author: Davis, C. J.

text:
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Naylor, Admr.

      Death by wrongful act of corporation — Administrator of deceased may bring action for next of kin — Though latter alien nonresident in state — Sections 6134 and 6135, Revised Statutes.

    5Vhere the next of kin of a person whose death is alleged to have been caused by the wrongful act, neglect or default of any corporation or person, are aliens non-resident in this state, the administrator or executor of such deceased person may maintain an action under sections 6134 and 6135, Revised Statutes, for the benefit of such alien non-resident next of kin, in the same manner as may be done in behalf of citizens of Ohio or aliens resident therein.
    (No. 9179
    Decided November 21, 1905.)
    Error to the Circuit Court of Jefferson county.
    Basilio Marino was a subject of the King of Italy, resident in the state of Ohio in June, 1902. His wife and children then resided, and still reside, in Italy. On the sixth day of Juné, 1902, Marino was killed in Jefferson county, Ohio, by a passenger train operated by the plaintiff in error. The defendant in error, a citizen and resident of the state of Ohio, was duly appointed and qualified as administrator of the estate' of the decedent, Marino, and filed his petition in the court of common pleas of Jefferson county, alleging that the deceased was killed by the negligence of the railroad company and praying for a judgment, as damages, for the benefit of the wife and children of the deceased in the sum of $10,000.
    The second ground of defense .alleged in the defendant’s answer is as follows: “That plaintiff-ought not to have or maintain this action for the reason that the defendant is and was on the sixth day of June, 1902, a citizen and resident of the state of Ohio; that the said Basilio Marino was at the time of his death a native and citizen of Italy, that the .wife and children of the deceased for whose benefit this action has been brought are non-resident aliens of the state of Ohio and of the United States of America; that as such non-resident aliens they are not authorized by the statutes of the state of Ohio to recover damages through a legal representative for the death of said Basilio Marino.” The plaintiff demurred to the defendant’s second defense upon the ground that the same does not state facts sufficient to constitute a defense. The demurrer was overruled by the court of common pleas and judgment was rendered for the defendant. The circuit court reversed the judgment of the court of common pleas and remanded the case to the court of common pleas with instructions to sustain the demurrer. This proceeding in error is prosecuted to reverse the judgment of the circuit court and affirm the judgment of the court of common pleas.

      Messrs. Dunbar & Sweeney, attorneys for plaintiff in error,
    cited and commented upon the following authorities:

      Foss v. Crisp, 20 Pick., 121; Story on Conflict of Laws, secs. 7, 20, 98, 278; Endlich Interpretation of Statutes, 167; Deni v. Railroad Co., 181 Pa. St., 525; 37 Atl. Rep., 558; Adam v. Steamship Co., 2 Q. B., 430; Brannigan v. Mining Co., 93 Fed. Rep., 164; McMillan, Admr. v. Sawmill & Lumber Co., 60 L. R. A., 589; Railway Co. v. Osgood, Admr., App. Ct. Ind., April 22, 1904.

      Messrs. Arrel, McVey, Rowland & Harrington also filed a brief for plaintiff in error,
    by leave of the court, and cited and commented upon the following authorities:
    .Act of 1846, 9th & 10th Vic., c. 93 (Lord Campbell’s Act); Seward v. The Vera Cruz, L. R. 10, App., 59; Davis v. Justice, 31 Ohio St., 363; Kirchner v. Myers, 35 Ohio St., 85; Gray v. Askew, 3 Ohio 466; Paine v. Mason, 7 Ohio St., 198; Favorite v. Booher, 17 Ohio St., 548; Hilliard v. Gas Coal Co., 41 Ohio St., 662; Ives v. McNicoll, 59 Ohio St., 402; Bank v. Chapman, 4 Circ. Dec., 252; 9 C. C. R., 79 ; Lee v. Bank, 5 Dec. Re., 21; 1 Rec., 385; 13 Dec. Re., 913; 2 C. S. C., 298; Keeler v. Snodgrass, 8 Dec. Re., 490; 8 W. L. B., 219; Brice v. Myers, 5 Ohio, 121; Reed v. Evans, 17 Ohio, 128; Cope v. Doherty, 4 Kay & Johns., 367; The Zollverein, 1 Swab Adm., 96; 2 Jur. (N. S.), 429; Ex parte Blain, 12 Ch., sec. 522; Jefferys v. Boosey, 4 H. L. Cas., 815; Rose v. Himely, 4 Cranch, 279; Endlich Interpretation of Statutes, sec. 169; Story’s Conflict of Laws, secs. 7, 20, 98, 278; Woodard v. Railroad Co., 10 Ohio St., 121; Adam v. Steamship Co., 2 Q. B., 430; 79 Law T. (N. S.), 31; Deni v. Railroad Co., 181 Pa. St., 525; 37 Atl. Rep., 558; Brannigan v. Mining Co., 93 Fed. Rep., 164; McMillan v. Sawmill & Lumber Co., 91 N. W. Rep., 979; Yelverton v. Burton, 26 Pa. St., 351; McCarthy’s Appeal, 68 Pa. St., 217; Colquohoun v. Heddon, 62 L. T. R., 53; 2 L. B., 135; Vetaloro v. Perkins et al., 101 Fed. Rep., 393; Mulhall v. Fallon, 57 N. E. Rep., 386; 54 L. R. A., 934; 176 Mass., 266; In re Explorer, L. R. 3, Adm. & Ecc., 889; Stewart v. Railroad Co., 168 U. S., 455; Luke v. Calhoun County, 52 Ala., 115; Coal Co. v. Petraytis, 195 Ill., 215; 63 N. E. Rep., 94; The E. B. Ward, 16 Fed. Rep., 260; sec. 6134, Rev. Stat.

      Messrs. Goldzier, Rodgers & Froehlich; Mr. A. G. Lewis and Mr. D. M. Gruber, attorneys for defendant in error,
    cited and commented upon the following authorities:

      Deni v. Railroad Co., 181 Pa. St., 525; art. 1, sec. 3, Civil Code of Italy; Mulhall v. Fallon, 176 Mass., 266; Vetaloro v. Perkins, 101 Fed., 393; Luke v. Calhoun County, 52 Ala., 115; Railroad Co. v. Glover, 92 Ga., 132; Philpott v. Railway Co., 85 Mo., 164; Coal Co. v. Petraytis, 195 Ill., 215; Treaty of Feb. 26, 1871, between U. S. and Italy; vol. 1, part 2, 581, special session of Senate, March 4, 1885; art. 6, sec. 2, U. S. Const.; Hauenstein v. Lynham, 100 U. S., 483; Worcester v. Georgia, 6 Pet. (U. S.), 575; Oivings v. Norwood, 5 Cranch, 344; Ware v. Hylton, 3 Dall., 236; 26 Am. & Eng. Ency. Law, 544; Underhill on Evidence, 242; Railroad Co. v. Shacklet, 10 Ill. App., 404; s. c., 105 Ill., 364; Goltra v. People, 53 Ill., 224; Pritchard v. Norton, 106 U. S., 124; Railroad Co. v. Andrews, 36 Conn., 213; Morris v. Railway Co., 65 Ia., 727; Railway v. Bradley, 51 Neb., 596; Bruce’s Admr. v. Railroad Co., 83 Ky., 174; Brown v. Railway Co., 97 Ky., 228; Findlay v. Railway Co., 106 Mich., 700; Hutchins v. Railway Co., 44 Minn., 5; Railroad Co. v. Hurd, 108 Fed. Rep., 116; secs. 4173 and 6134, Rev. Stat.

      Mr. Fred C. Rector also filed a brief for defendant in error by leave of the court,
    and cited and commented upon the following authorities:

      Steivart v. Railroad Co., U. S. S. C. Rep., 18, 125; Handy v. Insurance Co., 37 Ohio St., 366; Sproul v. McCoy, 26 Ohio St., 577; Deni v. Railroad Co., 181 Pa. St., 525; Railroad Co. v. Osgood, Admr., App. Ct. Ind., Div. No. 2, in November term, 1903; Brown
      v. Railroad Co., 102 Wis., 137; Vetaloro v. Perkins, 101 Fed. Rep., 393; Mulhall v. Fallon, 176 Mass., 266; Dennick v. Railroad Co., 103 U. S., 11; Railway Co. v. Glover, 92 Ga., 132; Coal Co. v. Petraytis, 195 Ill., 215; Railroad Co. v. Higgins, 85 Term., 620; Luke v. Calhoun County, 52 Ala., 115; Philpott v. Railway Co., 85 Mo., 165; Morris v. Railway Co., 65 Ia., 727; Leonard v. Navigation Co., 84 N. Y., 48; King v. Sarria, 69 N. Y., 24; Herrick v. Railroad Co., 31 Minn., 11; Boyce v. Railway Co., 63 Ia., 70; Ohio Code of Evidence, 233; People ex rel. v. Stout, 81 Hnn, 336 (affirmed 144 N. Y., 699); Howard v. Moot, 64 N. Y., 262; 2 Hnn, 475; Sanglein v. State, 17 Ohio St., 453; art. 6, U. S. Const.; Hauenstein v. Lynham, 100 U. S., 483; Shanks v. Dupont, 3 Pet., 242; Schell v. Iron, Sheet & Tube Co., 26 O. C. C., 209; Adams v. Akerlund, 48 N. E. Rep., 454; Schudtze v. Schultze, 33 N. E. Rep., 201.
   Davis, C. J.

