. v. Fox, Admr., supra, this court, as'we have seen, recognized, and declared the fact to be,, that section 6134a created and gave a new right of action, and furthermore, the court in that case decided that the right of action so given could only be enforced in this state under the limitations, and upon the condition prescribed in the statute. In the opinion in that case it is said at pages 144 and 145:.

“Nor is there ground for saying that our statute, section 6134a, is satisfied by the mere entertaining by the courts of another state of a cause of action for death occurring in our state. Such is not the language of the law. It is.not the entertaining of the suit that is stipulated for, but enforcement of our statute of like character. This means that it is the law of Ohio which the sister state will enforce; not necessarily the law of that state, for where there is an essential difference, as has already been pointed out, it can not be said by enforcing their own law the court of the other state is enforcing our statute. Our statute rests upon the ground of reciprocity which is based upon the idea of comity, and the very essence of reciprocity implies that each state, as to the subject matter, shall have and enforce identical laws; not simply provisions which may be in many respects similar, but in all essential particulars the same. It seems to us clear that the laws of Indiana, while they permit the bringing of actions in the courts of that state to recover for death occurring in another state, require the determination of the rights of the parties by the provisions of their own laws, but do not enforce the laws of the state where the injury was committed. ’ ’

On May 6, 1902 (95 O. L., 401), section 6134a, above quoted, was amended, and the original section was repealed. This amended section, which was in force at the time of the trial of this case in the court of common pleas, provides as follows:

“Whenever the death of a citizen of this state has been or may be caused by a wrongful act, neglect or default in another state, territory or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory, or foreign country, such right of action may be enforced in this state within the time prescribed for the commencement of such action by the statute of such other state, territory or foreign country. ’ ’

It is important to note that this amended section changes the former law in two essential particulars: 1. It dispenses with the condition that the state in which the wrongful death occurs shall enforce in its courts the statute of this state of like character. 2. It in terms limits the right therein given, to maintain, an action in this state for wrongful death occurring in another state, to actions for causing the death of citizens of Ohio. Whereas original section 6134a gave such right without limitation or restriction as to citizenship. If as contended by counsel for defendant in error in their brief herein, it was not the purpose or intent of the legislature by this amendment to limit and restrict the right to recover in the courts of this state, for wrongful death occurring in another state, to those cases where the person killed was a citizen of Ohio; and if as they contend, ‘ ‘ The prime object of this statute (amended section 6134a) was to permit the actions embraced within its terms to be brought in the courts of the state of Ohio, whether or not our statute would be enforced in the foreign state and to give a statutory sanction to such actions, instead of allowing the same to remain subject to the law of comity, ’ ’ then indeed was the legislature most unfortunate in the method employed, and in the language used, to accomplish this result. If such only had been the legislative purpose, that purpose could have been much more easily and effectively accomplished, by merely omitting from original section 6134a the clause, “in all cases where such other state, territory or foreign country allows the enforcement in its courts of the statute of this state of a like character,” and we think it but fair to presume, that had such been the sole object sought to be accomplished by the legislature, that this amendment would have taken some such form. Having regard then to the scope and effect of the provisions of the section amended, and to the especial character of the amendments made, we think it clear, that the legislature by the adoption of amended section 6134a, undertook, and intended thereby, to limit and restrict the right to recover in the courts of this state, for a wrongful death occurring in another state, to those cases where the person killed was, at the time of his death, a citizen of Ohio. But it is contended in argument by counsel for defendant in error, that such construction and interpretation of this statute renders it unconstitutional, by putting it in conflict with section 2, article 4 of the Federal Constitution, which provides that: “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. ’ ’ But the contrary is now too well established to be disputed. This constitutional provision applies to fundamental and universal rights, not to special privileges. Minor’s Conflict of Laws, 15. Furthermore, under this statute, non-resident next of kin have equal rights, and our courts are equally open to them, as to resident next of kin, provided only that the person whose wrongful death is the subject of the action, was at the time of his death a citizen of Ohio. It is also suggested by counsel for defendant in error, that if the courts of this state will not permit the enforcement therein, of actions for wrongful death occurring in other states, without reference to thé citizenship of the person killed, that in many cases the right of recovery will be wholly lost. This does not follow, for in all cases of diverse citizenship the Federal courts are given jurisdiction, and the wrongdoer may be followed to any state into which he may go, and the right given by the state where the death occurred, may there be enforced against him in the courts of the Hnited States.

From a consideration of the statutes hereinbefore referred to, and the former decisions of this court, we think it must now be held to be the recognized policy and established law of this state, that an action for wrongful death occurring in another state, will not be enforced in the courts of this state, except where the person killed was, at the time of his death, a citizen of Ohio. And we think the case at bar, aptly and forcibly illustrates the wisdom of such a policy. In the present case, the plaintiff below, Elizabeth M. Chambers, resides in, and is a citizen of, the state of Pennsylvania; her husband, Harry E. Chambers, at the time of his injury and death, resided in and was a citizen of the state of Pennsylvania; the alleged wrongful act occurred, and the cause of action arose, in the state of Pennsylvania; defendant below, The Baltimore & Ohio Railroad Company, then operated, and now operates, its line of railroad in said state, and could have been as easily sued in that state as in Ohio. But for some reason, which we may guess, but which the record does not affirmatively disclose, plaintiff elected to bring her action in this jurisdiction as a matter of convenience, and not from necessity. To open our courts in such cases, and under these circumstances, for the adjustment and settlement of the rights of the parties, is to extend an invitation to all such persons, who may, for whatsoever reason, prefer to resort to our tribunals, to' seek the • courts of this state to enforce their claims. Thus we should greatly add to the already overburdened condition of the dockets in all our courts, and thereby make the settlement of rights originating outside the state, between citizens of other states, a charge and burden upon the people of our own state. The legislature of Ohio has, we think, by the foregoing legislation, manifestly declared that -such is not the policy of this state.

It follows therefore that the judgment of the circuit court must be reversed and judgment entered for plaintiff in error upon the conceded facts.

Judgment reversed.

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


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    The State of Ohio v. Ridgway.

      In prosecution on affidavit — For selling intoxicating liquors— Name of purchaser must he alleged, when — Sections Jf364-20h and 4S64-20C, Revised Statutes.

