author: Spear, J.

text:
    State ex rel. v. Commissioners of Public Printing et al.

      Classification of public printing — Authority and' discretion op commissioners in letting contracts — Act op May SI, 1894 amending sections S19, 8S0 and SSI, Revised Statutes {91 Ohio Laws, 400), construed.

    1. The act of May 21, 1894, amending sections 319, 320 and 321, of the Revised Statutes (91 Ohio Laws, 400), requires that the different classes of the printing of the state shall be let by the commissioners of public printing as separate contracts, with discretion in the commissioners to let the portions embraced in the seventh class in one or more contracts. The commissioners have not authority to entertain a bid embracing two or more classes of the work as a whole.
    2. Said act is not in conflict with section 2 of article 15 of the Constitution.
    (Decided December 11, 1894.)
    E rror to the Circuit Court of Franklin county.
    The case below was a mandamus proceeding brought in the circuit court by the plaintiff in error against the defendants in error, S. M. Taylor, E. W. Poe and J. K. Richards, as ‘commissioners of public printing for the state and The Wes^bote Printing Company and John L. Trauger, to compel an award by the commissioners to the relator of certain contracts for printing enumerated as the second, third, fourth, sixth, seventh, eighth and ninth. By cross-petition The Westbote Company sought an order awarding to it certain contracts enumerated as first, third, fourth, sixth, seventh, eighth and ninth; and by like pleading, John L. Trauger asked an order awarding to him certain contracts enumerated as first, second, fourth, eig’hth and ninth. To the petition and cross-petitions a demurrer was filed by the commissioners, which on hearing was sustained, and the petition and several cross-petitions dismissed.
    Error is prosecuted by the relator.
    By the petition it appears that the commissioners advertised for bids for the public printing, and in the specifications referred to, divided the same into nine separate contracts as follows: 1, bills and calendars; 2, journals; 3, pamphlet reports ; 4, laws; 5, executive jobs; 6, experiment station; 7, reports of secretary of state, inspector of building and loan associations, commissioner of .railroads and telegraphs, and of the commissioner of labor statistics; 8, reports of the auditor of state, commissioner of common schools, superintendent of insurance and the state board of agriculture; 9, the German printing.
    The relator, answering the advertisement, tendered three bids. One, relating to all the classes save the first and fifth, gave figures at which relator was willing to perform any one of the specified contracts standing alone; the second covered a portion only, and had a condition added that the English and German printing of the same job, or either of those named, are both awarded; the third, covering' all the classes save the first and fifth, had as a condition that the proposal was made as a whole. The second and-third bids were lower, taking' each as a whole, than the figures offered by other bidders upon the same work taken separately. The facilities of the relator for performing the work with rapidity and in a workmanlike manner were alleged to be better than those of any of its competitors, and the bond offered as security was ample.
    A number of other bids were made. Upon a consideration of all the bids, the commissioners awarded to the relator the contract for printing the work embraced in the second and ninth contracts; to The Westbote Company the third, sixth and seventh; to John L. Trauger the first, fourth and eighth and to- Myers Bros., the fifth.
    The holding of the circuit court is that this award is conformable to law.

      Wash (& Lentz, for plaintiff in error.

      J. K. Picharás, for commissioners.

      L). J. By an and Holmes <& Haling, for the Westbote Printing Company.

      T. E. Powell, D. K. Watson, and T. J. Keating, for John L. Traug-er.
   Spear, J.

As against the action of commissioners and the judgment of the circuit court approving it, the contention of the relator is, in substance, that the award thus made results in giving the printing to bidders who are not the lowest responsible bidders, and hence is in violation of the spirit of the statute, if not its letter, and of section 2 of article 15 of the constitution, which provides that “the printing shall be let on contract to the lowest responsible bidder, by such executive officers, and in such manner as shall be prescribed by law. ’ ’

Section 319 of the Revised Statutes (91 Ohio Laws, 400), provides that “printing for the state shall be divided into seven classes, to be let in separate contracts, as follows: The printing of all' bills for the two branches of the general assembly, together with such resolutions and other matters as are ordered by the two branches, or either of them, to be printed in bill form, shall constitute the first class, and shall be let in one contract; the printing of the journals of the senate and house of representatives, and of such reports, communications and other documents as enter into and make a part of. the journals, shall constitute the second class, and shall be let in one contract; the printing.of all reports and all communications and other documents ordered by the general assembly or either branch thereof, or by the executive departments, to be printed in pamphlet form, excepting the bulletins of the Ohio agricultural experiment station, shall constitute the third class and shall be let in one contract; the printing of the general and local laws and joint resolutions, shall constitute the fourth class, and shall be let in one contract; the printing of all blanks, circulars and other work necessary for the use of the executive departments, other than such as shall be printed in pamphlet form, shall constitute the fifth class, and shall be let in one contract; the bulletins of the Ohio agricultural experiment station shall constitute the sixth class, and shall be let in one contract. The report of the secretary of state, auditor of state, commissioner of common schools, commissioner of labor statistics, superintendent of insurance, the report ‘of the state board of agriculture, and such other reports of executive officers as are required by law to be bound in either cloth or half-law binding, except the laws and joint'resolutions and journals of the house and senate, shall constitute the seventh class, and may be let in one or more contracts, as in the discretion of the commissioners of public printing the interests of the state may require.”

Section 320 makes it the duty of the commissioners to give notice, by publication of the time and place for receiving sealed proposals “for executing1 the several classes of the public printing in separate contracts. ” The following section makes it their duty to “award the contract for each class of the printing t.o the lowest responsible bidder. ’ ’ It- further provides that nothing herein contained shall be construed so as to prevent the same person from becoming contractor for two or more classes of the printing if he shall be the lowest bidder therefor; and further, that “no class, or part of a class, shall in any case be awarded otherwise than to the lowest and best bidders therefor.” “All printing appertaining to the first and fifth classes must be executed at the city of Columbus. ” Section 63, Revised Statutes, directs that “the report of the secretary' of state, of the commissioner of labor statistics, of the inspector of shops and factories, and the state board of agriculture, shall also be printed in the German language. ”

■ Enough of the statute has been quoted, we think, to make its intent clear,- and to make the duty of the commissioners under the facts shown, reasonably plain. The purpose, as we g-ather it, is to cause the commissioners to call for bids for the several divisions of the work as separate propositions, and not to call for bids for all the work in a lump. And when the propositions are in, the duty follows to award the separate contracts, as such, to the lowest responsible bidder or bidders therefor,, the statute in all other respects having been complied with. The expressions indicating this purpose are so many that to give them here would be to repeat substantially all the clauses already quoted, and those given are, to our mind, as distinct and unmistakable as language can well make them. Nor is any other part of the statute inconsistent with the portions herein copied. The effect of it is to require that the different classes shall be let as different contracts, whether to as many bidders as there are classes, or more than one to any one bidder, providing he is as to each the lowest responsible bidder, save that, as to the seventh class, the commissioners shall have discretion to let the same in one or more contracts. And this duty that body performed. It does not appear to us that the commissioners departed from the law, or abused the discretion devolved upon them by its provisions. The -conditional bids of ’ the relator sought to attach limitations to the action of the commissioners which left no alternative but a rejection, providing the law does not permit, as we think it does not, consideration of a lumping bid.

It is, however, objected that the construction given the statute by the commissioners renders the act void because it violates section 2 of article 15 of the Constitution. In considering this objection, it must be borne in mind that the section quoted should be read with reference to the establishing of a system for letting the public printing from year to year. That system, must be judged, not by its effect upon one contract only, or necessarily the contracts of one year, but by its effect upon continued lettings, taking one year with another. Apparently one of the ultimate purposes of the act is to counteract combinations formed to forestall competition; to prevent powerful establishments, those possessed of capital and force sufficient to do the whole work, from monopolizing it and thus in time destroy competition by freezing out the smaller concerns. Whether this policy is for the best good of the state or not, or whether the means adopted is likely to accomplish the object aimed at, we are not concerned to inquire. It is enough to know that the province of determining those questions rests with the law-making-power. The mere fact that the statute confides discretion to the commissioners, cannot be held to be fatal to it, for the language of section 2, “in such manner as shall be provided by law,” implies the exercise of discretion in the manner of making and receiving bids. Nor do we think that the spirit of section 2 forbids the legislation. At least it is not clear that it does. We cannot say that the scheme adopted will not, taking one year with another, result in the work being done by the lowest responsible bidder.

Judgment affirmed.


source: Caselaw Access Project

author: Burket, J.

license: Public Domain

text:
    State v. Nelson.

      Screens for protection of electric street car motormen — Laws of general nature and uniform operation — Constitutional law— Validity of act of April SO, 1893 {90 Ohio Laws, SSO.)