The question raised in'this case is whether or not, notwithstanding the clear and unqualified language of Revised Statutes, sections 6134 and 6135, an action can be prosecuted for the benefit of the next of kin of the person whose death has been wrongfully caused, when the next of kin are non-resident aliens.

It is admitted that the literal terms of these sec- ■ tions would not exclude from the benefits of the statute next of kin who are non-resident aliens; for in section 6134 it is provided that: “in every such case’’ of wrongful death a liability to an action for damages attaches, while in section 6135 no exception which would exelude a non-resident alien can be found. But it is contended, 1. That the statutes of any country, in the absence of express wofds to the contrary, are to be interpreted as applying to the citizens of that country only; 2. That the statutes of no country can be presumed to operate beyond the territorial limits of the country so as to confer rights or impose liabilities upon aliens; 3. That to include non-resident aliens is obviously opposed to the spirit and policy of the statute, and 4. That our statute is adapted from the English statute which is commonly known as Lord Campbell’s Act, and that the English courts so interpret that act as to exclude non-resident aliens. In support of these propositions the counsel for the plaintiff in error cite the following' authorities: ‘Story Conflict of Laws, secs. 7 and 20; Endlich Interpretation of Stat., sec. 176; Deni v. Penna. Co., 181 Pa. St., 525; Brannigan v. Gold Mining Co., 93 Fed. Rep., 164; McMillan, Admr. v. Spider Lake Sawmill & Lumber Co., 115 Wis., 332; C. C. C. & St. L. Ry. Co. v. Osgood, Admr., 70 N. E. Rep., 839; and Adam v. Brit. & For. S. S. Co., L. R. 2 Q. B., 430.

In regard to the first proposition contended for by the plaintiff in error, it is important to note that many years ago this court held that “where the words of a statute are plain, explicit and unequivocal, a court is not warranted in departing- from their obvious meaning.” This principle of construction was adhered to in that case, notwithstanding the fact that the court was convinced by extraneous circumstances that the legislature intended to enact something very different from that which they did enact. Woodbury v. Berry, 18 Ohio St., 456. That casé has been cited and approved many times in this court and in the courts of last resort in other states, as well as in Thornley v. United States, 113 U. S., 310. It must therefore be regarded as laying down a cardinal rule of interpretation, at least for this jurisdiction.

Moreover, it seems to us to be a misinterpretation of Mr. Endlieh to cite his book as an authority for the proposition contended for here. He refers to the dicta of the judges in the celebrated copyright case of Jefferys v. Boosey, 4 H. L., 815, and says, “It has been said indeed, that when personal rights are conferred, and persons- filling any character of which foreigners are capable are mentioned, foreigners would be comprehended in the statute.” That is one view, the dictum of Maule, J., in Jefferys v. Boosey, and of Lord Westbury in Routledge v. Low, 3 H. L., 100. Then he proceeds, “On the other-hand, it has been laid down that, in general, statutes must be understood as applying to those only who owe obedience to the legislature which enacts them, and whose interests it is the duty of that legislature to protect; * * * that as regards aliens resident abroad, the legislature has no concern to protect their interests, any more than it has a legitimate power to control their rights.” This is the second view deducible from dicta in Jefferys v. Boosey. Mr. Endlich then continues: “In this view,” that is the latter of the two views, “it would be presumed, in interpreting a statute, that the legislature did not intend to legislate either as to their‘rights or liabilities; and to warrant a different conclusion, the words of the statute ought to be express, or the context of it very clear.” We think that the rule of statutory construction prevailing here, adverted to above, would require a presumption just the contrary of that contained in the second view mentioned by Mr. Endlieh; and indeed, the authority of that view was overturned by the decision in Davidsson v. Hill, L. R. 2 K. B. Div., 606 (1901), and, the reasoning by which it is supported has been fully and completely answered by Kennedy, J., and Phillimore, J., in that case.

The second proposition which is advanced in behalf of the plaintiff in error has already been discussed in part; but it may be added that no extraterritorial effect is sought to be given to this statute. Marino was killed in the state of Ohio by the plaintiff in error. The killing is alleged to be wrongful under the laws of Ohio. A man who is a citizen and resident of Ohio, is duly appointed in Ohio as administrator of the estate of the deceased, and brings suit in Ohio to recover as damages a judgment for the benefit of the widow and children of the deceased, as provided by the laws of Ohio. Is this giving effect to the laws of Ohio in Italy ? It is hardly incidentally or remotely so. These foreigners come into the courts of this state, by their legal representative, according to the forms prescribed by the law of this state, and they ask for compensation for a wrong which has been done to them. The answer to them is that they were absent from the state of Ohio when the trespass occurred. If they had been citizens of Ohio their absence in Italy would have made no difference. Nor would the fact that they are aliens be decisive against their right to recover; for, although aliens, if they had been residents of Ohio at the time of the trespass they might recover. The actual presence in the state of the next of kin of the deceased at the time of the injury is not required by the statute to create a right of action. The injury may be complete although the next of kin may be at the time in another country. The plaintiffs have not sought to enforce the laws of Ohio in another jurisdiction, but tbey have come into tbe courts of Ohio to enforce tbe laws of Obio in their own behalf. , Tbe objection made to tbis is that tbe statute of Obio does not apply in favor of non-resident aliens. If there bad been three men instead of one, killed at tbe same time, and tbe widow of one was a citizen of Obio, tbe widow of another a resident alien and tbe widow of tbe third a non-resident alien, it is admitted that the first and second could recover and it is contended that tbe third could not; yet tbe language of tbe statute is tbe same as to tbe rights of all of these parties. It seems to us, therefore, that it is not a question of territorial jurisdiction; but that when a non-resident alien comes into tbe courts of tbe state for redress under tbe laws of tbe state, as be may do, it is merely a question of construction of tbe statute to determine whether be is excluded from its benefits.

We have no disposition to controvert tbe proposition that a statute of one state cannot impose obligations or liabilities on citizens of another state or country, not residing in tbe state enacting the statute; but we take it to be a self-evident proposition that a state, if there are no constitutional limitations on tbe general legislative power, may confer rights, privileges or immunities upon non-resident aliens which they may accept, if not prohibited by tbe government to which they owe allegiance. Thus, in our own state all disabilities of aliens as to inheritance are removed by statute (Revised Statutes, section 4173). Numerous examples of the exercise of such legislative power may be found noted in 2 Cyc., 100-101. State v. Smith, 70 Cal., 153, affords a very striking illustration; and see Mulhall v. Fallon, 176 Mass., 266. And tbis being so, we have not yet been able to perceive any good reason for raising a presumption that the legislature intended to exclude non-resident aliens from the privilege of tbe statute when its language is, “in every such case.”

Again, we have not found any persuasive force in tbe suggestion made in Deni v. Pennsylvania R. R. Co., supra, that tbe interpretation which includes non-resident aliens is contrary to the “spirit and policy” of the statute. The policy of the statute is plainly stated, and it is that “whenever,” not in certain cases, “the death of a person shall be caused by wrongful act, etc., then in every such case the corporation which or the person who, etc., shall be liable to an action for damages, etc. ’ ’ Section 6134. “Every such action shall be for the exclusive benefit of the wife,” etc., and the amount received by the personal representative shall be apportioned among the beneficiaries, etc. Section 6135. Obviously, the purpose of the statute, judging from its language, is to give relief in damages to the next of kin in all cases of wrongful death, notwithstanding that no right of action would have survived at common law. Consequently it is not apparent to us that it is inconsistent with the “spirit and policy” of the statute to allow this remedy for such a wrong to a non-resident alien; for if non-resident aliens be excluded from the privilege of the statute, then the remedy is not to all, but only to some of the cases of that description. This statute unequivocally declares the law of this state to be that there shall be a right of action in favor of the next of kin of the deceased in all cases of wrongful death occurring in Ohio. Should such an explicit declaration be set aside by the mere suggestion that the general assembly was legislating for its own jurisdiction and for the citizens and residents of Ohio only? We think that the presumption is rather that the general assembly meant what it has said in unambiguous language; and that a non-resident foreigner coming into this jurisdiction and asking redress for an injury done to him in this state and contrary to the law of this state, although he was absent from the state' at the time, is entitled to be heard in the same manner as a resident foreigner or a citizen.