    In prosecutions founded on affidavit, information or indictment for selling, intoxicating liquors to he used as a beverage, in violation of sections 4364-206 and 4364-20c, Revised Statutes, it is necessary to a sufficient charge against the accused, that the affidavit, information or indictment, as the case may be, allege the name of the purchaser of such intoxicating liquors, or that bis name is to the affiant, informant, or grand jury unknown.
    (No. 9268
    Decided October 31, 1905.)
    Error to the Circuit Court of Greene county.
    The defendant in error was prosecuted before the mayor of Jamestown, Greene county, Ohio, on an affidavit which charged him with having, sold liquor in another municipal corporation in that county, contrary to law.
    The trial before the mayor resulted in conviction, and he was duly sentenced to pay a fine and the costs of the prosecution. The case was taken on error to the court of common pleas where the judgment of the mayor was affirmed. Ridgway prosecuted error in the circuit court, and that court on consideration of the record, reversed the judgments of the court of common pleas and mayor on the ground that the affidavit upon which Ridgway was tried and convicted by the mayor was defective in not stating the name of the party to whom the liquor was sold; hut the circuit court affirmed the judgment of’ the common pleas on all other questions raised. The case was remanded to the mayor of Jamestown with an order that it he dismissed. The State prosecutes error in this court to reverse the judgment of the circuit court.

      Mr. M. R. Snodgrass and Mr. W. B. Wheeler, attorneys for plaintiff in error,
    cited and commented upon the following authorities:

      Roberts v. State, 32 Ohio St., 171; Carper v. State, 27 Ohio St., 572; Hulstead v. Commonwealth, 5 Leigh, 724; Dore’s Case, 2 Va. Cas., 26; Gordon v. State, 46 Ohio St., 607; Alliance v. Joyce, 49 Ohio St., 7; Hughes Crim. Law and Proced., sec. 1433; Turpin v. State, 19 Ohio St., 540; Bainbridge v. State, 30 Ohio St., 264; State v. Munger, 15 Vt., 290; People v. Adams, 17 Wend., 475; State v. Brown, 41 La. An., 771; 6 So. Rep., 638; State v. Whisner, 35 Kan., 271; 10 Pac. Rep., 852; Rile v. State, 43 Miss., 397; Whiting v. State, 14 Com., 487; State v. Rust, 35 N. H., 438; Wharton’s Crim. Law, 815; State v. Ladd, 2 Swan’s Tenn. Rep., 226; Rex v. Pemberton, 2 Burr, 1036; 2 Pleas of the Crown, 193; United States v. Warwick, 51 Fed. Rep., 280; Rice v. People, 38 Ill., 435; Myers v. People, 67 Ill., 503; State v. Bielby, 21 Wis., 204; State v. Jaques, 68 Mo., 260;
      State v. Fanning, 38 Mo., 359; State v. Moseli, 49 Kan., 142; State v. Schweiter, 27 Kan., 499; State v. Back, 72 S. W. Rep., 466; sec. 7222, Rev. Stat.

      Mr. Roy G. Fitzgerald, of Sprigg, Fitzgerald & Sprigg, attorneys for defendant in error,
    cited and commented upon the following authorities:

      McLaughlin v. State, 45 Ind., 341; Steioart v. State, 25 O. C. 0., 438; State v. Doyle, 11 R. I., 574; Gordon v. State, 46 Ohio St., 625; State v. Ford, 48 Mo. App., 601; State v. Martin, 108 Mq., 117; State v. Martin, 44 Mo. App., 45; State v. Cassity, 49 Mo. App., 300; State v. Quinn, 49 Mo. App., 602; State v. Pischel, 16 Neb., 608; Martin v. State, 30 Neb., 421; Commonwealth v. Dean, 39 Mass. (21 Pick.), 334; Commonwealth v. Benge, 13 Ky. L. R., 591; Drechsel v. State, 35 Tex. Crim. Rep., 580 (34 S. W. Rep., 934); Commonwealth v. Thurlow, 24 Pick., 374; Blodget v. State, 3 Ind., 403; State v. Steedman, 8 Rich. (S. C.), 312; State v. Nutwell, 1 Gil. (Md.), 54; Capritz v. State, 1 Md., 569; State v. Faucett, 4 Dev. & Bat. (N. C.), 107; Dorman v. State, 34 Ala., 216; State v. Walker, 3 Harr. (Del.), 547; secs. 4364-20a, -b and -c, and 7222, Rev. Stat.
   Price, J.

We have been somewhat embarrassed in the preparation of this opinion by loss from the files of some of the original papers, including the affidavit and bill of exceptions. It is believed that the absence of these documents is not the fault of either party, and we proceed to an examination of the only question presented to us in the briefs of counsel and such record as we find at hand.

It seems to he agreed between counsel for the respective parties to this proceeding, that the affidavit before the mayor charged Ridgway with the violation of sections 4364-20a, 4364-206 and 4364-20c, Revised Statutes, which sections are a part of what is commonly known as the Beal law.

Section 4364-20a provides when a petition of electors of a municipal corporation may be filed with the council, asking the privilege of determining by ballot, whether the sale of intoxicating liquors as a beverage shall be prohibited within such corporation, and fixes the number of petitioners necessary to give the council authority to act. It also provides for the calling of the election on such petition, the notice therefor; the manner of holding and conducting the election, and the mode of ascertaining and recording the result.

Section 4364-206 prescribes the form of the ballot to be cast at the election, and further provides that “if a majority of the votes cast at such election shall be in favor of prohibiting the sale of intoxicating liquors as a beverage, then from and after thirty days from the date of holding said election, it shall be unlawful for any person, personally or by agent, within the limits of such municipal corporation, to sell, furnish or give away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away, or furnished for beverage purposes; and whoever, from and after the thirty days aforesaid in any manner directly or indirectly sells, furnishes, or gives away, or otherwise deals in any intoxicating liquors as a beverage * * * shall be guilty of a misdemeanor, and shall, on conviction thereof, be fined not more than two hundred dollars, nor less than fifty dollars for the first offense * * It is also provided in the same section, that manufaeturers of intoxicating liquors from the raw material may sell to retailers in wholesale quantities, etc.

