author: Davis, J.

text:
    The Baltimore & Ohio Railroad Co. v. Hollenberger

      Action to recover statutory penalty — Objection to jurisdiction of court, not waived, when■ — May be made on petition in error, when.

    In an action to recover a penalty imposed by statute> an objection to the jurisdiction of the court on the ground that neither the cause of action nor any part of' it arose, in the county where the suit was brought, is not waived by failure to make the objection by demurrer or answer; and the objection will be available when made for the first time on petition in error.
    (No. 9738
    Decided April 16, 1907.)
    Error to the Circuit Court of Seneca County.
    The case was brought by the defendant in error against the railroad company to recover a penalty under the provisions of Sections 3374 and 3376 of the Revised Statutes. The overcharge complained of is alleged to have taken place on a trip from the railroad station of the plaintiff in error at Sullivan, Ashland county, Ohio, to its station at Chicago Junction, Huron county, Ohio, the distance being actually twenty-seven and fifty-three hundredths miles, although alleged in the petition to be twenty-seven miles. The fare charged was eighty-five cents. There was no demurrer to the jurisdiction of the court in Seneca county nor was the want of jurisdiction set up in the answer. The question was first raised on the petition in error in the circuit court of Seneca county. The judgment of both the common pleas court and the circuit court was for the defendant in error. The petition in error seeks a reversal of these judgments upon several assignments of 'error, among which was the following: “5th. That the court had no jurisdiction of the subject of the action, and that the petition of the plaintiff does not state facts suffi•cient to constitute a.cause of action.”

      Messrs. McCauley & Weller, for plaintiff in error,
    cited and commented upon the following authorities:

      Railway Co. v. Wells, 61 Ohio St., 268; Railway Co. v. Wells, 65 Ohio St., 313; Sutherland on Statutory Construction, Sections 208 and 348; Hall v. State, 20 Ohio St., 7; Renfroe v. Colquitt, Governor, 74 Ga., 619; Sections 3374, 3376, 5022 and 5063, Revised Statutes.

      Mr. Willis Bacon, for defendant in error,
    cited and commented upon the following authorities:

      Railway Co. v. Wells, 65 Ohio St., 313; Saxton v. Seiberling, 48 Ohio St., 558; Thompson v. Steamboat, 2 Ohio St., 27; Section .89, Civil Code of-Procedure; Sections 3374, 3376, 5019, 5022, 5061, 5062, 5063, and 5064, Revised Statutes.
   Davis, J.

It is enacted by Section 5022, Revised Statutes, that an action for the recovery of a penalty, with certain exceptions, must be brought in the county in which the cause of action, or some part thereof, - arose. The petition does not show that the violation of the statute, for which the recovery of a penalty was sought, occurred in whole or in part in Seneca county, where the action was begun and prosecuted. The defendant did not demur to the petition nor answer as to the jurisdiction. It is conceded by the counsel for the plaintiff, defendant in error here, that the petition was demurrable and that it might have been dismissed upon a plea to the- jurisdiction of the court; but it is contended, and it was so held in the circuit court, that under such state of the pleadings and after a verdict and judgment against it, the defendant could not be permitted to raise the question of jurisdiction. The argument is based on the following language of Section 5063, Revised Statutes: “And if no objection be taken either by demurrer or by answer, the defendant shall be' deemed to have waived the same, except only the objections that the court has no jurisdiction of the subject of the action, and that the petition does not state facts sufficient to constitute a cause of action.” On the part of the defendant in error the contention is, that the words “subject of the action” are so much narrower in their meaning than “subject-matter” that they apply only to property and tangible objects in being, such as real property in Section 5019. In other words, it was argued and decided in the circuit court, that a cause of action, for a penalty arising from a violation of a statute was not the “subject of the action.”

If a violation of a statute resulting in a liability to pay a penalty to the party aggrieved was not the subject of that action, then what was the subject of it? For it is not conceivable that an action can be maintained with no subject of controversy or inquiry to be determined by the court. If the subject of the action is not necessarily a tangible object having a definite location, as in the cases mentioned in Section 5019, but may be the the substance of a judicial inquiry which might, or might not, terminate in a judgment for a penalty, then this judgment is in plain conflict with Section 5063, as well as established principles of the common law. •

The phrase “subject of the action” occurs in the code of civil procedure in a number of places besides Section 5019 (see Sections 5016, 5058, 5061, 5062, 5063, 5069, 5076 and 5089), and in some of these it just as distinctly refers to something which is not a tangible object as'that is does refer to real estate in Section 5019. Take for example Section 3089, in which it is provided that a counterclaim or set-off “may become the subject of another action” ; or take Section 5069 which defines a counterclaim to be a cause of action arising out of the contract of transaction set forth in the petition, or a cause of action “connected with the subject of the action.” Construing corresponding language in the New York Code, the court of appeals said: “The present case falls under the last of these instances. ‘A subject’ is that on which any operation, either mental or material, is performed; as a subject for contemplation or controversy. The subject of an action is either property (as illustrated by a real action), or a violated right. In the present instance, the subject of the plaintiff’s action was the expression ‘Number 10/ of which he claimed ownership as a designation of his business. The defendant’s counterclaim is a cause of action against the plaintiff growing out of his infringement of' the defendant’s right to the same expression, which he asserts belongs- to himself. It is closely united to the matter in controversy; it is, in fact, inseparable from it. In the language of the' code it is ‘connected’ with it.” The Glen & Hall Mfg. Co. v. Hall, 61 N. Y., 236. Compare The Zinc Carbonate Co. v. Bank, 103 Wis., 139, where it is said: “There is but one subject of action — the conspiracy to defraud and its consummation to the damage of plaintiff.” Also Hamlin v. Tucker, 72 N. C., 502, in which it was held that the subject of the action was “interference with the marital right of the plaintiff”; and Solomon v. Bates et al., 118 N. C., 311, 316, in which case there were Several causes of action in tort and the court said: “There is the same subject of action throughout, i. e., the plaintiff’s loss of his deposit.” Enough has' been said to show that the notion that the subject of an action must be a tangible thing of property, based on Section 5019, arises from a hasty induction and is not sound.

In their proper meaning, the terms “subject-matter,” “subject of the action” and “cause of the action” are not strictly synonymous, although they are often used interchangeably. The subject-matter of an action is the abstract subject of judicial inquiry, for example, the infliction of a penalty for violation of a statutory duty. The subject of an action, in its strict sense, is the subject-matter applied to a particular case, as, the right of the plaintiff in the case to recover a penalty for violation of the statute. A cause of action is “the right to bring a suit.” Black’s Law Dictionary. These distinctions, we believe, are scientifically definite and in accord with good authority. The Chicago & Atlantic Ry. Co. v. Sutton et al., 130 Ind., 405; Hunt v. Hunt, 72 N. Y., 217, 229-230; Bliss on Code Pl., (3d Ed.), § 126; Pomeroy Code Remedies (4th Ed.), § 369. The author last cited is of the opinion that the term “subject of the action” was used by-the authors of the code and by the legislature as synonymous with, or rather in place of, “subject-matter of the action”; and this view is in harmony with the definitions which we have given. The importance of it will be seen further on. In Rodgers v. Mut’l Endowment Assessment Assn., 17 S. C., 406, 410, the court distinguishes between the subject of the action and the cause of action, and says: “The subject of action is what was formerly understood as the subject-matter of the action”; and this was quoted with approval in Box v. C. R. I. & P. Ry. Co., 107 Ia., 660, 666.

With the help of the conclusions which we have reached let us proceed to determine what rights are saved, under Section 5063, to a defendant who has neither demurred nor answered in respect to the jurisdiction of the court.

The term “subject-matter” does not occur in our code of practice, at least we have not discovered it; but it has nevertheless long been a universal rule that an objection to the jurisdiction of the “subject-matter” can not be wraived; because, while paities may voluntarily submit their persons to the jurisdiction of a court which has jurisdiction over the cause, they cannot confer power on the court as to the subject-matter, for the reason that the court can derive its general jurisdiction only from the power which created it, the sovereignty. The statement of this principle and illustrations of its application may be found in the following cases. Gilliland v. Admrs. of Sellers, 2 Ohio St., 223, 228; McCleary v. McLain, 2 Ohio St., 369; Dayton & Western Railroad Co. v. Marshall, 11 Ohio St., 497, 501; Steamboat Gen. Buell v. Long, 18 Ohio St., 521, 533. Now, if we apply to the words “subject of the action” in Section 5063, the definition which was adopted by the circuit court, it results in the abrogation, by implication, of the foregoing rule, as to all cases in which the subject-matter does not relate to a tangible thing of property having a definite location. We cannot accept this conclusion; because we can not presume that the legislature intentionally conferred on any party to an action the power to confer jurisdiction of the subject-matter of the action, either intentionally or by neglect, when the legislature has not seen fit to give it. We prefer the construction of Prof. Pomeroy, that the legislature used the term “subject of the action” in place of, and with the same meaning as, “subject-matter of the action.”