In this connection, and inasmuch as the supreme court of Pennsylvania in Deni v. Pennsylvania R. R. Co., supra, seems to place much emphasis on the policy of that state as to exemption laws, it is pertinent to cite Sproul v. McCoy, 26 Ohio St., 577, in which this court held that the exemptions from sale or execution allowed to “every person who has a family?’ by the act of April 16, 1873 (70 O. L., 132; see Rev. Stat., sec. 5430), may be claimed by any debtor against whom an action is prosecuted in the courts of this state, whether such debtor be or be not a resident of this state. The rule of interpretation which was adopted in Woodbury v. Berry, supra, was there applied to the exemption statute and it does not seem to have led the court to a wrong conclusion; for in that respect the statute of Ohio remains without change to this day.

Finally, it is urgently argued for the plaintiff in error that this is an English statute and that we should adopt the English construction of the statute, citing Adam v. Brit. & For. S. S. Co. (1898), L. R. 2 Q. B., 430. The act 9 and 10 Vict. c. 93, commonly known as Lord Campbell’s Act, had been in effect more than fifty years when this question was raised and decided in that case. At the time that the act was adopted in Ohio, there had been no adjudication and, so far as we know, no suggestion of this question. We are not bound, therefore, by this decision in the Queen’s Bench Division. We find, however, a later decision in the same court, Davidsson v. Hill (1901), L. R. 2 K. B., 606, in which, after careful and full consideration in opinions by Kennedy, J., and Phillimore, J., the ruling was directly opposed to the ruling in Adam v. Brit. & For. S. S. Co., supra, and in accord with the views which we have expressed above.

A notable change in the attitude of the court is found in the Indiana case which is cited for plaintiff in error, C. C. C. & St. L. Ry. Co. v. Osgood, decided in the appellate court, second division, April 21, 1904, 70 N. E. Rep., 839. When the same case was again before the same court, February 16, 1905, 73 N. E. Rep., 285, it was held that an administrator appointed in the state may sue to recover for the death of a resident, although the ultimate distribution of the proceeds of the action will go to á nonresident alien, where the laws of the country in which such alien resides authorize a similar recovery in favor of alien next of kin.

There are other cases, in addition to those cited in the briefs for the defendant in error, which are in accord with the views which we have expressed. Romano v. Capital City Brick & Pipe Co., 125 Ia., 591; Tanas v. Municipal Gas Co., 84 N. Y. Supp., 1053; Alfson v. Bush Co. Lim. (Court of Appeals of New York, Oct. 3, 1905), 75 N. E. Rep., 230; Bonthron v. Phoenix Light, etc., & Fuel Co. (Arizona),. 71 Pac. Rep., 941; Renlund v. Commodore Mining Co., 89 Minn., 41; Pocahontas Collieries Co. v. Bukas’ Admr. (Court of Appeals of Virginia, June 28, 1905), 51 S. E. Rep., 449.

It seems to us that the right of the defendant in error to maintain this action in behalf of the wife and children of his decedent notwithstanding that the wife and children are. non-resident aliens, is supported by the sounder reasoning and by the greater weight of authority; and therefore the judgment of the circuit court is

Affirmed.

Price, Crew and Summers, JJ., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Graham v. Cooley.

      Action against seller of intoxicating liquors — Rule as to notice to he given seller — Not necessary to notify property owner— Sections 4857 and 4858, Revised Statutes.

    In an action under section 4357, Revised Statutes, against a person selling intoxicating liquors to recover for an injury in consequence of intoxication it is sufficient respecting the notice provided for in sections 4357 and 4358, Revised Statutes, to aver that the notice was given to the seller and it is not necessary to aver that such notice was given both to the seller and to the owner or lessor of the premises wherein such intoxicating liquors were sold.
    (No. 9274
    Decided November 28, 1905.)
    Error to the Circuit Court of Tuscarawas county.
    The plaintiff in error, Alice Graham, sued the defendant in error in the court of common pleas of Tuscarawas county to recover damages for the unlawful sale of intoxicating liquors to her husband. She averred “that on or about the twenty-first day of November, 1902, the plaintiff notified the defendant in writing not to sell any intoxicating liquors to her said husband.” A general demurrer to the petition was overruled and a trial resulted in a verdict and judgment.
    The circuit court reversed the judgment on the ground that the court of common pleas erred in oyerruling the demurrer.

      Mr. P. S. Olmstead, attorney for plaintiff in error,
    cited and commented upon the following authorities:
    1 Bates’ Pleadings, 540; 1 Kinkead, 699; 2 Yaples, 1184; Mullen v. Peck, 49 Ohio St., 450; Goodman v. Hailes, 59 Ohio St., 342; Moore v. Given, 39 Ohio St., 661; Railway v. Jump, 50 Ohio St., 652; Doyle v. Doyle, 50 Ohio St., 330; Wert v. Clutter, 37 Ohio St., 347; Baker v. Beckwith, 29 Ohio St., 314; Lyon v. Felahmann, 34 Ohio St., 151; Russell v. Tippin, 5 Circ. Dec., 443; 12 C. C. R., 52; secs. 4358, 4364 and 4947, Rev. Stat.

      Mr. John A. Buchanan, attorney for defendant in error,
    cited and commented upon the following authorities:

      Davis v. Justice, 31 Ohio St., 363; Russell v. Tippin, 5 Circ. Dec., 443; 12 C. C. R., 52; 1 Cyc., 692; Endlich on Interpretation of Statutes, secs. 4 to 9; Woodbury v. Berry, 18 Ohio St., 456; Bruner v. Briggs, 39 Ohio St., 484; State ex rel. v. Archibald, 52 Ohio St., 1; Collins v. Millen, 57 Ohio St., 289; McCormick v. Alexander, 2 Ohio, 65; Ludlow v. Johnson, 3 Ohio, 553; Goodman v. Hailes, 59 Ohio St., 342; Moore v. Given, 39 Ohio St., 661; In re Hathaway, 4 Ohio St., 385; secs. 23, 4357, 4358 and 4364, Rev. Stat.
   By the Court.

Section 4357, Revised Statutes, is as follows: “Every husband, wife, child, parent, ■guardian, employer, or other person injured in person or property, or means of support, hy any intoxicated person, or in consequence of the intoxication, habitual or otherwise,' of any person, shall, after the giving and during the existence of the notice provided for in the next section, have a right of action in his or her own name, severally or jointly against any person or persons who, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person; and the owner ■of any building or premises and the person renting or leasing the same, having knowledge that intoxicating liquors are to be sold therein, in violation of law, or having leased the same for other purposes, knowingly permit intoxicating liquors to be sold therein, that have caused the intoxication in whole ■or in part, of such person, shall be liable severally or jointly with the person or persons selling or giving intoxicating liquors as aforesaid, for all damages sustained, as well as exemplary damages.”

Section 4358, Revised Statutes, prior to the amendment, read as follows: “Such husband, wife, child, parent, guardian, or other interested person liable to be so injured by any sale of intoxicating liquors to any person, and desiring to prevent the sale of intoxicating liquors to such person, shall give notice either verbally or in writing, before a witness, to the person or persons so selling or giving the intoxicating liquors, or [and] to the owner or lessor of the premises wherein' such intoxicating liquors are given or sold, or file with the township or corporation clerk in the township or municipal corporation wherein such intoxicating liquors may be sold, notice to all liquor dealers not to sell to such person any intoxicating liquors from and after ten [five] days from the date of so filing such notice.” And as amended April 25, 1898 (93 O. L., 371), it reads as above, omitting the words in italics and substituting the word [and] for or and [five] for ten.

The circuit court held the petition defective for want of averment that the notice was served also on the owner or lessor of the premises or an averment that the seller was also the owner of the premises. Prior to the amendment, upon the filing of the notice with the clerk or giving notice to both the seller and the owner or lessor, the seller and owner or lessor were jointly and severally liable, and the seller or giver was liable in the event of notice to him alone. Did the legislature by the amendment intend so to change the law that the seller' is not liable unless notice is served both upon him and the owner? The apparent intention of the legislature was to withdraw permission to file the notice with the clerk and to do away with the requirement that the notice be given before a witness.

Section 23, Revised Statutes, provides that in the interpretation of part second, which includes section 4358, unless the context shows that another sense was intended, the word “and” may be read “ or, ” and “ or ” read ‘ ‘ and, ’ ’ if the sense requires it.

If the sole change made by the amendment had been to substitute “and” for “or” it may be conceded that it could not be read “or,” but the apparent purpose of the amendment having been to make the important changes already noticed and no good reason being apparent why the legislature should intend to make the right of action against the seller depend upon notice to the owner in addition to himself, the copulative “and” may be read “or” now, just as prior to the amendment “and” might have been substituted for the disjunctive “or” if the sense required it.