    The act of the General Assembly, entitled “An act requiring persons, associations and corporations, owning or operating street cars, to provide for the well being of employes,” 90 Ohio Laws, 220, is not in conflict with section 26, article II of the Constitution of this state, which provides that “All laws of a general nature shall have a uniform operation throughout the state.” ’ Neither is it in conflict with section one of the fourteenth amendment ■ to the constitution of the United States.
    (Decided December 11, 1894.)
    Exceptions by Prosecuting Attorney of Clark county.
    At the January term ■ 1894, of the court of common pleas of Clark county, Samuel L. Nelson was indicted, for permitting an electric street car to remain without the screen required by statute for the protection of the motorman.
    Mr. Nelson demurred to the indictment, on the ground that the statute under which the indictment was found was unconstitutional. The court of common pleas sustained the demurrer, and discharged Mr. Nelson. The prosecuting attorney excepted to the ruling of the court, and on leave of this court, now presents his exceptions here for the purpose of testing the constitutionality of the statute.

      Chase Stewart, Prosecuting Attorney, for the state.
    That the legislature has power to pass acts for the protection of the health of employes, is well settled. Sections 8767 and 8766, Revised Statutes, requiring manufacturing establishments to provide seats for employes, and similar laws, wqre passed by the legislature upon the theory of the right to provide for the health and protection of employes.
    An act almost identical in its terms for the protection of motormen, as the above, was passed in the state of Minnesota in 1893. American Digest, page 2741, act April 16, 1893.
    The power of the legislature under article 13, section 2, of the Constitution of Ohio, adopted in 1851, was greatly enlarged so far as altering and changing laws forming corporations were concerned. Said articles providing that corporations may be formed under general laws, but all such laws may, from time to time, be altered and repealed. Under the constitution of 1802, the legislature did not have such power as that conferred under said article 13, section 2; sec. 2711, Giaque’s Revised Statutes, and the authorities cited.
    It is claimed that the statute is unconstitutional for the reason that being class legislation, it does not operate alike upon all the members of the ■ class, to govern which the same was enacted. It is upon this ground that the court below sustained the demurrer to the indictment. It is claimed by the state that it is for the legislature to decide whether this law shall apply to all kinds of street railways; whether the common good requires that it should apply to all kinds of street railways. The legislature on the passage of this act may have concluded that the same should not apply to cable cars, for the reason that on most of the cable cars, the gripman has his station near the middle of the forward ear, from which point, surrounded by passengers, he controls the movement of the car. Evidently from the very character of the construction of the car upon which he is located, he is not exposed to the wind and storm like the motermen who stand on the forward end.
    There are reasons likewise why the driver of a horse car should not be surrounded by a screen or other material in the same manner as a motorman.

      First — Because in order to manage the horses he is driving, with advantage, and with safety to passengers, he should not have any barrier between himself and the horses over which he has control.

      Second — The electric car travels with much greater speed than the horse car, and the exposure is much greater to the motorman than to the driver of the horse car. For these as well' as other reasons, the legislature may naturally conclude that these different kinds of street cars do not come in the same category. Railroad Co. v. Iowa, 94 U. S., 155.
    It was proper therefore to provide in some way for an adaptation of the rates to the circumstances of the different roads, and the general assembly, in the exercise of its legislative discretion has seen fit to do this by a system of classification. Whether this was the best that could have been done, it is not for us to decide. Our province is only to determine whether it can be done at all under any circumstances. If it could, the legislature must decide for itself, subject to no control from us, whether the common good requires that it should be done.
    The rule applied in this case leaves it to the legislature to decide whether it would not be unjust to require this law to apply to street railways having cable cars constructed upon a different plan entirely from that of an electric; as the result in most cases would be to require an entire reconstruction of the cable car, and possibly an entire change of the machinery of same. Likewise it is left to the legislature to decide as to whether the common good is not better subserved by having the law not to apply to horse cars. .

      Oscar T. Martin, appointed to argue against the exceptions.
    The law under which this act was framed, is part of that misfit legislation which is too often the result of hasty and ill-considered action. It was evidently intended at first to operate upon and include all street’cars, as the act was entitled “An act requiring persons, associations and corporations owning’ or operating’ street cars to provide for the well being of employes.” Pending final action on the bill, through process of amendment, no doubt, the word “electric” was inserted, which made a wide divergence between the title and the subject of the act. While it is true that the constitutional requirement, to have the subject clearly expressed in the title is directory merely, yet in endeavoring to determine what is the object of the bill, we are 'authorized to look at its title. Bronson v. Oberlin, 41 Ohio St.,403.
    Here the subject is distinct from the title. The latter includes all the former but one kind of street cars.
    The claim of the state that the legislature can thus arbitrarily create classes without reference to the circumstances and conditions of the subject constituting the class, is a new and startling doctrine. Nor are the reasons suggested, which the legislature may have had in view, sufficient for such classification.
    It is the distinction between members of the same class similarly situated which constitutes the vice of such legislation. It is a violation of the rule, that uniform operation requires that the law shall bear equally in its burdens upon persons standing in the same category. Senior v. Ratter-man, 44 Ohio St., 678.
    I submit the following propositions and authorities:

      Fvrst — The statute is invalid, for, though general in form, it is not so in operation, in that it selects the electric street car as the object of restriction, and exempts the other street cars from the same. Cons. Art. 2, sec. 26; Cooley’s Const. Lim. (6th ed.), 484; Youngblood v. Trust Co., 12 S. Rep., 530; Carter v. Coleman, 4 S. Rep., 151; Adler v. Whitbeck, 44 Ohio St., 565; Smith v. Railroad Co., 75 Ala., 449; L. & N. Co. v. Baldwin, 5 S. Rep., 313; 128 U. S., 96; State v. McGill, 34 Ohio St., 238; Bronson v. Oberlin, 41 Ohio St., 481.

      Second — All persons similarly situated must be affected alike, otherwise there is a discrimination not warranted by the Constitution and against public policy. Bartle v. Connelly, 113 U.S., 27; Railroad Co. v. Beckwith, 129 U. S., 26; Gulf Ry. Co. v. Ellis, 21 S. W., 935; State v. Goodwin, 33 West Va., 179; Millett v. People, 117 Ill., 294; Elevated Railroad Co., 70 N. Y., 350; Frorer v. People, 141 Ill., 171.

      Tlvird — The occupation of the street by an electric street car is not a different' use from that of other street cars. It is the nature of the use, not the motive power, which determine! whether • the road belongs to one class or the other. Clement v. Cincinnati, 16 Bull., 355; Fulton v. Transfer Co., 85
      Ky., 640; 4 S. W. Rep., 332; Briggs v. Railway Co., 79 Me., 363; Taggart v. Ry. Co., Rh. Is. Sup. Ct. (7 St. Ry. Decisions, 67).

      Fourth — The legislature, in the exercise of its police powers, may pass laws restricting an individual in the use of his property, when such use may result in injury to others. Provided the restraining statute does not discriminate in favor of one person or class of persons over another. State v. Tennant, 14 S. E., 388; State v. Moon, 10 S. E., 143; State v. Storall, 8 S. E., 900; Dent v. State, 129 U. S., 114; Cooley’s Const. Lim. (4th ed.), 198; City of Wellington, 19 Pac., 719.

      Fifth — The legislature cannot, in the name of the police powers, adopt any arbitrary classification, but that must arise from the business or occupation itself. State v. Sheriff, 51 N. W., 112; 48 N. J. L., 88; State v. Harrison, 42 N. J. L., 440; Johnson v. Railway Co., 45 N. W., 157.

