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    Picard and Conard v. Hughey et al.

      Corporation organized to supply gas to municipality — Addition to charter so as to also supply electricity — Issue of additional bonds and mortgage — Validity of the change under section 8288a, Revised Statutes — Interpretation of Law.

    Where a corporation organized under the laws of this state to manufacture and furnish gas to light the streets and public and private buildings of a municipal corporation, amends its charter so as to authorize it to employ for that purpose both gas and electricity in connection with gas, such additional powers should not be deemed to change substantially the original purposes of its organization, and is therefore authorized by section 3238a, Revised Statutes.
    (Decided June 21, 1898.)
    Error to the Circuit Court of Highland county.
    This action was begun by J. M. Hughey, as receiver of the Hillsboro Gas & Electric Light Company, a corporation organized under the laws of this state, to manufacture and furnish electric lights, to sell certain real estate that belonged to the corporation, and for adjustment of liens thereon. The cause was tried in the court of common pleas and appealed to the circuit court where the facts were found separately from the conclusions of law, and a judgment rendered holding that certain bonds which had been issued by the Hillsboro Gas & Electric Light Company, valid liens on such real estate. Whereupon the cause was brought to this court for reversal on such special finding of facts. The facts necessary to the understanding of the decision of the court will be found in the opinion.

      Huggins & Horst, for plaintiffs in error.
    Brief of Henry M. Huggins.

    The plaintiffs in error claim:
    That the alleged indebtedness of The Hillsboro Gas Light Company to The Citizens’National Bank of Hillsboro is invalid.
    That no part of the proceeds of the sale of the property of The Hillsboro Gas Light Company can be taken to pay said Citizens’ National Bank claim.
    The attempted amendment of the certificate of incorporation of “The Hillsboro Gas Light Company” was of no effect. The only authority for the amendment of a certificate of incorporation in Ohio is found in Revised Statutes, section 3238a. It will hardly be claimed that the manufacture and sale of electric arc and incandescent light were a part of the original purposes of The Hillsboro Gas Light Company. Practical electric lighting was unknown when that company was incorporated. Any improvement or invention in the line of the original purpose could, no doubt, be brought in by amendment. But not something entirely distinct and different. The Findlay Gas Light Company v. The Incorporated Village of Findlay, (2 C. C. Rep., 237, s. c. 1 Circ. Dec., 463) is in point.
    This court has held that where special provision has been made by statute for corporations, the general provision by statute for corporations does not apply. The State v. The Pioneer Live Stock Company, 38 Ohio St., 347;. The State ex rel. v. Taylor, Secretary of State, 55 Ohio St., 61.

      1. The claim of the receiver of the Citizens’ National Bank of Hillsboro is wholly made up of indebtedness to the bank incurred by the gas company in the manufacture and sale of electric light. This is a matter of fact about which there is no dispute.
    2. The Hillsboro Gas Light Company not only had no power to engage in the electric light business, but such action on its part was positively prohibited by the Statutes of Ohio. Ewing v. Toledo Saving Bank, 43 Ohio St., 31; Bank of Augusta v. Earl, 13 Peters, 519; Bouse, Trustee, v. Merchants' National Bank, 46 Ohio St., 493; Perry on Trusts, section^ 242; Taylor on Private Corporations, section 34; Morawitz on Private Corporations, section 803; Wait on Insolvent Corporations, sections 162, 654; Section 3266, Revised Statutes.
    3. The Citizens’ National Bank had full notice that The Hillsboro Gas Light Company had no power to enter upon the business of the manufacture and sale of electric light, and in doing so that it was violating an express provision of the law of Ohio.
    C. M. Overman was president and a director of The Hillsboro Gas Light Company. He was also president and a director of The Citizens’ National Bank. O. S. Price was a director of The Hillsboro Gas Light Company. He was also cashier and a director of The Citizens’ National Bank. They must have known all about the Gas Company embarking in fche business of electric light. Notice to a director is notice to the bank. Morse on Banks and Banking, section 112, 113. Notice to the cashier is notice to the bank. Morse on Banks and Banking, section 166.

      4. The legal effect of the action of The Hillsboro Gas Light Company in embarking in the manufacture and sale of electric light without power so to do and in defiance of the express provisions of the law of Ohio, with full notice on the part of The Citizens’ National Bank of Hillsboro of such lack of power and violation of law is to make the debts of the company incurred in the business of electric light and in the hands of the bank void. Bank of Ghillicothe v. Swayne et al., 8 Ohio 257.
    The holding of the latter case has been followed by our Supreme Court in numerous cases. Among these are the following: Bonham v. Taylor, 10 Ohio, 108; Creed v. Commercial Bank, 11 Ohio, 492; Miami Exporting Go. v. Clark, 13 Ohio, 1; Bank of Wooster v. Stevens, 1 Ohio St., 233; Spaulding v. Bank of Muskingum, 12 Ohio, 544; Bartholomew v. Bentley, 1 Ohio St., 41; Straus & Bro. v. Eagle Ins. Go., 5 Ohio St., 60; Vannatta v. State Bank, 9 Ohio St., 27; White's Bank of Buffalo v. Toledo Fire d> Marine Ins. Go., 12 Ohio St., 601; Franklin Bank v. Gommercial Bank, 36 Ohio St., 350; Kilbreath v. Bates, 38 Ohio St., 187; Ewing v. Bank, 43 Ohio St., 37; B. B. Company v. Hinsdale, 45 Ohio St., 556; B. B. Go. v. Iron Go., 46 Ohio St., 49; Ehrman v. Ins. Go., 35 Ohio St., 324.
    Unless expressly restrained by its charter, a corporation has the incidental power to make any contract and evidence it by any instrument that may be necessary and proper to accomplish such purposes and objects. Story on Bills, section 79.
    These doctrines are supported by a multitude of adjudged cases: Broughtons. Manchester Water Works, 3 Bam & Old, 1; Munn s. Commission Go., 15 Johns, 44; N. G. Firemans' Ins. Go. s. Ely, 2 Con., 664; Lane s. Bennett, 5 Con., 574; Phila