If we are to stick in the bark it might have been before the amendment just as forcibly contended that an action would lie against the seller if notice had been given either to him or the owner as now that it will not unless it is given to both.

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

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


text:
    Koch v. The State of Ohio.

      Conviction for misdemeanor before mayor — May be reviewed by proceeding in error, when.

    A conviction for a misdemeanor before a mayor over which he has final jurisdiction, may be reviewed by a proceeding in error on the ground that the conviction is against the weight of the evidence.
    (No. 9544
    Decided November 28, 1905.)
    Error to the Circuit Court of Highland county.
    The plaintiff in error was tried and convicted by the mayor of the village of Hillsboro for unlawfully keeping a place where intoxicating liquors were sold in violation of law. The mayor exercised final jurisdiction in hearing and deciding the case and sentenced the accused to pay a fine of $200 and the costs of prosecution amounting to $42.25, and ordered that he be imprisoned in the county jail until the fine and costs be paid or secured to be paid.

      A motion for new trial was filed containing the following grounds:
    1. “The said judgment and finding of conviction are not sustained by sufficient evidence and are against the weight of the evidence.
    2. “Said finding and judgment are contrary to law, and were had without any authority of law.
    3. ‘ ‘ Said defendant was denied the right of trial by jury.

      4. “Said mayor should have proceeded as an examining magistrate only, in this cause, and had no jurisdiction to try said defendant finally.
    6. “The pretended law under which the complaint herein was filed, is unconstitutional and void.
    7. “Errors of law occurring at the trial.”
    The fifth ground alleges that the necessary steps and proceedings had not been taken as provided by law (the exercise of local option), to make it unlawful to sell intoxicating liquors in said village or keep a place therein for such sale. The motion was overruled and sentence pronounced as above stated, to all of which exception was preserved and a bill of exceptions was taken embodying the evidence received at the trial. On leave given for that purpose the defendant filed a petition in error with the bill of exceptions in the court of common pleas, assigning many errors, among them the overruling of the motion for new trial. The court of common pleas considered the assignments of error and the bill of exceptions as to the weight of the evidence and affirmed the judgment of the mayor.
    The ease was taken on error to the circuit court where the proceeding was heard, and the judgment entry is as follows: “This cause came on this day to be heard upon the petition in error filed herein, the transcript, bill of exceptions, original papers and pleadings from the mayor’s court of Hillsboro, Ohio, and the transcript of the docket and journal entries of the court of common pleas of Highland county, Ohio, and was argued by counsel. And counsel for defendant in error having made a motion in open court that the assignment of error, that the judgment and finding of said mayor was against the weight of the evidence, be disregarded by the court, said court upon consideration of said motion does find the same well taken and does sustain the same, to which the plaintiff in error excepts. And said court did refuse to read or consider said evidence on the assignment of error that the finding and judgment of said mayor was not sustained by sufficient evidence and was against, the weight of the evidence, and said bill of exceptions was not read or considered as to said assignment of error concerning the weight of the evidence, to which plaintiff in error excepted. Whereupon the court finds all other assignments of error not well taken and that there is no error apparent of record in said proceedings, and the judgment of the said court of common pleas is affirmed,,” etc.
    Error is prosecuted here to reverse the judgments of the circuit and said inferior courts.

      •Mr. D. Q. Morrow and Mr. James A. Wilkins, attorneys for plaintiffs in error,
    cited and commented upon the following authorities:

      Flatau v. Mansfield, 7 Circ. Dec., 39; 14 C. C. R., 592; Bellefontaine v. Vassaux, 55 Ohio St., 323; Williams v. State, 25 Ohio St., 628; Germantown v. Basore, 12 Circ. Dec., 500; 22 C. C. R., 417; Fike v. State, 25 O. C. C., 554; 4 C. C. R. (N. S.), 81; State v. Ransick, 62 Ohio St., 283; Slaughter v. Columbus, 61 Ohio St., 53; Stewart v. State, 25 O. C. C., 438; 2 C. C. R., (N. S.), 290; Gordon v. State, 46 Ohio St., 607; State v. Owen, 4 Dec., 163; 3 N. P., 181; Lamberton v. State, 11 Ohio, 284; Ellars v. State, 25 Ohio St., 388; Hummel v. State, 10 Dec., 492; 8 N. P., 48; Groenland v. State, 6 Dec., 313; 4 N. P., 123; Arata v. State, 12 Dec., 730; Corthell v. State, 5 Circ. Dec., 123; Parker v. State, 4 Ohio St., 563; Anderson v. State, 22 Ohio St., 305; Heider v. State, 4 Dec., 227; Barnhouse v. State, 31 Ohio St., 39; Foster v. State, I Circ. Dec., 261; 1 C. C. R., 467; Stockwell v. State, 27 Ohio St., 566; Nickel v. State, 3 Circ. Dec., 605; 6 C. C. R., 601; secs. 1536-775, 3178a, 4364-200, 6471, 6560, 6565, 6966-1, 6966-2, 7136, 7207, 7208, 7222 and 7356, Rev. Stat.

      Mr. George L. Garrett, attorney for defendant in error,
    cited and commented upon the following authorities:

      Williams v. State, 25 Ohio St., 628; 66 O. L., 178; 73 O. L., 226; 75 O. L., 214; 90 O. L., 358; Slaughter v. Columbus, 61 Ohio St., 53; sec. 125, Municipal Code, vol. 66, 170; Yager, Admr. v. Greiss, 1 Circ. Dec., 296; 1 C. C. R., 531; Leonard v. Cincinnati, 26 Ohio St., 447; Baer v. Otto, 34 Ohio St., 15; Kaufman v. Broughton, 31 Ohio St., 424; Squires v. Martin, 24 O. C. C., 232; 5 C. C. R. (N. S.), 313; Martin v. Squires, 52 Ohio St., 634; State v. Ransick, 62 Ohio St., 283; Miller v. State, 3 Ohio St., 476; Black on Intoxicating Liquors, sec. 514; Belle Centre v. Welsh, 11 Dec. Re., 41; 24 W. L. B., 176; 461; 467; 510; Bellefontaine v. Vassaux, 55 Ohio St., 331; Hanoff v. State, 37 Ohio St., 184; Anderson v. State, 22 Ohio St., 305; Parker v. State, 4 Ohio St., 565; Weis

      brodt v. State, 50 Ohio St., 192; Stockwell v. State, 27 Ohio St., 563; Stick v. State, O. L. B., June 16, 1902; secs. 1752, 1792, 4363-205, 4364-20c, 3505, 6505, 6560, 6565, 6565 as amended 95 O. L., 121; 6804 and 7356, Rev. Stat.
   By the Court.

If the court of common pleas rightfully reviewed the finding and judgment of the mayor on the weight of the evidence, it was the duty of the circuit court to read, consider and pass on the same question when legally asked by petition in error to do so. It appears of record that the court of common pleas did review the finding and judgment of the mayor upon the weight of the evidence, and found for the state on that as well as all' the other assignments of error. The accused party, by petition in error, presented, the same questions to the circuit court for its consideration and judgment, and it declined to consider the bill of exceptions as to the sufficiency or weight of the evidence, and in this we think the circuit court committed error.

Much confusion has been caused by the statutes providing for the review of the judgments of justices of the peace, mayors and police courts, and it seems to be claimed by the State in this case, that there is a separate procedure for the review of such judgments in criminal cases; — -one for the review of the judgment of a justice of the peace, another provision for the review of a judgment of a mayor, and still another for the review; of the judgment of a police court, and that the practice prescribed for one, can not be adopted to review a judgment of either of the other courts named. This is the broad proposition made on page ten of brief for the State.. If this is true, it is an unfortunate state of the law in which we have independent systems of practice before those tribunals where uniformity as well as simplicity should prevail. But we do not think such contention is tenable to the extent claimed. We will not enter upon the task of construing and reconciling the apparently conflicting statutes reflecting upon the subject, being content in finding simple grounds upon which to base our conclusion.

Much of the argument for the State is drawn from the case of Williams v. The State, 25 Ohio St., 628, decided in December, 1874, where it was held, that under the provisions of the municipal code then in operation, there was no authority to review the facts in a ease of conviction or sentence by a police court; — that under the then provisions, there was no authority for taking an exception to the overruling a motion for new trial on the ground that the verdict or finding of the court is not, sustained by sufficient evidence, or for setting out the whole of the testimony in a bill of exceptions if the motion be overruled. But in April, 1876, the municipal code (section 179) was amended, so that the overruling of a motion for .a new trial on the ground that the finding of 'the court (police court) is against the weight of the evidence, may be assigned for error. Hence the case of Williams v. The State, supra, has been shorn of much of its influence. This view finds confirmation in the case of Slaughter v. The City of Columbus, 61 Ohio St., 53, where it is held that ‘ ‘ a conviction in a police court may be reviewed by a proceeding in error on the ground that it is against the weight of the evidence.”.