      Sixth — The statute is an invasion of the internal affairs of the company, interferes with its right to make contracts upon the same basis as others, and is not supported upon considerations of public necessity, convenience or welfare. Booth St. Ry. Law, 229; Thomlittle v. City of Cincinnati, 4 Cir. Ct., 357; Railroad Co. v. Brooklyn, 37 Hun., 413.
    The Constitution having directed the legislature to provide for the organization of municipal corporations by general laws, and in pursuance thereof, such general laws having been enacted and specific powers having been granted, among which was the power to fix the terms upon which street railways may be constructed, operated and extended, and the municipal corporation having exercised that power, the authority to further regulate the operation of the street railway, remains with'the municipal corporation, until such power is taken from it. State ex rel. v. Cincinnati, 20 Ohio St., 36; Ency. Law, vol. 15, p. 974; McConty v. Denning, 51 Conn., 422; State v. Clark, 54 Ill., 17; 12 Ohio St. 377; 27 Ohio St., 426; Revised Statutes, 3433, 1692; section 6, article XIII, Const. Ohio; Bliss v. Kraus, 16 Ohio St., 54; 36 Ohio St., 250; 43 Mich., 146.
    I submit the following proposition from the Ohio ,Decisions: An act passed by the General Assembly (80 O. L., 70), requiring county commissioners in any county ‘having’ a population at the census of 1880 of 43,788, and containing a city of the second class, third g’rade, to provide a depositary for the public funds, was held void, because a law of general nature and not of uniform operation. State ex rel. v. Ellet, 47 Ohio St., 90.
    Under the operation of this statute, acts which in one county are innocent, in another are grave crimes. McGill v. State, 34 Ohio St., 247.
    A statute authorizing incorporated villages having within their limits a college or university, to provide against the evils resulting from the sale of intoxicating liquors, was sustained, because it groups in a class all incorporated villages in the state having within them a college or university. Bronson v. Oberlin, 41 Ohio St., 481.
    The Dow law was claimed, among other things to be invalid, because being a law of a general nature, it was not of uniform operation, as it did not include the manufacture of intoxicating liquors and sale thereof in quantities of one gallon or more; and that it applied to the retailer and not the wholesaler.
    But the court held that it was uniform in its operation upon the same principle that • larceny was divided into grand and petit larceny, by the creation and definition of categories, and because the legislature bad drawn an obvious distinction between the ’distillery and the brewery on one hand, and the saloon on the other. Adler v. Whitbeck, 44 Ohio St., 575. Had it made a class among the saloons by some arbitrary distinction, which would have burdened some and exempted others, the law could not have been upheld. The law which sought to impose upon railroad companies a fee of one dollar per mile for each mile of track, was held invalid, because it contravened the Constitution in this: that it subjected a railroad company to a taxation to which other property was not subjected. Railroad Co. v. State, 49 Ohio St., 198.
    An act authorizing villages to levy special assessments for sidewalks, and which by its terms was limited to any villag’e in any county, containing a city of the first grade of the first class, in which no sidewalks have already been constructed under sections 2334a, b, c, held invalid as making a classification of villages unwarranted by the Constitution. 88 Ohio L., 311; Costello v. Wyoming, 49 Ohio St., 209.
    The clause of the Constitution (article II, section 26) providing that all laws of a general nature shall have a uniform operation throughout the state, is mandatory and not directory merely. Falk ex parte, 42 Ohio St., 638; Kelly v. State, 6 Ohio St., 269; State v. Smith, 48 Ohio St., 218.
    The principle of uniform operation requires simply that the law shall bear equally in its burdens upon persons standing in the same category. A law is uniform in its operation where every person who is brought within the relation and circumstances provided for, is alike affected by the law. It must have a uniform operation upon all those in-eluded within the elass upon which it purports to operate. Senior v. Ratterman, 44 Ohio St., 678. The supreme court of Minnesota in upholding the validity of the vestibule law recognizes the principle upon which .the demurrer was sustained in this ease by the court below. State v. Hoskins and State v. Smith, 59 N. W. Rep., 545.
   Burket, J.

The statute in question is as follows :

“An Act
“Requiring persons, associations and corporations owning or operating street cars, to provide for the well being of the employes.
“Section 1. Be it enacted by. the General Assembhf of the State of Ohio, That every electric street car, other than trail cars, which are attached to motor cars, shall be provided during the months of November, December, January, February and March of each year, at the forward end, with a screen constructed of glass or other material, which shall fully and completely protect the driver or motorman or gripman, or other person stationed on the forward end guiding and directing the motor power by which they are propelled, from wind and storm.
“Section 2. Any person, agent or officer of any association or corporation violating the provisions of this- act, shall, on conviction, be fined in any sum not less than $25.00 nor more than $100, for each day each car belonging to and used by any such person, association or corporation is directed or permitted to remain unprovided with the screen required in section 1 of this act; and it is hereby made the duty of the prosecuting attorney of each county in this state to institute the necessary proceedings to enforce the provisions of this act.
“Section 3. This act shall take effect and he in force on and after November 1, A. D. 1893.”
It is claimed that this act is in conflict with that part of section 26 of article II of the Constitution which provides that “All laws of a general nature shall have a uniform operation throughout the state. ’ ’

The act in question is clearly of a general nature, so that the only inquiry left is whether it is of uniform operation throughout the state. And here again it is equally clear that the law is in operation throughout every part of the state, uniformly as to all classes therein named. Is this sufficient? Soon after the adoption of the Constitution it was said by this court that the scope and purpose of this section was to prevent laws of a general nature from being in force in some counties and not in others, and these early cases have been followed ever since.

So held in Cass v. Dillon, 2 Ohio St., 607, 617; Lehman v. McBride, 15 Ohio St., 573; McGill v. State, 34 Ohio St., 228, 248 and Falk ex parte, 42 Ohio St., 638, 641.

In McGill v. State, 34 Ohio St., Boynton, J., on page 238, quotes what was said by Thurman, J., in Cass v. Dillon, 2 Ohio St., 617, and after referring to the debates of the constitutional convention, as to this section of the constitution, says:

“A general law, that land should not be sold upon execution for less than two-thirds of its appraised value was excluded from operation in several counties by local enactment. There were different laws in different counties respecting the descent and distribution of intestate property. Some statutes defining legal offenses were excluded in their operation from a large part of the state; and different penalties for a violation of the same act, were, in some instances, provided for different localities. These are examples of the legislation, to prevent which in the future, and the mischief resulting from it, this provision of the Constitution was adopted. But no wider scope was claimed for it than to guard the future against the evils and inequalities resulting from legislation of the character complained of. ’ ’

Of late years an effort has frequently been made to claim for this section of the Constitution a wider scope than to guard against the evils, resulting from legislation of the character mentioned by Thurman, J., in Cass v. Dillon, Scott, J., in Lehman v. McBride, Boynton, J., in McGill v. State, and Okey, J., in Falk ex parte, but such efforts have uniformly failed. The only statutes which have been declared in conflict with this section of the Constitution, are statutes making different classes of different parts of the territory of the state, such as cities, villages, etc.

This section of the Constitution requires that laws of a general nature shall have not only an operation, but a uniform operation throughout the state, that is the whole state, and not only in one or more counties. The operation must be uniform upon the subject matter of the statute. It cannot operate upon the named subject matter in one part of the state differently from what it operates .upon it in other parts of the ■state. That is, the law must operate uniformly on ■the named subject matter in every part of the -state, and when it does that it complies with this section of the Constitution. That this is the scope and purpose of this section appears front its language, the debates of the constitutional convention, and the uniform construction placed thereon by this court in the cases above cited, and others hereinafter referred to.

As the statutes affecting different cities and villages of different classes practically do not operate in every part of the state, but only where a city or village of the particular class is found, it might seem that such laws do not operate uniformly throughout the state. A moment’s reflection will show that this is not so. If a new city or village of a particular class should be built up in the wildest spot in the state, the statutes applicable to such class of city or villages would be found to be in force there, and in that sense all statutes applicable to different classes of cities and villages, are in uniform operation in every part of the state. The classification of cities and villages is in its nature territorial, and this court has uniformly held that such classification must be reasonable and not arbitrary.

On the other hand, statutes as to rights of persons and property usually are, and in their nature must be, arbitrary.

Very few statutes apply equally to every person in the state. Some apply only to males, some ■ to females, some to minors, some to persons of unsound .mind, some to office holders and some to criminals. As pointed out by Minshall, J., in Adler v. Whitbeck, 44 Ohio St., 539, such classes are arbitrarily formed by the general assembly, and “if the legislature has erred in not including what has been excepted from the operation of the law, it is simply an error of judgment in the exereise of its authority, and cannot be reviewed by the courts. ’ ’

In Adler v. Whitbeck, supra, an effort was made to have the statute, there under consideration, declared unconstitutional because its classification included saloons, and excluded distilleries and breweries, but the effort failed.

A similar effort was made in Senior v. Ratterman, 44 Ohio St., 681, because wholesale dealers and manufacturers were not included within the same class, and the effort again failed.

A similar effort was made in State v. Turnpike Co., 37 Ohio St., 481, as to the classification of turnpikes? and the effort again failed.

The court of appeals of the state of New York, under a similar provision as to general laws, holds that the courts cannot control such classifications made by the legislature.

In re New York Elevated Railroad, 70 N. Y., the court, on page 351, say: ‘ ‘ Can a court take proof for the purpose of showing a statute valid and regular upon its face to be unconstitutional? And does the validity of a law which is required to be general, and which is general in its terms, depend upon the number of subjects upon which it can operate, or upon the size of a class to which it applies ? . These questions must be answered in the negative. ’ ’

In Iowa the language of the constitution is as follows : ‘ ‘ All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens. ”

It will be noticed that the words “ throughout the state ’ ’ are not contained in the Iowa constitution, and that unlike our Constitution, it prohibits the General Assembly from granting to any citizen, or class of citizens, privileges or immunities, which upon the same terms, shall not equally belong to all citizens.

In this latter regard the scope of the Iowa constitution is broader than our own. Decisions under the Iowa constitution, therefore, can throw no light upon the proper construction to be placed upon this section of our constitution.

The constitution of California provides in this regard as follows : ‘ ‘All laws of a general nature shall have a uniform operation.” As to this part of the California constitution, and as to the similar provision in our own, Okby, J.,in Falk ex parte, 42 Ohio St., 641, says: “And in this connection it is proper to refer to the origin of the constitutional provision in question. We find that it was suggested by a provision in the constitution of California, which provision, however, had not been construed when our Constitution was adopted: but the California constitution did not contain the words, “throughout the state;” they were added to our Constitution, on motion, while the provision was under consideration in the convention (2 Debates579); and the absence of thosewords was made the ground of decisions in California which would never have been made if the constitution of that state had contained those words.”

This quotation from the opinion of Okey, J., shows that the decisions under the California constitution, can not be regarded as criteria in the interpretation of our own, as to this section. The words ‘throughout the state’ imply a limitation in one respect, and give an extended scope in another, not possessed by constitutions of other states not having those words.