      delphia Loan Go. v. Toxoner, 13 Con., 249; Korn v. Mer. As. So., 6 Crouch, 198; Bank of Ohillieothe v. Moss, 5 Denio, 567; Kilbreth v. Bates, 38 Ohio St., 189. The decision in Bank of Chillicothe v. Swayne has, however, in some instances been, criticized, and to a certain extent perhaps modified.
    The first of these cases, so far as we have found, is that of Larwell v. Hanover Savings Fund Society, 40 Ohio St., 274.
    The next case, and perhaps the only one, in which the Chillicothe case is criticized — perhaps modified- — is that of The National Bank of Washington v. The Continental Life Lnsurance Co., 41 Ohio St., 1.
    The later case of Railway Co. v. Iron Co., 46 Ohio St., 44, disposes of any question with regard to Bank of Chillicothe v. Sxoayne, and the cases in Ohio we have cited which approve it being overruled.
    “These cases all proceed upon the principle that the powers of corporations organized under legislative statutes are such, and such only, as those statutes confer, or that may fairly be implied therefrom.:! This doctrine was clearly announced and applied in Straus v. Eagle Ins. Co., 5 Ohio St., 59, and has been firmly adhered to in this court. Railroad Co. v. Hinsdale, 45 Ohio St., 556.'
    It will be insisted here, no doubt, that it is in the highest degree unjust to allow The Hillsboro Gas Light Company to obtain the benefit of its contract and repudiate its obligations. The legal answer to this is that there never was any contract. A contract, of necessity, has to have two parties capable of contracting. Here there was but one as to the subject-matter involved. But then it will be urged that the Gas Light Company is estopped to say it had no power to contract, because it has the money upon the contract.
    We have thus reviewed the eases in Ohio since the case of Bank of Ohillioothe v. Swayne was decided. We reach the conclusion that a contract of an Ohio corporation forbidden by its charter when such charter was special, or forbidden by general statute, is void and cannot be enforced in law or equity. And this whether the other contracting party had notice of the prohibition or not.
    In England the same ruling as in Ohio seems to have been pretty strictly adhered to. Green’s Brices Ultra Vires, pages 608 and 611.
    Mr. Green, the learned American editor of Mr. Brice’s treatise, states the American rule, page 160, note. 1 Dillon on Municipal Cor., No. 415-426; Police Jury v. Britton, 15Wal., 566; Mayer v. Bay, 19 Wal., 468; Morse on Banks and Banking, section 731.
    We are fully aware that the later writers upon the law of corporations have, to some extent, leaned against the invalidity of the partly executed contracts of corporations.
    But in no case, so far as we are aware, has it been held by any reputable' court, or laid down by any text writer of repute, that a contract forbidden by statute, or a contract of a corporation beyond its powers, the other party having notice thereof, is valid.
    Perhaps no recent, or comparatively r.ecent text writer upon the law of corporations has gone further in this direction than Mr. Morawetz. Section 660.
    Mr. Beach on Private Corporations follows Mr. Morawetz. Section 438, Illegal Corporate Acts, Ultra Vires; Thomas v. The Railroad, 101 U. S., 70, and cases there cited; Salem Mill-Dam Co. v. Ropes, 6 Pick., 23; Briche v. Ashbury Railway Carriage Co., L. R., 7; H. L., 653. Authorities on last proposition: In re Comstock, 3 Sawey, 218; Kent v. Quicksilver Mining Co., 78 N. Y., 159; Ogdensburg, R. Co. v. Vermont, Co., 4 Hen., 268.-
    Our case here is one of prohibition by statute.

      Collins <& Collins, for Erie City Iron Works and Ball Engine Co., defendants in error.
    The argument for the plaintiffs in error must stand or fall up on the proposition, “that the acts in controversy were not within the scope of the powers of the corporation to perform under any circumstances or for any purpose.”
    Now we say, that so far as the rights of plaintiffs in error in this case are concerned, that even if it were true that the corporation could not change its name and enlarge its powers without their consent, yet with their consent it might be done, since none of the acts complained of are illegal per se or prohibited by positive law. Boone on Corporations, section 98 and notes cited, and section 103.
    Here is an executed contract. Bonds issued and sold, and on each side the contract executed, and unless fraud was clearly shown or it was expressly prohibited by statute, the courts never permit a repudiation by either party and the defense of ultra wires will not be sustained. Hays v. Qalion Gas Co., 29 Ohio St., 330; Bradley v. Ballard, 55, 111., 417; Miners Ditch Go. v. Zellerbach, 37 Id., 543; Foulks v. San Diego R. R. Co., 51 Id., 365; Bisselv. Mich., etc., R. R.■ Co., 22 New York,.258; Attleborough Bankv. Rogers, 125 Mass., 339; Hitchcock v. Galveston, 96 U. S., 341.

      This defense if allowed in the ease at bar would not advance justice, but on the contrary, work a legal wrong, as the bonds by the sale of which the plant was erected and put in operation, would not be paid while the plaintiffs in error who caused the issue of the bonds would retain the proceeds of the sale of the plant. Whitney Arms Co. v. Ba/rlow, 63 N. Y., 62; Buffett v. Troy B. B. Co., 40 N. Y., 168; Madison Avenue Baptist Churchy. Olive Street Church, 73 N. Y., 82; Darst v. Gales, 83 111., 136; Whitney v. Fwst National Bank, 50 Vt., 338; Bailway Company v. McCarthy, 96 U. S., 258.
    If a corporation has entered into a contract which has been fully executed on the other part and nothing remains but the payment of the consideration, it will not be allowed to set up the defense of ulto'a vires.

    It cannot be said it was not within its chartered privileges. Grant v. Henry Clay Coal Co., 80 Pa. St., 208; Oil Creek, etc., B. B. Co. v. Penn. Transportation Co., 83 Id., 160; Be Groff v. Am. Linen Co., 24 Barb., 375, 21 N. Y., 124; State Boa/rd v. Citizens’ B. B. Co., 47 Indiana, 407.
    Where a corporation has accepted the benefit of a loan it cannot avoid liability by repudiating the authority of those who contracted the loan. And the doctrine of ultra vires cannot be carried to the extent of requiring one who honestly lends money to a corporation for proper purposes to see that the money is not applied to other purposes.
    We affirm as a matter of law that such acts were binding on the corporation and on all the stockholders — that there was and is no positive prohibition by any statute — that there was nothing against public policy — nothing fraudulently, and that whether expressly authorized or not, is a matter of no consequence as applied to this particular ease. Allegheny City v. McOlurkan, 14 Pa. St., 81; Beers v. Phoenix Glass Co., 14 Barb., 358; Bank of Middlelmry v. Rutland, etc., R. R. Co., 30 Vt., 159; Zabrishie v. Cleveland,- etc., R. R. Co., 23 How., 381.
    As to estoppel of stockholders, without adding to the length • of brief, we cite: Hermann on Estoppel, sections 570 to 579 inclusive, and the numerous cases there cited. Gaff v. Flesher, 33 Ohio St., 107.
    If the directors did wrong they cannot shoulder their mistakes on creditors. They are absolutely without defense. Thompson on Liability of Stockholders, sections 402, 404, 405, 407 and 415.
    It is not for us to show that we are within the law. The court will presume that, and sustain corporate acts unless clearly shown to be ultra vires. State ex rel. v. Taylor, 55 Ohio St., 61.
    The change made was not a change, but simply an enlargement of the scope or purpose to better carry out the object of lighting the streets of Hillsboro, Ohio, and its buildings. The object remained the same and better and more modern modes of carrying out the object were added.
    A corporation created for mining and transporting coal, was allowed to purchase and use a steamboat in its business. Callcmay, etc., v. Gla/rk, 32 Miss., 305; Wheeler v. San Francisco, etc. R. R. Co., 31 Cal., 46; Doioning v. Mt. Washington etc. Co., 40 N. H., 230; Lyndenborough Glass Co. v. Mass. Glass Co., 3 Mass., 315.
    There are numerous cases in which the question in various forms has arisen cited in section 103, of Boone on Corporations, and in notes to Brice’s Ultra Vires:

      The right to issue the bonds followed, if the other steps were valid. Hayes v. Galion Gas Light Co., 29 Ohio St., '330.
    As to Picard and Conard, the doctrine of estoppel applies with all its vigor. The rest of the case hangs on the mere thread of a chance that John H. Brown, holding a mere trifle of stock, may in some manner overturn the proceedings, and that this, although of little benefit to him, would give the whole fund from the sale of the property to the stockholders who created the debt, instead of to the creditors, thus establishing a new rule, by which a party who borrows money and gives a mortgage, when the mortgage is foreclosed gets the money instead of the mortgagee.
    The stocks in this case were personal property, and the remedy as to its conversion (if wrongfully coaverted) is solely against the executor who converted it, and who, if a wrong was committed upon John H. Brown, is liable either as executor or guardian. But no wrong- was committed. The executor had the right to do just what he did, and the authorities are manifold. The personal assets of James Brown passed into the hands of the executor, and the control over the stocks was the same as over other chattels. Nor was there any requirement upon him to take any step to protect it more than required for other chattel interests, and, having full power over it, his acts bind all other parties. Perry on Trusts, sections 809, 812; Pike v. Rowland, 94 Pa. St., 238.

