text:
    The State, ex rel. Anderson, v. Spence et al., Judges.

      Bills of exceptions — Cases certified to supreme court — Section 11564, General Code, applies — Forty-day limitation for filing — Duty of judges of courts of appeals.

    1. Section 11564, General Code, fixes the time within which a bill of exceptions is to be filed, and its provisions apply to a case tried on appeal in the court of appeals where the record of the court is ordered to be certified to this court upon the grounds that the case is one of public or great general interest and that error has probably intervened.
    2. In such a case, where a bill of exceptions is not filed within the statutory time, the judges of the court of appeals are without authority to allow and sign such bill, and this court cannot compel them to allow and sign the same.
    (No. 15197
    —Decided May 16, 1916.)
    In Mandamus.
    This case was submitted upon a demurrer to the petition in mandamus filed in this court.
    On the 10th day of December, 1915, in an action pending in the court of appeals of Belmont county, on appeal from the court of common pleas, in which Ella L. Galloway and Eva E. Coventry, as administratrices of the estate of Sarah Coventry, deceased, were plaintiffs, and the relator herein, John H. Anderson, was defendant, a judgment was rendered in favor of plaintiffs. On the same day a motion for new trial was overruled. On the 2d day of February, 1916, the relator herein, who was defendant in the case in the court of appeals, filed a motion in this court for an order directing the court of appeals to certify its record in the case to this court, upon the grounds that the case was one of great general interest and that error had probably intervened. This motion was allowed on the 29th day of February, 1916, and an order was thereupon issued out of this court directing the court of appeals to certify its record to this court. On the 11th day of March, 1916, a petition in error was filed in this court by the relator herein. Thereafter, on the 21st day of March, 1916, the relator filed in the office of the clerk of the court? of appeals of Belmont county a true bill of exceptions in said case of Galloway et al. v. Anderson, and notice of the filing of said bill was given to counsel for plaintiffs in said case. The judges of the court of appeals, Hon. W. H. Spence, Hon. John Pollock and Hon. Willis S. Metcalfe, the defendants herein, although admitting that said bill of exceptions is true, have refused and still refuse to allow and sign the same. The relator prays that a writ of mandamus may issue commanding said defendants to allow and sign said bill.

      • Mr. Fred Spriggs; Mr. T. C. Ayers and Messrs. Kennon & Kennon, for relator.

      Mr. C. S. Sheppard and Mr. W. O. Chappell, for defendants.
   Newman, J.

The authority for the filing of a bill of exceptions is found in Section 11564, General Code, which is as follows:

“When the decision is not entered on the record, or the grounds of the objection do not sufficiently appear in the entry, or the exception is to the decision of the court on a motion to direct non-suit, or to arrest the evidence from the jury, or for a new trial for misdirection to the jury, or 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 exceptions to writing, and file them in the cause, not later than forty days after the overruling of the motion for a new trial, or the decision of the court, when the motion for a new trial is not filed.”

In the case under consideration the motion for a new trial was overruled on the 10th day of December, 1915. The bill of exceptions was filed with the clerk of the court of appeals on the 21st day of March, 1916, one hundred and two days after the motion for a new trial was overruled. The requirement in Section 11564, supra, that “the party excepting must reduce his exceptions to writing, and file them in the cause, not later than forty days after the overruling of the motion,” is mandatory. (Pace v. Volk, 85 Ohio St., 413.) It was incumbent, therefore, upon the relator, and his imperative duty, according to the provisions of the statute we have quoted, to file his bill not later than forty days after the overruling of the motion for a new trial, and not having done so he could not invoke the aid of the statutes which provide for the allowance and signing of the bill.

But it is insisted that the order of certification of this court made it mandatory upon the court of appeals to allow and sign a bill of exceptions regardless of the fact that the statutory time for the filing of the same had expired. In cases of public or great general interest where error has probably intervened, the order of this court is that the court of appeals certify its record to this court; that is, the record of the court of appeals made up according to law. Although the jurisdiction of this court is conferred by the constitution, yet the method of exercising it may be provided by law. Section 11564, supra, was in force when the constitutional amendments of 1912 became effective, and not being inconsistent with any of their provisions has continued in force. It prescribes a mode of procedure as to the taking of exceptions and fixes the time within which a bill can be filed. The bill becomes an original paper in the case, within the meaning of Section 12263, General Code, and it is not necessary that there be a journal entry ordering such bill to be made a part of the record in order to entitle it to be considered by a reviewing court. (Strauch v. The Massillon Stoneware Co., 71 Ohio St., 295.) But before it can become a part of the record of the court of appeals as an original paper the statutes must be complied with. Therefore, the rule of procedure adopted by the general assembly controls, and if the aggrieved party has failed to comply with its provisions this court cannot nullify such rule and grant him relief. The case of City of Akron v. Roth, 88 Ohio St., 456, is relied on by counsel for relator as an authority in support of his contention that this court may direct the court of appeals to allow and sign a bill of exceptions after the order of certification is made, although the statutory time has expired. Under the constitutional provision the general assembly is authorized to prescribe a limitation of time for the making of an application for an order of certification. No limitation of time having been prescribed by the general assembly a limitation of seventy days was fixed by this court in City of Akron v. Roth, supra. This court took the position that the entire subject seemed to be within its authority to prescribe such rules as are consistent with law for the proper institution of cases here and their conduct before it. But if this court were to permit the aggrieved party to wait until it had passed upon the application for an order of certification before a bill of exceptions is filed in the court of appeals, it would be establishing a rule wholly inconsistent with Section 11564, which places a limitation of forty days from the overruling of the motion for a new trial for the filing of the bill.

It is said that in cases like the one under consideration the court of appeals is the court of last resort until the granting of the motion by this court for an order of certification, and the court of appeals would therefore be justified in refusing to allow and sign a bill until the order of certification is granted, upon the ground that such action was premature and not within its authority. We do not think so. In City of Akron v. Roth, supra, it was held that a showing must be made upon the hearing of the application for an order of certification that the case is one of public or great general interest and that error has probably intervened. It fnay be that in some cases the question of probable error suggested in the application for an order of certification can be determined only by an examination of a bill of exceptions to ascertain just what action was taken by the court of appeals in reference to the matter complained of. Such a bill may not be necessary where there is no controversy between counsel as to the rulings made by the trial court, but if a difference of opinion should arise this court would of necessity be compelled to resort to a bill of exceptions, duly authenticated, to ascertain just what action was taken in the trial of the case.

Our holding is that the filing of a bill of exceptions is controlled by statute, and the relator not having complied with the same is not entitled to relief.

Writ refused.

Nichols, C. J., Johnson, Donahue, Wanamaker, Jones and Matthias, JJ., concur.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    The State of Ohio v. Doty.

      Criminal law — Aider and abettor — Indicted as principal for murder— Prosecution based on conspiracy — Knowledge of acts of principal immaterial, when — Charge to jury — Conspirators guilty with principal — Although latter's acts not contemplated —And conspirators absent and without knowledge — Evidence — Admissibility of confession detailing flight after crime — Confession to be sent to jury room, when — Evidence of threats and possession of weapons, inadmissible, when — Competency of evidence of payment of money by confederate.