' It was suggested in argument that the court of •common pleas has jurisdiction of the subject-matter involved in'this action. This is, perhaps, true in the abstract sense of the term, that is,' in a general sense the court of common pleas has jurisdiction over cases involving a penalty imposed, by statute; but it is entirely certain that the court of common pleas within and for the county of Seneca has no jurisdiction over an action for the recovery of a penalty imposed by statute, unless the cause of action (that is, “the right to sue”) or some part of it arose in that county, for the reason that the legislature has expressly forbidden it except on the stated conditions. The jurisdiction is therefore limited and special as to the subject-matter of each individual action; and the conditions of jurisdiction must affirmatively appear before the court can rightfully entertain the case. This kind of an action is, by the statute, made a local action, not a transitory one. It cannot be brought wherever service can be obtained upon the defendant, nor wherever he may enter his appearance or waive jurisdiction over his person. It nowhere appears in this record that the cause of action, or any part of it, arose in Seneca county; but, on the contrary, we may take judicial notice, from maps published by authority of thé state, that neither of the two stations named in the petition, nor any part of the defendant’s line of railway between those stations, lies within the county of Seneca. Therefore it appears that the cause of action set forth in the petition did' not wholly or in part arise in the county in which the action is brought; and indeed it is not claimed that such is not the fact. The defendant in error rests his case on the theory that the plaintiff in error has waived the objection to the jurisdiction. For the'reasons stated we are of the opinion that the objection to the jurisdiction was such that the defendant below could not, and therefore did not, waive it. “Where the court has no authority to take cognizance of the subject-matter of the suit, the proceedings may be dismissed at any stage of the case, when that fact i-s made to appear.” Thompson v. Steamboat, 2 Ohio St., 28; Steamboat v. Long, 18 Ohio St., 521, 526, 533; Hamilton v. Merrill, 37 Ohio St., 682, 684, 685. The judgments of the circuit court and the court of common pleas are reversed, and the original petition is

Dismissed.

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


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Wallace v. Leiter et al.

      Uniform operation of laws — Section 26, Article 2 of Constitution — , Applies to laws affecting jurisdiction of circuit court■ — Act of April 13, 1900 (94 O. L., 137), invalid — Constitutional law.

    1. A law which affects the jurisdiction of the circuit courts of the state is necessarily a law of a general nature, and, by force of of Section 26 of Article 2 of the constitution, must have a uniform operation throughout the state.
    2. That clause of the act of April 13, 1900 (94 Ohio Laws, 137), which provides that litigants shall have the right of appeal from the probate court of certain counties to the circuit court in partition and other proceedings violates Section 26 of Article 2 of the constitution, and is invalid.
    (No. 9872
    Decided April 16, 1907.)
    Error to the Circuit Court of Richland county.
    On November 7, 1902, there was pending in the probate court of Richland a proceeding in partition wherein the defendant in error David B. Leiter was plaintiff and the defendants in error David S. Leiter and others, including plaintiff in error James H. Wallace, were defendants. On the date above named the. cause was tried and a judgment and decree entered finding and adjudging the issues against the said Wallace and in favor of the other parties, and making order of partition accordingly. Wallace gave notice of appeal. The court, believing the cause appealable, fixed the bond at one hundred dollars. Thereupon bond for appeal was duly given and the cause in form appealed to the circuit court. In that court the defendants in error interposed a motion to dismiss the appeal on the ground that the court had no constitutional jurisdiction to entertain the same. The court thereupon sustained the motion and ordered the cause stricken from the docket. James H. Wallace brings error.

      Messrs. Laser, Huston & Marquis, for plaintiff in error,
    cited and commented upon the following authorities:

      Kislingbery v. Donovan, 8 N. P., 476; Treasurer v. Bank, 47 Ohio St., 523; Bowles v. State, 37 Ohio St., 35; Allen v. Louisiana, 103 U. S., 80; Suther land on Statutory Construction, Section 169; Section 525-1, Revised Statutes.

      Messrs. Cummings, McBride & Wolfe, for defendants in error,
    cited and commented upon the following authorities:
    Section 26, Article 2, Constitution; Sections 1, 4, 6 and 8, Article 4, Constitution; Giesy v. Railroad Co., 4 Ohio St., 319; State ex rel. v. Bloch, 65 Ohio St., 391; Kelley v. State, 6 Ohio St., 269; Meyer v. Dempsey, Trustee, 62 Ohio St., 637; Gill v. Sealbridge, 17 C. C., 390; Kislingbery v. Donovan, 8 N. P., 476; Cass v. Dillon, 2 Ohio St., 607; Railroad Co. v. Commissioners, 1 Ohio St., 77; Bank v. Wright, Auditor, 6 Ohio St., 319; Commissioners v. Nichols, 14 Ohio St., 260; State ex rel. v. Trustees, 8 Ohio St. 400; Sutherland on Statutory Construction, sections 169, 171 and 217; Bowles v. State, 37 Ohio St., 44; Treasurer v. Bank, 47 Ohio St., 523; Sections 525-1, 2236, 6454 and 6708, Revised Statutes.
   Spear, J.

The proceeding in this court being one in error to the action of the circuit court, the only question presented for the determination of this court is whether or not the circuit court erred in refusing to take jurisdiction of the cause on appeal and striking it from the docket; in other words, did the circuit court acquire jurisdiction to try and determine the controversy between the parties by reason of the attempted appeal?

At the time the appeal was taken the statute on the subject (section 525-1, Revised Statutes) prescribed that the probate court in certain counties, including 'Richland, shall have concurrent jurisdiction with the court of common pleas in certain defined proceedings, including partition, and that litigants shall have the same right of appeal and of error from the probate court to the circuit court as is allowed now by appeal- and error proceedings in similar cases from the common pleas court to the circuit court; and it was under favor of this statute that the plaintiff in error undertook to carry the cause to the circuit court. This section was amended April 20, 1904 (97 Ohio Laws, 113), which amendment provides for appeals and error to the common pleas instead of the circuit court, but that amendment does not affect the question before us.

The ground on which the jurisdiction of the circuit court is assailed is that the statute, as then existing, undertakes to clothe the circuit court of Richland and the other counties named in the statute with jurisdiction not conferred upon the circuit courts of the remaining counties of the state, and, in our judgment, the point is well taken. The constitutional provision applicable to the question is section 26 of Article 2, which is that “all laws of a general nature shall have a uniform operation throughout the state.” It is no longer an open question in Ohio that laws which relate to the organization and jurisdiction of the circuit court are laws of a general nature, that court being established by the constitution, which, requires its existence in every county of the state, and that at least one term in each year shall be held in each county. Those courts, therefore, exercise a most important agency in the administration of justice, and necessarily have, within the limits prescribed by law, jurisdiction over the persons and property of the entire population. It would needlessly encumber the record to cite all the cases which justify, if indeed they do not compel, this conclusion, but attention may be called to Kelley v. The State, 6 Ohio St., 269, the principle of which applies to the case at bar.

The circuit court did not err in dismissing the áppeal, and its judgment will be

Affirmed.

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


author: Summers, J.

text:
    Fisher & Lanning v. Quillen.

      Offer to confess judgment — Section 5141, Revised Statutes — Plaintiff recovers less than offer — Costs adjudged against plaintiff— Presumption that statute was complied with, when — Court procedure.

    Where, in an action for the recovery of money, it appears from the journal entries that the defendant offered in court to confess judgment for part of the amount claimed, and that on the trial the plaintiff did not recover more than was offered to be confessed and the interest thereon from the date of the offer, and that all' the costs incurred after the offer was made were adjudged against the plaintiff; on error it will be presumed, in the absence of a different showing on the record by bill of exceptions or otherwise, that the requirements of Section 5141, Revised Statutes, were complied with, and that the judgment for costs, is correct.
    (No. 9713
    Decided April 16, 1907.)
    Error to the Circuit Court of Tuscarawas County.
    In the court of common pleas Quillen sued Fisher & Lanning in an action for money only. In one of the journal entries appears the following: “And now come the defendants and in open court offer to confess judgment in favor of the plaintiff for one hundred and ninety dollars and costs to and including- this date.” Subsequently, the following judgment was entered: “It is therefore considered and adjudged by the court that the plaintiff, Oscar A. Quillen, recover from the defendants; Craft Fisher and Wayne Lanning, partners doing business under the name of Fisher & Lanning, the said sum of one hundred and eighty-nine, and 21-100 dollars, as heretofore by the verdict of the jury found due him, and the amount

      here recovered by the plaintiff being less than the amount the said defendants heretofore, in open court, to-wit, on' the twenty-second day of September, 1904, offered to. allow judgment to be taken for, it is considered by the court that said plaintiff recover of said defendants his costs herein prior to the time of said offer to confess. And it is ordered that said plaintiff pay all costs made herein since said offer, for which judgment i.s rendered against him. And judgment is rendered against said defendants for their own costs prior' to said offer to confess. To which judgment of the court as to costs plaintiff excepts.”
    Quijlen prosecuted error in the circuit court, which court found that the' court of common pleas erred in its judgment as to costs, and adjudged that Quillen recover from the defendants all of his costs.

      Messrs. Wells & Sheppard and Mr. Henry Bowers, .for plaintiffs in error.
    The only exception taken by plaintiff in error herein to the judgment of the circuit court is to said circuit court’s reversing the lower court upon the matter of costs, upon the fifth ground of error assigned in plaintiff in error’s petition in said circuit court. Did the circuit court err in reversing the lower court on the judgment for costs? We submit that it did.
    This offer to confess was made in accordance with the provisions of Section 5141, Revised Statutes of Ohio. The amount was specified. It was done in open court. Plaintiff below by his counsel was present.