      Van Leman da Chaffin, for John H. Brown, cross-petitioner, defendant in error.
    Under the charter of the Gas Light Company, we think it is clear that there was no power to engage in the business of electric lighting.

      The charter of a corporation is the measure of its powers, and it is confined to the exercise of those expressly granted, and such incidental powers only as are necessary for the purpose of carrying into effect the powers specifically conferred. The enumeration of powers in the charter, implies the exclusion of all others. Mias Straus <& Bro. v. The Eagle Ins. Co., 5 Ohio St., 60; Morawetz or Pri. Corp., page 149 and note 2, page 150; Franklin Bank v. Com. Bank, 36 Ohio St., 355; Bailway Co. v. Iron Co., 46 Ohio St., 49.
    The established law of the land for many years had been that no change whatever could be made in the charter of a corporation without legislative authority. Morawetz, page 70, etc.
    And this was the law of Ohio until the act of May 18, 1886. Revised Statutes, section 3238a. Then undoubtedly the provisions of this section should be strictly construed.
    James Brown died May 8, 1881, seized of 202 shares of the capital stock of The Hillsboro Gas Co. His will was at once probated, and George W. Brown qualified as executor. By said will there was bequeathed to John H. Brown, the cross-petitioner, and who was an infant until June 1, 1893, the one-sixteenth part of said 202 shares of stock in the said gas company.
    That it is not claimed, nor does it appear, that the said John H. Brown, nor his guardian, were ever notified of any of the proceedings in the attempt to enlarge and change the charter and powers of the said gas company. The record does show that thirty days’ notice by publication was not given, as required by the statute. Then such change, even within the provisions of the statute, would be void unless the notice of such proposed change was expressly waived by each and all of the stockholders.
    This, it is clear, was not done so far as this cross-petitioner, at least, is concerned.
    Upon the proving of the will the stock therein bequeathed to John H. Brown, vested in him, subject only to the right of the executor to use it if necessary to pay the debts of the testator.
    The executor had no authority to waive the notice required by the statute; he was not the owner of the stock of the said testator. If any part of it was willed to him, then such waiver might bind him upon such part, but it could not affect the right of others who acquired the stock under the said will.
    The powers of an executor are limited by the will and the law. They are personal in their nature and cannot be delegated to others. If he creates any new obligations, they are his and not the estate’s. Zucht, Admr., v. Behrens, 28 Ohio St., 231.
    In addition to the authorities cited by Judge Huggins, we ask your attention to the following: A. & E. Enc. of Law, page 208, volume 4; Davis v. Railroad Co., 131 Mass., 259; A. and E. Enc., volume 27, pages 368 and 369; Mor awe tz Pri. Corp., 75.
    But there is still another reason why The Citizens’ National Bank of Hillsboro, or its receiver, is not entitled to any part of the fund in the receiver’s hands.
    The Citizens’ Bank is chargeable with full knowledge of all the facts, in connection with the attempted change of the charter of said company, and the illegal issue of said bonds. Zousiana State Barnk v. Sencal, 13 La., 525; National Security Bank
      v. Cushman, 121- Mass., 490; Ex Parte Stewart, 4 De. G. J. & S., 543; Ex Parte Burbridge, 1 Deac., 131; Union Bank v. Campbell, 4 Humph., 394; Bank of America v. McNeil, 10 Bush., 54; JDessler v. Norwood, 17 C. B. (N. S.), 466; The Distilled Spirits, 11 Wall., 356; Chouteau v. Allen, 10 Mo., 290.
    The same presumption of knowledge ought to apply to a corporation. Atlantic Bank v. Merchants Bank, 10 Gray, 532.
    Has a stockholder the right to resist distribution of proceeds of corporate property to the holders of illegally issued mortgage bonds?
    A single shareholder may maintain suit to restrain the corporation from a contemplated transaction which is manifestly beyond its powers. (Volume 27), A. and E. Ene., page 386.
    There is one exception to this rule, and that is where the stockholder actively participated in the wrongful act, or sat supinely by and allowed innocent persons to acquire rights, that would be thereby prejudiced.
    And if the act done was clearly beyond the powers of the corporation under any circumstances, even this would not prevent a bona fide owner of a single share from resisting the unlawful demand. A. and E. Ene., volume 27, page 403.
    We presume it will not be questioned but that a defendant in a proceeding in' error has a perfect right to file his cross-petition in error in the same proceeding-. 54 Ohio St., 622.

      Steele <& Hogsett, for Robert M. Dittey, defendant in error.
    Upon the question of the bank’s knowledge of any infirmity in the issue of bonds arising from the knowledge of Price and Overman, who were officers both of the bank and of the Gas and Electric Light Co., we suggest:
    1. The Citizens’ National Bank cannot be chargeable with knowledge because of their position.
    2. The knowledge of an officer is the' knowledge of the principal only when the officer is acting within the discharge of his duty.
    3. When an agent assumes to act in antagonism to his principal, the rule of imputed knowledge does not apply.
    4. If the agent has such a personal interest in a transaction as to lead him to conceal his knowledge from his principal, the knowledge of the agent cannot be imputed to the principal.
    5. That an agent, acting avowedly for himself or on behalf of others with whom he is interested, cannot be treated as the agent of the corporation, is well sustained by authority. Innererity v. Merchants'1 National Bank, (139 Mass., 332) 52 Am. Rep., 710; Fairfield Savings Bank v. Chase, (72 Me., 226) 39 Am. Rep., 319; Koehler v. Bodge, 31 Nebr., 328; Barnes v. Trenton Gas Light Co., 27 N. J. Eq., 33; Boone’s Law of Banking, sections 132 and 346.
    Certificates of stock in the new company were issued to and accepted by Picard and Conard, plaintiffs in error, in surrender of those held by them in the old company, and were held and voted by them at subsequent elections; and the action taken was ratified by them in various ways; and to allow them now to deny the validity of an indebtedness incurred upon the faith of their own actions and for their benefit, and to hold that the fund resulting largely from the sale of property bought with the money so borrowed should be paid to them as stockholders of the old company instead of to the creditors, would he in the highest degree inequitable. 2 Morrawitz on Corp., section 631 et seq.; 2 Herman on Estoppel, section 1186, page 1328; Chapman v. Railroad, 6 Ohio St., 119; Sanderson v. Iron and Nail Co., 34 Ohio St., 442.
    Under the third conclusion of law complained of, plaintiffs in error claim that the addition of the electric light business to that of the Gas Co. was ultra vires. We contend:
    That the contract sued upon having been executed by the creditor, the claim of ultra vires cannot be made. Boone on Corp., section 101; 2 Morrawitz, section 689 et seq.; 2 Herman, section 1182-1183; 34 Ohio St., 450; 2 Waterman on Corp., 371-372; Gaffv. Flesher, 33 Ohio St., 114; National Bank v. Ins. Go., 41 Ohio St., 11; Hayes v. G. I. <& G. Go., 29 Ohio St., 340; Larwell v. Harmon, 40 Ohio St., 284; 7 Ohio, 412; 21N. Y., 127; 22 N. Y., 509; 63 N. Y., 62.
    It is claimed, however, that the addition of the electric light business to that of the Gas Co. was forbidden by positive law and therefore ultra vwes strictly, so that there could be no estoppel or innocent purchaser of securities. The amendment was made under authority of section 3238$ of the Revised Statutes of Ohio.
    This amendment was made at a meeting of the directors, called for that purpose, of which the stockholders had notice, publication of notice of the meeting being waived in writing by all of the stockholders.
    The real question is whether or not said amendment worked any material change in the purpose of the company as originally organized. State eos rel. v. Taylor, 55 Ohio St., 61.