It is worthy of note that the case last cited involved conviction of violating an ordinance of the city and not of a statute of the State, and that, therefore, a final sentence by the police court for violating an ordinance may be reviewed on the weight of the evidence. And the sentence of a police court for violation of a criminal statute, over which offense such court has final jurisdiction may now be reviewed on the same ground. With the above observations, we look to section 7356, Revised Statutes, which reads: “In any criminal case, including a conviction for a violation of an ordinance of a municipal corporation, the judgment or final order of a court or officer inferior to the common pleas court may be reviewed in the common pleas court; a judgment or final order of any court or officer inferior to the circuit court may be reviewed in the circuit court; and a judgment or final order of the circuit court or the common pleas court in cases of conviction of a felony or a misdemeanor, and the judgment of the circuit court in any other case involving the constitutionality or construe-' tion of a statnte, may be reviewed by the supreme court, but the supreme court shall not in any criminal cause or proceeding, except when its jurisdiction is original, be required to determine as to the weight of the evidence.”

This section clearly authorizes a review of the judgment of the mayor in cases like the present, if the method of procedure to reach the reviewing court includes the right to consider the weight of the evidence. We think section 6565 now furnishes this mode of procedure, and it includes the right to have a review of the judgment on the weight of the evidence. The first paragraph of the section provides, “that in all cases before a justice of the peace, mayor or police judge, whether tried by a jury or the justice, mayor, or police judge, either party shall have the right to extíept to the decision of the justice, mayor, or police judge, upon any matters of law arising in the case.” The section prescribes the time and manner of excepting, and continues, ‘ ‘ or exception is to the decision of the court on a motion to direct a non-suit, * * * or for a new trial, because the verdict, or if a jury is waived, the finding of the court is against the law and the evidence, or on the admission or rejection of evidence, the party excepting must reduce his exception to writing and present the same to the trial justice, mayor, or police judge or his successor, etc. * * * ”

In The State v. Ransick, 62 Ohio St., 283, this court held that the above section “embraces all cases before a justice of the peace — not merely civil cases. The object seems to have been economy and convenience in practice, and in reason, applies as well to criminal as to civil cases.” That was a criminal ease.

We have no doubt the rule also extends to criminal and civil cases before the mayor, for such is the broad language of the first part of the section. This section still stands notwithstanding the change in section 6560, which provides the grounds for new trial in civil cases before a justice of the peace. The latter section applied only to justices of the peace in civil cases, while section 6565, as we have seen, applies to justices of the peace, mayors and police courts, “in all cases.”

A simple rather than a complex practice is desirable, and as the magistrate in cases like the one before us seems to have final jurisdiction and authority to assess heavy penalties, it is but reasonable that there should he a chance of review upon the facts in the case. If a jury is denied the accused, the facts are to he weighed hy a. single mind. There is a mode, therefore, of reviewing the 'conclusions which the mayor may reach upon the evidence in such cases where he has final jurisdiction.

The circuit court erred in not reading and considering the hill of exceptions on the weight of the evidence, for which error its judgment is in part vacated, and the cause remanded to the circuit court with directions to read and consider the hill of exceptions as to the weight of the evidence, and pass judgment upon the same.

We find no other prejudicial errors.

Each of the following cases involves precisely the same question:

9545. Isaac Kaufmann v. The State of Ohio;
9546. Charles Gorman v. The State of Ohio;
9547. H. J. Sehweinsherger v. The State of Ohio.

The same judgment is rendered and order made in each as rendered and made in the leading case.

Judgments vacated and causes remanded.

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


author: Spear, J.

text:
    Thomas, Sheriff, v. Evans.

      Conflict of statutes — Later act governs earlier one — Act of February 25, 1852, giving general jurisdiction to probate court— Concerning extradition of fugitives from justice — Fro tanto repealed by act of March 28, 1875 — Duty of sheriff on receiving warrant for arrest of fugitive from justice — Jurisdiction of courts in premises — Habeas corpus — Sections 97 and 5727, Revised Statutes — Criminal law.

    1. Where the general provisions of a statute are found to be in conflict with the express provisions of a later act relating to a particular subject, the latter will govern although the words of the earlier general act, standing alone, would be broad enough to include the subject to which the more particular provisions relate.
    2. The provision of the act of February 25, 1852, which gives tO' the probate court general jurisdiction to allow writs of habeas corpus (now incorporated in section 5727, Revised Statutes), is, with respect to the extradition of fugitives from justice, in conflict with the act of March 23, 1875 (now section 97, Revised Statutes), and is pro tanto repealed and superseded by the later act, the same being a special provision relating to a particular subject.
    3. Where a sheriff receives from the governor a warrant issued to him under favor of section 97, Revised Statutes, it is his imperative duty to arrest the person named therein as a fugitive from justice, if found within his county, and take him before a judge of the supreme court, or of the circuit court, or of the common pleas court of the district, to' be examined on the charge named in the warrant; and the probate court is without power, by virtue of its general jurisdiction in habeas corpus, or otherwise, to order a discharge of the prisoner.
    (No. 8744
    Decided December 22, 1905.)
    Error to the Circuit Court of Mahoning county.
    The ease under inquiry here had its origin in a proceeding in habeas corpus, commenced by the defendant in error, John M. Evans, against the plaintiff in error, James M; Thomas, sheriff, in the probate court of Mahoning. Evans’ petition alleged that he is imprisoned and restrained of his liberty by James M. Thomas, in the jail of Mahoning county; that the imprisonment is without any legal authority, and he therefore prayed that a writ of habeas corpus may issue to inquire into said detention and imprisonment, and that upon hearing he may be discharged.
    The answer showed that the defendant was the sheriff of Mahoning county; that as such officer he held Evans by virtue of a warrant from the governor of Ohio, commanding him, the sheriff, to arrest Evans and take him before a judge of the supreme court, the circuit court, or of the court of common pleas of the state in whose district Evans might' be found, to be dealt with as provided by law, and on said warrant, if so directed by such judge, to deliver Evans to one William Elmore, as agent of the state of Pennsylvania; that said warrant was issued pursuant to a requisition made by the governor of the state of Pennsylvania for the extradition of said Evans, a fugitive from the justice of said state, charged with the crime of false pretenses, which charge was made duly to appear to said governor of the state of Ohio, by a copy of a complaint duly authenticated and attached to the requisition aforesaid, and that upon full hearing the said governor of Ohio complied with said requisition and issued to the defendant as sheriff the warrant aforesaid; that he duly received said warrant October 29,1902, about 10 A. M. of said day, and that he immediately, and in accordance with the commands thereof, took Evans into his custody, having found him in the county of Mahoning, and was proceeding to take him before one of the judges of the court of common pleas of Mahoning county, when the writ of habeas corpus was issued and served upon Mm. A paper purporting to be a copy of the governor’s warrant was attached to the answer, and the answer averred that it was a true and correct copy of the same.
    The reply of the petitioner denied that he was at any time a fugitive from the justice of the state of Pennsylvania; denied that the governor of Ohio had any authority or right to issue the warrant for the reason that- the proper affidavits were not filed with said governor before the issuing of the warrant; that the papers on which the warrant was issued were defective, and denied that he is lawfully held by virtue of any legal authority whatever.
    Testimony having been offered upon these issues by the parties, the probate court found and held that the warrant of the governor of Ohio, a true copy of which is attached to the sheriff’s return, was illegally issued and void, and the custody of Evans by the sheriff was illegal, and thereupon ordered Evans discharged.
    Upon error to the common pleas and later to the circuit court this judgment was affirmed, and the sheriff brings error here.

      Messrs. Arrel, McVey & Tayler, for plaintiff in error.

      Mr. A. W. Jones and Mr. W. 8. Anderson, for defendant in error.
   Spear, J.

The errors complained of are stated in a number of differing forms, but the substance of all is that the probate court erred in overruling the motion of the sheriff to dismiss the action and remand Evans to his custody to be dealt with according to law, and in ordering him discharged.

Elaborate argument of counsel, both orally and by brief, is directed principally to the question of whether or no Evans had been shown to be a fugitive from the justice of the state of Pennsylvania, and whether or no the documents accompanying the requisition of the governor of Pennsylvania were sufficient in law to justify the issuing of the warrant by the governor of Ohio.

But we are of opinion that a preliminary question arising upon the record should first be considered. That is: Irrespective of the questions above stated, did the probate court, under the pleadings, have power to grant any relief to the petitioner? The question reaches to the jurisdiction of that court of the subject matter. Section 7 of article 4 of the constitution provides for the establishment in each county of a probate court, which shall be a court of record, and the following section provides for its jurisdiction. It “shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians, and such jurisdiction in habeas corpus, * * * as may be provided by law. ’ ’ The jurisdiction, then, of that court, in habeas corpus rests wholly on the statute law of the state. What is it? Pursuant to this constitutional authority, the general assembly, by the act of February 25,1852 (50 O. L., 84), conferred upon the probate court jurisdiction in allowing and issuing writs of habeas corpus, and that enactment has been continued, although expressed in different language by divers amendments, and is now embodied in section 5727 of the Revised Statutes.