It is next provided in section 4364-20c that “nothing in this act shall be construed to prevent the selling of intoxicating liquors at retail by a regular druggist for exclusively known medicinal, pharmaceutical, scientific, mechanical or sacramental purposes; and when sold for medicinal purposes, it shall be sold only in good faith upon written prescription issued, signed and dated in good faith by a reputable physician in active practice, and the prescription used but once * *

We must assume for the purposes of this proceeding that a petition had been presented to the council of the municipal corporation signed by the requisite number of electors; that an election was held as required by the statute and that it resulted in a majority of votes being cast in favor of prohibition of the sale of intoxicating liquors within the corporate limits, and that its results were made a matter of record as the law directs. When all these steps had been taken, it became unlawful for any one after the expiration of thirty days from the holding of such election, to sell intoxicating liquors within the corporate limits as a beverage save under the circumstances made exceptions by the latter clause of section 4364-206 and the provision of section 4364-20c above quoted.

The charge before the mayor against Ridgway, as we gather from the record and briefs before us, was not for keeping a place, structure, etc., in which or from which intoxicating liquors were unlawfully sold, but that he unlawfully sold intoxicating liquors within the corporate limits at a certain time to be used as a beverage, without alleging the name of the purchaser. On account of this omission, the circuit court held the affidavit fatally defective. In so holding did that court err?

In answering this question, we are justified in a retrospect of some of the temperance legislation of the state and the practice thereunder, because if the question we are considering could or did arise under former statutes regulating the sale of intoxicating liquors, the judicial decisions, if any, and the settled practice under the former statutes on the same subject, ought to be of assistance in the present controversy. It has been truly said that this court has never had occasion to decide this precise question, and we think the reason can be found in the fact, that the uniform practice seems to have' been to allege in the affidavit information or indictment, the name of the purchaser when the seller was charged with a single sale. We have no doubt that so general and uniform was this practice, that no occasion was afforded to raise the question in this court, although many other controversies arose over other phases of the legislation.

That we may be clearly understood, let us turn to the act of May 1, 1854, S. & C. Revised Statutes, vol. 2, p. 1431. The act is entitled “An act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio. ’ ’

Section 1 provided “That it shall be unlawful for any person or persons by agent or otherwise, to sell in any quantity, intoxicating liquors, to be drank in, upon, or about the building or premises where sold * * * > > The second section prohibited the sale of such liquors to minors, unless upon the written order of their parents, guardian, or family physician.

The third section made it unlawful to sell such liquors to persons intoxicated or who are in the habit of getting intoxicated.

The fourth section provided that all places where intoxicating liquors are sold in violation of this act shall be taken, held and declared to be common nuisances. The fifth section made it unlawful for any person to get intoxicated. These were the penal sections of the act.

As a part of the act, section 12, p. 1435, the legislature prescribed a form of complaint which it declared to be sufficient in criminal proceedings under that act before justices of the peace and mayors, and the form is: “The State of Ohio...... County, ss. Before me A. B. (a justice of the peace of said county, or mayor, etc., as the case may be) personally came C. D., who being duly sworn according to law, deposeth and saith, that on or about the .... day......in the year .... at the county of ....... aforesaid, E. F. did sell intoxicating liquors to one G-. H. to be drank in the place where sold (or to Gr. H. a minor, etc., or to a person intoxicated, or in the habit of getting intoxicated, as the case may be, or, is the keeper of a room, or tavern as the case may be, where intoxicating liquors are sold in violation of law), and further deponent saith not.

“C. D.

‘ ‘ Sworn to and subscribed, ’ ’ etc.

Section 13 on same page provided that “in all prosecutions under this act, by indictment or otherwise, it shall not be necessary to state the kind of liquors sold, or to describe the place where sold, and for any violation of the fourth section (keeping a place, etc.), it shall not be necessary to state the name of any person to whom sold * *

It need not be said that the above form was intended to be exclusive, but as deemed sufficient, and it must be noted that the form suggests at least, that a charge of violating either the first, second or third sections of that act, should contain the name of the purchaser of the liquors.

The first case that reached this court for a construction of the act of May 1, 1854, is reported as Miller & Gibson v. The State, 3 Ohio St., 476. While the question we are to decide was not involved in that case, the points settled shed some light upon it. It was there held among other things, that to convict for a violation of the second section, it was necessary to aver in the information (in probate court), and prove on the trial, that the seller knew the buyer to be a minor; and to convict for a violation of the third section, it was necessary to aver and prove, in like manner that the seller knew the buyer to be intoxicated, or in the habit of getting intoxicated. It seems that the controversy in that case did not involve the first section, for the prosecution was not under that section. This pioneer case has never been questioned, and it shows how the elements of the above form prescribed by the legislature were considered in arriving at the conclusions so announced. Then, when section 13 of the old statute provided that ‘ ‘ in all prosecutions under this act (May 1, 1854) by indictment or otherwise, it shall not be necessary to state the kind of liquors sold, or describe the place where sold; and that for a violation of the fourth section (keeping a place where sold — a nuisance) it shall not be necessary to state the name of any person to whom sold, we think it a fair inference, that for a violation of the first section —selling to be drank where sold — the name of the buyer should be alleged in the affidavit, information or indictment, as the case may be, or an allegation excusing the giving of the name to the effect that it was unknown to the affiant, informant, or grand jury.

We are satisfied that an examination of every case that arose under this former act involving a conviction under the first, second or third sections thereof, and which reached this court for decision, involved a charge containing the name of the buyer of .the liquors. The form prescribed by the statute became a precedent that was universally observed so far as our recollection and research extend, and hence we say it became the settled practice throughout the state to allege the name of the buyer if known, in prosecutions for violation of the first, second and third sections. A long established and uniform practice is an authority of but little, if any, less weight than an adjudication to the same effect.

So we find in Manor’s Criminal Law, an Ohio authority published in 1857, and then of great value, on page 370, a form for a charge of selling liquors to be drank where sold, and the name of the buyer is deemed a necessary part of the charge. In 1857, another Ohio authority, Ohio Criminal Law by Warren, was published and became of general use in the state. It was revised in later editions. On page 649 of the edition of 1870 is found his form for a charge for illegally selling intoxicating liquors. The directions of these Ohio authors are not judicial decisions, but they show how the practice about which we have been speaking was moulded, and that the form prescribed by the legislature in that act has been observed uniformly so long as its provisions were in force.