      In the ease at bar the purpose, as expressed in the articles of incorporation, manifestly was to furnish light for the streets and buildings of the incorporated village of Hillsboro. Gas is the source of light; so also is electricity, and it would seem to us, therefore, not unnatural or improper to amend the articles of incorporation so as to combine the business of manufacturing gas and electricity for the purpose of furnishing light, each being an agency for a common result.
    The case of The Findlay Gaslight Go. v. The Incorporated Village of Findlay if C. C. Rep., 237 ; s. c. 1 Circ. Dec., 463), presented a very different question, both as to the position of the parties and as to the rights claimed.
    Sections 3266, 3238 and 3856 should be construed together. Section 3266 is limited by the others, and the assets of the corporation may be used for such corporation as enlarged by amendment under the other sections. Hayes v. Galion Gas Go., 29 Ohio St., 330. The amendment of the articles of incorporation was authorized by law. Its right to act as a corporation could only be challenged by the state. The amendment was accepted and acted upon by all of the parties as lawfully made, and they should not now be heard to complain. Boone on Corp., section 104; Society Pervm v. Cleveland, 43 Ohio St., 490; Farmers' loan & Trust Go. v. A. A. <Jc H. M. By., 34 Law Bui., 177.
    The defendant, John H. Brown, complains by cross-petition in error that neither he, then a minor, nor his guardian, were notified of any of the proceedings in attempting to enlarge and change the charter and powers of said Gas Co. He was a residuary legatee under the will of said James Brown. At the time the action was taken to amend the articles of incorporation of the Hillsboro Gas Co., the estate of said James Brown was being administered by George 'W. Brown, as executor of his last will and testament, and as such executor he held stock belonging to said estate. We maintain that at the death of James Brown, his property passed into the hands of the law for administration by his executor. The will fixed the law of its distribution after payment of his debts. Woerner Am. Law of Administration, section 172; Schoenberger v. Lancaster, 28 Pa. St., 459; Cook on Stockholders, section 612; 1 Morrawitz on Corp., section 483; In re North Shore Perry Co., 63 Barb., 556; Thompson on Corp., section 731; Matter Cape May, etc., Nav. Co., 51 N. J. L., 78.
   Bradbury, J.

Only one question will be considered in this opinion, and that question relates to the legality of the proceedings by which The Hillsboro Gas Light Company enlarged its object and purposes so as to authorize it to manufacture and furnish electric lights.

The special finding of fact discloses that in the year 1875 The Hillsboro Gas Light Company was incorporated under the laws of this state for the purpose of erecting gas works for the manufacture and sale of gas. Its capital stock was $40,000, divided into 800 shares of $50 each, fifty per cent, of which had been paid in; when, in 1888, the company attempted to enlarge its powers so as to permit it to manufacture and furnish electric lights in addition to gas lights. It appears that all the formal steps prescribed by statute to accomplish this purpose, were correctly taken, that the charter was, in fact, amended so as to authorize the corporation to manufacture and furnish electric lights, that afterwards, the name of the corporation changed from The Hillsboro Gas Light Company to The Hillsboro Gas & Electric Light Company, and the capital stock reduced from $40,000 to $20,000.

Thereupon the directors of the new corporation, in order to secure funds for the purpose of purchasing the necessary plant, machinery and apparatus with which to produce and furnish electric light, passed the following resolution: “Resolved, that the president of the Hillsboro Gas and Electric Light Company be and he is hereby authorized to issue the bonds of said company to the extent of $14,000, in denominations of $500 each, and all payable on the first day of July, 1899. Said bonds to be dated July 1, 1889, and draw interest from date at the rate of six per cent, per annum, payable semi-annually, and shall be signed by the president and countersigned by the secretary of said company.” And, to secure the payment of these bonds, the president of the company was authorized to execute, on behalf of the company a mortgage, or deed of trust, upon the real estate, fixtures, material, privileges and franchises of the company. And thereupon the bonds were executed, and a mortgage also executed for the purpose of securing their payment.

If, under the statutes of this state, the old company, so-called, had power to amend its charter so as to authorize it to manufacture and sell electric light instead of, or in addition to gas, the new corporation, so-called, should not be regarded as a distinct entity from its predecessor, but rather as the samé body, but clothed with enlarged powers and a new name. It is, however, probably immaterial to the question under consideration, which view of this question of identity is adopted, for in either case, whether the new company should he regarded as distinct from the old one or a continuation of it under a new name, the validity of the bonds and mortgage in question depends upon the authority of the corporation to construct and pay for machinery and apparatus adapted to generate electricity, and to generate-and sell the same for lighting purposes. If the new concern had no power to engage in the production and sale of electric light, the bonds in question having been issued to provide the machinery, etc., necessary to the production of electric lights, and the mortgage given to secure them, would be void, at least in the hands of those who had notice of the purpose for which the bonds were issued, unless the corporation and its stockholders should be estopped to set up this want of power. They would have been void for the reason that they were issued for a purpose which the corporation had no power to accomplish. The circuit court was of the opinion that the facts established by the evidence, did raise such an estoppel, and also that the bonds, or most of them, were held for value by bona fide owners who were not chargeable with notice of want of uower in the corporation to issue them.

Without differing from the circuit court upon those questions, we rest the decision of this court upon the power of the corporation to make and issue the bonds in question, and to execute a mortgage on the corporate property to secure them. This, of course, depends upon the validity of the amendment made to its charter. By its original charter, authority is given to erect “gas works for the manufacture and sale of gas for the streets, and public and private buildings of the incorporated village of Hillsboro, Ohio.” It is quite clear that under the powers thus given the corporation could not proceed to erect an electric light plant and manufacture and furnish electric light to the village of Hillsboro and its inhabitants. The obvious purpose of its creation was to manufacture and sell light to that village and its inhabitants, but it chose in the first instance to ask the state for authority to furnish a particular kind of light, and that authority and no other was given. Whether at that time any other means of lighting the streets of our towns and cities were known, is not material. For, whether there was or was not, the charter of this corporation then limited its right to the production and sale of gas and of course it had no power to do anything- else. In the year 1888, the corporation sought to enlarge its powers by amending its charter, and to that end applied to the state for and obtained authority to produce and sell to the same village and the same inhabitants and for the same purpose, i. e., to light the streets, etc., of the village of Hillsboro, a different agency, known under the name of electricity. The authority to apply for this amendment is found in section 3238a, Revised Statutes, which reads: ‘‘Any corporation, incorporated under the general corporation laws of the state may---amend its articles of incorporation so as to change the corporate name---or so as to modify, enlarge or diminish the objects or purpose for which it is formed; or so as to add thereto anything omitted from, or which might lawfully have been provided for in such articles originally; provided, however, that nothing under this supplementary section shall authorize a corporation to by amendment to change substantially the original purposes of its organization.”