      The offer was not accepted. It is true'the record does not in so many words state that plaintiff below was present, although showing all of the other requisites. But what is the presumption as to his presence? Is there not a presumption in law that plaintiff below was present and refused to accept the offer? Would “the offer to confess” have been made in open court except in plaintiff below’s presence? Would the court below have entertained such offer in the absence of plaintiff below ? The trial court made the entry of the offer to confess in open court and its amount. Then after trial and a verdict for plaintiff below, but for an amount less than the offer, the trial court rendered judgment for plaintiff below for the amount of the verdict and costs to the date of entry, but rendered judgment against plaintiff below for the amount of the costs accruing subsequent to .the date of the offer. Would the trial court have given such' judgment as to costs, or rather could the trial court have rendered such judgment as to costs except it is assumed that plaintiff below was present in open court that day and refused the offer? We claim it would not and could not have so done. We submit that it is the law, and well substantiated by the decisions of this and other courts, that where the lower court, as in this case, renders judgment against plaintiff for costs accruing subsequent to the date of an offer to confess judgment for a certain amount -in his favor, and he fails to recover an amount equal to such an amount, it must be presumed that such offer to confess was made, in such plaintiff’s presence in open court. Otherwise the court would have had no power to so render judgment.

      The circuit court was bound to presume, in the absence of any proof or showing to the contrary, that the offer, to confess judgment in the court below was made in the presence of plaintiff below,' and that he refused it. If so, it should then have affirmed the lower court upon this ground of error, and its reversal was therefore erroneous.
    We give as a well established proposition of law that “where an act is done which can be done legally only, after the performance of some prior act, proof of the latter carries with it' a presumption of the due performance of the prior act.” Felch, Assignee, v. Hodgman et al., 62 Ohio St., 312; Brewing Co. v. Brown, 62 Ohio St., 202; Knox County v. Bank, 147 U. S., 91; Heddleson v. Hendricks, 49 Ohio St., 297; Lewis et al. v. Laylin et al., 46 Ohio St., 663; Titus et al. v. Lewis, 33 Ohio Sr., 304; Lessee of Ward v. Barrows, 2 Ohio St., 242; United States v. Lobe, 99 Fed. Rep., 723; Lessee of Winder v. Sterling, 7 Ohio, part 2, 190.
    The above case of Felch, Assignee, v. Hodgman et al., is a leading case upon the proposition claimed herein, and is cited in the unreported cases of Rubber Co. v. Manufacturing Co. et al., 63 Ohio St., 76; Miller v. Overholt, 63 Ohio St., 588; Messner v. Heller, 63 Ohio St., 509; Johnson v. Findley, Admr., 63 Ohio St., 589.
    And as further substantiating our claim herein: “Acts done which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter.” Bank v. Dandridge, 12 Wheat., 70; Lessee of Combs & Ewing v. Lane, 4 Ohio St., 112.
    Instances of the application of this doctrine under a variety of circumstances may be formed in the following cases: Scovern v. State, 6 Ohio St., 288; Silvus v. State, 22 Ohio St., 90; Admr. of Townsend v. Bank, 2 Ohio St., 345; Shackford v. Town of Newington, 46 N. H., 415; Board of Education Boyer, 47 Pac. Rep., 1090; Maxwell Code Pleading, 696; Carpenter v. Rannels, 86 U. S., 138, Cornett v. Williams, 87 U. S., 226; Tecumseh Town Site Case, 3 Neb., 267; Sinclair v. Learned, 51 Mich., 335; Hobson v. Dutton, 9 Kan., 477; Reynolds and Ahren v. Schweinefus, 27 Ohio St., 311.

      Messrs. Lindsey & Murphy, for defendant in error.
    We do not take issue with counsel for plaintiff in error upon the proposition of law which they base error on, but say that such rule does not apply in this case.
    They assert that the circuit court was bound to presume in the absence of any proof to the contrary that the offer to confess judgment was made in the presence of plaintiff below and that he refused,' and to support their proposition they cite several authorities in two or three different forms, as to the rule, that when any judicial or official act is shown to have been in manner substantially regular, it will be presumed that the formal requisites for its validity were complied with.
    An offer to confess judgment does not affect mere matters of practice, but affects the substantial rights of plaintiff. The mere entering of the offer to confess is an official or judicial áct, and in order to enter a valid offer to confess the court must have jurisdiction so to do, and it has not the .jurisdiction to enter a valid offer unless the terms of the statute are complied with. The record must show jurisdiction. It will not be presumed in a direct attack on error.
    In a default judgment upon suggestion of counsel the court may enter the judgment in a regular way, when in fact an inspection of the record would show want of jurisdiction over the person of the defendant. In a collateral attack on such judgment, proof' of such judgment being shown, it will be presumed that the formal requisites of its validity were complied with, but if error be prosecuted therefrom, thereby dir'ectly attacking the same, such presumption will not arise and the -whole record speaks for itself.
    We submit that the same rule applies in an offer to confess.
    If the record shows a compliance with the statute the court will presume that all things pertaining thereto were regular, and will not hear evidence aliunde to impeach the same. Heddleson v. Hendricks, 49 Ohio St., 297.
    • In this cáse it does not show a compliance with the statute.
    A judicial or official act must be shown to have beén done in a manner substantially regular before it will be presumed that the formal requisites of its validity were complied with. Felch, Assignee, v. Hodgman et al., 62 Ohio St., 312.
    The record does not show the judicial or official acts of the court in entering the offer to confess to be substantially regular.
    When a record is attacked collaterally,- jurisdiction is presumed prima facie, unless the record1 itself disproves it, while if it is directly impeached by proceedings in error, its existence must be proved by the record itself. Trimble et al. v. Longworth et al., 13 Ohio St., 439.
   Summers, J.

The general rule as to costs, in actions for recovery of money only, is (Section 5348, Revised Statutes) that they shall be allowed, of course, to the plaintiff upon a judgment in his favor, when it is not otherwise provided by statute. It is otherwise provided by Section 5141, Revised Statutes, that: “The defendant in an action for the recovery of money may offer in court to confess judgment for part of the amount claimed, or part of the causes involved in the action; whereupon, if the plaintiff, being present, refuse to accept such confession of judgment, in full of his demands against the defendant in the action, .or having had such notice that the offer would be made, of its amount, and of the time of making it, as the court deems reasonable, fail to attend, and, on the trial, do not recover more than was so offered to be confessed, and the interest thereon from the date of the offer, such plaintiff shall pay all the costs of the defendant incurred after the offer was made.”

It appears from the record that the defendants offered to confess judgment for an amount in excess of that subsequently recovered by the plaintiff, but it does not appear that the plaintiff was present, or that he had notice that the offer would be made. It is conceded that an offer made in the absence of the plaintiff and without notice, would not be good, but it is contended that the.maxim omnia pr,aesumuntnr rite et solenniter esse acta applies and that a ground of reversal is not apparent unless the record affirmatively shows an absence of these statutory requirements. Counsel for the defendant in error denies that the maxim is applicable. His contention is that the court was without jurisdiction to enter judgment by confession unless' the terms of the statute were complied with, that the record must show jurisdiction, and that the record not so showing the judgment as to costs is erroneous.

The judgment of a court of general jurisdiction is presumed to be within its jurisdiction, but the jurisdiction of inferior courts, and of superior courts when their proceedings are under special authority, is not presumed but must be shown.' Galpin v. Page, 18 Wallace, 364; Lawson on Law of Presumptive Evidence, 29 and 30.

But what is jurisdiction ? In Sheldon’s Lessee v. Newton, 3 Ohio St., 494, it is defined as follows: “The power to hear and determine a cause is jurisdiction; and it is coram judiee whenever a case is presented, which brings this power into action. But before this power can be affirmed to exist, it must be made to appear .that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has actually been preferred; and that such person or thing has been properly brought before the tribunal to answer the charge therein contained.” And it is then ruled: “When these appear, the jurisdiction has attached; the right to hear and determine is perfect; and the decision of every question thereafter •arising is but the exercise of the jurisdiction thus conferred; and whether determined rightfully or wrongfully, correctly or erroneously, is alike immaterial to the validity, force and effect of the final judgment when brought collaterally in question. The proposition that the jurisdiction can be made to depend upon the record’s disclosing such a state of facts to have been shown in evidence, as to warrant the exercise of its authority, was distinctly repudiated in.the early case of Ludlow’s Heirs v. Johnston, 3 Ohio, 560, and has been no less positively denied in every subsequent case, including Lessee of Adams v. Jeffries, 12 Ohio, 253. This court wholly dissents from it, both on reason and on authority. These rules apply to proceedings of the old court of common pleas in Ohio, on petition by executors or administrators for the sale of real estate to pay debts.” The same effect is to be given to the judgment upon a direct attack, in the absence of an affirmative showing that the court was without authority to enter the judgment. Work on Courts and Their Jurisdiction, 165. The statutory provisions respecting costs do not confer jurisdiction; they merely prescribe how in the exercise of jurisdiction costs shall be awarded.

The court having adjudged the costs against the plaintiff, the presumption is that the facts existed that warranted .the court in so adjudging them. Section 5141 does not require the facts to be entered of record, and to overcome this presumption and to warrant a reviewing court to reverse the judgment, it was incumbent upon the plaintiff to make the want of authority appear affirmatively on the face of the record. The Warder Bushnell & Glessner Co. v. Jacobs, 58 Ohio St., 77.