The first section of the act of 1854, afterwards known as section • 6941, Revised Statutes, was repealed April 17, 1883 (80 O. L., 167) and in an act passed May 14, 1886 (83 O. L., 161), the same section is again declared to be repealed. The other sections of the old act have in their substance been retained, and additional legislation from time to time, in regulation and restraint of the traffic has been enacted and numerous limitations have been placed upon it. But we think that where the sale of intoxicating liquors as a beverage is made unlawful under the present law, the same rule of practice still obtains.

The general provisions now regulating the traffic in intoxicating liquors are found in section'^ 6940 to 6950-1, inclusive, of Revised Statutes. In addition to these are the statutes providing for municipal and township local option, wherein the electors within such jurisdictions may, by a majority vote, prohibit the sale of liquors therein, except in certain excepted cases for certain excepted purposes named in the statute.

In the case before us, the vote of the majority has made the territory within the corporate limits prohibition territory, within which it was and is unlawful to sell intoxicating liquors to be used as a beverage. The charge is not that Ridgway kept a place where intoxicating liquors were being sold in violation of law, but that he sold intoxicating liquors within the corporate limits to be used as a,beverage, without alleging the name of the buyer or facts excusing the giving of such name. Thirty.days after the election, it became unlawful to sell for beverage purposes. If Ridgway made such a sale, he had a buyer, and if his name was known to the complaining party, it was not only proper, but we think necessary to allege it in the affidavit. For the first offense at least, it seems the mayor has final jurisdiction, and the offense charged should be described with reasonable certainty. The rule of practice under the old statute, as we have found it, applies to its kindred provision of the present law as to single sales which it declares to he unlawful.

Section 7222, Revised Statutes, entitled “What are sufficient allegations in an indictment for unlawfully selling liquor,” provides that, “in an indictment under sections 6941, 6942, 6943, 6944, 6945, 6946, 6947 and 6948, it shall not be' necessary to allege the kind of liquor sold, nor to describe the place where sold, and in an indictment under said section 6942 (keeping a place, etc.), it shall not be necessary to allege the name of the person to whom intoxicating liquor was sold.” This section is now part of the criminal code, hut it had its root in old section 13 of the act of May 1, 1854, already quoted. WThy did not the legislature include in section 7222 the offense under consideration, if the rule of pleading was to he changed?

It will he observed that the section under which this prosecution was instituted (4364-20& and -c) is not named therein, and if béfore its passage, it was good pleading to allege the- name of the buyer as well as the seller of intoxicating liquors, the rule still remains. This must have been in the mind of the court when Gordon v. The State, 46 Ohio St., 607, was decided. That was a local option case under the township local option statute passed March 3, 1888. A motion was made to quash the indictment on the ground, (1) that it did not set forth the name or names of any person or persons to whom the sale of intoxicating liquors was made, and (2) that it was objectionable for duplicity. The indictment alleged that the accused unlawfully sold intoxicating liquors as a beverage to divers persons whose names to the jurors were unknown. Dickman, J., said for the court, on page 625, “This we deem sufficient. In those cases in which the names of third persons cannot be ascertained, they may be thus designated, in the usual form ‘as persons whose names are to the jurors unknown.’ Thus, an indictment for harboring thieves unknown, is sufficient from the necessity of the case, upon the fair presumption, that the names cannot be discovered. And in indictments for assault and the like, the person injured or killed may be mentioned as unknown, if such is the fact. ’ ’

We think this statement of the law of criminal pleading is authority here, because if, in sales of liquor for use as a beverage, it is not necessary to allege the name of the buyer, it would have been so declared as a much shorter answer to the contention in that case. It held that the indictment was. good without naming the buyer if his name is unknown, and it is so alleged.

Counsel for the state in the able brief filed, cite a number of decisions made by the courts of other states, and we have examined them. There is one remark that is common to a majority of them, and it is, that they are cases where sales of intoxicating liquors were made without a license or permit. The State v. Schweiter, 27 Kan., 499, and The State v. Moseli, 49 Kan., 142, are of this character, and so with many other cases cited in behalf of the plaintiff in error. A few are not of that character. They did not decide the question we have, for there is a distinction between the acts involved in those cases where sales were made without a license or permit, and the act of selling where no license or permit can be issued in order to legalize the sale. In the states where the decisions referred to were made, if the state or other proper authority granted a license for the sale of liquor, such license would be a defense, no matter as to the name of the purchaser. Selling without license constituted the gravamen of the offense, and the name of the person to whom sales were made was not material. Hence the difference in the decisions.

There is another observation worthy of note in this case. It is said that Eidgway is a druggist and was a druggist when he committed the offense. If he was a regular druggist and sold intoxicating liquors, he is protected, if he complied with the rule prescribed in section 4364-20c, and made the sale exclusively for known medicinal, pharmaceutical, scientific, mechanical or sacramental purposes. If the sale was made for medicinal purposes, in good faith upon the written prescription issued, signed, and dated in good faith by a reputable physician in active practice, and used but once, the sale was not unlawful.

If Eidgway was a druggist, as seems to be conceded, there is additional force in the claim that the name of the buyer should appear in the charge against him. A druggist is supposed, if not required, to file and preserve prescriptions which he has filled. When he is confronted with a charge of unlawfully selling intoxicating liquors, to one named in the charge, he is able to speedily ascertain whether he made the sale on the requisite prescription. If the name of the buyer is not alleged, the making of his defense is more difficult. This reason seems to be a very plain and reasonable one. It has received the sanction of two Missouri cases. In State v. Cassity, 49 Mo. App. Rep., 300, on page 301, the court says: “The indictment does not in either count state the name of the person to whom the liquor was sold. We held in State v. Martin, 44 Mo. App., 45, that an information against a drug'gist under section 4621 of the Statutes, which fails to state the name of the person to' whom the liquor was sold by him is subject to be quashed on the defendant’s motion. We held this on the ground that in the case of a sale the druggist must rest his defense, if he has any, upon a prescription or ’prescriptions issued by a regularly registered physician of the state, and if the purchaser of the liquor is not named in the indictment, that defense becomes practically unavailable to him. That view was approved by the supreme court, to which we certified the case for its final determination .* * The supreme court of Missouri reviewed the case of State v. Martin, supra, in 108 Mo., 117, and held the same doctrine. For a clear and vigorous statement of the reasons for the rule, we refer to the opinion of that court by Thomas, J., on pages 119-120. They can be adopted here as entirely appropriate. A" brief quotation here is sufficient. “The statute contemplates that intoxicating liquors may be prescribed by physicians and used for medicinal purposes. Hence, the law authorizes their sale by all licensed druggists, provided the purchaser shall first procure a prescription therefor from a registered physician. When a druggist is indicted for a violation of this statute, he must rest his defense, if he has any, upon a prescription or prescriptions issued by a regular registered physician of the state. If the purchaser of the liquor is not named in the indictment how can such a defense be made available to tbe accused? Until tbe defendant is thus advised, how can he make his plea ? How can he prepare for trial? Under what circumstances can he safely announce himself ready for trial? With no knowledge of the evidence upon which the state relies for a conviction, must he take with him to the trial all prescriptions filed during the year next preceding the indictment? And must he also prepare himself with the necessary proof that each prescription was signed by a registered physician? He may have prescriptions given by physicians in different and distant parts of the state. These are practical questions,” etc.