The power of amendment granted by the foregoing section is broad. The corporation may change its name or its place of business. It may enlarge or diminish the objects or purposes for which it was formed, and it may add to its articles of incorporation anything which might have been included in said articles originally. These extensive powers of amendment have only a single limitation, which is that the amendment does not change substantially the original purposes of the corporation. The right to amend its charter by adding whatever might originally have been included in the articles of incorporation, is expressly given. The power of amendment in that respect, and to that extent, received direct legislative sanction. The legislative mind was immediately directed to that particular matter, and the power to accomplish that end expressly and unequivocally granted. It would seem to follow from' this explicit and unambiguous grant of the right to amend the charter, so as to add what might have been originally included,that the making of such an amendment by a corporation, would not in any case in the contemplation of the legislature, substantially change the original purposes of its organization. This, certainly, is a reasonable construction, for surely no good reason can be assigned that would forbid the granting, by amendment, of any power that might have been originally granted. If the public welfare or convenience did not demand the exclusion of the power originally, why, or upon what principle, should they deny its being given by amendment of the charter? No sound reason has been advanced against the policy of granting to the same corporation the power to make and sell gas for the purpose of lighting public streets and places and public and private buildings, and also conferring the power to generate electricity and apply it to the same purposes, and we can see none. Each power is but a different means to the same end. The ultimate object or purpose for which each agency is employed, is to provide light. Originally the Hillsboro Gas Light Company sought to accomplish this object by means of manufactured gas; afterwards it was discovered that this object could be in some respects more satisfactorily accomplished by electricity. We think an amendment of its charter so as to authorize it to employ for this purpose electricity is expressly authorized by that provision of section 3238a which permits anjr amendment that add powers which “might lawfully have been provided for in said articles originally. ”

This court, in the case of live Steubenville Gas & Electric Light Company v. Taylor, Secretary of State, 55 Ohio St., 61, had occasion to consider the extent to which corporate charters may be amended under section 3238a, Revised Statutes. It may be observed, in passing, that the original charter of the relator in that case conferred upon it the power to employ both gas and electricity much more extensively than the amended charter of the Hillsboro Gas & Electric Light Company permitted, and yet no suggestion was made that the exercise of such powers was not authorized by our laws. In that case the corporation already had, as we have seen, power to employ both gas and electricity for producing light, etc., sought to enlarge its powers so as to obtain the authority to operate a street railway.

This court was of the opinion that the power thus sought, would, if obtained, change substantially the original purpose of the corporation, and denied the right to that amendment. That conclusion, however, in no wise conflicts with the conclusions reached in this case.

Judgment affirmed.


source: Caselaw Access Project

author: Spear, O. J.

license: Public Domain

text:
    The State of Ohio v. Gardner.

      Plumbing business — Natural right to labor — Legislative Í7iterference — ■Laws relating to public health — Must operate equally — Ln-validity of part of Act of April SI, 1896 — Constitutional law.

    1. The right to labor and enjoy the rewards thereof is a natural right which may not be unreasonably interfered with by legislation. Where, however, the pursuit concerns, in a direct manner, the public health and welfare, and is of such a character as to require a special course of study or training, or experience, to qualify one to pursue such occupation with safety to the public interests, it is within the competency of the general assembly to enact reasonable regulations to protect the public against evils which may result from incapacity and ignorance.
    2. The business of plumbing is one which is so nearly related to the public health that it may, with propriety, be regulated by law, and reasonable regulations, tending to protect the public against the dangers of careless and inefficient work, and appropriate to that end, do not infringe any constitutional right of the citizen pursuing such calling.
    3. But it is essential to the validity of an act undertaking to regulate the business, that it shall, in its requirements, operate equally.
    4. That part of the act of April 21, 1896, entitled ‘ ‘ An act to promote the public health and regulate the sanitary construction of house-drainage and plumbing,” which requires any plumber, whether master, or employing plumber, or journeyman, before engaging in the business, to undergo an examination as to fitness, and obtain a license, but permits all members of a firm to pursue the business where one only has procured such license, and all members of a corporation to pursue it where the manager only has procured such license, does not operate equally upon all of a class pursuing the calling under like circumstances, and is invalid.
    (Decided June 21, 1898.)

      Exceptions by the prosecuting attorney to the decision of the Court of Common Pleas of Summit county.
    May 27, 1897, John M. Gardner was convicted, before the mayor of Akron, Summit county, of a violation of the act of April 21, 1896, entitled “An act to promote the public health and regulate the sanitary construction of house-drainage and plumbing” (92 Ohio Laws, 263), and sentenced to pay fine and costs.
    It was shown by the agreed statement of facts that for two years Gardner had been a master plumber, and that for ten years prior thereto had been a journeyman; that he was skilled and competent ; that all that time he worked at the trade and was still working; that on May 7, 1897, he was engaged in that business at Akron, as an individual; that he was not a member of any firm or copartnership, or corporation; that on that day he put in a certain sink,- sewer and water connection in Akron, and that at the time he had not procured a license therefor from the board of health of said city.
    Exceptions having been taken by Gardner to the sentence and judgment of the mayor, the same were presented to the court of common pleas of Summit county, the Hon. Jacob A. Kohler presiding, at the October term, 1897, and, on consideration, that court reversed the judgment of the mayor, holding the act on which the charge was founded to be unconstitutional, and discharged the defendant. To this ruling the prosecuting attorney duly excepted, and, on leave, filed his bill of exceptions in this court for its decision upon the points presented, and to establish the law in any similar case.

      R. M. Wanamaker, prosecuting attorney, for the State.
    The sole contention between the parties hereto is as to the constitutionality of said act.
    The presumption is always in favor of the constitutionality of a statute. If any doubt exists, the benefit of the doubt is to be given to the law. Sykes v. Columbus, 55 Miss., 143; Com. v. Butter, 99 Pa. St., 535; Wilkins v. State, 113 Ind., 514; Central Iowa R. R. Co. v. Wright County, 67 Iowa, 199; State v. Moore, 104 N. C., 714 ; Pfeiffer v. Peck, 6 Oranch, U. S., 128.
    The object and spirit of the statute is clearly within the police power of the state. The police power manifestly extends to the protection of lives, limbs, health, comfort and quiet of all persons and the protection of all property within the state. By this general police power of the state, persons and property are subjected to allkinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the state. Thorpe v. Rut-land and Burlington R. R. Co., 27 Vt., 140; Commonwealth v. Alger, 7 Cush., 53; Cooley’s Const. Lim., 704 et seq ; The People v. Warden of City Prison, 144 N. Y., 529; Singer v. State, 72 Md., 464; 19 A. Ry., 1044.
    That the act is within the limits of the police power of the state is manifest. First: From the purpose of the act, to-wit: “To promote the public health and regulate the sanitary construction of drainage and plumbing.”
    Second: From its operation and effect, to-wit: To “cut off incompetent and irresponsible plumbers, and to give the public assurance of better workmanship in matters intimately affecting the public health.

      If the court should find that the provision of section 2, above cited, was in itself unconstitutional, we do not believe that this is sufficient to warrant a holding of unconstitutionally as to the remainder of the act, for it is an old established principle in the construction of statutes that “Where part of the statute is unconstitutional, but the remainder is valid, the parts will be separated, if possible, and that which is constitutional will be sustained. ” “The constitutional and the unconstitutional provisions may even be contained in the same section, yet be perfectly distinct and separable so that the first stand though the last fall. ’ ’ Presser v. Illnois, 116 U. S., 252; 6 Sup. Ct., 580 ; Mobile and O. B. Co. v. State, 29 Ala., 573 ; State v. Exnioious, 33 La., 253; People v.Kenny, 96 N. Y., 294 ; Som. v. Hitohings, 5 Gray, Mass., 482; Black’s Constitutional Law, second edition, pages 64 and 65; Cooley’s Constitutional Limitations, sixth edition, 197 and 209.

      Musser <& Kohler, co7itra.