    1. Where the state has indicted a defendant as a principal offender for murder in the first degree, but on the trial prosecutes him only as an aider and abettor and lodges its entire case upon proof of a conspiracy to commit an unlawful act by the use of deadly weapons or force and violence of such character as would reasonably be expected to cause the death of another, it is error to charge the jury that if it finds that the shot was fired by the principal offender without the knowledge, connivance or assent of the defendant the jury must acquit.
    2. Where only such unlawful act was contemplated in the original conspiracy, although not identical with or similar to the criminal act charged, if the conspired unlawful act and the manner of its performance would be reasonably likely to produce death, each conspirator is equally guilty with the principal offender, as an aider and abettor in the homicide, although such aider and abettor was neither present nor had knowledge of the physical killing or of the weapon used.
    3. Where a signed confession details the defendant’s connection with the crime charged and also contains an account of flight shortly following the crime and the actions of himself and one or more of his confederates, the entire confession is competent and relevant; but if improper or irrelevant statements are incorporated therein they may be excluded by the court.
    4. The parties in a criminal case have no legal right to demand that a signed confession be sent to the jury upon their retirement. When the same contains no irrelevant and prejudicial statements the trial court, in its discretion, may send such a confession to the jury room.
    5. Where on the trial the testimony discloses that the defendant was the aggressor and the person assaulted was within the peace of the state, and no testimony has been offered tending to support a plea of self-defense, it is error to admit testimony of threats made and weapons reported in the possession of others than the deceased, and especially is this so when the decedent has not been connected with the threats made or with the possession of such weapons.
    6. When a conspiracy has been established prima facie, the testimony of a confederate, tending to prove that the defendant paid him money the day after the homicide for services in connection therewith, is competent.
    (No. 15211
    —Decided May 18, 1916.)
    Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of. Hamilton county.
    The indictment in this case was oné which charged one Gabriel Sullivan, the defendant Herbert Doty, and three others, jointly as principals, with murder in the first degree in causing the death of one James Shall by the use and discharge of a pistol. The defendant Doty was tried separately.
    Gabriel Sullivan, the actual user of the pistol, had pleaded guilty to murder, and the court, previous to the trial of this case, having fixed the degree of his crime at second degree murder, he was confined in the Ohio penitentiary, but returned and testified as a witness for the state. On the trial of Doty the state offered testimony tending to prove that on Thursday, the 9th day of December, 1915, Herbert Doty and the other four indicted men met at a saloon a short distance from the Christ Hospital in Cincinnati and formed an agreement to go to the hospital and assault certain workmen who were engaged as painters at that place, and by the use of violence compel them from pursuing their work; that pursuant to this common purpose the five men, including this defendant, entered the hospital, Sullivan armed with a pistol, the defendant Doty with a blackjack, and one of the others with an iron bar. Having entered the building they proceeded to attack the painters at work, Doty assaulting one with the blackjack and Sullivan shooting Shall, causing his death. These assaults occurred in different rooms of the hospital. The defendant Doty was not present, nor did he actually know of Sullivan’s possession of the pistol or of its use in the killing of Shall. The time of the assault occupied about three minutes. Following the assaults the defendants again met in a saloon and placed the pistol and blackjack in the possession of the barkeeper for temporary safekeeping. That night the men left for Dayton, Ohio, where they separated, Doty and Perry leaving for Eaton, Ohio, where they were arrested on the following Sunday night.
    On the following Monday Doty made a confession in the presence of sundry witnesses, which was transcribed by one Kilgarriff and signed by Doty. This confession purported to detail the conduct and connection of Doty with the offense in Cincinnati, and also included a somewhat voluminous statement of what took place after the flight to Dayton. As to what transpired in Cincinnati the trial court permitted the confession to be offered, but held incompetent that portion of ■the confession which purported to relate to Doty’s conduct and action after he reached Dayton. The part of the confession excluded by the court related what occurred after reaching Dayton — that Doty suggested the best thing they could do was to split up and “get in the clear some place and stick around until night;” that he telephoned to Cincinnati for money and received $25 from some one whom he did not know; that they frequented saloons in Dayton and Eaton until his arrest at the latter place, and that he gave one of his associates, Perry, $15 of the money received.

      Mr. John V. Campbell, prosecuting attorney, and Mr. Charles H. Elston, assistant prosecuting attorney, for the exceptions.

      Mr. A. C. Fricke and Mr. Thomas• J. Cogan, against the exceptions.
   Jones, J.

Although Plerbert Doty and his associate defendants were indicted as principals, under such an indictment by virtue of Section 12380, General Code, either of the defendants could be prosecuted and punished as if he were the principal offender. Although charged as principal in the indictment, Doty was in fact prosecuted, under the conceded facts in this case, as an aider and abettor. The entire case of the state was prosecuted upon the theory that although the death of Shall was actually caused by a pistol shot fired by Sullivan, Doty and his associates had conspired with Sullivan in a common purpose to commit an unlawful act of such character as might naturally or probably result in the crime committed. On the trial of the case the court in its general charge said-to the jury that it was not claimed that there was any testimony tending to show that Doty committed the manual act of discharging the pistol or that he even knew that Sullivan had the weapon in his possession. Likewise, in his statement to the jury, the prosecutor definitely stated that the state did not claim that Doty had the revolver or that he shot Shall, and neither did it claim that Doty knew that Sullivan had the revolver in his possession.

The case therefore assumed an aspect in which the state placed its entire reliance upon the conviction of the defendant as an aider and abettor, and endeavored to prove the offense charged by showing that the murder resulted from the conspiracy formed by the defendants jointly to commit an unlawful and violent assault upon the workmen at the Christ Hospital, of whom Shall was one. In this situation it became the duty of the court to advise the jury, in no uncertain terms, as to the effect of a conspiracy, so charged, resulting in the death of Shall, although in fact Doty may not have been the principal offender causing directly the death of Shall and although he may not even have known of or connived at the criminal act of firing the pistol.

A number of special charges were asked to be given the jury by the defendant and by the state. The court gave, among others, the following at the request of the defendant: “The court charges the jury that if they believe, from the evidence, that the shot which took the life of Shall, was fired by Sullivan, and without the knowledge, connivance or assent of this defendant, then the jury must find this defendant not guilty.”

This charge was vitally erroneous. It required the jury to find the defendant not guilty in case the firing of the shot by Sullivan was not connived at or assented to by the defendant. This error was further accentuated by the court in the general charge when it said that in order to warrant or justify the jury in finding the defendant Doty guilty of murder in the first degree they must find “that the accused, Herbert Doty, shot the deceased on or about the time and place alleged in said indictment,” and “that the accused Herbert Doty did the shooting purposely and with deliberate and premeditated malice.” 21 Cyc., 1062.

Aside from the fact that there was no claim or reliance upon the part of the state that Doty actually fired the shot, the vice in that part of the general charge is that it required an acquittal even though there may have been in the alleged conspiracy a common design and purpose upon the part of the joint conspirators to kill the persons assaulted.

If Doty conspired with Sullivan in a deliberate and premeditated purpose to kill, he would be guilty of murder in the first degree, although he did not in fact fire the shot. And if Doty engaged in a conspiracy or common design, having for its purpose the use of deadly weapons or force and violence upon the workmen at Christ Hospital, and the crime committed was the natural and probable consequence of the execution of such common design, or was undertaken under such circumstances as would probably endanger human life, then Doty, under our statute, would be equally guilty with Sullivan who actually fired the shot, although Doty neither knew of nor connived at the shot' As stated in the opinion in Goins v. State, 46 Ohio St., 457, there are many authorities which attach equal criminal responsibility if the killing was done in advancing the unlawful common design.

This feature of the criminal law is founded upon the basic principle that persons engaged in an unlawful enterprise are presumed to acquiesce in whatever may be reasonably necessary to accomplish the object of the conspiracy; and if, under the circumstances, it might be reasonably expected that life might be endangered by the manner or means of performing the unlawful criminal act conspired, each is bound by the consequences naturally or probably arising in its furtherance, and in case of death would be guilty of homicide. Lamb v. People, 96 Ill., 73; Peden v. State, 61 Miss., 267; Williams et al. v. State, 81 Ala., 1, 5; State v. Darling, 216 Mo., 450, and People v. Gukouski, 250 Ill., 231.

The general charge, and special charge No. 1 given at the request of the state, embodied proper instructions as to the criminal responsibility of the conspirators if established by the required proof, and these instructions were quite as favorable to the defendant as he could expect. But when the court later charged that before the defendant Doty could be found guilty of murder in the first degree the proof must establish that he shot the deceased with deliberate and premeditated malice, the charge was entirely misleading, unless the jury were also advised in that connection that guilt might result from such conspiracy as already outlined; and especially is this true in view of the aspect the trial assumed, the state having lodged its case solely upon the charge of aiding and abetting the crime.

Among other special charges asked for by the state the following charge was refused:

“No. 15. I charge you that a conspiracy is sufficiently shown if it is made to appear that the defendant and his associates had a common purpose to commit an unlawful act, though that unlawful act was quite dissimilar from the crime in fact committed, if the latter crime was one that might have been contemplated, reasonably, as likely to result from the attempt to commit the act intended.”

The evident purpose of this charge was to bring before the minds of the jury, succinctly, the criminal rule that where the conspiracy in its origin may have intended the commission of an unlawful act of violence, although not identical with or similar to the criminal act charged,, still if that common purpose resulted in the killing, and if the manner of performance of the criminal act conspired could have been reasonably contemplated as likely to produce death, in that event the coconspiratórs are equally criminally guilty with the principal. This charge is substantially supported by the cases of Goins v. State, 46 Ohio St., 457, and Stephens v. State, 42 Ohio St., 150.