The scope and force of this section of our Constitution being as herein indicated, it is clear that the statute in question is not in conflict therewith. The statute is in operation in every part of the state, and operates uniformly upon the classes of persons therein designated, in every part of the state. The act is clearly authorized as a police regulation to protect the health and promote the comfort of those engaged in operating electric cars.

If there are other persons requiring protection, ■such protection should be sought through the General Assembly by increasing the protected class, rather than by removing all protection, through the action of the courts.

There is another reason why this statute can not be declared unconstitutional. While a statute must stand or fall by its operation, rather than by its mere form, yet in passing upon the constitutionality of a statute, a court can judge of its operations only through facts of which it can take judicial notice. A court cannot take testimony to determine the operation of a statute, and thereby declare it unconstitutional. Neither can a court judicially know that a cable car, or a horse car, is so constructed and operated as to require the same means of protection for the operatives as is required on electric cars.

The appliances and construction of cars, and in fact all kinds of machinery, are continually changing, and it is within the exclusive authority of the General Assembly, in the exercise of its police power, to determine, by general laws, what if any, regulations are required for the protection of the health, safety and comfort of the operatives.

Many citations have been made, in the briefs of counsel, from the federal courts, under the first section o‘f the fourteenth amendment to the constitution of the United States.

The force and scope of this section is very different from section 26 of article II of the Constitution of our own state.

Without going into an extended examination of this amendment, it is .sufficient to say that the statute in question is not in conflict therewith, as clearly appears from the following authorities: Barber v. Connolly, 113 U. S. 27-31; Bell's Gap R. R. Co. v. Pa., 134 U. S., 238; Giozza v. Tiernan, 148 U. S., 657, 662; The “Truck Store” cases in Illinois (141 Ill., 171), and the “Script” cases in West Virginia (33 W. Va., 179, 188), have no application to the question in this case.

The conclusion therefore is that the act in question is a valid law, and that the court of common pleas erred in sustaining’ the demurrer to the indictment.

The exceptions of the prosecuting attorney axe, therefore, sustained.


author: Williams, J.

text:
    Powell et al. v. Koehler et al.

      Contestof will — Statutory limitation's of party entitled to contest— Action saved to any plaintiff inures to all — Disability of absence from state, removed when — Exceptions in stahites of limitations strictly construed.

    1. Where, at the time a will is admitted to probate, a person en titled to contest its validity is under the disabilities of infancy, and absence from the state, his right of action is not barred until the expiration of the statutory period after the longer continuing disability is removed; and when the action is saved to any plaintiff, it inures to the benefit of all interested with him in the estate.
    2. The disability of'absence from the state ceases from the time the actual presen ce of the person in the state begins, though such presence be of short duration and while the person is an infant, and is not revived by his subsequent absence from the state, even when commenced during his infancy.
    3. Exceptions in statutes of limitations in favor of persons under disability are construed strictly, and cannot be enlarged from considerations of apparent hardship or inconvenience.
    (Decided December 11, 1894.)
    Error to the Circuit Court of Trumbull county.
    Miles W. Hank, a resident of Trumbull county, died on the 21st day of March, 1875, seized of one hundred and seventy-one acres of land situated in that county. He left a will by which he gave the whole of his estate absolutely to his widow, Clara Hank, making no provision therein, nor by way of settlement, or otherwise, for his posthumous child, which was born a few days after his death. The child died intestate on the 10th day of October, 1875, and the will was admitted to probatq and record the following January.
    The plaintiffs, who are the legal heirs of the deceased child, commenced their action in the court of common pleas of Trumbull county, on the 1st day of May, 1889, to contest the will on the ground that it was revoked by the birth of the child. In • January, 1889, the widow, Clara Hank, died after disposing of the property in question by her will, and the living devisees, and representatives of those who were deceased, were made defendants in the action below. They answered, in substance, that the plaintiffs had not commenced their action within two years after the will they were contesting had been admitted to probate, nor within two years after any disability of either of them had ceased, and the action was therefore barred. It was not denied that the statute of limitations had run a sufficient length of - time to bar the action, against all of the plaintiffs, except Mary G. Powell; and as to her, it was admitted by the parties at the trial, that when the probate of the will was had, she was an infant of the age of nine years, and absent from this state, and that she remained continuously absent therefrom up to the- time of the trial, except, that in the year 1880, she, and her stepmother, when on their way to the home of the latter in the state of Illinois, stopped in Ohio, where they visited for a period of about twenty days.
    The court instructed the jury as follows:
    ‘ ‘ The facts in the case show that the plaintiff, Mary G. Powell, is the only one of the plaintiffs who was within the protection of the disability statute; that at the time the cause of a'ction accrued she was under the protection of two disabilities, one of infancy, which long ago terminated, and absence from the state. It is a conceded fact that while still an infant, a non-resident, and absent from the state, and after the death of said infant, and after said will was probated, she, in control of a person standing in loco pa/rentis to her, came within the state of Ohio for the purpose of passing through it to acquire a new residence in another state; that she remained in this state the period of twenty days, and then went from it and continued absent therefrom continuously up to the time named in the petition, but a greater period than the period of two years. The court, therefore, directs you, as a matter of law, that, upon her coming bodily within this state, although an infant and coming involuntarily, that the disability provided in the statute as to absence from the state was taken away from her; and a greater period having elapsed from the beginning of the running of the statute than two years, • that she is not entitled under the law to maintain this action.
    “It is your duty, under the direction of the court, to find affirmatively that the will is the will of Mr. Miles W. Hank. You will appoint one of your number foreman, and so sign the verdict.”
    The jury returned a verdict sustaining the will, and judgment rendered upon it was affirmed by the circuit court.

      F. S. Hanselman and M. Stuart, for plaintiffs in error.
    There are three questions of law involved in this action, as follows:

      Fw-st, as to revocation of will by birth of child after testator’s death, and no provisions being made for said ■ unborn child. Revised Statutes, section 5959; Ash v. Ash, 9 Ohio St., 383; Evans v. Anderson, 15 Ohio St., 324; Rhodes v. Weldy, 45 Ohio St., 234; Myers v. Barrow, 3 C. C., 92;

      Second, how will contested. Myers v. Barrow, 3 C. C., 92; Muser v. Harmon, 29 Ohio St., 220; Revised Statutes, sec. 5858.
    These questions are settled in this state, and it leaves but one controverted point in this case, and that is the question of limitations.
    Revised Statutes, 5866, provides that an action to contest a will shall be brought within two years from its probate; saving, however, to persons absent from the state, two years after such disability is removed.

      Revised Statutes, §4989, being the general saving provisions to prevent the running of the statute, provides that the period limited for the commencement of the action shall not begin to run until he comes into the state. The question then is, does the fact that a minor child is brought in to the state, set the statute to running against such minor child ? The saving in the statute of the disability of absence in the contests of wills, if construed in pari materia with the general saving provisions of the statute, it would seem, would not set the statute to running when the act of coming into the state was involuntary. Sheets v. Baldwin, 12 Ohio, 121.
    This construction, does not tack one disability on to another disability, but would be the rule if there was no disability of infancy by statute. If there was in this section no saving of the rights of infants, still the court would take judicial notice of the fact that a child of tender years is incapable of doing an act that would injuriously affect its rights, and hence could not remove a disability ; and the construction contended for would necessarily follow. It is not the disability of infancy that is soug’ht to be urged here, why this defense should not prevail, but simply the fact of infancy as a reason why the presence of the infant in the state, under a fair construction of this statute, construed by itself or in pa/ri materia with the general saving provisions, does not show either the removal of disability of absence or a coming into the state so as to set in motion the statute of limitations.
    The rule against successive disabilities has no application , as the disability of absence existed at the time the right of plaintiff in error accrued to her. Butler v. Howe, 13 Me., 397; Jackson v.
      Johnson, 5 Cowen, 74; Wood on Lira., section 6, p. 11.
    Can it be said this child, under the care, custody and control of another, was guilty of laches or default? And upon this principle it has been held that in eases of administration the statute does not begin to run until the appointment of administrator or executor, as against the estate. Murray v. E. I. Co., 5 Br. Ald., 204; Andrews v. Railroad Co., 34 Conn., 57. The statute does not run during a period of civil war. 15 Wall., 555; 44 Ala., 124, This principle is strengthened by the rules adopted by courts in relation to fugitives from justice being brought into a sister state. 39 Ohio St., 273; 47 Mich., 486; Hawley on Interstate Extradition, 45-95.
    We claim as a mere temporary absence does not stop the running of the statute, so a mere temporary return, as flying visits after the residence is changed, will not stop the running of the exception. The supreme court in construing section 4989 of the Revised Statutes, in the case of Stanley v. Stanley, 47 Ohio St., 230, say that the design of the legislature was to give the plaintiff the full six years in which to begin his action, and that defendant came into the state and then left the state before the full time, six years, had elapsed, the running of the limitation was suspended until his return. In other words, the statute was liberally construed. And our supreme court, in 5 Ohio, 444, said the statute of limitations should be liberally construed. The construction of this statute is that it takes more than a mere passing through the state to start the statute. Stanley v. Stanley, 47 Ohio St., 225; 5 Ohio, 444; 12 Ohio, 120; 43 Mo., 501; 1 Mo., 122.
    A guardian can not admit away the rights of his ward, or do any other act to its prejudice. His duty is to protect, not to abandon, and courts will not suffer the ward to he prejudiced either by the guardian’s admissions or conduct. 17 Ohio St., 503; 1 Ohio St., 554.
    The act of the foster mother in bringing’ her, then only a little past twelve years of age, into Ohio, did not start the statute of limitation running against her. The statute of limitation' is founded upon the presumption of negligence in the party seeking to assert a right or claim. Every exception in favor of parties proceeds .upon the theory that by reason of their surroundings or disabilities, they cannot be negligent in asserting their rights. As Pothier puts it (p. 644): “They are established for the punishment of the creditor,’’and are penal in their nature and should be strictly construed in favor of the right sought to he taken away, and this is apparent, when we reflect that if the statute is not pleaded, it is waived, and formerly, if the party failed to plead the statute in the first instance, the court would not allow him to amend by setting it up, it being declared to be a defense like that of forfeiture, not to he favored in law. Indeed, no longer ago than 1843, in 12 Ohio, 131, this court frowned upon that statute and declared it inequitable and not to he favored where its effect is to defeat a just right.
    The facts of this case constitute it a well-grounded exception to the rule, or more properly speaking, place it out of the statute, and require you to dispose of it on another and equally well-recognized rule of law, stronger and more imperious than the former, because founded upon a principle of equity and innate justice rather than the harsh and penal rule that takes away one’s rights; and the principle is this, that a child is not chargeable with the negligence of one in whose charge he is,, i. e., its custodian. In other words, the doctrine of imputable negligence or delay, as against a child, does not pertain in Ohio, whatever may be the rule in some of the other states. Railroad Co. v. Manson, 30 Ohio St., 451; Railroad Co. v. Snyder, 24 Ohio St., 670; 18 Ohio St., 399; Railroad Co. v. Eadie, 43 Ohio St., 91; Davis v. Guarnieri, 45 Ohio St., 470; Spencer Township v. Pleasant Township, 17 Ohio St., 31; O'Meara v. State, 27 Ohio St., 519; Rockwood v. Whiting, 118 Mass., 337, 340.