Counsel for the state cite and rely on Carper v. The State, 27 Ohio St., 572, and Roberts v. The State, 32 Ohio St., 171. The decision in the latter case is based on the reasoning of the court in the former case. Both cases arose on charges of violating the gaming statutes. A careful reading of Carper v. The State, supra, will show that the construction there given of the law against gaming for money, should not be applied as authority in the present case.

We conclude that the circuit court did not err in its judgment, and that judgment is affirmed.

Affirmed.

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


author: Shauck, J.

text:
    Metropolitan Life Insurance Company v. Felix.

      Consideration for premium, payment on life insurance — Insurer must incur liability not affected by contract infirmity, when— Action to recover premium paid insurer — Rights of parties— Interpretation of contract — Insurance law — Pleadings.
    1. To constitute a consideration for the payment of premiums on a policy of life insurance it is essential that the insurer incur a liability by a contract which is not affected by any infirmity which it may elect to interpose as a defense to an action on the policy if the life insured should end.
    2. In an action to recover premiums paid to an insurer which has not incurred’such risk, the rights of the parties at the beginning of the action should determine the judgment and the insurer cannot by the averments of its answer effectively waive such defense.
    (No. 8828
    Decided October 31, 1905.)
    Error to the Circuit Court of Hamilton county.
    Mrs. Felix brought suit in the.court of common pleas to recover from the plaintiff in error the amount of premiums which she had paid to it upon the policy on the life of her husband, the right to recover being placed upon the ground that the policy was void. The company denied that the policy was void and alleged that it had treated it as valid from the time of its issuance in April, 1886, receiving premiums thereon until April, 1894, when she ceased to pay premiums and on June 25,1894, she forfeited the policy for non-payment of premiums and for no other reason. In the court of common pleas a jury was waived and the cause was submitted to the court upon the following agreed statement of facts:
    Minnie Felix, the plaintiff in the case, upon the solicitation of an agent of the defendant, insured her husband, Michael Felix, in the defendant company for the sum of $660.00, under the following circumstances :
    On April 2, 1886, Mrs. Felix, upon the solicitation of an agent of the defendant, stated to said agent that she would like to insure her husband for $1,000.00, but that her husband objected to being insured, and would not sign an application nor submit to a medical examination. The agent said he could insure the husband for $660.00, that he need not sign the application, nor be examined nor know anything whatever of the matter. Relying on these representations, Mrs. Felix consented to take out the policy and to pay for the same the sum of fifty-five cents weekly as premiums. An application was made out and the name of Michael Felix signed thereto, and it was upon said application that the company issued the policy, but it does not appear who made it out or signed the same, except that it was not done by either Mr. or Mrs. Felix, or anyone acting for them.
    April 12, 1886, Mrs. Felix received the policy in question and the receipt book, both of which are hereto attached. See Exhibits “A” and “C.”
    Mrs. Felix continued to pay the premiums from April 12, 1886, to April 16, 1894, when the same amounted to the sum of $233.20, at which time she discontinued payment of premiums and paid no more, and the policy was upon June 25, 1894, forfeited and canceled for non-payment. Mrs. Felix told her husband of the existence of the insurance in April, 1894, and because he still objected to being insured and also because she then became convinced that the policy had always been void, she refused to make further payment of premiums.

      The company had always treated the policy as valid, and after Mrs. Felix stopped payment, she was solicited .by the company’s agent to reinstate the policy and resume payments of premium, but she declined.
    Demand was made for a return of the premiums paid on the ground that the policy was void ab initio, and the premiums paid were unearned; the company refused to pay, and this suit is brought for their recovery.
    Plaintiff claims that the policy of insurance in question, No. 2485016, the application for the same (attached hereto as Exhibit “B”), and the premium receipt book, in which were entered premiums paid on said policy, and in which were printed “Rules and Regulations” of the company, to which plaintiff refers in her petition, all together constituted the contract of assurance.
    Defendant denies that the said rules and regulations constitute any part of said contract.
    Plaintiff never read the said rules and regulations until upon said- sixteenth day of April, 1894, her husband called her attention more particularly to that portion thereof, which is referred in the petition, and she then read all of said rules and regulations in said receipt book contained.
    Plaintiff had never read the application nor seen the original or a copy of it, until the original was exhibited to her in the court room at this trial.
    Michael Felix, the assured, was never examined by any physician for said insurance and never consented nor desired to be insured in this defendant company, nor did he know of the existence of the policy in question until the plaintiff accidentally revealed its existence to him on April 16, 1894, at which time he insisted that plaintiff cancel the same and called plaintiff’s attention to the fact that according to the rules and regulations there had been no valid insurance.
    The material representations and stipulations of the exhibits are the following:
    APPLICATION TO THE
    Metropolitan Life Insurance Co.
    J. Hurley, agent at Newport, under John Garrett, assistant superintendent.
    The undersigned hereby declares and warrants that the representations and answers made below, and in the examination on the other side, are strictly correct and wholly true; that they shall form the basis and become part of the contract of insurance (if one be issued), that any untrue answers will render the policy null and void, and that said contract shall not be binding upon the company unless upon its date and delivery the insured be alive and in sound health. The undersigned further agrees to be governed by the rules and regulations of the Metropolitan Life Insurance Company as they now exist, or may hereafter be altered or amended. The provisions of chap. 347 of the laws of New York, passed May 21, 1879, are hereby waived.
    Signature of Applicant: Michael Felix.
    RULES AND REGULATIONS.
    Under no circumstances can an application be written upon the life of a husband for the benefit of his wife, or vice versa, or upon the life of any person for the benefit of another (children excepted), unless the life proposed for insurance fully understands the matter and consents to the issuance of the policy, and personally signs the certificate of examination on the hack of the application. Any policy obtained in violation of this will be void.
    An adult application must be signed on its face directly under the warranty by the applicant in person, and on the back, at the foot of the examination form by the life proposed for insurance, and an infantile application by one of the parents of the child, or, if they be dead, by the person who has undertaken its support. * * *
    No policy on an adult life will be binding upon the company unless the person against whose death it insures is aware of the insurance — consents to the same — is examined by a physician of the company if the amount applied for is over $200, or by an agent if under that amount, and personally signs the examination form after the answers in said form are all recorded, and not otherwise.
    The material stipulations of the policy are: “In consideration of the representations and agreements in the printed and written application for this policy respecting the person named in the schedule hereinafter contained which application is hereby referred to and made a part of this contract” * * # “if any of the representations above referred to and upon which said policy is granted be not true this .policy shall thereupon become void.”
    Upon these facts the court of common pleas rendered judgment in favor of Mrs. Felix and that judgment was affirmed by the circuit court.