    The statute is repugnant to the first section of the bill of rights, which declares, that among the inalienable rights of the individuals are “Those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness.” This court has construed this section to embrace “The right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare.” Palmer v. Tingle, 55 Ohio St., 423.
    The statute is also repugnant to the fourteenth amendment to the constitution of the United States, which provides, “Nor shall any state deprive any person of life, liberty, or property, without due process of law.” 1 Blackstone’s Commentaries, 124.
    It is undeniably within the province of the legislature to impose conditions upon those who shall thereafter enter a particular calling; but it does not follow that these conditions may be thrown upon those whose rights to engage in such calling have been previously fixed.
    Upon the subject of legislation which hinders the individual in the conduct of an industrial pursuit. State v. Goodwill, 25 Am. S. Rep., 866; People v. Marx, 99 N. Y., 386; Berdolf v. O'Reill/y, 74 N. Y., 515; Matter of Application of Jacobs, 98 N. Y., 114; Butchers' Union Go. v. Crescent Oity Go., Ill U. S., 746.
    In whatever light we may regard other statutes for the regulation of trades or professions, it at least will not be disputed that every such statute now in force in this state has had regard for experience and the skill which experience presupposes, and has guarded to a great extent against disturbing those vested rights of property which men have in their own trades and occupations. Section 4404, regulating the practice of denistry and section 4303c of the act to regulate the practice of medicine.
    That the statute under consideration unjustly discriminates is incontrovertible. It deprives the plumber who is alone in business from the enjoyment of natural rights which another who is a member of a firm or who is connected with a corporation may freely enjoy. Section 2 of the act. State v. Hinman, 65 N. H., 103; State v. Pennoyer, 65 N. H., 113; Tick Wo v. JTopMns, 118 U. S., 220;
      Ex Parte Westerfield, 55 Cal., 550; Matter of the Application of Peter Jacobs, 98 N. Y., 114.
   Spear, O. J.

The first section of the act in question requires that every person, firm, or corporation, engaged in the business of plumbing, either as master or employing plumber or journeyman, shall first secure a license. The second section requires that any person desiring to engage In or work at the business of plumber shall apply to the president of the board of health, or other officer having jurisdiction in the locality where he intends to engage in, or work at, such business, and be examined as to his qualifications. But “in case of a firm, or corporation, the examination and licensing of any one member of such firm, or the manager of such corporation, shall satisfy the requirements of this act.” Section three provides that in every city, and in each town having a system of water supply or sewerage, there shall be a board of examiners consisting of the president of the board of health, the inspector of buildings, if any there be, and three practical plumbers. In localities where the required number of plumbers cannot be secured, such vacancy can be filled by the appointment of reputable physicians. The members shall be appointed by the board of health, and if there be no such board, then by the health officer. If there be no inspector of buildings then a practical plumber shall be added. Section four directs as to time, etc., of examinations, and that “the board shall examine said applicants as to their practical knowledge of plumbing, house-draining and plumbing ventilation, and if satisfied of the competency of the applicant, shall verify to the board of health.” The board is then to issue a license. The fee for a master or employing plumber is to be five dollars and a journeyman one dollar, to be renewed annually. Section five provides for tbe appointment by the board of health of one or more inspectors of plumbing, who shall be practical plumbers, their term of office, their compensation and their duties. The sixth section requires the board of health to prescribe rules and regulations for the construction, alteration and inspection of plumbing and sewerage placed in or in connection with any buildings, subject to approval by ordinance of the council, and the board shall further provide that no plumbing work shall be done, except in case of repairs or leaks without a permit. Section seven prescribes punishment, of a fine from five to fifty dollars, for any violation, and that the license may be revoked for incompetency, etc., after hearing before the board subject to appeal to the state board of health. All money derived from examinations shall go to the board of health. .

Applying to the case the general presumption that the acts of the general assembly are to be held valid unless the contrary clearly appears, the natural order of inquiry leads to a consideration of the objections urged against this act. Two are deemed worthy of special notice. First: That the statute deprives of liberty and property without due process of law, and that it unreasonably interferes with the natural right of the individual to labor and enjoy the fruits thereof. Second : That the statute discriminates against the individual in favor of firms and corporations, and thus imposes unequal burdens upon persons of the same class.

1. Does the act unreasonably interfere with the right to labor ? That the right to labor and enjoy its fruits is a natural right which may not be unreasonably interfered with, is, we presume, not denied by anyone. But it is equally well settled that it is one of the rights which may, under same circumstances, be subject to reasonable regulation. This principle finds examples in our laws termed Sunday laws, in those acts which regulate apprenticeships, the employment of children in factories and in theatrical and other exhibitions, and in a number of other instances which will readily occur. The acts referred to fall within the exercise of the police power of the state, that power, conceded to reside in the people’s representatives, which is rightfully exercised by the regulation of the use of private property, or so restraining personal action, as to secure, or tend to the comfort, health or 'protection of the community. Further examples of its exercise are found in the laws which require study and examination before one is permitted to pratice law, or medicine, or engage in the occupation of a, dentist or a pharmacist. If, then, the regulation of the business of plumbing, and the performance of the work of a plumber, may naturally be expected to promote the health of a community, or relieve of dangers- to health which otherwise might follow its careless exercise, and the legislation be appropriate to accomplish the object sought, it cannot, be said that such regulation interferes with a natural right or unreasonably prevents its exercise.

We are aware that an opinion prevails in some quarters, and has found expression in judicial utterances, that the pursuit of plumbing is a mere trade which may be easily mastered by anyone possessed of ordinary intelligence ; that the plumber is not,, nor is he expected to be, an expert in the science of sanitation, and hence his work cannot have such relation to the public health as to justify its regulation.

True it is that the business of the plumber is not ranked with the learned professions, and that much of his work is mechanical merely, calling for the exercise of deftness of the hands rather than the possession of scientific knowledge. Yeta certain degree of training and experience is absolutely necessary to render one intelligent as to the ground work of his calling as well as competent and skillful in its exercise. He is required to put into our dwellings and public buildings tanks, pipes, traps, fittings and fixtures for the conveyance of gas, water and sewage, which require, among- other essentials, the keeping out and protection against gases which are destructive of health and not infrequently of life itself. That it is of the highest importance that the drainage and sewerage of our public buildings and private tenements should be as skillfully planned and executed as the modern standard of science admits, would seem not to be open to question. And surely it is reasonable to suppose that one who has been educated to understand the scientific principle necessarily involved in work of this character, and to comprehend the reasons and teachings of experience upon which it is based, and the evil results which may follow neglect to observe it, will be more likely to provide the needful safeguards than one who is ignorant upon the subject. It is conceded by those who doubt the power as well as the propriety of regulation of the work itself, that the legislature has power to provide' for a careful sanitary inspection of plumbing work, and in this way secure a result, as to its system and sufficiency, which will tend toward the protection of the health of the general public. But it is difficult to perceive a reason for tbe exercise of the power last referred to which does not as well apply to the other, for if it be wise to devise means by which a good result may be obtained by careful inspection, it would seem clear that methods which are calculated to reduce the hazards of careless inspection would tend in the same direction. And, defects revealed by inspection would, it would seem be more likely to be remedied if the hands which should be called upon to do the work of correction, were guided by minds trained in the science of the business as well as skilled in the mere manipulation of the tools. The question really is, does the requirement of examination as to the fitness, reasonably tend to accomplish the object, is it appropriate to that end; not, necessarily does it fully accomplish it, nor does it make further care in the same direction unnecessary. We think it does so tend and is appropriate to the purpose, and that, therefore, the act does not unreasonably interfere with the right to labor. It is not here contended that the same high qualifications as to scientific acquirement should be required of the journeyman, one whose principal work is manual, as is required of the master plumber, the one who makes the plans and specifications for the work, and passes judgment upon the strength, durability and quality of the material and the devices for perfect work; nor, does that seem to be the import of the act, especially when it is noted that the fee for license charged is in the one case one dollar, and in the other five. If the examination be sufficiently searching to show that the journeyman understands the principles governing his trade, and is sufficiently skillful to be able to produce good results, that would seem to satisfy the scope of this act.