Underhill v. Shea et al., 21 Neb., 154, is directly in point. In that case the docket of the justice contained the following entry: .“January 20, 1885, 10 o’clock a. m., summons returned. Parties appeared. Defendants offered to confess judgment to the sum of $84.25 and costs to date. Plaintiff refused to accept.” In the opinion it is said: “The sole question, then, before us is, whether or not the court erred in sustaining defendant’s motion to the extent of charging plaintiff with the costs of his own witnesses. We think not. The real basis of the contention of plaintiff in error is the alleged fact that the offer to confess judgment was not in writing as required bjr Section 1004 of the civil code. From the record before us we can not say with certainty whether the offer was made in writing or not. It is only shown that the offer was made and refused by plaintiff. There is nothing in the record which gives any light upon the subject, unless the fact that a fee was charged by the justice for filing the offer might be taken as a suggestion that it was in writing. But as it is a well established rule that error must affirmatively appear before a judgment will be reversed, we need only say that as the record stands we must presume the ruling of the district court to be correct and sustained by the record before it.”

The following cases are more- or less illustrative of the application of the rule.

In Shroyer, Gdn., v. Richmond and Staley, 16 Ohio St., 455, it is held: “The probate courts of this state are, in the fullest sense, courts of record; they belong to the class whose records import absolute verity, that are competent to decide on their own jurisdiction, and to exercise it to final judgment, without setting forth the facts and evidence on which it is rendered. Hence, an order appointing a guardian, made by a probate court, in the exercise of jurisdiction, can not be, collaterally, impeached. The record showing nothing to the contrary, it will be conclusively presumed, in all collateral proceedings, that such order was made upon full proof of all the facts necessary to authorize it.”

In Sheehan et al. v. Davis, 17 Ohio St., 571, 580, it is said: “But the journal in this case did not show that the president judge of the court was present, sitting in court, when the minutes of the proceedings of the last day of the term, on which the confirmation was ordered, were read and signed. If he was then absent, the journal was properly signed by the senior associate judge, who, in such case, would be the presiding judge of the court. We think the maxim Omnia rite acta presiummtur is properly applicable to such a case. We are not to presume a state of facts- which would invalidate the journal entries, when a different state of facts may be -reasonably presumed which would make them regular and valid.”

In The Village of Monroeville v. Root, 54 Ohio St., 523, where the court did not comply with counsel’s request to give certain instructions before argument and there was an exception, it was held that error did not affirmatively appear, because it did not appear that the exception was to the failure to the court to give the instructions before the argument. And in the case of The Warder Bushnell & Glessner Co. v. Jacobs, supra, where the record showed the use of improper language in the argument of counsel and an exception, it was ruled that prejudicial, error did not appear, because it did not appear but that the court might have admonished counsel and instructed the jury not to regard the remarks of counsel.

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

Reversed.

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


author: Crew, J.

text:
    Major, Sheriff, v. The International Coal Company et al.

      Foreclosure of mortgage given to secure bonds — Bondholders become purchasers — Purchase price paid in bonds- — Sheriff not entitled to poundage — Section 1230, Revised Statutes.

    1. Under Section 1230, Revised Statutes, a sheriff is not entitled to poundage upon the sale of mortgaged premises under an order of sale in foreclosure, where the real estate so sold by him is bid off and purchased by one who is entitled to the whole of the proceeds arising from the sale, although such purchaser was not a party to the suit in which the decree of foreclosure was made and the order of sale issued.
    2. In a suit for the foreclosure of a mortgage commenced and prosecuted by the mortgagee, as trustee for the holders of the bonds secured by said mortgage, such proceedings were had that the mortgaged property was duly advertised and sold by the sheriff, and was bid off and purchased by said bondholders; the purchase price being paid by them- — as authorized by the provisions of the mortgage and the terms and conditions of the sale — by their paying in cash a sufficient sum to cover the costs and expenses of sale, and the residue by the surrender to the sheriff of the bonds secured by said mortgage in an amount sufficient to cover the balance of said purchase price, Held, that the sheriff was not entitled to charge and collect poundage on the amount of the bonds so surrendered, as for “money actually made and paid.”
    (No. 10257
    Decided April 16, 1907.)

      Error to the Circuit Court of Belmont County.
    On March 6th, 1905, The Mercantile Trust and Deposit Company of Baltimore, Maryland, as Trustee, brought suit in the court’ of common pleas of Belmont County, Ohio, against The International Coal Company, to foreclose a mortgage given by the latter company to secure one thousand of its bonds, of the par value of one thousand dollars each. Of the bonds which said mortgage was given to secure, but seven hundred and fifty were issued and sold, and these at the time of the commencement of said suit were all held and owned by the defendants in error herein, T. Edward Hambleton, Frank S. Hambleton, S. L. Mooney and W. C. Mooney. In said foreclosure suit The International Coal Company filed its answer admitting the truth of the allegations of plaintiff’s petition, and consenting that .judgment might be taken against it for the full amount claimed in said petition, and that a decree of foreclosure might be entered and an order of sale issued, as in said petition prayed for. On submission of said cause to the court of common pleas that court made and entered upon its journal the following findings:
    “The court finds from the evidence that this action is prosecuted by said Trustee under the authority given by said mortgage for the benefit and protection of the holders of all of the bonds secured thereby, and in pursuance of the written notice given to it by the holders of all said bonds as aforesaid.
    • “The court further finds from the evidence that the owners of all said bonds, to-wit: T. Edward Hambleton, Frank S. Hambleton, of the city of Baltimore, state of Maryland, and S. L. Mooney and W. C. Mooney, of the town of Woodsfield, state of Ohio, did, by an' instrument duly executed and signed by them, give notice to the said Trustee, The Mercantile Trust and Deposit Company, that default had been made in the payment of the several semi-annual installments of interest, as aforesaid, and did in said instrument, decree that the principal of all of said bonds, secured by this mortgage, should become then, and at that time, due and payable. And said Trustee was further notified by the owners of said bonds to immediately commence an action in a court of competent jurisdiction within the state of Ohio for the foreclosure of said mortgage and the sale of the said property, in order to secure and protect the interest of the owners of said bonds.
    “And the court further finds that this action was commenced, and is prosecuted by the plaintiff, The Mercantile Trust and Deposit Company, Trustee as aforesaid, in pursuance of such notice and for the purpose of obtaining a judgment against the defendant for the full amount due upon said bonds, principal and interest, and for a decree of foreclosure, and sale of the property conveyed by said mortgage as aforesaid.
    “And the court further finds that it was provided in and by the terms of said mortgage, that if a sale of said property was ordered and the same was bid in by said Trustee for the use and benefit of the holders of said bonds, or if the holders should buy the property directly, that upon the payment of a sufficient amount of cash on the day of sale, to pay the costs, expenses of the sale and the fees and charges of the receiver and counsel, that the balance of the purchase money to be paid by the said Trustee, or the owners of said bonds, if they or either of them made the purchase, by the surrender of the bonds secured by said mortgage, in an amount sufficient to cover the balance of the purchase money.
    “The court further finds that said mortgage is the best and first and only lien upon said property, rights and franchises described therein and that by its terms and conditions it has become absolute.
    “Therefore, the court being fully advised in the premises, finds that there is due from the defendant, The International Coal Company, as the principal sum of said bonds so issued and secured by said mortgage, the sum of seven hundred and fifty thousand dollars ($750,000) with 5 per cent, interest from November 1, 1904, and that there is due from said defendant, as interest thereon up to the first day of November, 1904, the further sum of $93,750.00, which sum bears interest at the rate of 6 per cent, from the time said several installments of interest became due and payable, and that there is due from said defendant, in the aggregate of principal and interest of said bonds the sum of $869,348.10, and the said sum is due and payable to the parties hereinbefore named as the owners and holders of said bonds.”
    On said findings the court rendered judgment in favor of the plaintiff, The Mercantile Trust and Deposit Company, and against the International Coal Company, for the sum of $869,348.10, and costs of suit, and allowed and entered a decree of foreclosure wherein it was provided that: “Unless within ten days from this date, or the entering of this decree, The International Coal Com-parry shall pay or cause to be paid to the plaintiff as trustee, in trust for the use and benefit of the holders of .the bonds secured by said mortgage as aforesaid, said sum of $869,348.10,’ or shall pay said sum directly to the owners of said bonds as hereinbefore set forth, and shall pay or cause to be paid to the clerk of this court the costs of this action, then,' that. an order of appraisement and sale shall issue from this court directed to the sheriff of Belmont county, Ohio, commanding him to cause said lands and tenements to be appraised, advertised and sold as upon execution at law.” Default having been made in the payment of said sum, on March 27th, 1905, an order of sale was duly issued' to said sheriff, commanding him to appraise, advertise and sell the premises described in, and covered by, said mortgage. Pursuant to said order said premises were appraised at $1,-119,510, and after being duly advertised for more than thirty days, the same were, on May 1st, 1905, sold by said sheriff at public auction, and were bid off and purchased by T. Edward Hambleton, Frank S. PTambleton, S. L. Mooney and W. C. Mooney, for the sum of $871,000, they being then the owners and holders of all the outstanding bonds secured by said mortgage. The terms of sale as provided in said mortgage, and as stated in the sheriff’s advertisement of sale, were: “Cash or bonds of The International Coal Company at par and accrued interest, sufficient to cover the purchase price, and sufficient cash to cover expenses and costs of sale.” No money was actually paid by the purchasers to the sheriff, except a sum sufficient to cover the expenses and costs of sale, but the purchase price of said premises was paid by them, by turning over and surrendering to the sheriff bonds of The International Coal Company sufficient to cover the purchase price. Subsequently said sale so made was duly confirmed, and a deed was executed and delivered to the purchasers. The sheriff, when he returned the order of sale, included and taxed in his cost bill, as and for his poundage on the amount of said sale, the sum of eight thousand seven hundred and ten dollars. On May 3d, 1905, T. Edward Hambleton, Frank S. Hambleton, S. L. Mooney and C. W. Mooney, the purchasers of said premises, and The Mercantile Trust and Deposit Company, plaintiff in said foreclosure suit, joined in a motion to the court of common'pleas asking said court to retax the costs of said sheriff, and to strike from the cost bill as returned by him the item of $8,710 charged by him as poundage. This motion was overruled by the court, and an order was made requiring the payment to A. M. Major, sheriff, of said sum of $8,710 as and for his poundage. On error, this order and judgment of the court of common pleas was reversed by the circuit court and the cause was remanded to said court of common pleas with instructions to sustain the motion to retax costs by striking from said cost bill said item of poundage amounting to $8,710, and to wholly disallow the same. To reverse this judgment of the circuit court, A. M. Major, sheriff, brings the present proceeding in error.