      Charles Fillius and George M. Tuttle, for defendants in error.
    Cumulative disabilities are not allowed, nor can one disability be tacked to another, nor can the disability of an ancestor be tacked to that of an heir to lengthen out the period. This is the uniform and unbroken rule. Wood on Lim. of Actions, 491; Angelí on Lim., 522.
    Nor are successive disabilities in different persons as ancestor and heir allowed, nor can they be thus connected. Whitney v. Webb, 10 Ohio, 513; Cossens v. Farnan, 30 Ohio St., 498.
    While it is said the defense is relying on a technical, unconscionable statutory defense, let it be remembered that this principal contestor, Mary G. Powell, is asserting her right to this property by virtue of a technical statutory rule,-section 5959, which never was intended for a case like this, and which in such a case works such a hardship and invokes a rule of intention on the part of the testator so utterly at variance with any intention one can possibly conceive him to have had, that it may well be believed the legislature would have excepted it from the operation of the statute had it been possible to foresee and provide against all cases of hardship.' It will be, I think, a new theory to this court that statutes of limitation are founded upon the presumption of negligence in the party asserting a claim. The statute of limitations is not for the punishment of those who neglect to assert their rights by suit, but for the protection of those who have remained in possession under color of a title believed to be good. McIvor v. Ragan, 2 Wheaton, 29.
    This defense does not rest solely upon the plea of the statute of limitations. It is rather a case where plaintiff admits she is not within the condition permitting her now to contest this will, sections 5933 and 5866, but she claims that, at the time of the commencement of this suit, she was under the disability of absence from the state, mentioned in the saving clause, whereby she was entitled to commence and maintain this suit, not only at any time during her absence, but if not then, at any time within two years after her disability was removed. So that it appears she is claiming to maintain this action on account of an alleged disability against the consequences of which the statute relieves her.
    It is true that in the case of Sheet* v. Baldwin, 12* Ohio, 120, this court held that the plea of the statute of limitations is not to be favored. The question there arose upon a motion for leave to plead the statute, after verdict and judgment, which was refused. Wood v. Carpenter, 101 U. S., 139; 1 Peters, 360. We maintain:
    1. That the plaintiff’s claim possesses no equitable character entitling it to any particular consideration from this court.
    2. That the defense is neither ill favored in law nor conscienceless, but exactly the contrary, and
    3. That the rights of the respective parties, proponents and contestors of this will, are to be determined by their legal rights under section 5933 of the Revised Statutes, which is in effect the same as the statute in force at the date of the probate of the will, S. & C., 1618. The disposition of property by will in Ohio is wholly regulated by statute. Not only so, but every detail connected with the execution of wills, persons who may make them, their effect when made, how proved or probated, and when probated the effect of it, are all fixed by statute. Revised • Statutes, chapter on wills, section 5913, et seq. After a will has been duly admitted to probate, the statute provides that the probate.shall be forever binding, unless overcome by proceedings to contest the will, which must be carried forward in the formal manner pointed out by the statute. Revised Statutes, sections 5858 to 5866. The particular section of the statute of wills which concerns us in this case is section 5933, which is identical with section 19, S. & C., 1618, in force when this will was probated. Section 5866 referred to by counsel for plaintiff in error, is found in the chapter relating to the contest of wills, and while the wording is somewhat changed from the section above quoted, it otherwise differs in no respect from it. Section 5933 differs quite materially from the ordinary act of limitations. While as a matter of fact it limits the time within which the will may be contested, yet at the same time it gives a right to avoid the effect of the probate of the will, without which the right would not exist at all, and at the same time prescribes a condition to the assertion of the right, viz: That the remedy by contest of the will shall be pursued within two years from its probate. And if not so commenced, the right and the remedy both absolutely end. The period of two years within which the contest must be instituted is therefore a condition rather than a limitation on the right of action. Railroad Co. v. Hine, 25 Ohio St., 629.
    Plaintiff in error now seeks to avail herself of the saving clause of section 5933, by the claim that she was at the time the will was probated, and continuously prior to the filing of the petition had been, absent from the state. The rule is uniform and unvarying that, in order that a party plaintiff may avail himself of an' alleged disability, it must appear that it has been a continuous disability, extending without interruption from the time the cause of action accrued. Angelí on Lim., section 196; Wood on Lim. of Actions, 9-10; 2 Greenleaf on Evidence, section 439; Durore v. Jones, 4 T. R., 300; Carey v. Robinson, 13 Ohio, 181.
    The real question in the case is this: Was the disability of absence from the state upon which plaintiff in error relies, removed or discontinued when she came into the state in September, 1880, remaining twenty days? If it was removed, the two years within which she was bound to institute a suit to contest the will with reference to this disability began to run then and transpired two years thereafter.
    Applying the terms of the statutes, section 5933, to the facts of this record, there seems to be no room for discussion, for the statute is so plain and so devoid of ambiguity as to leave no room for construction.
    Counsel gravely proceeds to argue that section 4989 is in pari materia with section 5866, and that the words “until he comes into the state” in section 4989, “mean more than being in the state, ’ ’ and hence, absence from the state does not cease when the party is in the state. In the first place, section 4989 is not in pari materia with section 5933, or section 5866, and does not provide a general saving provision to prevent the running of the statute. Section 4989 relates to causes of action and accrues against persons that are defendants.
    In other words, this saving clause provides against, absent defendants, and has not the remotest connection with the section in hand, which relates to a saving in favor of absent plaintiffs, who, in a case like this, have no standing in court unless they can bring themselves within the saving clause of section 5933. The section of the statute which contains the general saving provision in favor of plaintiffs to prevent the running oí the statute is section 4986, and a reading of that section discloses that it contains no saving whatever to plaintiffs absent from the state. The fact is that sections 5933 and 586.6 are the only sections in our statutes providing a saving to plaintiffs absent from the state. It is thus seen that section 4989 has nothing’ whatever to do with the case, relates entirely to other parties and to a different class of cases, and is doubtless founded upon a policy quite distinct from section 5933 or 5866. The statute is that the probate of the will shall be forever binding if no person interested in it shall appear within two .years of its probate to contest it, saving, however, to persons absent from the state, the like period after the disability is removed. Plaintiff seeks to bring herself within this saving clause. Confessedly, therefore, she is barred unless she can show that she comes within the saving clause. The burden is upon her, and the rule of construction with reference to such clauses is forcibly stated in Clark v. Mississippi, 52 Am. Dec., 248.
    One of the best settled rules is that the language of the act of limitation must prevail, and no reasons based upon apparent inconvenience or hardship can justify a departure from it. Amy v. Watertown, 130 U. S., 320; McIvor v. Ragan, 2 Wheaton, 29; Sacia v. DeGraaf , 1 Cowan, 256; Kendall v. United States, 17 U. S., 125; Angell on Lims., pp. 20, 24, section 12; Wells v. Child, 12 Allen, 336; Tyler on Ejectment, 928; Scott v. Hickox, 7 Ohio St., 94; Cozzens v. Farnan, 30 Ohio St., 491; Bryant v. Swetland, 48 Ohio St., 194; Wood on Lims, of Actions, 496.
    Another and important rule of construction of these statutes is, that their express terms cannot be enlarged on .the ground of any inherent equity in the party claiming under them, so as to create an exception in his favor. Upon this proposition I believe the authorities to be quite uniform. The leading one in this country I believe to be the ease of Demorest v. Wyncoop, 3 John Ch., 132, where the whole subject is most exhaustively discussed. Beckford v. Wade, 14 Vesey, 88; Jones v. Lemon, 26 W. Va., 629; Clark v. Trail, 1 Met. (Ky.), 35.
    Again, there is another rule of universal application in the construction of statutes of limitation, viz.: Unless the statute makes express exception in their favor, infants are bound by them the same as any and all other persons. Vance v. Vance, 108 U. S., 514; Hall v. Bumstead, 20 Pick., 2; Beckford v. Wade, 17 Vesey, 87; Warfield v. Fox, 52 Pa. St., 382; Tyler on Ejectment, 928; Griswold v. Butler, 3 Conn., 234; Rowell v. Patterson. 76 Mo., 196; Erwin v. Turner, 6 Ark., 14; Morgan v. Hamlet, 113 U. S., 449; Angell; on Lims., section 23; Fairbanks v. Long, 91 Mo., 628; Cone v. Dunham, 59 Conn., 146; Angell on Lims., sections 485, 486, 487; Booker v. Favorite, 17 Ohio St., 548. There is no such qualification as adult persons. All are brought into the same category and are to be tested by the same rule. The law neither knows nor recognizes infants as distinguished -from adults. It knows merely persons. There can be no question of equity in it. And as the statute thus recognizes no distinction of infancy and majority, the same rule is to be applied to both. Nor does the statute make any distinction between voluntary or involuntary disabilities, nor between voluntary or involuntary removal thereof. Buswell, Limitation and Adverse Possession, section 120.
    This court as early as the 6 Ohio, in the case of Granger, Admr., v. Granger, 35, held that “when the statute of limitations begins to run against the intestate in his lifetime, it will run to its completion without interruption by the death. ’ ’ The same doctrine is held in the case" of Bartlow v. Kinnard, 38 Ohio St., 373; Wood onLim. of Actions, 8. It is true that the statute has been held not to run during a period of civil war, where the courts are not open to afford relief to parties. Burroughs v. Bloomer, 5 Denio, 532.
    The case of Turner v. Shearer, 6 Gray, 427, is instructive upon the argument made by plaintiff’s counsel, that perchance Mary G. Powell, though a girl thirteen years old, may not have come into the state in 1880, of her own free will and accord. Faw v. Roberdeau, 3 Cranch, 174.
    Plaintiff, at the time the will was probated, was under'two co-existing disabilities, viz., infancy and absence from the state, and she could have maintained a suit to contest this will at any time during the continuance of either of these disabilities, or within two years after the discontinuance of either. The discontinuance of either disability did not affect her right to claim under the other if it still continued. Sturt v. Mellich, 2 Atkyn’s, 610; Angell on Lim., 209; Wood on Lim. of Actions, p. 14, section 6.
   Williams, J.