This conclusion finds support in the case of the People v. Warden City Prison, 144 N. Y., 529 ; and is distinctly sustained in Singer v. The State, 72 Md., 464, where it is held that an act which provides that no person shall engage in the business of plumbing unless such person shall have received from the state board of commissioners of practical plumbing a certificate as to his competency and qualification, and providing a penalty for violation, does not violate in any sense, the constitutional rights of the workman, but is but the ordinary exercise of the police power of the State. See, also, Soon Hing v. Crowley, 113 U. S., 703; Mugler v. Kansas, 123 U. S., 623; Powell v. Pennsylvania, 127 U. S., 678, Railway Company v. Beckwith, 129 U. S., 26; and Dent v. West Virginia, do., 114.

2. But a graver objection inheres in the claim that the act imposes unequal burdens upon those of the same class. It will be recalled that the first section requires that all who engage in the business of plumbing, whether master or employing plumber or journeyman, shall first secure a license, .and that section two provides that in case of a firm, or corporation, the examination and licensing of any one member of such firm, or the manager of the corporation, shall satisfy the requirements of the act. That is, a journeyman, for whomever he works, must have a license, and an employing plumber, if not a member of a firm or a corporation, may not pursue the calling with, out a license. But a master or employing plumber if he be a member of a, firm another member of which has procured a license, is exempt, although he may be one who has, as a journeyman, applied for a license and failed for incompetency. So, too in case of a corporation, if the manager is licensed, other members of the corporation may work without a license, without reference to their competency.

Our bill of rights prohibits the granting of privileges to one which are denied to others of the same class, and the imposition of restrictions or burdens upon certain citizens from which others of the same class are exempt, and section 26 of article 2, of the constitution requires that all laws of a general nature shall have a uniform operation throughout the State. A statute, therefore, which imposes special restrictions or burdens, or grants special privileges to persons engaged in the same business under the same circumstances, cannot be sustained, because it is in contravention of the equal right which all are entitled to in the enforcement of laws and in the enjoyment of liberty, and in the enjoyment of an equal right in the acquisition and possession of property, and so is not of uniform operation.

The constitutional objection to this statute is that it operates unequally in that it imposes the burden of an examination and license fee upon certain persons, and exempts others of the same class, pursuing- the same business in the same way.

It is contended that the act permits firms and corporations to employ such journeymen as they may choose, whether they be licensed or not, but we are not impressed that it will bear this construction. It is further suggested that the act does not prohibit the doing of plumbing work wholly by apprentices. If it is open to this construction, an additional reason is thus afforded for holding it invalid, but the spirit of the act would not, we think, permit this.

Objection is made to the composition of the examining board on the ground that one who has been appointed a member of the board, although possibly inexperienced and incompetent, may, without any test whatever, continue his occupation. We deem it enough to say as to this, that the act does not so provide. It would be possible, of course, that one appointed on the board might meet with greater favor from his fellows in his examination than another, but this possibility would not render the act itself invalid. It also might seem, at first blush, that the appointment of a board to examine others as to fitness and qualifications, the members of which may not have themselves been examined as to their qualifications, is a trifle incongruous. It is possible that the law in this respect might be improved. Yet there must be a start somewhere along the line, and the objection goes to the efficiency of the service rather than to the power of the legislature to authorize the method.

Believing that the act does discriminate unjustly between persons in the same calling, we agree with the conclusion of the learned judge of the court of common pleas, and, for the reasons stated, the exceptions are

Overruled.


text:
    State ex rel. The Attorney-General v. Adams.

      Notary public — Invalidity of act of April %6, 1898 — Rendering women eligible to office of notary public — Constitutional law.

    The act of April 26, 1898, to amend section 110 and other sections of the Revised Statutes, (93 O. L. 405) is ineffectual to render a -woman eligible to the office of notary public, in view of the provisions of section 4 of Article 15, and section 1 of Article 5 of the constitution, the former section requiring that an officer shall be an elector, and the latter that an elector shall be a male citizen.
    (Decided June 21, 1898.)
    In Quo Warranto.
    The petition of the attorney-general alleges that on the fourth day of March, 1898, the defendant, Miss Adams, was by the governor commissioned as a notary public for Lake county; that she then gave bond and took an official oath as prescribed by statute ; that she has ever since claimed, and now claims, to be holding such office and exercising its functions; that she is usurping said office because of the invalidity of the act assuming to authorize her appointment.
    For the purpose of final judgment the facts alleged in the petition are admitted to be true.

      Frank S. Monnett, attorney general, and John L. Lott, for the state.
    Brief of John L. Lott, assistant attorney-general, for relator.
    It appears to be entirely unnecessary to discuss the question, as to whether a notary public is an officer. Wherever the term “notary” is used, it is always used in connection with the term “office.” 2Bouvier’s Law Die., 255; United States
      v. Hartioell, 6 Wall., 385; 16 Am. & Eng. Ency. of Law, 753; Proffatt on Notaries, section 1.
    The framers of our constitution regarded a notary as an officer, as is apparent from a readingof article 2, section 4, of the constitution, which forbids persons holding office under authority of this state or the United States, from being eligible to a seat in the general assembly.
    It is regarded as an office in the very section of the statutes providing for the appointment of notaries public. See sections 110, 112, 114, 121, 122 and 123, Revised Statutes; Hill v. Bacon, 43 111., 477. In the matter of Notaries. 9 Colorado, 628; State v. Wilson, 29 Ohio St., 347, and many cases are therein cited. State ex rel. v. Jennings el al., 57 Ohio St., 415; Gayón v. Insurance Go., 68 Wis., 519.
    Section 4, of article 15 of the constitution, defines who shall be eligible to hold office in this state.
    The qualifications of an elector are expressed in section 1 of article 5.
    The precise question involved in this proceeding has been decided by this court in the case of the State ex rel. Hellie G. Bobinson v. William McKinley, Governor, on January 14, 1896, and is reported in 57 Ohio St., 627. The- opinion of the court is plain, and reads: “Under the constitution and laws of Ohio, a woman is not eligible to the office of notary public.”
    This decision is in line with the decisions of the Supreme Courts of other states upon this question, whose constitutions are similar of that of Ohio. 9 Colorado, 628; Story on Constitution, sections, 789-792; United States v. Hartioell, 6 Wall., 385; Hill v. Bacon, 43 111., 477; Article 7, section 6, of the Colorado Constitution. In the matter of notaries, 150 Mass., 586.
    It will undoubtedly be urged by counsel for the defendant that the rule laid down by the circuit court and affirmed by this court in the case of the State ex rel v. Board of Education, 9 C. C., 134; s. c. 6 Circ. Dec., 36, wherein it was held that a woman might vote and be voted for at elections for school officers, applies in the case of a notary public. But the court in that ease proceeded upon the theory that the constitution conferred upon the legislature (Const., article 1, section 7; article 1, section 2) the authority to provide for the organization and maintenance of a system of common schools; and that a member of a school board is not an officer of any political subdivision provided for by the constitution. State ex rel v. Cincinnati, 19 Ohio St., 197.
    In the case of Warwick v. The State, 25 Ohio St., 21, the court held that a woman might be appointed a deputy clerk of a probate court, but that was upon the theory that the acts of the deputy were the acts of the principal.
    We contend that the qualifications prescribed by article' 15, section 4, for persons holding office, apply to all offices which may be created to aid in the permanent administration of the government, and performing general functions of government. The office of a notary has to do with the general protection and security of property. While in this state the duties of notaries are ministerial in character, yet the functions performed by such officers are so general in character, and so connected with the carrying on of government, that they cannot be considered as merely local in character as in the case of school directors; and that the rule laid down in the election of members of local boards of education cannot be held to apply to the office of notary public.