      Messrs. Robertson é Buchwalter, attorneys for plaintiff in error,
    cited and commented upon the following authorities:

      Joyce on Insurance, see. 192; Insurance Co. v. Bratt, 55 Md., 200; O’Dell v.' Manhattan Life, 9 Dec. Re., 589; 15 W. L. B., 197; Life Ins. Co. v. Buxer, 62 Ohio St., 385; Life Ins. Co. v. Hook, 62 Ohio St., 256; Shaddinger v. Life Ins. Co., 2 Dec., 402; 30 W. L. B., 337; Mailhoit v. Life Ins. Co., 87 Me., 374; Insurance Co. v. Pyle, 44 Ohio St., 19; Fisher v. Insurance Co., 160 Mass., 386; Fulton v. Insurance Co., 19 N. Y. Snpp., 660; secs. 3625 and 3626, Rev. Stat.

      Mr. S. B. Deal and Mr. Dudley P. Wayne, attorneys for defendant in error,
    cited and commented upon the following authorities:

      Insurance Co. v. Pyle, 44 Ohio St., 29; Foster v. Insurance Co., 11 Pick., 85; O’Niel v. Fire Ins. Co., 3 N. Y., 127; Ripley v. Insurance Co., 30 N. Y., 163; Fulton v. Insurance Co., 19 N. Y. Supp., 662; Life Ins. Co. v. Buxer, 62 Ohio St., 385; Life Ins. Co. v. Hook, 62 Ohio St., 256; Insurance Co. v. Martin, 13 Minn., 65; Shaddinger v. Life Ins. Co., 2 Dec., 402; 30 W. L. B., 337; Life Association v. Leflore, 53 Miss., 1; Tyre v. Fletcher, Cowp., 666; Hedden v. Griffin, 136 Mass., 229; Delavigne v. Insurance Co., 1 Johns. Cas., 310; Fisher v. Insurance Co., 38 N. E. Rep., 503; secs. 3624 and 3626 Rev. Stat.
   Shauck, J.

More than a century ago it was held ■ by Lord Mansfield in Tyre v. Fletcher, Cowp., 666, that premiums paid upon a void policy of insurance may be recovered because “the underwriter receives a premium for running the risk of indemnifying the insured, and whatever cause it may be owing to, if he does not run the risk the, consideration for which the premium or money was paid into his hands fails, and therefore he ought to return it. ” '

Such appears to have been the accepted law since that time. In supposed deference to it counsel for the Company here insists that the policy was not void, even if voidáble at the option of the Company, and that it did not declare the policy forfeited until the payment of the premiums had been refused. In this connection he directs our attention to the uncontroverted allegations of the Company’s answer that at the time of the refusal to pay the premiums and prior thereto the Company had treated said insurance as valid and was ready and willing to carry out the terms and conditions of said policy by it to be kept and performed and to keep in force said policy, and was never willing to rescind the contract or to have it rescinded. The Company’s willingness to keep the contract alive while that consisted only in accepting premiums may be readily believed; but the choice of its attitude, if the life insured had ended, would have been- determined by other considerations. In attempting to apply the admitted rule to the case we should look to the stipulations whereby the company has provided for immunity from liability rather than to its ineffectual declarations respecting its intentions. The rule requires the presumption that it would have paid the amount of the policy only in performance of a binding obligation to do so. If this presumption appears too weak to attract confidence it might be much strengthened by reference to reports of judicial proceedings in the several states illustrating this company’s dealings with holders of its policies. Since it cannot be assumed.that we are dealing with a sporadic case of philanthropy, we must inquire whether the Company bore a risk in consideration of the premium's paid. In this connection its counsel say that although the pretended application by the insured was a forgery, not perpetrated by the beneficiary, its representations may all have been true, and that, under the circumstances presented, sections 3625 and 3626 of the Revised Statutes prevented its interposing their falseness, if they w’ere false, as a defense to an action on the policy. These propositions need not be discussed for they miss the point in the case. The Company did not incur the liability which Minnie Felix thought it incurred, and for which she paid the premiums, because the terms of the application upon which the Company acted showed her express consent to be bound by its regulations; the terms of the policy made the application a part of the contract; the regulations provided that no policy on an adult life should be binding upon the Company unless the person against whose death it insures is aware of the insurance, and Michael Felix, the adult subject of the insurance, was not aware that it had been effected. The distinction between a policy void, and voidable at the election of the insurer, cannot be important here. It is of the essence of the doctrine stated by Lord Mansfield and approved in the considerate eases upon the subject that, there being no fraudulent conduct by the beneficiary, to constitute a consideration for the payment of premiums there must be a contract against which at the time of its execution the insurer cannot interpose a valid defense. Such a ground of defense is shown in the stipulations-and facts stated. The judgment below is in accordance with the doctrine of Insurance Co. v. Pyle, 44 Ohio St., 19. It is in all respects supported by Fisher v. The Metropolitan Life Ins. Co., 162 Mass., 236, where the company unavailingly urged the same objections to the right to recover the premiums paid. , ■

Judgment affirmed.

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


author: Davis, C. J.