      Mr. Newell K. Kennon, for plaintiff in error.

      Messrs. Mallory, Jeffers &'Sears and Messrs. Driggs, Heinlein & Armstrong, for defendants in error.
   Crew, J.

As appears from the above statement of facts, the sole question presented in this case is whether or not the plaintiff in error, A. M. Major, is entitled to charge and collect poundage upon the amount of a sheriff’s sale of real estate made by him under an order of sale in a mortgage foreclosure suit, commenced and prosecuted by the defendant in error, The Mercantile Trust and Deposit Company, as Trustee, for the benefit and protection of the holders of certain bonds issued by the International Coal Company and secured by said mortgage, the property so sold having been purchased and bid in at said sheriff’s sale by the bondholders themselves, and having been paid for by them, — as authorized by the provisions of the mortgage and the terms of sale, — by their surrendering to the sheriff for cancellation, bonds of the International Coal Company in an amount sufficient to cover the purchase price, together with a sufficient amount in cash to cover the expenses and costs of sale. Whether upon these facts, and under such circumstances, plaintiff in error is entitled to the poundage claimed by him, must be determined by the provisions of Section 1230, Revised Statutes. This section, so far as its provisions are pertinent to the present inquiry, reads as follows: “The fees and compensation of sheriffs shall be as follows: * * * poundage on all moneys actually made, and paid to the sheriff on execution, decree or sale of real estate (except on writs for the sale of real estate in partition) one and.a half per centum on the first thousand dollars, and one per centum on all sums over one thousand dollars; but when such real estate is bid off and purchased by a party entitled to a part of the proceeds, the sheriff shall not be entitled to any poundage except on the amount over and above the claims of such party.” The language of the provisions above quoted would seem to us to be too plain to require either comment or construction. Obviously, it was the plain purpose and intent of the legislature to thereby provide, that upon sales of real estate, poundage should be allowed’ to the sheriff, only upon moneys actually made and paid to him,-and that in no case should poundage be allowed to, or charged by the sheriff, when the real estate sold by him is bid off and purchased by a party entitled to a part of the proceeds, except on the amount over and above the claim of such party. Language more direct and certain, by which to express such purpose, could hardly have been employed, and unless the provisions of this section are to receive this interpretation, they are entirely without meaning or effect. In the present case no money,— except an amount sufficient to cover the' expenses and costs of sale,— was actually made or paid to the sheriff, nor could the sheriff have lawfully demanded or required of the purchasers that they pay over to him, in money, $871,000, the amount of their bid. Furthermore, in this case the purchasers, T. Edward Hambleton, Frank S. Hambleton, S. L. Mooney and W. C. Moonejq were, as owners and holders of all the outstanding bonds of The International Coal Company, entitled to the whole of the proceeds arising from the sale of said real estate, such real estate having been bid off by them for an amount less, by $4,886.10, than the sum required to satisfy their claim. So that, neither of the conditions essential, under Section 1230, Revised Statutes, to the right of the sheriff to charge and receive poundage on a sale of real estate by him made, existed in this case; whereas, to entitle him to such poundage it was necessary that both should exist. The view is suggested in argument by counsel for plaintiff in error, that the word “party” as used in Section 1230, Revised Statutes, is employed and used strictly in its legal and technical sense, and it is said that: “It seems clear from an examination of the history of this legislation providing for the poundage of a sheriff making a sale, that the legislature intended that the sheriff should not be entitled to his poundage in such cases, only where the purchaser was a party to the action and proceedings in which the decree was taken' and the order of sale made,” Such, however, is not the language of the section, and to import into this statute by construction any. such meaning as that, is to ignore the purpose of this legislation as well as the reason for the rule that withholds from the sheriff poundage in all cases where the purchaser is entitled to the proceeds of sale, and consequently not required to pay or hand over to the sheriff any part of the purchase price, except it be an amount sufficient to cover the costs and expenses of the sale. The law does not require a vain or unreasonable thing. And what could be more unreasonable and absurd than to require and exact of a purchaser at a sheriff’s sale of real estate (whether he be nominally a party to the suit or not), who is himself entitled to the whole of the proceeds arising from such sale, that he actually pay over and deliver to the sheriff, in money, the amount for which he bid off the property only to have the same immediately returned to him in payment of his claim and lien, to satisfy which the property was sold. Again, to give to the provisions of Section 1230, in the present case, the effect claimed for them by counsel for plaintiff in error, would be to disregard the purpose for which poundage is allowed and given, namely: as a compensation to the sheriff for the risk incurred in handling and disbursing money actually received by him in his official capacity. Where no money is' received and no risk incurred, no compensation by way of poundage is earned, and under the provisions of Section 1230, .Revised Statutes, none can be'allowed or charged. We are of opinion that the circuit court properly held and adjudged in the present case that the sheriff was not entitled to charge and -receive poundage on the amount of the sale by him made, and the judgment of said circuit court must therefore be affirmed. The authorities from other states, cited by counsel for plaintiff in error, are not in conflict with the conclusion reached by us in this case, for in none of the cases cited was the decision of the court made under a statute containing limitations upon the right of a sheriff to charge and receive poundage, such as are found in Section 1230 of the Revised Statutes of Ohio.

J%idgment Affirmed.

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


author: Price, J.

text:
    Palmer v. Zeigler.

      Superintendent of county infirmary — Not a public officer — May be removed without cause, when — May enjoin adverse claimant — ■ Section 6760, Revised Statutes.

    1. The superintendent of a county infirmary is not the holder of a public office within the meaning of Section 6760, Revised Statutes, and quo warranto is not the proper remedy to oust him from office.
    2. When the term for which su'ch superintendent was appointed has expired, no order of the board of directors for his removal is necessary, and therefore no cause need be assigned by said board for the termination of his term.
    3. One who has been duly appointed superintendent of a county infirmary, has qualified according to law, and has been put in possession of the infirmary by the board of directors at the beginning of his term, may maintain injunction to protect himself in the possession of the office against an adverse claimant whose term has expired, but who threatens and attempts to interfere with and obstruct such superintendent in the discharge of his duties.
    (No. 9752
    Decided April 16, 1907.)
    Error to the Circuit Court of Richland County.
    On the 4th day of April, ,1905, the defendant in error commenced an action against the plaintiff in error in the court of common pleas of Richland county, in which he alleged that on the 9th of February, 1905, he, Zeigler, was appointed superintendent of the infirmary of that county, by the board of infirmary directors, to fill a vacancy in said position occasioned by the expiration of the term of appointment of B. Frank Palmer, which vacancy occurred on the 1st day of April, 1905.
    It is alleged by Zeigler that on said day he went to the infirmary and was inducted into the position by the board of directors and began the duties and labors pertaining thereto; that the defendant Palmer then and there interfered with the plaintiff in the. discharge of his said duties and attempted .to prevent plaintiff from doing the work imposed on him as such superintendent, remaining about the infirmary building and obstructing plaintiff in the discharge of his duties, and that he threatens to continue to obstruct the plaintiff in the discharge of his duties in the future for fin indefinite time. The plaintiff then says he executed a bond for the faithful performance of his duties, which he can not perform if defendant is permitted to continue his course of interference and obstruction, and an injunction was prayed for against Palmer, forbidding him to further interfere with plaintiff in the discharge’ of the duties of said position of superintendent.
    A temporary injunction was allowed, and in due time the defendant, Palmer, answered, admitting that he was then living at the infirmary, but denied all acts of interference with plaintiff alleged in his petition, or, that he obstructed plaintiff in the discharge of his duties. Defendant asserted that he was the superintendent of the infirmary, but says he was obeying the order of injunction against him.
    On hearing the cause on the merits, the court of common pleas made the injunction against Palmer perpetual. From this decree he appealed to the circuit court where the cause was again heard. That court, at the request of defendant, found the facts, which, in substance, ■ are as follows:
    On the 13th of January, 1899, the board of infirmary directors elected defendant, B. Frank Palmer, superintendent of the infirmary for a period of one year, to begin April 1st, 1899, as per contract then oh file. He accepted the position, and gave bond for the performance of his duties.On the first day of January, 1900, he was reelected superintendent for the term of one year to begin April 1st, 1900, and to end April 1st, 1901. Palmer accepted the position for that period, but gave ho bond and took no oath of office. On January 7, 1901, Palmer was again elected superintendent for the term of two years to commence April 1, 1901. He accepted for that term, and performed the duties for that term, but gave no bond and did not take oath of office.
    On the 2d day of March, 1903, he was again elected superintendent for a term of two years to commence April 1, 1903, and to end April 1, 1905. He again accepted and performed the duties of the position for that period, but gave no bond and did not take oath of office. On the 9th day of February, 1905, the board of infirmary directors, at a regular meeting, elected plaintiff, O. J. Zeigler, superintendent of the infirmary for the period of one year to commence April 1, 1905, and he gave bond, and took the oath required by law, prior to the 1st day of April, 1905, and on that day, as well as at the time of his election, Zeigler was qualified to act as superintendent.
    On the nth day of March, 1905, the board of infirmary directors served Palmer with written notice, notifying him that Zeigler had been elected and that his term would begin April 1, 1905, and that at said time he, Palmer, should be .prepared to turn the position over to Zeigler. On that day, Zeigler went to the infirmary to begin his duties under the election of the board, but when he was about to enter the gate leading to the yard of the infirmary, he was met by Palmer and five or six men collected from the surrounding country by Palmer to assist him in holding the infirmary by force if necessary, and they prevented Zeigler from entering the gate. On April 3, 1905; during the time the board of directors was in regular session, a majority of the board, upon the grounds of the infirmary, and at the door of the building, formally installed Zeigler as superintendent — that as the majority of the board with Zeigler approached the front entrance of the building, in what is located the office of the superintendent and meeting place of the board, they were met at the door by Palmer and five or six men whom he had collected to prevent the entrance of Zeigler, and they were denied admittance if Zeigler accompanied them, and they were prevented in that manner from getting into the office with Zeigler; that then Zeigler was .formally put in possession of the infirmary as superintendent by the majority of the board of directors, and Palmer threatened to continue his interference, but on April 4, 1905, he was enjoined from interfering with Zeigler in the performance of his duties as superintendent.
    Having found these facts, a majority of the circuit court found Zeigler to be the legally elected superintendent of the infirmary and that Palmer was unlawfully interfering with Zeigler in the performance of the duties of said position. A perpetual injunction was granted.
    Palmer brings the case to this court on error.