That part of the confession of the defendant, introduced through the medium of the witness Kilgarriff, which related to the conduct and statements of the defendant after he reached Dayton and Eaton, was ruled out by the trial court as incompetent. Viewing that part of the confession excluded it is somewhat difficult to understand why the trial court ruled it out. It is true that a small portion of the same may have been immaterial, but the whole was relevant. The excluded portion tended to prove, not only that the flight to Dayton and Eaton, Ohio, was undertaken because of connection with the crime charged, but also that a consciousness of guilt upon the part of the defendant existed. It furthermore tended to show united action upon the part of Doty, Sullivan and the others, establishing the fact of a conspiracy. The excluded part of the confession in its entirety should have been admitted by the court. State v. Knapp, 70 Ohio St., 380, and 2 Wharton on Criminal Evidence (10 ed.), Section 622j.

It developed on the trial that the state asked the court to send the signed confession of the defendant to the jury room, which request was refused. The state had no legal right to, demand that this paper be sent to the jury upon their retirement. The only provision of our code upon the subject requires that written charges and instructions shall be given to the jury upon their retirement. This feature of procedure, relating to the signed confession, rests entirely within the wise discretion of the court, and in the exercise of such discretion the court may send a paper of this character into the jury room if the same contains no irrelevant and prejudicial statements.

Likewise it was within the discretion of the court to exclude the jury during the argument of counsel. If it develops on the trial that counsel in the course of his argument touching the admission of testimony is making statements calculated to prejudice the jury, it becomes the dtity of the court to exclude the jury.

Complaint is made by the state that the court refused to give other special charges requested by it, but an inspection of the record discloses that the court in other parts of its instructions to the jury, both general and special, substantially covered the requests refused.

The court excluded testimony by the witness Sullivan tending to show that on the day after the homicide, at Dayton, Doty paid him the sum of three dollars, by way of expense money for services in connection with the homicide, and that Doty made efforts to secure money for the use of himself and associates. This was not merely a narration of a past transaction, but was the statement of a substantive act on the part of Doty, viz., the payment to Sullivan of money in connection with the homicidal act and efforts by Doty to secure money in aid of the continuation of their flight; and although occurring after the homicide it was •competent.

A great mass of the testimony adduced at the trial was wholly irrelevant. Such was the character of the testimony given by the witness Siekmann, especially that relating to the transaction at the Bloom school, which was entirely disconnected from the case on trial. This testimony was admitted upon the statement of counsel that a proper connection would be made later, but this was not done. This evidence related to reports made from time to time that certain employed workmen in the city were armed, and the claim of competency was made under the rule announced in the Goins case, supra, but that case does not apply to the facts here. It is difficult to see how the question of self-defense ' arises in this case, since the testimony disclosed that the defendant was the aggressor and Shall was within the peace of the state. The testimony of Lyons relating to Britt, much of it hearsay, was likewise incompetent, inasmuch as this evidence did not tend to prove that the decedent was armed and that a communication of that fact was made to the defendant. If the defendant Doty relied upon self-defense it was of such a character as required him to stand in the shoes of Sullivan who committed the manual act of killing Shall, and if Sullivan himself, as one of the aggressors in the case, could not claim the benefit of the plea it was manifestly erroneous to permit this class of testimony to be offered, especially so when the testimony disclosed that the threats made were made by, and the weapons testified to were in the possession of, others than the deceased, he not having been connected with them in any wise.

, Since the state itself offered testimony tending to prove that money was paid to Sullivan and Doty by a Cincinnati organization, testimony controverting that fact was competent by way of impeachment.

For the reasons stated in this opinion the exceptions here noted to the ruling of the trial court are sustained.

Exceptions sustained.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Matthias, JJ., concur.


author: Matthias, J.

text:
    The Interurban Railway & Terminal Company v. The City of Cincinnati.

      Bridges — Maintenance and repair — Contract between railway and county commissioners — Territory, subsequently annexed to city — Latter cannot enforce contract or recover for repairs, when — Duty of county commissioners — Bridges on state or county roads in cities.

    1. It is the duty of county commissioners to construct and keep in repair necessary bridges in cities and villages on state or county roads of general public utility running into or through such cities or villages.
    2. Where a franchise to construct and operate an electric railway on a free turnpike is granted by a board of county commissioners, one of the conditions of which is that the railway company shall “maintain, repair and rebuild, whenever necessary, during the life of this grant, all the bridges and culverts, over the route herein specified upon which it may place and maintain its tracks, at its own cost and expense, and under the direction of the county engineer and county commissioners; the maintenance of said bridges shall include their approaches, abutments and floors, together with the painting of the iron work, and shall be done at such times as the board of county commissioners may deem necessary,” the fact that territory embracing a portion of said free turnpike, which in-eludes a bridge theretofore erected by the commissioners of such county, is duly annexed to a city does not relieve the county commissioners of any duty with reference to the care and maintenance of such bridge nor serve to transfer to the city authorities any of the rights or benefits accruing to the county commissioners under said contract.
    3. The city cannot maintain an action to enforce such contract or recover from the railway company or its successors a sum expended by the city in repairing such bridge.
    (No. 15056
    —Decided May 23, 1916.)
    Error to the Court. of Appeals of Hamilton county.
    This action was instituted in the court of common pleas of Hamilton county by the city of Cincinnati against The Interurban Railway & Terminal Company to recover the sum of $1587.05 claimed to have been expended by the city in repairing a bridge over the Little Miami river.
    The material averments of the plaintiff’s petition are as follows:
    “On March 27, 1901, The Cincinnati & Eastern Electric Railway Company, a corporation organized for the purpose of owning and operating an electric railway, obtained from the County Commissioners of Hamilton county, Ohio, a franchise for itself, its successors and assigns, to construct, maintain and operate, for a term of twenty-five (25) years, an electric railway upon a public highway, to-wit: the Columbia and New Richmond Turnpike from the corporation line of the City of Cincinnati, as it then existed, to the boundary line between Hamilton and Clermont counties, upon certain terms and conditions as therein expressed and stated.
    “One of the terms and conditions of said franchise was as follows:
    “ ‘9th. The said The Cincinnati and Eastern Electric Railway Company, its successors and assigns, hereby agree as a consideration for this grant and franchise, to maintain, repair and rebuild, whenever necessary, during the life of this grant, all the bridges and culverts, over the route herein specified upon which it may place and maintain its tracks, at its own cost and expense, and under the direction of the County Engineer and County Commissioners; the maintenance of said bridges shall include their approaches, abutments and floors, together with the painting of the iron work, and shall be done at such times as the Board of County Commissioners may deem necessary.’
    “Defendant, The Interurban Railway and Terminal Company is a consolidated company and at some time since said March 27, 1901, but prior to the dates hereinafter mentioned, became, by virtue of said consolidation, the assignee,, successor and owner of all the rights and privileges and subject to all the agreements and liabilities of the said The Cincinnati and Eastern Electric Railway Company, which was one of the consolidated companies, and in particular became liable for the performance of the agreement of the said The Cincinnati and Eastern Electric Railway Company, as hereinbefore in the express terms of said franchise set forth.