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

      General assembly under constitution has no power to declare things done under unconstitutional acts — Shall be regarded as legal —Invalidity of special school districts — Sections 8891 and 8928, Revised Statutes — Act of April 25, 1901/ — Constitutional law.

    1. It is not within ‘the power conferred on the general assembly by the constitution, to declare that things done and created under and hy virtue of unconstitutional acts of the general assembly, nevertheless “shall continué to be and remain and be recognized and regarded as legal.”
    2. Section 3891 of the Revised Statutes and sections 3891 and 3928 of the Revised Statutes as amended and supplemented by “An act to provide for the organization of the common schools of the state 'of Ohio, and to amend, repeal and supplement certain sections of the Revised Statutes and laws of Ohio herein named,” passed April 25, 1904 (97 O. L., 77), are unconstitutional and void, in so far as they declare to be legal and valid special school districts, all special school districts which have been created under the provisions of special acts of the general assembly.
    (No. 9267
    Decided October 31, 1905.)
    Error to the Circuit Court of Washington county.
    The facts are stated in the opinion.

      Mr. A. D. Follett, attorney for plaintiffs in error.

      Mr. J. D. Preston, attorney for defendant in error.
   Davis, C. J.

This is a proceeding in quo warranto to oust each of the plaintiffs in error from the office of director of the Coal Run special school district in Waterford township, Washington county, and to require them to show hy what right, if any, they claim to exercise the powers and authority of such office. In the petition it is averred that the Coal Run special school district was created by an act of the general assembly entitled, “An act to establish a special school district in Waterford township, Washington county, Ohio” (94 O. L., 630), and that said act violates section 26 of article 2 of the Constitution.

The respondents admit in their answer that under the ruling of this court in State ex rel. v. Spellmire et al., 67 Ohio St., 77, the act creating the Coal Run special school district is unconstitutional.; but they aver that by virtue of an act of the general assembly entitled, “An act to provide for the organization of the common schools of the state of Ohio, and to amend, repeal and supplement certain sections of the Revised Statutes and laws of Ohio herein named,” passed April 25, 1904 (97 O. L., 334), and especially by virtue of Revised Statutes, sections 3891 and 3928, as amended by said act, the Coal Run special school district is made a valid special school district; and that the respondents are the duly elected, qualified and acting directors of the same.

The circuit court sustained a demurrer to the answer and rendered a judgment of ouster against the respondents. This proceeding in error is prosecuted in this court to reverse the judgment of the circuit court.

The two sections of the school code of 1904, upon which the respondents rest their claim,, are as follows :

“Sec. 3891. Any school district, now existing, other than a city, village or township school district, and any school district organized under the provisions of chapter 5 of this title, shall constitute a special school district.
“Sec. 3928.” (After first making provision for creation of special school districts by probate judge.) “Nothing herein contained shall be so construed as to abolish any special school district now existing, but all such districts, whether created under the provisions of a general or special act, including the territory now constituting such special district shall, unless changed under the provisions of this chapter, continue to be and remain and be recognized and regarded as legal special school districts, excepting, however, such special school districts which do now or may hereafter include within their boundaries an incorporated city or village, and in such cases such special districts shall become a city or village school district with or without territory attached or detached, as the case may be. And all officers and members of boards of education of existing special school districts heretofore created, whether by special or general act, shall continue to hold and exercise their respective offices and the powers thereof until their successors are elected and qualified as provided herein; provided that all such officers of such districts created by special act shall hold such offices only until the first Monday of January following the first election for school officers to be held after the passage of this act, at which election their successors shall be elected.”.

It seems.to be true, as claimed by the counsel for the defendants in error, that these sections of the act of April 25, 1904, which repeal and amend Revised Statutes, sections 3891 and 3928, do not affect this action, which was pending at and before their enactment: Revised Statutes, section 79. But since the original section 3891 contains the provision that, “Any school district now existing, other than, etc., * * * which has been established by a vote of the people in accordance, with any act of the general assembly, or which has been established by a general or local act of the general assembly, shall constitute- a school district to he styled a special school district, ’ ’ the question still remains as to the constitutional power of the general assembly to so legislate. This question underlies not only sections 3891 and 3928 as they now exist, hut the original section 3891 also.

The contention made on behalf of the plaintiffs in error is, that the legislation in these sections of the revised statutes is general in itfe nature and uniform in its operation throughout the state; and that it re-creates and re-establishes as legal and unquestionable special school districts, such special school dis-.' triets as are confessedly illegal if these sections doj not so operate.

The power of the legislature to validate any void or ineffectual act is limited to such acts as it might have originally performed or authorized. It therefore cannot, under the mere form and pretense of general legislation, make valid any special legislation which it had enacted in violation of the constitution. If this could he permitted we would at once he hack to the point from which we started when this court declared that special legislation in regard to municipal corporations would not he recognized as constitutional although it were clothed in a plausible appearance of general legislation. The general assembly bas created special school districts by special laws, as in this ease, definitely locating them and defining the boundaries thereof. We need- not repeat the reasons which we gave in State ex rel. v. Spellmire et al., 67 Ohio St., 77, for declaring such acts to be in violation of the constitution. It is sufficient to say that we adhere to the ruling made in that case; and that the sections of the statutes now under consideration do not stop short of being a mandate to all of the courts that “all such districts, whether created under the provisions of a general or special act, including the territory now constituting such special district, shall * * * continue to be and remain and be recognized, and regarded .as legal special school districts, ’ ’ etc. This we regard as wholly beyond the power conferred upon the general assembly by the constitution. The power conferred upon the general assembly is legislative power, and that body is expressly prohibited from exercising any judicial power which is not expressly conferred by the constitution. Article 2, section 32.

At this time,.the limits of the power invested in the respective co-ordinate branches of the government is so well defined and so generally understood, that we are constrained to believe that, whatever may have been the thought of the persons who drafted them, the enactment of these sections was an inadvertence on the- part of the general assembly; for it is well settled that the legislature cannot annul, reverse or modify a judgment of a court already rendered, nor require the courts to treat as valid laws those which are unconstitutional. If this could • be permitted the whole power of ■ the government would at once become absorbed and taken into itself by the legislature.

It does not appear from the record in this case that any contractual obligation is involved, and therefore Lewis v. Symmes, 61 Ohio St., 471, cited by the plaintiffs in error, does not apply.