      Messrs. Brucker & Cummins and Messrs. Douglas & Mengert, for plaintiff in error.
    Is the superintendent of the infirmary a public officer? King v. Burnell, Carthew, 478; United States v. Hartwell, 6 Wall., 385; Bradford v. Justices, 33 Ga., 332; Barker v. State, 69 Ohio St., 68; State, ex rel., v. Halliday, Auditor, 61 Ohio St., 172; Bender v. Cushing et al., 14 N. P., 65; State, ex rel., v. Kennon et al., 7 Ohio St., 548; State, ex rel., v. Mason; 61 Ohio St., 72; White v. Berry, 171 U. S., 378.
    If the position of superintendent of the infirmary is a public office the proceeding by Zeigler must be by quo warranto and not by injunction. Harding v. Eichinger, 57 Ohio St., 371.
    In view of the decisions that a person holding a county office must receive the same by election and not by appointment if the office is a public one, it may be that the office of superintendent of the county infirmary is unconstitutional. State, ex rel., v. Brennan, 49 Ohio St., 37; State v. Kendle, 52 Ohio St., 346; State, ex rel., v. Jennings et al., 57 Ohio St., 415; State, ex rel. v. McGonagle, 26 C. C., 685.
    If the superintendent of the county infirmary is not unconstitutional, that question can not be made by injunction to restrain the incumbent from acting. Reemelin v. Mosby, 47 Ohio St., 570; Harding v. Eichinger, 57 Ohio St., 371; State, ex rel., v. Craig, 69 Ohio St., 245; Prince et al. v. City of Boston, 148 Mass., 285; Green v. Mills, 69 Fed. Rep., 859; Spelling on Injunction, Section 613; State v. Gardner, 54 Ohio St., 24.
    Where an appointment is properly made for a period of time less than necessary to fill the ■vacancy or terms of office under a misapprehension as to the length of time the vacancy is to run, the appointment will be for the full unexpired term of the vacancy and this is so without reference to how short the time for which the officer was appointed. State, ex rel., v. Darby, 12 C. C., 235; 52 Ohio St., 611.
    1. An officer may be removed at pleasure. State, ex rel., v. Brennan, 49 Ohio St., 37.
    2. Emolument is not necessary. State ex rel., v. Anderson, 45 Ohio St., 199; Barker v. State,-69 Ohio St., 72.
    3. An oath is not necessary to constitute an office. State, ex rel., v. Holliday, Auditor, 61 Ohio St., 172.

      Messrs. Keer & LaDow, for defendant in error.
    First. Was the injunction properly allowed? We maintain that the injunction was properly allowed, and that injunction was the proper remedy, whether the position of superintendent is a public office or not. Where a public officer is in place and the discharge of his duties are interrupted or interfered with by one claiming title to the office, or by a mere meddler, injunction is the proper remedy. Reemelin v. Mosby, 47 Ohio St., 570; State, ex rel., v. Craig, 69 Ohio St., 245.
    We insist that such superintendents of infirmaries are mere employes of the boards of infirihary directors, and as such are servants or deputies only. They are creatures of Section 962, Revised Statutes.
    The superintendent in this case was appointed under the foregoing statute, which was enacted April 12, 1876 (73 O. L., 233), amended April 26, 1898 (93 O. L., 262), the statute being based upon 3 Corwin’s Stat., 243.
    In numerous cases considered and decided by this court, the rules of distinction between a public office and a public employment have been discussed and determined. State, ex rel., v. Wilson, 29 Ohio St., 347; State, ex rel., v. Brennan, 49 Ohio St., 33; State, ex rel., v. Halliday, Auditor, 61 Ohio St., 171; State, ex rel., v. Jennings et al., 57 Ohio St., 424; 19 Am. & Eng. Ency. Law, pp. 382, et seq. (1st Ed.); 19 Am. & Eng. Ency. Law, 668, et seq. (1st Ed.).
    The distinction between a “public office” and a “public employment” is lucidly discussed in Shelby v. Alcorn, 72 Am. Dec!, 169.
    It is clear that the statute creating the employment of infirmary superintendents, makes the position one which is subordinate and provisional. The sovereign prerogatives are all vested in the board which is elected by the suffrage of the people. The superintendents are not provided with either (1) emolument or salary; (2) they must perform the duties the board imposes (as master) upon them; (3) they are governed wholly by the rules arid regulations of the board; (4) the board, only, is vested with the right to sell products of the infirmary and are chargeable with the same; (5) the employment is wholly by contract, which employment can be terminated by the board at its pleasure, “for good and sufficient cause,” within the term of the contract.
    Mr. Palmer not having been re-hired, by what authority can he claim to be superintendent?

      The term “office” embraces the idea of rights and powers, as well as duties. United States v. Hartwell, 6 Wall., 385.
    A public printer is not usually a public officer, but it is competent for the legislature to make him one. Walker v. Dunham, Secy., 17 Ind., 483.-
    A pilot is not a public officer. Dean et al. v. Healy, 66 Ga., 503; Bunn v. People, ex rel., 45 Ill., 397; Appendix, 3 Me., 481.
    The superintending architect of a public works •of New York is not a public officer. Olmstead v. Mayor et al., 42 N. Y. Superior Court, 481.
    A road supervisor is not a public 'officer. State v. Putnam, 35 Ia., 561.
    A medical superintendent of the asylum for the insane at Ward’s Island is not a public officer. MacDonald v. Mayor. 32 Hun, 89'.
    A bridge tender is not a public officer. State, ex rel., v. Board, 51 N. J. L., 240.
    The enrolling clerk of house of representatives is not a public officer, but a mere employe. State, ex rel., v. Gardner, 43 Ala., 234.
    The distinction would appear that by virtue of Section 962, Revised Statutes,* that a superintendent of a county infirmary is not a- public officer, but a mere agent and employe for a special purpose whose functions are ended when their contract of employment terminates, ipso facto.

    The inferior courts of Ohio have made some decisions quite in point, both in principle and fact. State, ex rel., v. McGonagle, 26 C. C., 685; Bender v. Cushing et al., 14 N. P., 65.
    Second. Plaintiff in error, Mr. Palmer, claims to hold the position by virtue of Section 962, Revised Statutes, and his counsel insist that he can not be removed except for cause, etc.
    A fair construction of Section. 962,' Revised Statutes, as to removal, “for cause,” etc., is, that a superintendent, being employed for a definite time, could not be removed before the expiration his contract, unless “for cause.”
    . It is clearly the law, that a board can not hire or appoint for a term reaching beyond the life of the board, as has been decided in an ably considered opinion by the Circuit Court of Franklin county, through Judge Summers, in Commissioners v. Ranch, 9 C. C., 301; 6 C. D., 133.
    The conduct of Palmer is to be taken into consideration. For the period of some eighteen years before this date he had accepted employment as infirmary superintendent for terms mostly of one year at a time, and before each term he executed a contract for the wages and the term of employment. His attitude now is to disregard the contract as to limitation after abiding by it all these years and accepting its benefits: His position is of such inconsistency that it should now estop him from his present claims. Harding v. Eichinger, 57 Ohio St., 371; State, ex rel., v. Taylor, 12 Ohio St., 130.
   Price, J.