      “One of the bridges in the route specified in said franchise was a bridge over the Little Miami River constructed of steel and wood.
    “On or about August 28, 1909, certain territory embracing a part of the route specified in said franchise, including said bridge over said Little Miami River, was annexed to and by the City of Cincinnati, under and in accordance with the laws of Ohio, and said City of Cincinnati thereby succeeded to all the rights of the County Commissioners of Hamilton county under the said franchise to that portion of the route then taken and now within the limits of said city by virtue of said annexation, including the right to have said defendant keep said bridge over said Little Miami in repair as in said franchise provided.
    “On or about September 1, 1910, said bridge became out of. repair and repairs of the same were necessary, and the plaintiff, the City of Cincinnati, successor, by virtue of said annexation, to all the rights of the County Commissioners under said ■ franchise, notified defendant that repairs of said bridge were necessary and should be made as and at the time in said notice stated, but said defendant wholly neglected to make the necessary repairs, or any repairs, and allowed said bridge to be and remain in disrepair, in violation of the franchise agreement as aforesaid, and as a result of the failure of the defendant to make repairs on said bridge, the condition of said bridge grew steadily worse until in June, 1912, the same became dangerous for, and a menace to, public travel thereon in all modes and by all persons other than said electrie railway company, and said defendant still continuing to fail and neglect to maintain and repair and rebuild said bridge, though continuing’to use the same, said bridge became a public nuisance in the highway and plaintiff, by its City Engineer, the successor, by virtue of said annexation, to the rights and duties of the County Engineer, under said franchise, notified said defendant on June 27, 1912, to relay an entire new floor on, and to repaint said bridge, and to begin work not later than July 10, 1912, in compliance with the contract with the County Commissioners, as in said franchise contained, and that upon its failing to do so, the plaintiff would itself make said repairs at defendant’s costs.
    “Upon failure of defendant to comply with said notice and to make said repairs, or any repairs, the plaintiff, in order to abate said nuisance and prevent said bridge from being a dangerous obstruction in the highway and a menace to public travel thereon, and to make said bridge as a part of said highway open, in repair and free from nuisance, laid and constructed new joists and a new floor on said bridge at a cost of $1,587.05, an itemized account of which is hereto attached and marked ‘Exhibit A.’
    “In January, 1913, plaintiff made demand upon defendant for said sum of $1,587.05, but said defendant has hitherto refused and still refuses to pay said sum or any part thereof.”
    The common pleas court sustained a general demurrer to the petition and rendered judgment for The Interurban Railway & Terminal Company. The court of appeals held that the demurrer should have been overruled, and reversed the judgment of the court of common pleas. Plaintiff in error now seeks a reversal of the judgment of the court of appeals.

      Messrs. Dinsmore & Shohl, for plaintiff in error.

      Mr. Charles A. Groom, solicitor of Cincinnati, and Mr. Constant Southworth, assistant city so-, licitor, for defendant in error.
   Matthias, J.

The city of Cincinnati based its action against The Interurban Railway & Terminal Company upon the following terms and conditions of the franchise granted to the predecessor of said company by the commissioners of Hamilton county:

“9th. The said The Cincinnati and Eastern Electric Railway Company, its successors and assigns, hereby agree as a consideration for this grant and franchise, to maintain, repair and rebuild, whenever necessary, during the life of this grant, all the bridges and culverts, over the route herein specified upon which it may place and maintain its tracks, at its own cost and expense, and under the direction of the County Engineer and County Commissioners; the maintenance of said bridges shall include their approaches, abutments and floors, together with the painting of the iron work, and shall be done at such times as the Board of County Commissioners may deem necessary.”

Subsequent to the granting of the franchise by the county commissioners, territory which embraced a portion of the route described in the franchise, including the bridge over the Little Miami river, was duly annexed to the city of Cincinnati, and it is now claimed that the city of Cincinnati succeeded to the rights of the county commissioners of Hamilton county under the franchise, so far as they apply to the portion of the route described therein which is included in the annexed territory, and that by virtue of. such annexation the city acquired the right to enforce the obligation assumed by said company to repair the bridge on the Columbia and New Richmond turnpike, which spans the Little Miami river at a point within the territory so annexed to the city of Cincinnati.

It must be borne in mind, however, that there has been no change whatever in the obligation which the law places upon the county commissioners with respect to the care and maintenance of such bridge. Notwithstanding the annexation to the city of the territory which includes the bridge in question, the duty still remains upon the county commissioners to make repairs of the bridge and when necessary or advisable to construct a new bridge in its place.

The provisions of Section 2421, General Code, impose upon the county commissioners the obligation to “construct and keep in repair necessary bridges over streams and public canals on state and county roads, free turnpikes, improved roads, abandoned turnpikes and plank roads in common public use,” and the provisions of Section 7557, General Code, specifically require the county commissioners to • construct and keep in repair “all necessary bridges * * * on all state and county roads, free turnpikes, improved roads, transferred and abandoned turnpikes and plank-roads, which are of general and public utility, running into or through such village or city.”

Both of the above sections make exception of bridges within cities and villages having the right to demand, and which do demand and receive, a portion of the bridge fund levied upon property within such corporation. Such exception, however, is no longer of any force or effect for the reason that there is now no statute authorizing any city or village to demand or receive any portion of the bridge fund created by county levy. Provision is made by Section 5635, General Code, for making a levy on the taxable property within the county for road and bridge purposes, and the county commissioners are required to set aside such portion as they deem proper to be applied for the building and repair of bridges, which is called a “bridge fund.”

It is quite manifest from a consideration of these several sections of the General Code that the county commissioners are required to construct and maintain bridges, such as the one in question in this case, even though they be in cities and villages, and that, therefore, notwithstanding the annexation by the city of Cincinnati of the territory including said bridge, it is still the duty of the board of county commissioners of Hamilton county to maintain and keep in repair and, when necessary or advisable, construct another bridge in that location. The county commissioners of Hamilton county were relieved of no duty whatever with respect to the care and maintenance of such bridge by virtue of the annexation proceeding, nor did that proceeding serve to terminate the contract between the county commissioners and the interurban company or take away from either party any of the obligations imposed or rights secured thereby.

Formerly the board of county commissioners was not liable for damages caused by negligence in failing to keep a bridge in proper repair, but such liability is now imposed by Section 2408, General Code.

It is claimed, however, that by reason of the requirements of Section 3714, General Code, which provides that “the council [of a municipal corporation] shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance,” the duty is imposed upon the city of Cincinnati to keep all bridges within the corporate limits,' including the bridge here in question, in repair.

This court in the case of the City of Piqua v. Geist, 59 Ohio St., 163, makes a clear distinction between the duties of county commissioners and officers of municipalities with reference to the supervision of bridges, which we believe to be pertinent here. It is there held that “county commissioners are not required to construct and keep in repair bridges over natural streams and public canals, on streets established by a city or village for the use and convenience of the municipality, and not a part of a state or county road, though the city or village receive no part of the bridge fund levied on the property within the same. It is the duty of the city or village to construct and keep in repair such bridges, and is liable in damages to one injured by its neglect to do so.”

As there pointed out it is the exclusive duty of the municipal authorities to construct and keep in repair any bridge which forms a part of a street established by a city, which is not a part of a state or county road, and the county commissioners have no duty or responsibility whatever in respect to the construction, care and maintenance of any such bridge. On the other hand, the provisions of the statute above cited, in clear and unmistakable language, place upon the county commissioners the duty of constructing and keeping in repair necessary bridges in cities and villages on state or county roads of general public utility running into or through such cities or villages.

We do not agree with counsel for the interurban company in the view that the municipal authorities have no duty whatever with reference to bridges of the character of the one in question in this case, which are within the municipality and form a part of a city street. It is to be observed, however, that there is no statutory requirement that they shall construct or reconstruct any such bridge. In our opinion the various provisions — which counsel for the city contend and the court of appeals held confer like authority and responsibility with reference to this bridge upon the municipal and county officers — may be placed in harmonious relation, as pointed out in Mooney, Admr., v. The Village of St. Marys, 15 C. C., 446, by Price, J., later a member of this court. It undoubtedly would be the duty of the city authorities to take necessary steps to protect and safeguard the public, by placing barriers or otherwise, or possibly by making temporary repairs and giving notice of the defective condition. They may make extensive repairs, but are not required by statute to do so. The county commissioners not only create by levy, but have complete control of, the bridge fund from which the expense of construction and repair of such bridge is to be met, and hence it is their duty to construct and repair it. The municipality has no control of the county bridge fund, and there is now no authority whatever to place any part thereof in its control for any purpose.

No authority whatever is conferred by statute upon the officers either of the county or of the municipality to maintain this action against the company. No statute requires the company to maintain the bridge in question. The obligation of the company arises solely from its contract, to which the city is an entire stranger. The obligation of the county commissioners continues and none of the rights secured by their, contract have been lost or surrendered.

Even though it be conceded that the city and county authorities had concurrent jurisdiction over this bridge, and that there devolved upon each the same duty to keep it in repair, which we think is not the case, the contract of the company was with the county commissioners only, and under the terms of that contract repairs are to be made and the bridge rebuilt by the company when deemed necessary by the board of county commissioners and shall be supervised by the county engineer and county commissioners. It does not appear that the company has refused to comply with the terms of its contract, and there can be no presumption that the company will refuse to comply with the direction of the county commissioners in respect to making repairs or even rebuilding such bridge, as required by its contract. That board may require the construction of a concrete floor in the bridge or even a rebuilding of the bridge entirely. Under the terms of this contract it is left to the .county commissioners to determine what shall be done, and it is presumed, particularly in view of the statute which makes county commissioners officially liable for negligence in failing to make such repairs, that they will discharge their clear and manifest duty. The portion of the contract before us in nowise indicates that it was contemplated, or could have been contemplated, by the parties thereto, or either of them, that by annexation proceedings or otherwise the officials of the city should be substituted as a party to the contract for the county officials therein designated.