The question in the case arises upon the instruction of the court to the jury. The chapter of the Revised Statutes relating to wills, contains the provision that: “If no person interested shall, within two years after probate had, appear and contest the validity of the will, the probate shall be forever binding, saving, however, to infants, and persons absent from the state, or of insane mind, or in captivity, the like period, after the respective disabilities are removed.” Revised Statutes, section 5933. And section 5866, provides that: “An action to contest a will or codicil shall be brought within two years after the same has been admitted to probate, but persons within the age of minority, of unsound mind, imprisoned, or absent from the state, may bring such action within two years after such disability is removed.”

Where, at the time a will or codicil is admitted to probate, a person who may contest it, is under two or more of the disabilities mentioned in the statute, his right of action is not barred until the expiration of the statutory period, after the longest continuing disability is removed; and, so long as the right of action is saved to any plaintiff, the action brought by him inures to the advantage of all persons interested with him in the estate; for the will, being an entirety, is wholly inoperative when set aside, at the suit of any party, and the estate must then be divided and distributed under the law. It is conceded that Mary G. Powell attained the age of majority more than two years before the action below was brought, and, that none of the other plaintiffs were within the saving clause of the statute; so that the legal question here is, whether, where a person is under the two disabilities of infancy, and absence from the state, when his right of action accrues, his subsequent temporary presence in the state, while he is yet an infant, has the effect of removing his disability of absence from the state.

The question has not heretofore received the consideration of this court, nor, so far as we have been able to discover, of the court of last resort of any of the states. It appears to be well settled, however, that exceptions in statutes of limitations in favor of persons under disability, should be strictly construed, and never extended beyond their plain import. The rule is, that in the absence of a saving clause the statute runs against all persons, whether under disability, or not; and with such a clause, it runs alike against all who cannot bring themselves clearly within some one of the excepted classes, and against those who can, according to the terms of the clause. The general provisions of the statute are restrained only so far as there are express words of exception; and it is therefore incumbent on those who claim the benefit of the exception to show that they are, in all particulars, within its descriptive terras and conditions. And, where the statute has created specific exceptions, all others must be deemed excluded. The courts are without authority to enlarge or change those specified, or establish others, though in particular cases the ends of justice might seem to be subserved, if it were done. It was said by Chancellor Kent, in Demarest v. Wynkoop, 3 John. Ch. 129, that: “The doctrine of any inherent equity creating an exception as to any disability, where the statute of limitations creates none, has been long, and, I believe, uniformly exploded. General words in the statute must receive a general construction, and if there be no express exception, the court can create none.” And, in Amy v. Watertown, 130 U. S., 320, it is declared to be the general rule respecting statutes of limitations, that the language of the act must prevail, and no reason based on apparent inconvenience or hardship will justify a departure from it. True, in a few instances, courts have apparently made exceptions not found in the statute; but they are only such as arise from a state of war, or other imperative necessity, as when the courts are shut, or by act of law one party is forbidden to sue, or the other is rendered incapable of being sued. Persons within the saving provisions of the statute, are not precluded from suing while the disability lasts. The time within which they may sue, is simply extended for a definite period after the disability ceases, and when it ceases they stand upon the same footing as other persons. The statute begins to run against them from that time, and once started, nothing can prevent the bar but suit brought within the prescribed period. The rule, which is generally maintained in this country, was announced by Lord Talbot, in Belch v. Harvey, 3 P. Wms. 287, in the following language: “The persons who are the subject of the proviso are not disabled from suing; they are only excused from the necessity of doing it during the continuance of the legal impediment; therefore, when that difficulty is removed, the time allowed for their further proceeding should be shortened. If they would excuse a neglect under the first part of the proviso, should they not do it upon the terms on which such excuse was given. ’ ’

Necessarily, a disability is removed, within the purview of the statute, when it no longer exists ; that of absence from the state, ends when the personal presence of the party in the state begins; and once ended by such presence, though it be but for a temporary purpose and of short duration, the disability does not revive by subsequent absence, however permanent in its character, or long continued. Faw v. Roberdeau's Exr., 3 Cranch, 174. This is not disputed, when applied to adult persons of sound mind; but, it is contended, the rule should be different with respect to infants, who are under the control of those in whose custody they are placed, and incapable of binding themselves by their own acts, or by their consent to the acts of those having control over them; and upon that ground, it is claimed Mary G. Powell’s presence here, in company with her stepmother, did not terminate her disability of absence from the state, which theretofore existed. We find nothing in the statute which gives support to that position. Every person who is absent from the state when his cause of action accrues, whether of consenting capacity or not, is included 'in the saving clause of the statute under consideration. The only fact made necessary to the creation of that disability, is actual absence from the state; and, in the nature of things, the only fact essential to its removal, in any case, is the actual presence of the person in the state; no distinction having been made by the statute, either with respect to the disability, or its removal, on account of the age, or capacity of the person, or other circumstance. It was undoubtedly competent for the legislature to have made the distinction; but having failed to do so, when the whole subject was before that body, we must conclude the omission occurred because such provision was deemed inadvisable; and it may have been so considered, for the reason, that by the perpetuation of disabilities, resulting from a provision of that kind, the settlement and distribution of estates might be unreasonably delayed, while the g’eneral policy of our law favors the speedy settlement of estates, and the repose of titles derived from them. At all events, the omission, if it be one, must be supplied by the legislative body, and cannot be by the courts.