      A. G. Reynolds; John Kenney; James R. Garfield and IF. K. Fink, Jr., attorneys for Grace A. Adams, respondent, submitted no briefs.'
   By the Court :

The commission was issued to Miss Adams under authority supposed to be conferred upon the governor by the act of April 26, 1898, to amend sections 110 and other sections of the Revised Statutes, (93 O. L., 405). Before the amendment, the pertinent provision of this section was: ‘ The governor may appoint and commission as notaries public as many persons having the qualifications of electors,” etc. In the amended section the phrase “having the qualifications of electors,”is omitted.

The amendment is ineffectual for the purpose contemplated, because section 4, of article 15 of the constitution ordains that “no person shall be elected or appointed to any office in this state unless he possess the qualifications of an elector.” The qualifications of an elector are prescribed in section 1 of article 5 of the constitution, and it is required that an elector shall be a male citizen of the United States. That a notary public is an officer, seems clear from the nature of his functions, as well as from the authorities upon the subject.

That a notary is an officer, and that a woman is ineligible under these constitutional provisions, are propositions distinctly held in 9 Col., 628. That a notary is an officer, is held in Hill v. Bacon, 43 Ill., 477 and 150 Mass., 586. The same conclusion is implied in Warwick v. The State, 25 Ohio St., 21, where it is held that a woman may be deputy clerk of the probate court, because the acts of such deputy are nob independent, but are the acts of the principal.

The contrary view is not supported by the State ex rel v. Cincinnati, 19 Ohio, 178, and the State ex rel. v. Board of Education, 9 O. C. C. R., 134. It was held in those cases that the qualifications of an elector are not essential to the holding of positions of an official character under the school laws, because of the effect of the constitutional provisions relating especially to the subject of schools. Those cases have not sufficient breadth or strength of foundation to admit of additional superstructure.

The conclusion here reached is in accord with that announced in State ex rel. v. McKinley, 57 Ohio St., 627.

Judgment of ouster.


text:
    Weber v. State.

      Court has power, %n criminal cases, to suspend execution of sentence, and to set aside such suspension.

    In a criminal case the court has the power to suspend the execution of the sentence, in whole or in part, unless otherwise provided by statute ; and has power to set aside such suspension at any time during the term of court at which sentence was passed. Whether such suspension can be set aside at a subsequent term is not decided.
    (Decided June 24, 1898.)
    Error to the Circuit Court of Franklin county.
    On May 3, 1897, being at the April term of the court of common pleas of Franklin county, Jacob Weber, the plaintiff in error, plead guilty to an indictment for keeping- a room for gambling, and the court sentenced him to pay a fine of $400.00 and costs, and that he be confined in the county jail for the period of ten days, and to said sentence added the following words: “But execution of the sentence to jail is hereby suspended.”
    Afterwards, at the same term of court, on the 9th day of August, 1897, the court, on its own motion, set aside the suspension of the execution of the sentence of imprisonment for the reason that the said Jacob Weber had violated the conditions of said suspension by engaging in gambling, directly or indirectly, and ordered the sheriff to carry said sentence into execution, and ordered a capias to issue for that purpose.
    The court heard evidence, and a bill of exceptions was taken, setting- out all the evidence introduced and exception taken to the action of the court.
    The circuit court affirmed the proceedings of the court of common pleas, and thereupon a petition in error was filed in this court, seeking to reverse the judgments of the lower courts.

      Cyrus Huling, for plaintiff in error.
    The sentence taken as a whole amounts to nothing more than imposition of a fine and the entry was a final one in the ease for that time. It has been held that the court has power to suspend the execution of sentence to imprisonment. Lee v. The State, 32 O. S., 113, and cases there cited. This suspension was not granted at the request of the plaintiff in error and is thereby distinguished from the case of Bvrd v. Cinti., quoted 12 Bulletin, 101.
    If this sentence was not an entire one, if it was a conditional sentence or depended on some contingency, then it was illegal. The judgment though pronounced by the judge is a certain and final conclusion of the law following on ascertained premises and it must not be dependent on any contingency, nor subject to any future decision, but must be unconditional. Archibold Crim. Plead., 8 Ed., page 580; Woodford v. State, 1 Ohio St., 427; Williams v. State, 18 Ohio St., 46.
    But a sentence is indivisible and this sentence having been fully executed so far as ordered by the court it is not subject to revision. Pickett v. State, 22 Ohio St., 405; La/rney v. Cleveland, 34 Ohio St., 599.

      Chcvrles W. Yoorhees, prosecuting attorney, and Henry A. Williams, for defendant in error.
    There seems to be no contention in this case as to the right of the court of common pleas to grant a suspension of the execution of the sentence heretofore originally made in this case. In fact, in his argument before the circuit court, counsel for Jacob Weber conceded that the court below had the right to make such an order of suspension. This seems to be elemental. Bishop, on “Criminal Procedure, ” Yol. 1, section 1299; Weaver v. People, 33 Mich., 296 ; People ex rel. Forsythe v. Court of Sessions, 141 N. Y., 288; People v. Bradner, 107 N. Y., 1; 2 Hale, P. C., ch. 58, p. 412. This power belonged of common right to every tribunal invested with authority to award execution in a criminal case, 1 Chitty, Cr. L. 1st ed., 617, 758.
    Without attempting to collate all the authorities on the subject, it is sufficient to say that the power to suspend sentence at common law is asserted by writers of acknowledged authority on criminal jurisprudence, by the .uniform practice of the court and numerous adjudged cases. 2 Hawk, P. C., eh. 51, section 8 ; 1 Bishop’s Cr. Pro., section 1124 ; 4 Bl. Com., ch. 31; People v. Graves, 31 Hun., 382; Peoples. Harrington, 15 Abb., N. C.,161; People v. Whipple, 9 Cow., 715; Carnal v. People, 1 Park Crim. Repts., 262; Commonwealth v. Boiodican, 115 Mass., 136'; State v. Addy, 43 N. J. L., 114; Weaver v. People, 33 Mich., 297; People v. Beiley, 53 id. 260; Commonwealth v. Maloney, 145 Mass., 205; Sylvester v. State, 65 N. H., 193; Gibson v. The State, 68 Miss., 241; States. Crook, 115.,N. C., 760; State v. White, 117 N. C., 804; Bird v. The City of Cincinnati, 12 W. L. B., 101.
   By the Court.

The power to stay the execution of a sentence, in whole or in part, in a criminal case, is inherent in every court having final jurisdiction in such cases, unless otherwise provided by statute. The suspension being in favor of the prisoner, is for his benefit, and is valid whether consented to by him or not. When the suspension is upon conditions expressed in the judgment, the prisoner has the rig’ht to rely upon such conditions, and so long as he complies therewith the suspension will stand.

But when the suspension is without express conditions, as in this case, it is within the power of the court to set aside the suspension at any time during the same term, on its own motion, and to order the sentence to be executed.

Cases cited by counsel are to the effect that the suspension may be set aside at a subsequent term; but this ease does not require us to go to that extent, because here the suspension was set aside at the same term at which sentence was passed.

Judgment affirmed.