In passing it may be remarked that the right of one state to demand, and the duty of another state to award, extradition of fugitives from justice, rests primarily upon section 2 of article 4 of the constitution of the United States, by which it is provided that “a person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime; ’ ’ also upon the provisions of section 5278, of the laws of the United States which further prescribes the duty and provides for the manner of its exercise. Exclusively under these two sources of power all extradition proceedings in this state were conducted until the enactment, March 23, 1875, of a statute entitled “An act to regulate the practice of the delivery of fugitives from justice when demanded by another state or territory.” That act pointed out the conditions under which the governor of this state should issue his warrant to the sheriff of the county in which such person so charged may be found. The warrant shall command the sheriff to forthwith arrest and bring such person before any judge of the supreme court, or any judge of the court of common pleas in whose district such person so charged may be found, to be examined on the charge. It shall be the duty of the judge before whom the person so arrested is brought to proceed to hear and examine such charge, and upon proof made in such examination by him adjudged sufficient, to commit such person to the jail of the county for a reasonable time and cause notice to be given to the executive making such demand, or his agent appointed to receive the fugitive, and on payment of costs such fugitive shall be delivered to such agent, to be thence removed to the proper place for prosecution. This act was amended by tbe act of February 7, 1885, by designating any judge of the circuit court as one before whom the accused might be taken for examination, but not otherwise changing the substance, and the provision is preserved in the present Revised Statutes as section 97.

This legislation has been held to be constitutional so far as it is in aid of the provisions of the constitution of the United States and the federal statute hereinbefore cited. Ex parte Ammons, 34 Ohio St., 518. What, then, is its effect upon the case before us 1 The command upon the sheriff is imperative. He must take the prisoner before, a judge of the class enumerated in the statute. No other will answer' that requirement. The very language excludes a judge of the probate court from the number. The sheriff is, therefore, in positive disobedience of the strict command of the statute if he take his prisoner before a judge not of the kind enumerated in this statute who may, at his discretion, set the arrested person free and thus absolutely nullify the statute. Plainly, then, if under the general act of 1852, giving jurisdiction to the probate court in habeas corpus that court can step in and arrest the course of procedure peremptorily required by the later statute affecting extradition, we have two statutes apparently in direct conflict. In such situation which should prevail ? We think the rule applicable to the case is free from serious doubt. It is that when such conflict is found to exist the terms of the later special act must be held to embody the latest expressed intent of the law-making body, and must control. To the extent of the repugnancy the earlier act is repealed; there being specific provisions relating to a particular subject, they must govern in respect to that subject, although the words of the earlier general law, standing alone, would be broad enough to include the subject to which the more particular provisions relate. In other words, the later statute creates an exception to the other more general provision. The rule here relied upon is so well established and has been so often recognized by this court, that authorities seem superfluous; yet we cite: Endlich on Interpretation of Statutes, sec. 216; Bishop on the Written Laws, sec. 112a; London, etc., Ry. v. Wandsworth Board, Law Rep., 8 C. P., 185; Townsend v. Little, 109 U. S., 504; The State ex rel. v. Commissioners, 36 Ohio St., 326; The State ex rel. v. McCracken, 51 Ohio St., 123; Cincinnati v. Holmes, 56 Ohio St., 104; Cas Co. v. Tiffin, 59 Ohio St., 420; The State ex rel. v. Halliday, 63 Ohio St., 165; The State ex rel. v. Morris, 63 Ohio St., 496.

The conclusion seems inevitable that, applying the extradition statute to the subject matter, the probate court was without power to control the sheriff in the discharge of a plain statutory duty,.and that as soon as it appeared that the cause of the detention of Evans by the sheriff was the possession and arrest under it of a warrant from the governor of Ohio, ordering such arrest of Evans as a fugitive from justice and that he be taken before one of the judges enumerated in the statute, and this condition appeared conclusively so soon as the reply was filed, the plain and only duty of that court was to dismiss the proceeding, and release to the sheriff the custody of the alleged fugitive. In view of this conclusion it ÍS' not necessary to dispose of the other questions so ably argued by the eminent counsel, and they are not here considered.

The judgments of the courts below will be reversed, with costs, final judgment rendered for plaintiff in error, and the cause remanded with direction to carry the judgment for costs into execution.

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


author: Summers, J.

text:
    Cattell v. Putman et al.

      Assessment for county ditch — Not made hy county commissioners —Until ordered placed on duplicate — -Section Jflf19, Revised Statutes.

    An assessment for a county ditch is not made hy the county commissioners until it is ordered hy them to he placed on the duplicate against the lots or lands or corporations or railroads assessed as provided hy section 4479 of the Bevised Statutes.
    (No. 9338
    Decided December 22, 1905.)
    Error to the Circuit Court of Yan Wert county.
    November 14,1901, the county surveyor of Mercer county, as theretofore ordered by the county commissioners, returned a schedule of all lands that would be benefited by a county ditch, with an apportionment of the costs of location and labor of constructing the same. Thereafter the board of county commissioners confirmed said report and directed the surveyor to receive bids and contract for the construction of the ditch, which he did, and on May 5, 1902, the board approved the contract and on that day ascertained the entire cost of location and construction and assessed the lands hereinafter mentioned in the sum of $367, and ordered the auditor to place said assessment on the special ditch duplicate.
    On March 18,1902, subsequent to the day on which the board of commissioners confirmed the report of the surveyor and prior to the day on which it ordered the county auditor to place the assessment on the special ditch duplicate, the defendants by deed of general warranty conveyed the land to the plaintiff. The plaintiff paid the assessment and brought suit to recover from the defendants.
    The court of common pleas made the following finding of facts:

      First. That a petition and bond were duly filed in the auditor’s office of Mercer county, Ohio, for the location and construction of a county ditch on the second day of October, 1901.

      Second. The board of county commissioners of said county duly found for and established a ditch improvement October 25, 1901, and on that day caused to be entered on their journal an order directing the county surveyor to return a schedule of all lands that will be benefited by said improvement with an apportionment of the cost of location and labor of constructing the same.

      Third.' Said county surveyor filed his report under said order in the auditor’s office of Mercer county, Qhio, November 14, 1901. Said surveyor reported the lands described in the petition to be benefited by said improvement and apportioned to said land the sum of $367 of the cost of location ■ and construction of said improvement.

      Fourth. The board of county commissioners of Mercer county, Ohio, modified the apportionment so reported and on the fourteenth day of November, 1901, did confirm said modified report and fix the time for sale of the construction of said improvement, and directed the said'county surveyor to attend at the time and place, to superintend and conduct such sale and receive bids for the construction of such improvement and make contracts therefor and take sufficient bond.

      Fifth. Said county surveyor in compliance with said order did receive bids for the construction of said improvement, and on the fifteenth day of May, 1902, entered into a contract with such bidder and did take the bond conditioned according to law for the construction of said improvement.

      Sixth. The board of county commissioners of Mercer county, Ohio, on the fifth day of May, 1902, approved said contract and bond of the contractor and on that day did ascertain the entire cost of location and construction of said improvement, and did then assess the lands described in the petition for the said cost of location and construction in the sum of $367 and then ordered the auditor of Mercer county, Ohio, to place said assessment of $367 on the special ditch duplicate against the lands described in the petition.

      Eighth. The auditor of Mercer county, Ohio, immediately after the fifth day of May, 1902, in compliance^ with said order placed said assessment, to-wit: $367 upon said special duplicate against the lands described in the petition. Said assessment was thereafter collectible and was paid by the plaintiff.
    . Its conclusion of law was that the assessment first became and was a lien upon said premises on May 5, 1902, and that there was no breach of the covenants of warranty.
    On error the circuit court affirmed.

      Mr. G. S. Mauk, for plaintiff in error.

      Mr. II. G. Richie and Messrs. Balyeat & Conn, for defendants in error.
   Summers, J.

The provisions of the ditch law are not and never have been commendable for their perspicuousness. Relative to a county ditch the statutory provisions may be briefly summarized as follows:

Section 4450 provides that application shall be made to the county commissioners.

Section 4451 provides what the petition shall set forth and that it shall be filed with the county auditor.

Section 4451a. provides that the auditor shall fix a day for the hearing-of the petition; that he shall give a copy to the county commissioners, and that he shall prepare and deliver to the petitioners, or any one of them, notices directed to the landowners and the corporations affected by the improvement.

Section 4452 provides that on the day fixed the commissioners shall give a hearing at the head of the ditch, and by actual view of the line of the ditch and of the premises to be drained and benefited thereby, determine the necessity thereof.