Under an English statute of limitations which saved to persons “beyond the seas” when their cause of action accrued, a limited time after their return, within which to sue, it was held, in the case of Sturt v. Mellich, 2 Atkyn, 610, that the statute run from the time the party was returned, and his going abroad again gave him no privilege, “for that was gone by his having once returned to the kingdom, after his cause of action accrued.” In the course of the opinion, the Lord Chancellor Hardwicke remarked: “Suppose a creditor, both of non-sane memory, and out of the kingdom, comes into the kingdom, and then goes out of the kingdom, his non-sane, memory continuing; why his privileg’e, as to being .out, is gone; and his privilege as to non-sane, will begin from the time he returns to his senses.” The observation above quoted, while not necessary to the decision of the exact question involved, and merely illustrative of the point ruled, has been accepted by text writers in this country, as a correct statement of the law. Angelí on Limitations, section 198. Wood on Limitations, section 6, p. 24. The English statute, like ours, makes no distinction, so far as the disability arising from absence is concerned, on account of the mental condition, or age of the absent person ; so that, the rule stated by Lord Hardwicke is not less applicable to cases arising under our statute, than to those under the one which was before him; and is, moreover, in accordance with what we regard as the proper interpretation of our statute.

It is claimed, however, that the two sections of the act we have been considering, should be construed in connection with section 4989, of the Revised Statutes, which provides that: “If, when a cause of action accrues against a 'person, he is out of the state, or has absconded, or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed ; and if, after the cause of action accrues, he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought.” The language “comes into the state,” in the above section, it is said, imports an act of choice, involving capacity to choose, which should be accepted as indicating a legislative intent that a like act is necessary to the removal of the disability of absence under the other sections. It is not necessary to determine whether the language referred to has the effect suggested; for granting’ that it has, the result claimed by no means follows. The section relates entirely to persons against whom a cause of action accrues, and prevents them from availing themselves of their absence or concealment as a means of defeating the action. The cases to which it applies are different in their nature from those covered by the other two sections, and required different language to provide for them; it therefore throws no light on the construction of the other sections.

Judgment affirmed.


author: Minshall, J.

text:
    Lowmiller v. Fouser et al.

      Establishment of road by county commissioners — Road not to be opened till petitioners pay landowner— Failure to make payments terminates right to open road — Landowner entitled to action for vacatioti — Sectio7i 4109, Revised Statutes.

    Where a board of county commissioners, in a proceeding for the establishment of a road, make an order under section 4709, Revised Statutes, directing the petitioners to pay a landowner, in certain payments at certain times, the amount awarded him as compensation for land taken, and that the road be not opened until the payments are made, a failure to make the payments as directed, on demand of the landowner, terminates the right to open the road; and, in such case, the landowner may maintain an action for the vacation of the order establishing the road as a cloud on his title; and, also, in such case, the petitioners for the road are the proper parties defendant.
    (Decided December 11, 1894.)

      Error to the Circuit Court of Crawford county.
    This was a suit brought by Lowmiller against the defendants to quiet his title to the premises described in the petition. The defendants demurred to the petition, on the ground that it does not state facts sufficient to entitle the plaintiff to the relief sought. The demurrer was overruled; and, the defendants not desiring to answer, judgment was rendered quieting the title as prayed for. On error, the judgment was reversed by the circuit court, and cause remanded for further proceedings. The only questions in the case arise upon the sufficiency of the petition. It is as follows :
    “The said plaintiff says, that he is in possession of the following described real property situate in Whetstone township, in the county of Crawford and state of Ohio, * * * being a strip eighteen feet wide on each side of the following line, beginning at the corner stone of the southwest corner of the southeast quarter of section (20) twenty, township (3) three, range (17) seventeen; thence south eighty-nine degrees and fifty minutes * (89°50'),' east eight (8) chains and twenty (20) links to a stake; thence in the same direction twelve (12) chains and thirty-six (36) links to a stone; and-this plaintiff is owner in fee simple of the above described premises.
    “This plaintiff further alleges, that the said defendants claim an interest therein adverse to him, which plaintiff is advised and informed, and on such information and belief alleges, to be in substance and in fact as follows :
    “That on the petition of said Samuel Fouser, Jonathan Beal, Samuel Shearer, Jacob Shearer, John C. Kurtz, J. G. Kelly, John Deebler, Isaac Beal, Michael Stoltz, Wensyl Uskalitz, J. A. Laughbaum, Henry Ruth, C. F. Keiss, John Gwinner, B. Beal, to the board of county commissioners of Crawford county, Ohio, in which said Samuel Fouser was principal petitioner and the only petitioner who gave bond, the said board of commissioners of Crawford county, Ohio, on the 3d day of June, A. D. 1890, established a county road on the lands of this plaintiff, and which road as established by said commissioners embraced the strip of land aforesaid, thirty-six feet wide, having the above described line as the center thereof, and said commissioners made at the same time an order, that said road should not be opened until certain compensation and damages which had previously been awarded to plaintiff by the said commissioners should be paid; that an appeal was taken from said award by plaintiff to the probate court; and upon said appeal the sum of nine hundred and seventy-nine ($979.00) dollars was awarded by the jury to this plaintiff as compensation and damages; that the county commissioners on the 6th day of December, A. D. 1890, made an order that said road be not opened until the said petitioners for said road pay to this plaintiff one hundred and forty-five ($145.00) dollars on the 1st day of January, A. D. 1891, one hundred and forty-six ($146.00) dollars on the 1st day of January, A. D. 1892, one hundred and forty-six ($146.00) dollars on the 1st day of January, A. D. 1893, one hundred and forty-six ($146.00) dollars on the 1st day of January, A. D. 1894, and one hundred and forty-six ($146.00) dollars on the 1st day of January, A. D. 1895; and that upon payment of said last installment by said petitioners'on said last mentioned date the county commissioners assumed to pay the remainder of said compensation and damages ; to which order of the county commissioners, in so far as the same extended the payment of said compensation and damages for the periods aforesaid, this plaintiff excepted, all of which will appear by the records of said commissioners. ’ ’
    £ £ And plaintiff says, that said order of said commissioners postponing the payment of plaintiff’s said compensation and damages, and making- the same payable by installments, was both unconscionable and unauthorized by the laws of Ohio.
    £ ‘This plaintiff alleges that the dwelling house on his farm in which he resides and his out-buildings stand within the limits of. said proposed road; that his dwelling house is and has for some time been out of repair; and that plaintiff, before said road was petitioned for, made his plans and preparations to erect a new dwelling- house within the bounds of said proposed road; that he had most of his material on the ground for that purpose, which is suffering serious damage by exposure, and plaintiff is left in uncertainty and doubt as to what use he shall make of said property, not knowing what the intentions of said defendants are in regard to paying- said compensation and damages or the opening- of said road.
    “ Plaintiff further says, that since said first installment of one hundred and forty-five ($145.00) dollars fell due on said 1st day of January, A. D. 1891, he requested payment thereof of the said principal petitioner for said road, but he neglected and refused to pay the same, and still neglects and refuses payment thereof, and all the defendants refuse to pay plaintiff any part of said award.
    “And again on the 23d day of March, A. D. 1891, this plaintiff personally applied to said Samuel Fouser, the defendant, for payment of said installment which was again refused, and he then and there served upon said Samuel Fouser a written notice, that unless the same was paid forthwith, plaintiff would regard the road as abandoned by said defendants, and would file a petition in the court of common pleas to quiet his title as against said proposed road, and their right to construct the same upon his premises.
    “Plaintiff further alleges, that by reason of the premises said road and the opening thereof should be declared by this court to be abandoned by said defendants, and that his title to said strip of land should be forever quieted as against any claim of said defendants or any of them to pay any part thereof for the road proposed or otherwise.”
    Prayer for such relief.