In the care and maintenance of this bridge the county commissioners represent the public, no less now than before the annexation of the territory to the city, and this action cannot therefore be maintained upon the theory that the municipal authorities, as representative of the public, succeed to the rights of the commissioners under the contract with the interurban company and its successors. The principle announced in the case of Emmitt v. Brophy, 42 Ohio St., 82, in our opinion has no application to this case. The duty and authority of the board of county commissioners remain unchanged and the interurban company must respond to the requirements of that board under the terms of its contract.

For the reasons assigned, it is our opinion that the court of common pleas was right in sustaining the demurrer to the petition, and the court of appeals was in error in taking the contrary view. The judgment of the court of appeals is therefore reversed and that of the common pleas affirmed.

Judgment reversed.

Nichols, C. J., Johnson, Donahue and Jones, JJ., concur.

Wanamaker, J., dissents.


author: Wanamaiíer, J.

text:
    Kroff v. Amrhein et al.

      Adopted children — Descent of property of foster parents — Parents survive adopted child — Who dies intestate, leaving married daughter — Latter devises property to husband — Poster parents having died intestate — Sections 8029 and 8030, General Code.

    1. The primary and paramount purpose of Section 8029, General Code, is to make an adopted child the equal of a natural child “to all legal intents and purposes.”
    2. This same purpose is further evidenced and emphasized in Section 8030, General Code, which invests such adopted child with “all the rights and privileges” of a child of the blood or a child begotten in lawful wedlock.
    3. The only limitation put upon an adopted child is in the last sentence of Section 8030, General Code, which provides in substance that if the death of the adopted child occur subsequently to the death of the adopting parents, and such adopted child be “without issue,” then, and in that event, the line of heirship reverts back to the adopting parents.
    (No. 14997
    —Decided May 29, 1916.)
    Error to the Court of Appeals of Lucas county..
    In November, 1876, Simon and Otilley Fear-settle legally adopted Mattie Stein, afterwards known as Mattie Fearsettle.
    Mattie Fearsettle married one Fred Hamley.
    In February, 1912, Mattie (Fearsettle) Hamley died, intestate, leaving surviving her daughter, Hester Hamley; her husband, Fred Hamley, and her foster parents, Simon and Otilley Fearsettle.
    Thereafter Hester Hamley married Norman G. Amrhein, defendant in error.
    In June, 1914, Otilley Fearsettle died, intestate, «and in August, 1914, Simon Fearsettle died, intestate, possessing fee simple title to the property in dispute.
    In January, 1915, Hester Hamley Amrhein died, testate, devising all her property to her husband, Norman G. Amrhein, her only surviving heir at law.
    Plaintiff in error, Frederick C. Kroff, is a half-brother of Simon Fear settle.

      Mr. Allen J. Seney, for plaintiff in error.

      Mr. Amos L. Conn, for defendants in error.
   Wanamaiíer, J.

A and B are husband and wife, but childless. Pursuant to the laws of Ohio they adopt one C as their daughter. C subsequently marries D and has issue in a daughter, E. E marries F.' C’s decease is prior to A’s and B’s. A and B die in 1914, intestate. In 1915 E dies testate, willing all her property, including real estate from A and B, to her husband, F. Does F thereby take any title to A’s and B’s lands? The lower courts decided in favor of F. To reverse that judgment error is prosecuted here.

The answer to this question must be found in our statutes of adoption and descent. Adoption of C is admittedly regular. What do the statutes declare to be the legal effect of such adoption?

Section 8029, General Code, in part reads as follows: “When the foregoing provisions [statutory steps to adoption] are complied with, if the court is satisfied * * * it shall make an order setting forth the facts, and declaring that, from that date, to all legal intents and purposes, such child is the child of the petitioner,” etc.

To layman and lawyer it should be perfectly plain that the legislative intent here expressed was to make such adopted child the equivalent of á natural child of the adopting parents, otherwise what could have been the purpose of such adoption and what the meaning of the words “such child is the child of the petitioner * * * to all legal intents and purposes.”

Such simple, sweeping language would seem sufficient per se to invest the adopted child with all the rights and privileges of the natural child. Lest there be any doubt in the minds of the superstrict as to the legal sense and scope of this last clause of Section 8029, General Code, the legislature further enacted to like effect Section 8030, General Code, which reads in part: “Such child shall be the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges and subject to all the obligations of a child of such person begotten in lawful wedlock.”

It will be noted that the statute provides that, (1) An adopted child “shall be the child and legal heir of the person so adopting” and (2) An adopted child shall have “all the rights and privileges * * * of a child of such person begotten in lawful wedlock.”

If legal language is capable of clearness and certainty, surely so far there can be no doubt that the foregoing statutes fully and effectively invest the adopted child with all the rights and privileges of a natural child begotten in lawful wedlock.

But it is cogently contended that this investment of the adopted child with all the rights and privileges of a natural child born in lawful wedlock is later cut down by language equally clear, by virtue of which an adopted child is divested of some of the rights of inheritance or descent of a natural child. The provision relied on is the last clause of said Section 8030, General. Code, which reads: “But on the decease of such person [the adopting parent] and the subsequent decease of such adopted child without issue, the property of such adopting parent shall descend to his or her next kin, and not to the next kin of such adopted child.”

We are asked to interpret this provision.

Now, the right to judicially interpret a duly enacted statute is based upon some apparent uncertainty of meaning, some apparent ambiguity of terms, some apparent conflict of provision. If a sentence of a statute can be set forth in simple speech, the same has been done in the provision last quoted. To interpret what is already plain is not interpretation but legislation, no matter by what name it may be called.

Analyze this divesting sentence. The conditions precedent to the application of this last provision are as follows:

1. The adopted child’s decease must be subsequent to the decease of the adopting parents.

2. The adopted child must have no issue.

There is a total failure of these two conditions precedent under the conceded facts of this case. First, the adopted child’s decease was prior to the death of the adopting parents, and, second, she left surviving her and surviving the adopting parents issue in E, her daughter, who subsequently married F, who was made sole devisee by the will of E, the devise including the property of the ancestors, A and B.

The self-evident purpose of this divesting provision of Section 8030, General Code, is that if there be a failure of issue of the adopted child then the new line of descent provided for by the adoption statutes ceases and the property reverts back to the blood of the ancestor; but as long as there was issue of the child, such issue should take as “the child and legal heir.”

Again this divesting provision is an exception grafted on to the statute. The statute being remedial, naturally the exception should be strictly, but reasonably, construed and must be governed by the familiar rule that the exclusion clearly made in the exception only emphasizes the inclusion of all other things germane to the statute which are not so excluded.

The contention is made here that the words “all the rights and privileges” as used in the statute mean only personal rights and privileges, but there is no warrant for thus cutting down or cutting out the word “all,” and the courts should apply the language in the broad and humane spirit in which it was written into the law and policy of this state.

The humanitarian policy of these laws has been discussed in Ransom, Admr., v. The New York, Chicago & St. Louis Ry. Co., 93 Ohio St., 223, which case at bottom involves many of the same legal principles as are here presented.

In this view of the case we find no error in the judgment below and the same is therefore affirmed.

Judgment affirmed.

Nichols, C. J., Johnson, Donai-iue, Newman, Jones and Matthias, JJ., concur.


author: Johnson, J.

text:
    The State, ex rel. The Sylvania Home Telephone Co., v. Richards et al., Judges.

      Courts of appeals — Certiorari — Entry finding conflict of judgment— Prerequisite to review by supreme court — Conflict must exist when judgment rendered — Certification not axtthorised where conflict subsequently arises.

    1. The provision in Section 6, Article IV, of the Constitution, that “whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination,” confers exclusive authority on the judges of the court of appeals to find the existence of the conflict referred to, and in order to vest this court with jurisdiction to review and determine the case that finding must be entered and certified with the record of the case to this court.
    2. Where one court of appeals has entered a final judgment in a case pending before it and another court of appeals subsequently renders a judgment upon the same question in conflict therewith, the judges of the former court are not authorized by the provision quoted to make and enter a finding of such subsequent conflict, arrest the enforcement of the judgment entered by it and certify the record of the case to this court for final determination.
    (No. 15250 —
    Decided May 29, 1916.)