This case presents a controversy over the position of superintendent of the infirmary of Richland county. Palmer, the plaintiff in error, had held that position for several years by virtue of elections so-called, at different times by the board of infirmary directors. His last election occurred on the second day of March, 1903, for a term of two years to commence on the 1st day of April, 1903, and to end on the 1st day of April, 1905. He was not re-elected. On the contrary, on the 9th day of February, 1905, the hoard of directors elected O. J. Zeigler, defendant in error, as superintendent for the term of one year to commence on the 1st day of April, 1905. He accepted, gave bond and took the oath of office and was in all respects duly qualified to take possession the day his term commenced. He repaired to the infirmary and demanded possession, but Palmer declined to yield and had with him several men to aid him in resisting Zeigler’s efforts to enter the infirmary residence and the superintendent’s office therein. • On the 3d 'of April the board of directors was in regular session at the infirmary, and they with Zeigler sought to enter the office, when Palmer and his five or six abettors interposed and kept Zeigler out, but the directors formally put him in possession of the premises, and he, on the next day, procured an injunction against Palmer, restraining him from in any way interfering with or obstructing Zeigler in the discharge of his duties. The record shows that Palmer violated the order of injunction and was fined $100 for contempt of court. He was defeated in each of the lower courts, but still persists in the claim that he is the superintendent of that infirmary.

But it is said in his behalf, that if his term did expire on April 1, 1905, he was still claiming title to the office, and if his official career was to be terminated, it should be done by proceedings in quo warranto, and not by the very obnoxious instrumentality of an injunction. In elucidation of this proposition, it is asserted that the position of superintendent is a public office, and that an incumbent of the same is a public officer whose title to the office must be tried, if at all, in a proceeding in quo warranto only, and to make this attitude entirely. clear, we are referred to Section 962, Revised Statutes, which defines the duties of a superintendent. It provides that “the directors shall appoint a superintendent, who shall reside in some apartment of the infirmary or other building contiguous thereto, and shall receive such compensation for his services as they determine. He shall perform such duties as they may impose upon him, and be governed in all respects by their rules and regulations, and he shall not be removed by them except for good and sufficient cause. * * * The superintendent shall require all persons received into the infirmary to perform such reasonable and moderate labor as is suited to their age and bodily strength; and the directors shall-sell all products of the infirmary not necessary for the use of the same, and all .moneys arising therefrom shall be paid into the county treasury to be placed to the credit of the poor fund, to be paid out by the board of directors as exigency requires. The superintendent shall receive into the infirmary any person who produces to him such an order or voucher as is required by law, but the directors may confer upon him the authority to discharge inmates of the infirmary; and he shall enter in a book to be prepared for him and kept for that purpose, the following information, so far as it can be ascertained, in reference to every person so received into the infirmary: name”, sex, age, nativity, date of admission, length of resiidence in the state, length of residence in the county, from what township recéived, whether the person so received is insane, idiotic or epileptic, whether diseased, deformed, crippled, blind, or deaf and dumb, the date of discharge from the infirmary and reasons therefor; the date of all deaths and causes of same; the number of births and parentage of all children born in the infirmary; * * * and the superintendent shall require itemized bills for all labor performed under his direction, or articles purchased by him and provided for the use of the infirmary or the farm connected therewith, and he shall certify over his official signature, on the back thereof, to the correctness of the same, and that such labor was performed or articles delivered for the uses aforesaid.”

The next section provides for- a reserve fund to be set aside by the directors out of the poor-fund, not to exceed two hundred dollars at any time, at the request of the superintendent, to be expended by him on their order for current supplies and expenses, and a strict account of this fund shall be kept by the superintendent, and all expenditures thereof shall be audited by the board.

Section 964 provides for the duties of the directors on ascertaining the yearly amount necessary for the support of the infirmary, including all needful repairs, and when so ascertained the directors shall certify the same to the county auditor, who shall place the same on the tax duplicate of the county, and the infirmary directors shall have full control of said poor fund and shall be held responsible for the same.

Does it appear in the above legislation that the superintendent of a county infirmary is a public officer within the meaning of section 6760, Revised Statutes? No author has been entirely successful in defining the elements necessary to constitute a public office, and the decided cases seem to be no more explicit.

Several cases have been decided by this court, and in none of them is found a general rule applicable in all cases, to determine whether a certain place or position is or is not a public office. The fact that the statute requires an infirmary superintendent to take oath and give bond, does not determine his to be a public office. Neither is the emolument or compensation provided, an essential •.characteristic of such office. So decided in State, ex rel., v. Kennon et al., 7 Ohio St., 547-557-8. Perhaps the best statement of the standard is found in The State, ex rel., v. Jennings et al., 57 Ohio St., 415, where it is said on page 424; “that the most general distinction of a public office is, •that it embraces the performance by the incumbent of a public function delegated to him as a part of the sovereignty of the state.” And in the second section of the syllabus, it is said that “to constitute a pttblic office against the incumbent of which quo warranto will lie, it is essential that certain independent public duties, a part of the sovereignty of the state, should be appointed to it by law, to be exercised by the incumbent in virtue of his election or appoiiitment to the office thus created and defined, and not as a mere employe, subject to the direction and control of some one else.” In the course of the opinion, by Minshall, J., he quotes from section 4 of Meachem’s Offices and Officers, the statement that, “the most important characteristic which distinguishes an office from an employment or contract, is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to'be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature-, the individual is not a public officer.”

This standard has been approved in many cases and in it this court seems to have concurred. See State, ex rel., v. Mason, 61 Ohio St., 62; State, ex rel., v. Halliday, Auditor, 61 Ohio St., 171. In the latter case it was held that the position of a “county warden” created by former Section 409, Revised Statutes, was a county office and could not be constitutionally filled by appointment. In the opinion the court found that the statute gave such officers police powers — power to appoint assistants to assist in policing certain reservoirs of the state and territory pertaining thereto in their respective counties, and to arrest all violators of the laws for the protection of fish and game. On account of such powers, it was held that such wardens were county officers clothed with a part of the sovereignty of the state, and approved of the test adopte'd in State, ex rel., v. Jennings, supra.

What attribute of sovereignty of the state passes to the superintendent of a county infirmary by virtue of Section 962, supra? He is not elected by the people of the township or county, but is appointed by the board of directors; in this case for a specified term, for a compensation which they determine. He is to reside in some apartment of the infirmary or building contiguous thereto, and shall perform such duties as the directors may impose, and shall be governed in all respects by their rules and regulations, and. shall not be removed except for good and sufficient cause. Besides conforming' to such rules and regulations, the statute requires that in a book furnished him by the directors for the purpose, he shall make certain entries of information concerning the persons who are admitted to the infirmary and who are born or die therein, or are discharged therefrom. But the products of the infirmary are not at his disposal, for the directors may sell all such products not necessary for- the use of the same. He is not required to make report to any one of the information which he enters in the book, as required by said statute, but such entries are made for the information of the board of directors, who are, by Section 967, Revised Statutes, to file a report with the county commissioners, which report shall contain the statistical information specified in Section 962, supra, to be entered by the superintendent in the book referred to. He is to require itemized bills for all labor performed under his direction, or articles purchased by him for the use of the infirmary or the farm connected therewith. These are such duties as any prudent farmer may adopt and perform in the prosecution of his business, and the precautions are required so that the board of directors may be informed as to the condition of the infirmary and its financial affairs.

So it will be' seen that he is a mere employe or contractor under oath and bond, limited on all sides in his authority and not authorized by law to contract for the supplies for the infirmary except in a limited degree. He is generally, and perhaps, necessarily, a farmer, supposed to have the experience and ability to superintend it and. the buildings used by the inmates. He should have some knowledge of keeping and certifying to accounts for labor and supplies, and qualification to enter upon the book the statistical information required by Section 962. To this extent he is a bookkeeper as well as a farmer. He should be humane and economical. Is it possible that any of the sovereignty of the state or of either of its great departments filters through the meshes of this statute into the superintendency of the infirmary so as to make it a public office? Has he any police power, or any other characteristic of the sovereignty of the state, or of any department of its government? We think not. It is his duty to aid in administering public charity, but he does it under directions of the board, and he has no independent function in that respect. His duties, •are clerical and supervisory.

The State, ex rel., v. Taylor, 12 Ohio St., 130, is confidently cited for plaintiff in error as holding that a superintendent of an infirmary is a public officer. Taylor was one of the board of infirmary directors of Butler county. By his own vote and that of another member he was appointed superintendent, and they fixed his salary, etc. The prosecuting attorney filed an 'information in the nature of quo warranto to remove Taylor as superintendent. The issue was as to the legality of Taylor’s appointment. The district court held the appointment valid, and the case was brought to this court on error. The syllabus adopted by the court is: “Where a member of the board of directors of a county infirmary was, b}r said board, appointed to the office of superintendent of the county infirmary, he still continuing to hold the office of director — Held: That the duties of the two offices are incompatible, and can not be legally held by the same person at the same time; and such appointment was,- therefore, illegal and void.” It is true that counsel for relator in his brief in that case discussed to a limited degree the official character of the office of superintendent, and urged that he was a public officer in contemplation of law; but he also urged as the principal ground for the relief prayed for, that the two offices were inconsistent, inasmuch as he, as a member of the board, would be required to examine and pass upon his own conduct as superintendent of the infirmary. The report of the case contains no brief for the defendant in error, and from' the character of the syllabus, it seems that it did not become necessary for the court to decide whether the superintendent of the infirmary was a public officer, for the court held that the two positions were incompatible. The statute now forbids the thing thus condemned by the court. Brinkerhoff, J., in announcing the very brief opinion of the court said:, “Concurring with counsel for the relator in their view of the law of. the case the judgment,of the district court will be reversed at the defendant’s costs; but, as it is understood that he has ceased to exercise the office of superintendent of the county infirmary under the appointment contested in the case below, there will be no judgment of ouster.”