Sections 4452 and 4454 provide that' if the commissioners find for the improvement, they shall direct the county surveyor to survey the ditch and make á plat of the improvement,, and they shall fix a day for the approval of his report and for the hearing of applications for compensation for lands taken and for damages to parties affected by the improvement.

Section 4455 provides that the commissioners shall direct the surveyor to return a schedule, of lands benefited and an apportionment according to the benefits to the lands benefited, of the cost of the improvement.

Section 4459 provides for the hearing by the commissioners of the report of the surveyor; for amending or changing the apportionment reported by him; for the bringing in of omitted owners of lands that are benefited, and for the apportioning of the entire cost to all the lands benefited.

Section 4460 provides for application for compensation or damages, or a change of the line of the ditch through their premises by owners whose lands are taken or damaged.

Section 4461 provides that the commissioners shall fix and allow compensation and damages, and that they may require the whole or part to be paid by the county or apportioned on all the lands that will be benefited.

Section 4462 provides that at any time before the time set for the final hearing of the report and apportionment, any party to the proceeding may file exceptions to the findings of the commissioners, or to the apportionment, or as to compensation or damages.

Section 4463 provides for appeals to the probate court.

Sections 4475 and 4476 provide for letting the work.

Section 4479 provides: “When the working sections of the improvement are let, as hereinbefore provided, and the costs and expenses of location and construction, and all compensation and damages are ascertained, the commissioners shall meet and determine in what time and in what number of assessments they will require the same to be paid, and order that the assessments, as made by them, be placed on the duplicate accordingly, against all the lots or lands, or corporate roads or railroads assessed,” and they shall also determine whether they will issue bonds to pay such costs and expenses.

The contention of counsel for plaintiff is that the lands were assessed on November 14,1901, when the apportionment was approved. In support of this he calls attention to the provision in section 4459 that: “If parties, not included in the county survey- or ’s apportionment, are found to he benefited, and are assessed- by the commissioners, such parties shall be notified,” etc.; to section 4459a, that if any land upon which such assessment is made be subdivided, or any part thereof be sold and transferred on the duplicate, it shall be the duty of the auditor, at the time he makes such transfer, to apportion the amount of the assessment between the owners of such land; and to the provision in section 4475a, that when the estimated cost of construction of a ditch is $500 or more per mile, and the petition is filed with the board of commissioners by persons who are assessed, that the commissioners may sell the same as an entirety.

The act of 1871 (68 O. L., 60), which seems to be the source of most of the present ditch laws, provided for an apportionment of the work of constructing the ditch and of the costs and compensation and damages among the owners of lands to be benefited according to the benefits. At the time the apportionment was made, the means, that is, the costs, compensation, damages and labor, necessary to the construction of the ditch, were known. The labor was the principal thing. It was apportioned to the several tracts of land, and at the same time .the costs, compensation and damages were apportioned to the respective owners. Now the construction is let, and until the- contracts are entered into, the sum necessary to pay for the ditch, that is to say, the costs, compensation, damages and costs of construction, is not known, and it is evident from a close scrutiny of the various provisions of the statutes that it is not until the sum necessáry for the payment of the ditch is ascertained that an assessment is to he made. This is implied by section 4479. Prior to that, it is only the apportionment that is made. The estimated cost of the improvement is apportioned to the lands benefited. It is only the actual cost that is to be ordered placed on the duplicate. The contract price is limited to the estimate, it may be less, and if an assessment of the estimated cost had been intended it is probable that provision would have been made for rebates. Bonds may be issued, but only for the actual amount.

Section 4459 does not provide for an assessment but for a change of the apportionment, and it is evident that the words “are assessed” in section 4459, mean “are to be assessed,” and that, when in section 4459a, reference is made to the “land upon which such assessment is made,” that “is to be made” is what was intended, and that the words “who are assessed,” in section 4475a, should be read “who are to be assessed. ’ ’ These expressions are used merely to identify persons or land, and to so construe the statute does not change its meaning, while to give them the effect contended for would be to convert an apportionment into an assessment and to charge upon the land more than might be necessary. Moreover, section 4480 provides that when the commissioners make an assessment they shall direct the auditor to make and furnish the treasurer a special duplicate and to retain a copy in his office, and certainly it is not intended that one duplicate shall be made before the ditch is let and another after.

Affirmed.

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


author: Crew, J.

text:
    The State ex rel. Hornbeck, Prosecuting Attorney, v. Durflinger.

      Change of venue in criminal cases — May be had upon application of prosecuting attorney on behalf of state, when — Section 7268, Revised Statutes, not repugnant to section 10, article 1, Ohio constitution.

    1. Under authority of section 7263, Revised Statutes, regulating the change of venue in criminal cases, the court having jurisdiction of the cause in the county of the offense, if it be made to appear to the court that a fair and impartial trial cannot be had therein, may, upon application of the prosecuting attorney on behalf of the state, direct that the cause b,e tried in an adjoining county.
    2. Said section thus construed, is not repugnant to section 10 of article 1 of the constitution of Ohio.
    (No. 9705
    Decided December 22, 1905.)
    In Mandamus.
    The petition of relator in this ease is an original petition in this court, the averments of which are as follows: “Now comes the relator, C. R. Horn-
    beck, and for his cause of action herein says: “That he is the duly elected, qualified and acting prosecuting attorney within and for the county of Madison, Ohio, and that the defendant, S. W. Durflinger, is the duly elected, qualified and acting judge of the court of common pleas within and for the fifth district of the state of Ohio and holds the terms of the court of common pleas within and for the county of Madison.
    “That at the May term of said court of common pleas, 1905, within and for said county, the grand jury returned an indictment against one Jacob McCartney for murder in the second degree, to which indictment, after being arrested on a warrant duly issued thereon, the said Jacob McCartney has entered a plea of not guilty, and upon which issue the cause is now pending in said court for trial. Thereupon at said May term of said court this relator being fully satisfied that a fair and impartial trial of the said Jacob McCartney on said indictment could not be had in the said county of Madison, made application on behalf of the State, in writing to said court, the said defendant then presiding, under and by virtue of the provisions of section 7263 of the Revised Statutes of Ohio, for a change of venue and for an order that the said Jacob McCartney he tried on said indictment in a county adjoining the said county of Madison.
    “That said application came on for hearing before the said S. W. Durflinger, as judge of said court as aforesaid, who thereupon refused to consider the said application and refused to hear any evidence thereon and refused to pass upon the merits of the same for the sole and only reason that in the opinion of the said S. W. Durflinger the State of Ohio was not entitled under the constitution and laws of the state to a change of venue in a criminal case.
    “Wherefore, relator prays that a writ of mandamus issue against the said S. W. Durflinger commanding him to proceed to hear and determine said application for a change of venue on its merits, and also asks all other proper relief.” To this petition the defendant interposed the following demurrer: “Now comes the defendant and demurs to the petition and application of the plaintiff herein for the reason that the same does not state facts sufficient to -constitute a cause of action against the defendant.” Upon this demurrer, which challenges the right of relator to the relief prayed for, this cause is now submitted. (lessees) should yield and pay to the lessor, plaintiff herein, the one-sixth part of all the oil produced and saved from the premises, delivered free of expense into the tanks or pipe line to the credit of plaintiff * * It is further alleged that in pursuance of the terms of the lease, the lessees proceeded to operate and have completed six wells, and since on or about December, 1902, have been continuously operating-under said lease; that The Buckeye Pipe Line Company connected its lines with the oil tanks on the leasehold under an arrangement with the lessees, and that it has taken into its lines all the oil produced from his lands without any authority from him to so do; that plaintiff had signed and tendered to the Pipe Line Company a division order giving him the one-sixth of said oil, and the lessees five-sixths, and requested it to sign the same, and that it refused ; that he signed and presented a similar division order to the lessees and requested them to sign the same and that they refused, and that by their conduct and the conduct of the Pipe Line Company, he has been and is being deprived of his one-sixth of the oil. The prayer of the petition is for a decree of specific performance, and that the Pipe Line Company account for the oil taken from said premises, and that plaintiff have judgment for the amount found due him and for general relief.