We are therefore of the opinion that the original section 3891 and the amended sections 3891 and 3928, of the Revised Statutes, are ineffectual and void so far as they would make legal and valid special school- districts of those special school districts which had been created under or by special statutes.

The judgment of the circuit court is

Affirmed.

Shauck, Price, Grew, Summers and Spear, JJ., concur.


author: By the Court.

text:
    Ogg v. The State of Ohio.
    ■ Failure to provide for illegitimate child — Section 8140-2, Revised Statutes — Allegation as to previous proceedings under has-, tardy act.

    An indictment under section 3140-2, Revised Statutes, for failure ■to provide for an illegitimate child under sixteen years of •age need not allege that, in a. previous proceeding under the bastardy act the defendant had been adjudged to be the reputed father of such child, nor is evidence of such former adjudication necessary to a valid conviction.
    (No. 9653
    Decided October 31, 1905.)
    Error to the Circuit Court of Perry county.
    . Mr. T. B. Williams, attorney for plaintiff in error,
    cited and commented upon the following authorities:

      Gee v. State, 60 Ohio St., 485; Bowen v. State, 56 Ohio St., 239; Friesner v. Symonds, 46 N. J. Eq., 521; 1 Blackstone Com., 458; Law v. Albert, 8 Circ. Dec., 784; 16 C. C. R., 160; 3 Am. & Eng. Ency. Law (2 ed.), 889; Sherard et al., Exrs. v. Lindsay, Treas., 7 Circ. Dec., 245; 13 C. C. R., 321; Cline v. Law, 62 Ohio St., 649; Witte v. Lockwood, 39 Ohio St., 141; Greenleaf on Evidence, sec. 537; Clark v. Irvin, 9 Ohio, 131; Whittaker Code of Evidence, sec. 380; secs. 2220, 2250, 3110, 3140, 3140-2 and 5626, Rev. Stat.

      Mr. J. E. Powell, prosecuting attorney, for defendant in error,
    cited and commented upon the following authorities:

      Ives v. McNicoll, 59 Ohio St., 418; Kellogg, Treas. v. Ely, 15 Ohio St., 65; State v. Orr et al., 16 Ohio St., 522; Carter v. Jennings, 24 Ohio St., 182; Rammelsberg et al. v. Mitchell & Lape, 29 Ohio St., 36; Darling et al. v. Peck et al., 15 Ohio, 71; Railroad v. O’Harra, 48 Ohio St., 351; Feuchter v. Keyl et al., 48 Ohio St., 368; Gee v. State, 60 Ohio St., 485; Shannon v. People, 5 Mich., 71; 305 Ia., 547; Baker v. State, 30 Ala., 521; Marr v. Marr, 110 N. Y., 61; secs. 3140-2 and 7019, Rev. Stat.
   By the Court.

Plaintiff in error was indicted at •the November term, 1904, of the common pleas court of Perry county under section 3140-2 of the Revised Statutes for having failed to provide his illegitimate child under the age of sixteen years with proper care, food and clothing from the twentieth of January, 1903, to the date of the indictment. The indictment did not charge that, in proceedings under the bastardy act Ogg had been adjudged to be the reputed father of the child, and upon that ground the sufficiency of the- indictment was challenged in the court of common pleas where its sufficiency was sustained. Defendant then entered a plea of not guilty and was convicted without any evidence showing such adjudication under the bastardy act. His motion for a new trial was overruled and sentence pronounced against him in accordance with the verdict. He then filed a petition, in error in the circuit court where the judgment of the court of common pleas was affirmed.

The view urged upon us by counsel for the plaintiff in error is that in the absence of such allegation and proof there can be no valid conviction. The statute under which the indictment was found and conviction had affords no support for the point now made, for it does not suggest such adjudication as a condition of guilt. While the two acts contain provisions which contemplate the support of an illegitimate child, the bastardy act also contains provisions for the benefit of the mother. Proceedings under that act are instituted by her and are in a large measure controlled by her. Proceedings under the act here involved are instituted and maintained by the state as against a purely public offense. The relation of the statutes does not seem to support the point urged against the validity of the conviction.

The judgments of the courts below seem to be fully supported by Gee v. The State, 60 Ohio St., 485. where it was held that on the trial of an indictment under this section the record of a previous bastardy proceeding, in which the defendant was adjudged to be the reputed father of the child neglected, is not admissible in evidence because that adjudication may proceed upon a mere preponderance of the evidence, while under the statute here involved it is necessary that conviction be by evidence establishing defendant’s gnilt beyond a reasonable donbt. It is quite generally known that that which need not be proved need not be alleged; and certainly that conclusion may be urged with no less confidence with respect to a matter which is not permitted to be proved.

Judgment affirmed.

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


text:
    Sterwerf v. Smith.

      Non-resident plaintiff required to give security, when.

    A non-resident plaintiff may - he required to give security for costs in a proceeding in error; and in default thereof his petition may be dismissed.
    (No. 9236
    Decided October 31, 1905.)
    Error to the Circuit Court of Butler county.
    Smith brought suit in the court of common pleas of Butler county against Sterwerf for a revivor of a judgment. Judgment was rendered against Sterwerf reviving the.original judgment; and such proceedings were had that Sterwerf filed a petition in error in the circuit court of.Butler county to reverse the judgment in favor of Smith against Sterwerf. Smith filed a motion in the circuit court to require Sterwerf to give security for costs, on the ground that Sterwerf was a non-resident of Butler county. The circuit court sustained the motion, and Sterwerf being in default for security for costs, the proceeding in error was dismissed at his costs. Sterwerf prosecutes a proceeding in error here to reverse the judgment of the circuit court.

      Mr. Eugene G. Pociey, attorney for plaintiff in error.
   By the Court.

Without determining whether or not the courts have inherent power to require security for costs, as has been held sometimes, we are of the opinon that within the language of Eevised Statutes, sections 5340-1 and 5340-2, the judgment of the circuit court was right. The power conferred by the statute is not limited to ‘ ‘ civil actions, ’ ’ originally commenced; but it is provided that the plaintiff shall be bound for the payment of the costs which may be adjudged against him in the court in which the action is brought, “or in any other court to which it may be carried, ’ ’ etc. This broad language covers appellate jurisdiction, whether by appeal or in error; for, although a proceeding in error is not a “civil action,” the identity of the action is not lost in the proceeding in error, and hence the action may be “carried” to a court of review by a proceeding in error.

Affirmed.

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