Under the above circumstances we can not say that the court decided the question we are now considering, for the law of the case must be found in the syllabus. Such was the rule adopted by this court at the January term for 1858, found in the front pages of volume 5 of the Ohio State Reports, and it has remained the rule to the present time. ' It requires that: “A syllabus of the points decided by the court in each case (cause) shall be stated, in writing, by the judge assigned to deliver (prepare) the opinion of the court, which shall be confined to the'points of law arising from the facts of the case that have been determined by the court. And the syllabus shall be submitted to the judges concurring therein for revisa! before publication thereof; and it shall be inserted in the book of reports without alteration, unless by the consent of the judges concurring therein.”” It will be seen that under this rule, and looking to the syllabus of the case last referred to, the point was not decided by the court, as to whether the superintendent of an infirmary is a public officer.

His position does not come up to the standard above given in State, ex rel., v. Jennings, supra, and in our judgment he is not a public officer.

However, if he was a public officer, he was such only during the term for which he was appointed, which ended on the 1st day of April, 1905. On that day Zeigler was entitled to take possession and Palmer no longer had title or color of title to the position. He became a trespasser when hé refused to yield possession and retire: He was not removed from office, but his term had expired, and therefore no reasons were to be assigned, as in case of removal. Having no color of title to the superintendency, there was no question of title to try, and a proceeding in quo zvarranto was not 'necessary to oust him from that position. This view is in accord with what was said in State, ex rel., v. Craig, 69 Ohio St., 236. The old-fashioned remedy for forcible detention might have been brought to bear on Palmer, but it might have been slow and otherwise inadequate.

When we recur to the facts found by the circuit court it is seen that the board of directors put Zeigler in actual possession of the infirmary premises and ordered Palmer- to leave. But he had formed an attachment for the old place and decided to stay. As early as February preceding, they .had notified him in writing to be ready to turn over the infirmary to Zeigler on the. 1st day of April, and on the day the injunction under review was granted he was the superintendent and the only one lawfully in possession. Therefore injunction was the proper remedy to protect his possession against the interference and obstruction of others, as ruled in Reemelin v. Mosby, 47 Ohio St., 570; Harding v. Eichinger, 57 Ohio St., 371. In the latter case the court said: “Injunction may be resorted to ’ by the incumbent of a public office to protect his possession against interference by an adverse claimant until the latter establishes his title, but is not the appropriate remedy to try the title.”

Hence it is, that if the superintendency of a county infirmary is a public office and the incumbent a public officer (which we do not believe), still, under the findings of the lower court that Zeigler had been duly installed into office and put in possession by the lawful authorities, he could resort to injunction as a remedy to protect his possession against the high-handed and violent interference of Palmer and his abettors. We have here another instance of the unquenchable thirst for official position, no matter how obscure, tyhich sometimes takes possession of the sons of men.

Judgment affirmed.

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


text:
    Palmer v. Zeigler.
    (No. 9753
    Decided April 16, 1907.)
    Error to the Circuit Court of Richland County.
   Price, J.

This case is a companion of the one just decided against the plaintiff in error. On the same day (April 4, 1905) that Zeigler obtained his injunction against Palmer, and which we have considered in the preceding case, Palmer filed his petition in the court of common pleas and alleged therein that he was the lawful superintendent of the Richland county infirmary, and that Ziegler was interfering with and obstructing him, Palmer, in the discharge of his duties as such superintendent. Pie asked for an injunction to prevent these acts of interference, and obtained a temporary' restraining order, but on hearing an injunction was refused and his petition dismissed. On appeal to the circuit court the case was there heard on thé merits and the same findings of fact were made as in the preceding case (No. 9752). That court refused an injunction and dismissed his petition. He brings the case here on error.

Believing, as we do, that the infirmary of .Rich-land county needs but one superintendent, and having already found in favor of Zeigler as to that position, it is our “plain duty” to affirm the judgment of the circuit court.

Judgment affirmed.

Shauck, C. T., Crew, Spear and Davis, JJ., concur.


author: Shauck, C. J.

text:
    Gratz v. The Lake Erie & Western Railroad Co.

      Farm crossings of railroads — Must be constructed' by railroad, when —Sections 3327 and 3328, Revised Statutes — Right of farm owner to construct same.

    Although Sections 3327 and 3328, Revised Statutes, requiring a railroad company to construct a farm crossing for the convenience of an owner whose lands lie on both si'des of its road, apply only to cases where lands are in one ownership at the time of the construction of the road,'any owner of land lying upon both sides of the road may construct such crossing at his own expense, it being suitably located and necessary for the reasonably convenient use of his lands, its construction and maintenance to . be without interfering with the company’s paramount right as to the movement of its trains.
    (No. 9823
    Decided April 9, 1907.)
    Error to the Circuit Court of .Allen County.

      In the court of common pleas Gratz sought to enjoin the company from interfering with his construction of a farm crossing over its road, his land lying on both sides thereof. In the court of common pleas final judgment was rendered on the pleadings. In his petition Gratz alleged that he is the owner of more than fifteen acres of land which he definitely describes, portions' thereof lying upon either side of the company’s track; that he is using said land for the purposes of agriculture; that without a private crossing over the company’s track he could not pass from his land upon one side thereof to that upon the other without the great inconvenience of going more than a mile across other lands and by public roads; that on the first day of April, 1903, he served a notice on the company requiring it to construct a private crossing within four months from that date in accordance with the requirements of Section 3327 of the Revised Statutes, and that the company having failed to comply with that notice on the sixth day of August, 1903, he served upon it a further notice as required by Section 3328 of the Revised Statutes that on or after August 25, 1903, he would enter upon its right of way and construct said crossing at its cost. He further alleged that the company threatened to and unless restrained would prevent his constructing said crossing. He prayed for a temporary injunction restraining the company from interfering with such construction and that upon the final hearing the injunction be made perpetual. Upon the filing of the petition a temporary injunction, was allowed by the common pleas court.'
    The company answered admitting the service of the notices upon it by Gratz and alleging the following facts which the reply of Gratz admits: That its road had been constructed and in operation for more than thirty years; that the lands of Gratz were not at the time of the construction of the railroad in the same ownership, he not having acquired the tract on one side of the railroad until the 10th of August, 1902, and that after the allowance of the temporary injunction he had completed the construction of the crossing. It prayed for a mandatory injunction requiring Gratz to remove the crossing and restore the company’s property to its former condition. On the hearing upon the pleadings the common pleas court dismissed the petition and allowed- the mandatory injunction prayed for by the company and rendered judgment in its favor for the costs of the suit. That judgment was affirmed by the circuit court.

      Messrs. Welty & Downing, for plaintiff in error.

      Mr. John B. Cochrun; Messrs. 'Richie & Richie and Mr. W. H. Leete, for defendant in error.
   Shauck, C. J.

The notices which the plaintiff gave to the defendant indicate that in his view he might require a farm crossing to be constructed by the railroad company, or at its. expense, although he acquired his land upon one side of the track after the construction of the railroad. That such right is conferred upon him by Sections 3327 and 3328 of the Revised Statutes is the view now urged in the brief of his counsel. To the contrary, it is urged that the burden ds imposed upon the company in those cases only in which by the construction of the railroad it divides a tract of land which is then in the same ownership. And much reason for that view is found in the language of the two sections referred to and of Section 3329 which limits their operation. This view of the statute was taken by the courts below.

While we do not question the correctness of their conclusion with respect to the conditions of the company’s liability for the expense of constructing the crossing, we think it clear that the conclusion affords no support to the judgments which they rendered. The notices given by the plaintiff are suggestive of an intention to resort, after the completion of the crossing by himself, to the right of action given by the concluding clause of Section 3328 to recover the cost thereof “in an action against such company.” But such action had not been brought by him. The bringing of such actiqn could not be effectively anticipated by a suit for a mandatory injunction which lies to compel a party to restore a status which he has wrongfully changed. But the plaintiff had done no more than to exercise his right as owner of the land subject to the paramount rights of the company to construct, at his own expense, a farm crossing suitably located and necessary to the reasonably convenient use of his lands upon both sides of the track, the crossing to be constructed and maintained without interfering with the operation of trains, that being the paramount right of the company. That he has such right is neither asserted nor denied by counsel. The right is entirely consistent with the purposes for which the company acquired its right of way and its existence appears to be generally recognized. Housatonic R. R. Co. v. Waterbury, 23 Conn., 101; Kan- sets Central Ry. Co. v. Allen, 22 Kan.; 285; Atchison & Neb. R. R. Co. v. Gough, 29 Kan., 94; Chicago, Kan. & Western R. R. Co. v. Cos'per, 42 Kan., 561. There being no action to recover from the company the expense of the construction of the crossing by the plaintiff, the controversy between the parties has been at a range too long to be effective.

Judgments reversed.

Summers, Spear and Davis, JJ., concur.

Price, J., dissents.