      Mr. Wade H. Ellis, attorney general, for plaintiff; Mr. J. M. .Sheets and Mr. W. H. Miller, of counsel,
    cited and commented upon the following authorities:
    Article 1, sec. 10, Const.; Bishop’s Criminal Procedure, sec. 68; art. 1, secs. 73 and 75a; 1 Chitty’s Criminal Law, 201; 12 Cyc., 230; People v. Powell, 11 L. R. A., 75; State ex rel. v. McCarty, 52 Ohio St., 363; State v. Myers, 10 Dec. Re., 397; 21 W. L. B., 57; State v. Arrison, 10 Dec. Re., 379; 20 W. L. B., 474; People v. Peterson, 93 Mich., 27; People v. Fuhrmann, 103 Mich., 593; Berry v. Truax (N. D.), 65 L. R. A., 762; Mischer v. State, 41 Tex. Crim. Rep., 212; Cooley’s Const. Lim., 319; Williams v. State, 12 Ohio St., 622; Cancemi v. People, 18 N. Y., 128; Hewitt v. State, 43 Fla., 194; 3 Blackstone; 383; King v. Nottingham, 4 East, 208; People v. Webb, 1 Hill, 179; People v. Vermilyea, 7 Cow., 139; King v. Harris, 1 William Blackstone, 378; People v. Baker, 3 Abb. Pr., 42; King v. St. Maryan, 7 Term Rep., 735; Brown v. State, 8 Blackford, 561; Hill v. People, 16 Mich., 351; State v. Everett, 14 Minn., 447; State v. Carman, 63 Ia., 130; Montana v. Ah Wah, 4 Mont., 149; sec. 7263, Rev. Stat.

      Mr. John A. Lincoln, for defendant; Mr. John F. Locke and Mr. James F. Bell, of counsel,
    cited and commented upon the following authorities:
    Article 8, sec. 11, Const. 1802; art. 1, sec. 10, Const.; 1 Debates of Ohio Convention, 191; art. 1, sec. 10, Const. 1851; State v. Arrison, 10 Dec. Re., 379; 20 W. L. B., 474; Osborn v. State, 24 Ark., 629; People v. Powell, 87 Cal., 348; Kirk v. State, 1 Coldw., 344; Wheeler v. State, 24 Wis., 52; State v. Howard, 31 Vt., 414; Ex parte Rivers, 40 Ala., 712; State v. Knapp, 40 Kan., 148.
   Crew, J.

The single inquiry suggested by this record is, can the trial of a criminal cause in this state, be removed from the county in which the offense is alleged to have been committed, to an adjoining county within the state, upon the application of the prosecuting attorney and without the. consent and against the will of the defendant, when it shall be made to appear to the court having jurisdiction of the cause in the county in which the crime was committed, that a fair and impartial trial cannot be had in the latter county.

Section 7263, Revised Statutes of Ohio, provides as follows: “All criminal cases shall be tried in the county where the offense was committed, unless it appear to the court, by affidavits, that a fair and impartial trial can not be had therein; in which case the court shall direct that the person accused be tried in some adjoining county.” This statute, it will be' observed, is general and comprehensive in its terms, and does not, either expressly or by implication, restrict the right to apply for, or to have, a change of venue in a criminal case, to the defendant. But the effect of the language employed in this section, giving to the same its natural import, is to confer such right equally upon the state and the defendant. It must therefore be conceded, that unless this statute is repugnant to, and in conflict with section 10 of article 1 of the constitution of Ohio, that the State equally with the defendant may in a proper case, under favor of its provisions, apply for and have a change of venue in a criminal cause. Article 1, section 10 of the constitution of this state, guarantees to the party accused, “a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” Whether, then, section 7263, Eevised Statutes, in so far as it authorizes a change of venue in a criminal case upon the application of the state, is unconstitutional, because in conflict with this provision, must and does necessarily depend upon the nature and extent of the right guaranteed and secured to the accused, by this provision of the constitution. If as contended by counsel for defendant, the words “county” and “district” as employed in this provision, in defining the rights of the accused with respect to the place of trial, are merely synonymous words, and the right therein given and secured to the accused is the absolute, unqualified right to be tried in, and by a jury of, the county where the offense is alleged to have been committed, and if as claimed, a defendant in a criminal case cannot under any circumstances, unless he consent thereto, be tried in a county other than that in which the crime was committed, then clearly, if this be the organic law, the legislature is without authority to abridge or deny such right, and section 7263, in so far as it authorizes and permits a change. of the place of trial upon application of the state, must be held to be unconstitutional and void. If however, within the meaning of this provision of the constitution, the right guaranteed to the accused is not an absolute right to be tried in all cases by a jury of the county in which the offense is alleged to have been committed, but is a qualified right, subject to and conditioned upon the possibility, that a fair and impartial trial can be had in that county, then and in that event, section 7263 although authorizing a change of venue on application of the state, would not for that reason be in conflict with or repugnant to the above provision of section 10 of the constitution. And if constitutional, said statute clearly authorizes the relief asked by relator in his petition, and the demurrer of defendant should be overruled. To give to this provision of the constitution the interpretation suggested by counsel for defendant, and to hold that the right thereby guaranteed to the accused is the right in all cases to be tried in the county of the offense, unless such right be waived by him, is to ignore the plain letter of the provision, and to disregard the familiar and fundamental rule of interpretation which requires that in the construction of a statute or constitution, meaning must, if possible, be given to every part and word. The constitutional guaranty contained in the section now under consideration, is not of a right to be tried in the county, but in “the county or district in which the offense is alleged to have been committed.” That the term “district” as employed in this section, is not synonymous with county, but as used therein by the makers of the constitution was intended to designate and include, a place or jurisdiction other, and distinct from that of the county wherein the offense was committed, is we think too obvious to admit of serious question. Any other interpretation of this section, or at least that claimed for it by counsel for defendant, would not only make the use of the word district superfluous., but wholly divest it of meaning, or appropriate office. In construing this provision of the constitution, this court held in the ease of State ex rel. v. McCarty, Judge, 52 Ohio St., 363, that: “The guaranty contained in section ten of the bill of rights, that an accused person shall have a ‘trial by an impartial jury of the county or district in which the offense is alleged to have been committed,’ does not require that the trial shall take place within the judicial district where the indictment is found.” In the opinion in that case it is said: “There is no constitutional right to a trial in an adjoining county, unless it is implied in the use of the word ‘district’ # * *. The provision of the statute, (sec. 7263), that in the case contemplated the place of trial shall be changed to an adjoining county, is a legislative interpretation of the constitutional guaranty. That interpretation regards the district as the vicinity, * * ” In the case of Hewitt v. The State of Florida, 43 Fla., 194, in which the supreme court of Florida had before it for construction section 11 of the Declaration of Rights in the constitution of that state, which provides: “Sec. 11. In all criminal prosecutions the accused shall have the right to a speedy and public trial, by an impartial jury, in the county where the crime was committed,” the first clause of the syllabus is as follows: “By the common law an accused had the right to be tried in the county in which the offense was alleged to have been committed, where the witnesses were supposed to be accessible, and where he might have the benefit of a good character, if he had established one there, but if an impartial trial could not be had in such county it was the practice to change the venue to some other county where such trial could be obtained;. The right of trial in the county where the offense is alleged to have been committed, when an impartial jury can there be had, is secured to the accused by section 11, Declaration of Eights, Constitution of 1885, but it is not the design of this provision to force a trial in a county where an impartial jury cannot be obtained, as to do so would defeat the greater and more important right of a speedy trial by an impartial jury.” And it was held in this case that a statute authorizing a change of venue in criminal cases on the application of the state and without the consent of the accused, where an impartial jury could not be secured in the county where the offense was alleged to have been committed, was constitutional. The construction and interpretation adopted by the court in this case finds support in the following authorities: State v. Miller et al., 15 Minn., 344; Barry v. Truax (decided in May, 1904), 99 N. W. Rep., 769; The People v. Peterson, 93 Mich., 27; The People v. Webb, 1 Hill, 179; State v. Wheat, 111 La., 859; The People v. Baker, 3 Abb. Pr., 42; 1 Bishop on Criminal Procedure, sec. 73; Abbott’s Trial Briefs, page 79.

Of the cases cited in the brief of counsel for defendant, those of The State v. Knapp, 40 Kan., 148; Kirk v. State, 1 Coldw., 344; Wheeler v. State, 24 Wis., 52; Ex parte Rivers, 40 Ala., 712; and State v. Hotvard, 31 Vt., 414, do not, we think, support the contention of counsel for defendant in this case, nor are they necessarily in conflict with the authorities above cited. The other two cases cited, People v. Powell, 87 Cal., 348, and Osborn v. State, 24 Ark., 629, seem to be in point, and to fairly support the' claim of. defendant’s counsel, as to the interpretation proper to be given to the constitutional provision under consideration in the present case. But they are we think so far opposed by the better reason and clear weight of authority, that we xnay not follow them. After careful consideration, and the examination of many authorities in the present case, we are convinced that section 7263, Revised Statutes, to the extent that it authorizes a change of the place of trial on the application of the state, from the county of the offense to an adjoining county, when a fair and impartial trial cannot he had in the former, is not in conflict with article 1, section 10 of the constitution of Ohio. It follows, that the demurrer to the petition must he overruled and a peremptory writ of mandamus awarded commanding the defendant to proceed to hear and determine relator’s application for change of venue, on its merits.

Peremptory writ allowed. .

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