      In Mandamus.
    This is a proceeding in mandamus brought on the relation of The Sylvania Home Telephone Company against the defendants, who are judges of the court of appeals of Lucas county, to compel thém to certify to this court for review and final determination the case of The Sylvania Home Telephone Company v. The Berkey Farmers’ Mutual Telephone Company et al. The latter case was brought in the common pleas of Lucas county to enjoin the defendant company, which was a company organized not for profit, from constructing and operating a telephone plant in territory already occupied by the plaintiff, until the defendant should procure from the public utilities commission of Ohio permission so to do.
    The defendants in that action admitted in their answer substantially that they were constructing a telephone system in Richfield township in the territory occupied by the plaintiff and that they had not received from the public utilities commission any permission to operate their telephone plant in the territory occupied by the plaintiff company, but alleged that they were not required under the laws of Ohio to procure from the public utilities commission such permission for the reason that they were a mutual company not for profit.
    It is admitted by the pleadings in the case at bar that the common pleas court in the original proceeding found for the defendants on the issues joined; that the cause was appealed to the court of appeals, where judgment was entered in favoi* of the defendants on.the sixteenth of February, 1914; and that on the fourteenth of October, 1915, the plaintiff company filed its motion in the court of appeals of Lucas county, moving that court to certify the record of the case to the supreme court for review and final determination for the reason that the decision of the court of appeals was in conflict with judgments rendered by the courts of appeals of Delaware and Morrow counties in causes involving a similar state of facts and the construction of the same section of the code. On the eleventh day of January, 1916, the court of appeals caused an entry to be made upon its journal which is set out in the petition of the relator herein. That entry, after reciting the filing of the motion to certify, states that the court “find that the original action was decided and the judgment entered by this court in favor of the defendants, on the sixteenth day of February, 1914; that subsequent to the entering of said judgment, the Court of Appeals of Delaware County and Morrow County in the causes set forth in said action, ea,ch rendered judgments directly in conflict with the judgment entered by this court in this cause; that the Supreme Court, subsequent to the entering of said judgment, decided in litigation between other parties, that the principle announced by this court in this cause is not the law; and that this cause should not be certified except upon order from the Supreme Court so to do, because of the length of time since the entering of the judgment in this case, and because of the changed condition of the parties, and said motion is therefore overruled.”

      The answer of the defendant-judges in this case substantially alleges that on account of the things recited in the entry referred to they are not required to certify the record.
    On the hearing there was no dispute as to the facts and the cause was submitted to the court on the legal question presented.

      Messrs. Ray & Cordill, for the relator.

      Messrs. Marshall & Fraser, for the defendants.
   Johnson, J.

Section 6 of Article IV of the Constitution contains the following: “Whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination.”

A single question is presented: Were the defendant judges, under the circumstances shown by the pleadings, required by the provision of the constitution above quoted to certify to this court the record of the case referred to?

It will be observed that on February 16, 1914, the court of appeals entered final judgment in favor of the defendant company in the original case. The motion to certify was filed about 20 months thereafter, October 14, 1915. On January 11, 1916, the court of appeals caused an entry to be made on its journal in which it is recited that the original action was decided and judgment entered in favor of defendants on the sixteenth day of February, 1914; that subsequent to the entering of that judgment the court of appeals of Delaware county rendered a judgment in conflict with its judgment, and that for the reasons set out it then refused to certify the record to this court.

In City of Akron v. Roth, 88 Ohio St., 456, this court had under consideration the clause in Section 2 of Article IV, which provides that in cases of public or great general interest the supreme court may “within such limitation of time as may be prescribed by law” direct any court of appeals to certify its record, and, in view of the fact that no limitation as to the time of making application to' certify the record had been prescribed by law, this court fixed a limitation of 70 days from the date of the judgment for the filing of the application.

In Crawford v. Weidemeyer, 93 Ohio St., 461, it was held that .although the clause of the constitution which is involved in the case at bar contains no reference to a limitation of time “for the finding of such conflict or certification of a case to this court upon the ground of conflict of judgments of courts of appeals,” yet the provision should be interpreted by analogy so as to authorize a limitation of time. This court thereupon also fixed 70 days as such limitation, but provided that it should apply only to cases certified and filed subsequent to May 1, 1916. The question remains whether, after a court of appeals has entered its final judgment in a case and another court of appeals subsequently pronounces a judgment upon the same question in conflict therewith, the former court may thereupon arrest the enforcement of the final judgment rendered by it, enter a finding of the subsequent conflict and certify the record to this court.

It is insisted by the relator that the provision is comprehensive and requires a court of appeals to certify its record without reference to the time that the conflicting judgment may have been rendered; that the word “whenever” requires the application of this broad construction. As to a similar contention made with reference to the state of facts shown, it is said in Crawford v. Weidemeyer, at pages 464, 465: “Such a construction of this constitutional provision would do violence to the very purpose of the entire amendment to the constitution reorganizing the judicial system of the state, as so clearly and emphatically stated by the framers thereof * * * That object was to simplify, not complicate, court procedure; to decrease and limit, not to extend indefinitely, the period of litigation. * * * The word ‘whenever’ as used in this provision may be regarded as meaning ‘if’ or ‘should.’ ” It is provided in the same section of the judicial article of the constitution in which the clause under investigation here is found that “judgments of the courts of appeals shall be final in all cases,” except as to certain enumerated classes in which jurisdiction is conferred upon the supreme court. It is generally known, and nowhere disputed, that the purpose of the constitutional convention and of the people was to provide for one trial and one review, except in the enumerated cases referred to. It is equally evident that the constitutional convention felt that it would be wholly unwise to create such a judicial structure as would permit one court of appeals to disregard and refuse to follow the judgment pronounced by another court of appeals upon the same question, without some method of composing the conflict thus created. Therefore, the provision we are considering was inserted. By its terms a court of appeals — which differs as to the proper disposition of a legal question involved in a case pending before it from the judgment pronounced upon the same question by another court of appeals — may adhere to its view, but in such event is required to include in its entry a finding of the conflict and a certification of the record of the case to this court for review and final determination. The authority to find and determine the existence of the conflict is vested exclusively in the judges of the court of appeals who have agreed upon- the conflicting judgment, arid in order to vest this court with jurisdiction to review and determine the case the finding of the conflict must be entered and the record certified. This will result in an authoritative pronouncement upon legal questions and the bringing about of the uniformity in judicial holdings which is desirable. But there is not disclosed any intention to permit, and the language used does not require such a construction as will permit, the opening up of final judgments theretofore rendered, and in many cases fully enforced or complied with. The language is: “Whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case,” etc.

We are convinced that the framers of the clause intended to draw a distinction between a judgment agreed upon by the judges of one court of appeals and a judgment pronounced by another court of appeals.

Everyone knows that the necessary procedure in the consideration of cases is for the judges to examine the case, consult and agree upon the judgment which they will thereafter pronounce. These are the steps by which the judges agree upon what the judgment shall be, .but when the judgment is pronounced it is then the action of the court. We think it clear that the drawers of the clause in question had these natural and necessary steps and this situation in mind. It is the duty of the court to ascertain and give effect to the intent of the people, and the language used should be given its ordinary and reasonable meaning.

No narrow reasoning should be allowed to disregard that intention and no merely technical rules should be permitted to defeat it. But even a technical definition of the terms is in harmony with the manifest intention of the people as above indicated. A judgment is defined in 1 Freeman on Judgments (4 ed.), Section 2, as: “The decision or sentence of the law pronounced by a court or other competent tribunal upon the matter contained in the record.” In 23 Cyc., 665, it is said: “At common law a judgment is the determination or sentence of the law, pronounced by a competent judge or court, as the result of an action or proceeding instituted in or before such court or judge, affirming that, upon the matters submitted for its decision, a legal duty or liability does or does not exist.” In same volume of Cyc., page- 835: “The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and verdict.”

It must be kept in mind that in each case the jurisdiction of the courts is invoked to adjudicate the rights of the parties in that particular controversy; and when a judgment has been rendered in due course by a court of final jurisdiction the parties should not be left in doubt as to its finality or be led to speculate on the possibility that a different court in a controversy between different parties may afterwards differently decide the legal cjuestions involved. It frequently happens that a court of last resort overrules a reported decision formerly made by it, but no one would contend that the overruling operated to open afresh the controversy disposed of in the overruled case.

The chief objects of the amendment to the judicial article to the constitution were to avoid the mischief of endless litigation and to secure the salutary results that come with the assurance of the conclusive effect of final judgments.

The writ will be denied.

Writ denied.

Nichols, C. J., Donahue and Newman, JJ., concur.

Jones and Matthias, JJ., dissent from second proposition of syllabus.


author: Nichols, C. J.

text:
    The State, ex rel. Mitman et al., etc., v. The Board of County Commissioners of Greene County. Mitman et al., etc., v. Williamson et al., etc.

      Statutory construction — Conflicting provisions — Prior and later enactments — Legislative policy and intent control interpretation— Directory acts rendered mandatory — By substituting "shall” for "may” — County commissioners — Transfer of surplus in sheep fund — To county board of education — Section 5653, General Code (.104 O. L., 145).

    1. The rule of statutory construction that where conflicting provisions are found in an act of the general assembly the later in position repeals the earlier, is not to-be arbitrarily employed, and when its exercise operates to defeat the manifest intent of the legislature, it should never be resorted to.
    2. In matters of public or great general interest, where such conflicting provisions are not to be reconciled, the court should seek such construction as will make the act enforceable, and in doing so will be governed by the manifest purpose and obvious policy and intent of the general assembly to be gathered from the whole act; and where the earlier clause of a section conforms to such policy and intent, it is not rendered inoperative by a later inconsistent clause, out of harmony with the policy and intent. The later clause must be held nugatory and therefore disregarded.
    3. When a section of an existing law is amended by the general assembly by striking out therefrom “may” and inserting in lieu thereof “shall,” a clear intent is manifested to thereby alter the directory nature of the law' and render it mandatory.
    4. Under the provisions of Section 5653, General Code, as amended 104 Ohio Laws, page 145, in counties where there is no society for the prevention of cruelty to children and animals, incorporated and organized as provided by law, it is the mandatory duty of the county commissioners to transfer the surplus in the sheep fund in excess of one thousand dollars to the county board of education fund.
    (Nos. 15059 and 15060 —
    Decided April 11, 1916.)

      Error to the Court of Appeals of Greene county.
    Both of the above-entitled cases were admitted to the supreme court on certiorari from the court of appeals of Greene county, as being cases of public interest.
    No. 15060 is an action commenced in the common pleas court of Greene county, under- favor of Sections 2296 to 2300, General Code, wherein R. D. Williamson and others, as board of county commissioners, asked authority from such court to transfer to the blind relief fund a balance of $1,300, the surplus in the sheep fund of the county after retaining the sum of $1,000, as provided for by Section 5653, General Code. On June 5, 1915, by order and decree of such court, the commissioners were authorized to make the transfer.
    On September 18, 1915, O. P. Mitman and others, as the county board of education, brought an action in the same court, being cause No. 15059 in this court, against the county commissioners asking for a writ of mandamus against the board to compel them to transfer such surplus to the county board of education, basing the right to such action on the provisions of Section 5653, General Code, as amended in 104 Ohio Laws, pages 133, 145.
    The county commissioners answering, admitted the existence of the surplus, and as a defense plead the judgment of June 5, 1915, hereinbefore set forth, directing the transfer of the surplus to the blind relief fund.

      The county board of education demurred to the answer; the demurrer was overruled, and plaintiff not desiring to plead further the petition in mandamus was ordered dismissed.
    Meanwhile the county board of education moved the court, in the case wherein the board of commissioners sought authority to transfer the surplus to the blind relief fund, to vacate and set aside such judgment, on the ground that the court had no jurisdiction to transfer the fund to the blind relief fund, or if it had jurisdiction of the proceedings, it ought, in the interest of a proper and legal administration of the public funds, vacate and set aside the judgment as inadvertently made and entered. This motion was overruled and leave to the board of education to file objections was denied.
    On error and appeal, respectively, the court of appeals found in favor of the board of commissioners in both cases, and rendered judgments accordingly.

      Mr. M. J. Hartley, for the county board of education, plaintiffs in error.

      Mr. F. L. Johnson, prosecuting attorney, for the board of county commissioners, defendants in error.
   Nichols, C. J.

The sole question involved in both ca,ses is whether the last paragraph of Section 5653, General Code, amended as above stated, is mandatory on the board of county commissioners. •

If it is, then the Common pleas court, in its judgment of June 5, 1915, directing the transfer of this surplus to the blind relief fund, rendered an erroneous judgment and the motion of the county board of education to vacate and set aside the same should have been sustained, and likewise the application for a peremptory writ of mandamus should have been granted.

If this amended paragraph is to be construed as directory merely and as vesting a discretion in the board of commissioners, then the judgments below in both cases and in both courts are correct.

Before the amendment under consideration was adopted, the paragraph read: “Any surplus not so transferred may be transferred to the school fund, the poor fund, or the road and bridge fund at the direction of the county commissioners.” The amendment struck out “may” and substituted “shall.” In the same paragraph the words “the school fund, the poor fund, or the road and bridge fund” were stricken from the act and in their stead were inserted the words “the county board of education fund.”

Section 5653 as an entirety has to do with the disposition of any surplus remaining in the special fund created by the tax on dogs, to be used for the payment of sheep claims.

The amendment in question, while substituting the imperative for the permissive, and while withdrawing the four specially mentioned county funds and limiting the application of the surplus to the one fund, still retained in the paragraph in question and at the end thereof the words “at the direction of the county commissioners.”

The retention of this clause in the paragraph gives rise to the controversy. The defendants in error’s position is that this language in the act vests a discretion in the board and permits it to avail itself of the privileges of Sections 2296 to 2300, General Code, relative- to the transfer of funds.

The plaintiffs in error maintain that this language is in obvious conflict with that part of the paragraph which precedes it, and that it is the duty of the court to interpret the paragraph with the view of ascertaining and giving effect to the manifest intention of the legislature. The plaintiffs in error further maintain that such interpretation will lead with certainty to the conclusion that it was the manifest purpose of the general assembly to vest no discretion in the board, but to provide virtually for an automatic transfer of the surplus to the newly created fund to be known as the county board of education fund.

That a conflict does exist is conceded on all hands and a construction of the statute is necessary. All authorities agree that where words conflict with each other, where the different clauses of the instrument bear upon each other, where clauses are out of harmony with other clauses, construction becomes necessary. It is of course not allowable to interpret that which has no need of interpretation. There is no safer or better settled canon of interpretation than that when language is clear and unambiguous it must be held to mean what it plainly expresses, even if such construction lead to clearly mischievous and absurd results.

It is evident that the conflict we meet with here is one of point-blank repugnancy and it is manifestly difficult to bring the provisions into any sort of harmony by any rule of construction.

It is a rule of statutory construction that in the event of conflict, so that if one provision operates at all it will necessarily antagonize any effect of the other, both are void, but there is an associated rule of construction that when different constructions may be put upon an act, one of which will accomplish the purpose of the legislature and the other render it nugatory, the' former should be adopted.

There is another rule of construction, seldom relied on, however, to the effect that where conflicting provisions are found in an act the latest in position repeals the other, being analogous to a somewhat similar rule applicable to the construction of wills. This is a most unsatisfactory rule, and is applied only as a dernier ressort. Indeed, as applied to the facts in this case it is qualified, if not rendered quite innocuous, by an associated doctrine to the effect that “when the first clause of a section conforms to the obvious policy and intent of the legislature, it is not rendered inoperative by a later inconsistent clause which does not conform to this policy and intent. In such cases the later clause is nugatory and must be disregarded.” This theory of construction is manifestly the sensible one and is supported by authority, the most conspicuous case being that of McCormick v. West Duluth, 47 Minn., 272.

The desideratum then is to ascertain the policy of the law and the intent of the general assembly in its enactment.

Well-settled and oft-time repeated rules of construction abound in decided cases.

Perhaps no better statement has ever been given the courts on the subject of the interpretation of statutes than that of Kent in volume 1 of his Commentaries on American Law (13 ed.), 461, where he says: “In the exposition' of statutes, * * * the intention of the lawgiver * * * will always prevail over the literal sense of terms, * * * and the reason and intention of the lawgiver will control the strict letter of the law. * * * When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the objects and the remedy in view; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion.”

In 2 Lewis’ Sutherland on Statutory Construction (2 ed.), Section 471, it is said: “In order to ascertain the purpose or intention, if it is not clearly expressed in a statute, or that such purpose or intention may be carried into effect, the court will take notice of the history of its terms when it was enacted. It is needful in the construction of all instruments to read them in view of the surrounding facts. To understand .their purport and intended application, one should, as far as possible, be placed in a situation to see the subject from the maker’s standpoint and study his language with that outlook. Statutes are no exception.”

Lord Coke’s rule, announced in The Case of the Marshalsea, 10 Co. Rep., 73a, is in effect that the court should ascertain what were the circumstances with reference to which the words of the statute were used, and what was the object appearing from those circumstances which the legislature had in view.

Mr. Justice Miller, in the case of Gardner v. The Collector, 6 Wall., 499, says, at page 511, that the court may obtain information to aid in construction of a statute from “any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer.”

Observing these fundamental rules of interpretation, the instant case presents no difficult matter for determination.

Looking then to the act of which the amended section was a part, we find that it was the new school code of Ohio, passed by the general assembly in its special session of 1914, called by the governor in the main for the consideration of this very act.

We find Section 5653 lifted bodily from Chapter 12, Title I of Part Second, General Code, under the classification of “Levying Taxes,” where it logically belonged, and transferred to the chapter of the code having to do with educational matters.

We find that it passed the general assembly February 5, was approved by the governor February 17, and became operative as a law May 17, 1914.

We find that the same act repealed old Section 4744 and reenacted it in such form as to provide for the 'election of a county school superintendent, who was to be selected for a term not longer than three years, commencing on the first of August, 1914.

We find that supplementary Sections 4744-1, 4744-2 and 4744-3 were enacted at the same time and as part of the same act.

These sections provided that such county superintendent should be paid a salary of not less than $1,200 and that he should be paid out of the county board of education fund.

We find that a newly created tax fund was provided for, to be a separate fund and to be known as the county board of education fund.

We also find that this amendment expressly struck out the word “may” and inserted in its stead the word “shall.”

We find that the four named long-established funds, which under the old section might have been replenished by the surplus from the dog tax, were stricken from the act and substituted therefor was the newly created fund to be known as the county board of education fund, and from which the county superintendent’s salary should be paid.

These facts we ascertain from the act itself.

Now, seeking a clear and satisfactory answer to the question, What was the object of amending Section 5653 ? and availing ourselves of all sources of information which in their nature are capable of conveying information, we discover that the needful thing to give efficacy .to this act was to select competent county superintendents. The law was an innovation; met with many criticisms and vigorous opposition, and a failure to start with effective instruments might prove fatal to its retention on the statutes of Ohio.

It is certainly within the knowledge of all men that school superintendents must be paid, and that promptly. As a general rule school teachers are not overburdened with this world’s goods, and the monthly stipend is quite essential.

Looking a little further afield we find no fund available to pay these new officers and none could be made available under our system of collecting and distributing taxes until the February following. Thus nearly six months must ensue before salary could be paid.

Now, putting ourselves in a position to see the subject from the standpoint of the makers of the law, we must gather that they were somewhat at their wits’ end to provide a fund to make payments to the superintendents.

It was a clear case of doing the best one could under the circumstances. So, after the law was framed and ready for final submission to the general assembly, we find its sponsors at the last moment seizing on Section 5653, amending it as hereinbefore set forth and incorporating the section in the new school code as its very last section.

It was clearly the intention of the legislature not to leave the county superintendents to the mercy of the county commissioners, who, it might be said, could have given vitality to this new fund by proceeding to imburse it by following the provisions of Section 2296 et seq., General Code. But realizing that since the limitation of the tax rate has been in vogue in Ohio most of the long-established funds are in steady need of reimbursement, the general assembly evidently thought best not to depend on the whim of the county commissioners but to make certain a fund, at least in those counties wherein there was no society for the prevention of cruelty to children and animals; incorporated and organized as provided by law. Thus we arrive at the conclusion that the general assembly had a definite purpose in amending Section 5653.

We are not unmindful of the fact that in construing statutes instances are not few where courts have read “shall” as “may,” but we would feel it our duty to avoid thus departing from the primary meaning of these terms under the circumstances surrounding the amendment of this law.

Courts should be slow to impart any other than the natural and commonly understood meaning to terms employed in the framing of our statutes.

You shall and you shall not should be construed as imposing imperative duties or prohibitions, unless the manifest intention of the legislature suggests a weakened sense of meaning.

If all the thou shall nots of Holy Writ were to be censored and reedited as thou may nots, practically all the authority of Scripture would be dissipated. It is not the mere withholding of permission that deters mankind from violating the laws of God but the imperial and authoritative Thou shall not.

Where, as in the instant case, the general assembly deliberately amends an existing law by striking out may and substituting shall, it would be absurd for the court to deliberately give the meaning of may to the newly substituted shall. It would indeed be a mockery in the way of construction and would be equivalent to a judicial repeal of the amended act and a judicial reenactment of the former law.

Likewise, the withdrawal by the amendment of the four funds, either of which by the direction of the county commissioners, under the old act, could be replenished by them, and the limitation to the newly created county board of education fund, is an element of noteworthy fact that cannot be overlooked.

Thus it is that we arrive at the conclusion that the obvious intent and purpose of this act was to make mandatory the duty of transferring the surplus in the dog tax or sheep fund to the county board of education fund, in counties where the societies for the prevention of cruelty to children and animals have no existence. We give the amended sections this construction notwithstanding the retention in the law of the clause “at the direction of the county commissioners.”

Quite naturally the question might be asked, What meaning will the court give this retained phrase? It is of course a part of the act, and if possible the court should give meaning to every word in every act.

It is not impossible, perhaps, to give a construction to this language that would harmonize with the construction given the entire paragraph, but it would be altogether technical and perhaps hairsplitting.

We prefer to stand on the plain and obvious intent of the legislature as gathered from the entire act and the surrounding circumstances attending its enactment. All the authorities agree that there is no more important factor to be reckoned with in the construction of a law than the cause or necessity of any kind which induced its enactment. It was held in the case of Ellis County v. Thompson, 95 Texas, 22, at page 31, that “The purpose for which the law was enacted is a matter of prime importance in arriving at a correct interpretation of its terms.” The necessity and purpose of amending Section 5653 are plain. We plant our position fairly and squarely on the common-sense authority of McCormick v. West Duluth, supra, and approve the doctrine therein announced that “where the first clause of a section in an act of the legislature conforms to the obvious policy and intent of the legislators, * * * it is not rendered inoperative and void by a later inconsistent clause which does not conform to this policy and intent. In such cases the later clause is nugatory, and must be disregarded.”

This is no departure from the established law of Ohio, but is in strict conformity to the doctrine announced by this court in the case of State, ex rel. Attorney General, v. Mulhern, Sheriff, 74 Ohio St., 363, the first and second propositions of the syllabus being:

“1. In giving construction to a legislative act the position in the order of precedence of the several provisions will be given due consideration, but there is no arbitrary rule which requires that a provision found in the later part of the act shall necessarily be given an effect to repeal conflicting provisions in the earlier part of the act.
“2. Where such conflicting provisions are irreconcilable, the court may, if the subject-matter is of minor interest, hold the whole act to be inoperative. But where the matter is of vital interest, a court will seek such construction as will make the act enforceable, and in doing so will be governed by the apparent purpose and obvious policy and intent of the general assembly, as gathered from the whole act, even though it results in a disregard of the later provision.”

Spear, J., in his opinion in this case quotes with approval the doctrine of the case of McCormick v. Village of West Duluth, supra, and rejects the contrary theory.

While the matters involved in the instant case are not of such commanding importance as those presented in the Mulhern case, yet they are more than of minor interest, or at least were at the time of the enactment of the law, as of which time, of course, the construction must be had. And furthermore, these cases, by reason of the fact that they are being considered at all by this court, are stamped as involving questions of public interest.

The petitions in these cases contain the allegation that there is no society for the prevention of cruelty to children and animals, incorporated and organized as provided by law, and it therefore becomes the mandatory duty of the proper officials of Greene county to transfer the surplus in the sheep fund to the county board of education fund. In counties where such society is incorporated and organized as provided by law, the rule laid down in this case can have no application, for Section 5653 specifically provides that only such surplus as has not been transferred to such societies shall be subject to transfer to the county board of education fund.

Influenced by the views hereinbefore expressed we are led to reverse the judgments in both cases, and they will be remanded for further. proceedings according to law.

Judgments reversed.

Johnson, Wanamaker, Newman and Matthias, JJ., concur.