      S. R. Harris and A. Wickham, for plaintiff in error.
    In this class of cases section 4711 directs the commissioners how to proceed after receiving the papers and transcripts from the probate court. It requires that they shall act upon the same as in the case mentioned in section 4709, Revised Statutes. Under section 4709 the county commissioners can do only one of two things (the damages exceeding the amount ordered to be paid out’ of the county treasury), either to establish the road, and order the compensation and damages to be paid out of the county treasury, or refuse to establish the same unless the compensation and damages, or such portion thereof as they shall require, be paid, within such time as they may designate, by the petitioners.
    The commissioners under said section neither • established the road nor refused to establish the same, but made an order that said road be not opened until the petitioners for the same pay to this plaintiff the sum of compensation and clamages awarded to him, by the jury in the probate court, in installments covering a period of over four years thereafter.
    This was gross error, but cannot be reviewed by petition in error, because not a final order. Anderson v. McKinney, 24 Ohio St., 467.
    The final decision Of the commissioners is the order to the trustees of the proper township directing said road to be opened. Section 4650, Revised Statutes. It is error for county commissioners to make a final order establishing a county road, until the compensation and damages shall have been paid by the petitioners, or otherwise secured to the satisfaction of the claimants. Dwiggins v. Denver et al., 24 Ohio St., 630. Private property shall ever be held inviolate. Section 19, article I, constitution of the state. There was a quasi appropriation of the land, at the time said road was established, to wit: the 3d day of June, 1890, and without any compensation made to plaintiff, in money therefor, which is clearly in violation of the constitution. Section 19, article I, constitution.
    The order, we claim, is nugatory, although, it “easts a cloud on plaintiff’s title, and the defendants admit it by their demurrer.
    The refusal of the petitioners to pay as averred in the petition and admitted by the demurrer, is an abandonment of the road, and they could have relieved the plaintiff from his suspense and themselves from the costs of the action by a plea of disclaimer, under section 5346. The plaintiff’s petition might be held, if necessary, to perform the office of a petition in error, under section 6708. The errors of the commissioners may be averred, in the petition in error and proved if denied. They did not appear of record, as required in the judgments of common pleas and circuit courts, when reviewed on error under sections 6709,6710, Revised Statutes. In the present cáse the error of the commissioners are alleged in the petition of plaintiff in error and admitted by the demurrer. So that if the order establishing the road should be held to be a final order, without payment for the land, it is an erroneous order, in which the errors are gross, but do not appear in the record, because it does not show either the payment or nonpayment of plaintiff for his land.
    If it is binding on the plaintiff to hold his land in readiness for the road, he should be furnished with a remedy to sue for his money as the installments fall due, or rather get his cash, as required by the constitution. Section 19, article I.
    He has no money or remedy to get it, and the cloud on his title should be removed at once, as clearly provided by section 5779.
    The defendants, however, instead of disclaiming the land, as they may do under section 5346, thus relieving the plaintiff from his suspense, and permitting him to proceed with his projected improvements, take this strange and vexatious stand. “We will not pay you the installments past due. We will make no provision for the future, but we will not abandon the road. We admit that we make a claim to an interest in the land adverse to the plaintiff, but we will neither inform you nor disclose to the court, the nature of our contention, nor submit the same to the court for the purpose.
      of determining such, adverse interest, as provided by section 5770. ’ ’ With the constitution, section 19, article I, providing that when private property shall be taken for public uses, a compensation therefor shall first be made in money. It was never intended by the legislature or the courts that one man and his property should be put under the power and control of another to any such extent.

      Cahill Bros., for defendants in error.
    The single question to be decided in this case is: Are the facts set forth in plaintiff’s petition in the court of common pleas sufficient in law to constitute a cause of action in favor of plaintiff in error against the defendants in error ? The plaintiff alleges that he is the fee simple owner, and in possession of a certain strip of land situated in Whetstone township, Crawford county, Ohio, and that the defendants in error claim an interest therein adverse to him. Plaintiff in error then set forth the extent of said adverse claim, by which it appears that said defendant in error, except the county commissioners, were road petitioners, who petitioned for a public county road on and over the strip of land described in plaintiff’s original petition, in the court of common pleas. '
    Section 4638, Revised Statutes, authorizes any twelve freeholders residing in the vicinity where the road is to be laid out, etc., to petition the county commissioners for the establishment of a county road. County and township roads are public highways, and are open to all who have occasion to use them. Shaver v. Starrett, 4 Ohio St., 475; Ferris et al. v. Bramble, 5 Ohio St., 109. Petitioners for a public highway acquire no more interest therein than any other citizen,or citizens who may have occasion to use the same. Their interest is a public, and not a private interest. Peifer v. Cox, 21 Ohio St., 248. If the prayer of the plaintiff’s petition were granted, it would only bind the defendants in error. The public, except these defendants, would still hold the same right and privilege ; these defendants would be restrained from the use of a public road open to the use of all the. world but them.
    The only estate of interest the petitioners could claim in the strip of land described in the original petition of plaintiff in the court of common pleas is a public interest in common with the public at larg’e. We do not think that an action to quiet title will be against the public at large, or any part of it, neither public authorities in proceedings to establish a highway. It is not the kind of adverse claim contemplated by the statute. The statute provides in what way a public road may be vacated, but it is not by an action to quiet title.
    The road will never be opened until the petitioners comply with the order of the commissioners. Section 4709, Revised Statutes.
    • The petitioners refuse and neglect to comply vdth said order, and to pay the sum of money which the commissioners ordered them to pay as a condition precedent to the opening' of the road, and the commissioners are not authorized by law, and will not order the road opened until the petitoners first comply with their former order as to the payment of the money. Does this act of refusal constitute a claim to an estate or interest in plaintiff’s land-in favor of defendants, adverse to plaintiff in error ? We think it does not.
    The petition of plaintiff in error, in the court below does not state that the defendants, or anyone else are doing any act, or threatening to do any act, which if done, would disturb plaintiff in his said possession; on the contrary, the road petitioners are refusing to do anything. Rhea v. Dick, 34 Ohio St., 425; Collins v. Collins, 19 Ohio St., 468. We suppose it will not be seriously claimed that plaintiff in error can maintain an action to quiet title against the board of county commissioners, acting in their official capacity in the establishment of a public highway. In substance, plaintiff’s complaint is directed against the order made by the board of county commissioners, and is an attempt to have the courts review that order in a collateral proceeding. Said order was- made in pursuance of section 4709, Revised Statutes.
    Under section 4709, the board of commissioners are left to their own discretion as to the time designated for the payment of compensation and damages. Rowersox et al. v. Watson et al., 20 Ohio St., 507.
    The duties enjoined upon the board of commissioners, under section 4709, are purely political in their character, and not. judicial. Bowersox v. Watson, 20 Ohio St., 507; Southard v. Stephens, 27 Ohio St., 649; Hulbert et al. v. Mason, 29 Ohio St., 562. A judgment will not be reversed on error for the action of the court below in regard to a matter resting within its discretion. Legg v. Drake, 1 Ohio St., 287; Duncan et al. v. Furguson et al., Wright, 740. The commissioners are not authorized or required by law to declare said road, so established, abandoned because the compensation and damages are not paid. Sections 6432,6453, Revised Statutes. The statute provides how the public right to a highway may be lost by non-user. Sections 4668 and 4636, Revised Statutes. The seven years limitation prescribed in section 4668 applies to roads authorized - but never opened. McClelland v. Miller, 28 Ohio St., 488; Peck v. Clark, 19 Ohio, 367; Fox v. Hart, 11 Ohio, 414; Grove v. Graham, 41 Ohio St., 304. An action does not lie to quiet title as ag-ainst highways. Sloan v. Biemiller, 34 Ohio St., 492. The demurrer to the petition was well taken for the further reason that the petition must set out the nature of plaintiff’s claim, which it does not. Lamb v. Boyd, 4 C. C., 499. If the commissioners erred in establishing said road and ordering' it opened upon payment of compensation and damages as aforesaid, their proceedings could have been reviewed by petition in error,-and reversed for errors appearing on the record. Haff v. Fuller, 45 Ohio St., 493, and cases cited.
    In case of the assessment for laying out a road over the lands of any person, the damages or compensation for the lands necessary to be taken must be paid or tendered in money or secured to be paid to the acceptance of the owner, before the opening-of the road can be ordered. Ferris et al. v. Bramble et al., 5 Ohio St., 109.
   Minshall, J.

It appears from the petition of the plaintiff, that on the petition of Samuel Fouser and some fourteen others, such proceedings were had before the commissioners of Crawford county, that on June 3, 1890, by the order of the commissioners, a county road was established on and over the lands of the plaintiff. The plaintiff appealed to the probate court from the compensation awarded him, where such proceedings were had, that by the verdict of a jury $979.00 were awarded him. These proceedings being laid before the commissioners, the board, on December 6, 1890, made an order that “the road be not opened until the petitioners paid the plaintiff’'$145.00 January 1,1891, and four other payments of $146.00 each, at designated times, the last to be made January 1, 1895; the commissioners assuming to pay the balance. When the first payment became due, it was demanded of the principal petitioner of the road, who refused to pay it, and neither he, nor any of the rest, has paid it, or any part of the sum awarded.

The question arises whether the plaintiff has, under the state of facts, a right to have the road, so established, declared vacated, and his title to the land quieted ag’ainst any claim that may be made of a right to open it under the proceedings had before the commissioners. The fact that the plaintiff’s dwelling-house stands upon the way of the proposed road, and will have to be removed if the road is opened, and that the same is in need of repairs, which he cannot prudently make during the uncertainty caused by the neglect of the parties to pay the amounts awarded, aggravates the nature of his injury, if any exists, but does not, as we think, add anything to his rights in the premises. If the right exists to open the road, notwithstanding the default of the petitioners in making payments as directed, the inconvenience connected with the removal of his dwelling house must be deemed compensated by the award of damages that has been made him.

So the question then arises: Did the failure to make the payments as directed by the order, defeat the right of the petitioners to have the road opened, and cast a cloud upon the title of the plaintiff? We think it did. We see no error in the order of the' commissioners, that the road should not be opened until the plaintiff be paid the compensation awarded. It seems clearly authorized by the provisions of section 4709, Revised Statutes, and does not violate the provisions of the constitution requiring compensation to be made in money before private property is- taken for public use. By this order the road is not to be opened until the payment is made; and no taking can be said to occur until the road, is opened to public travel. A mere order establishing a road, with a conditional order for opening it, is not, in law, a taking* of the land until the order for opening it becomes absolute. But the taking of private property for a public use is a matter of strict law. It was therefore the duty of the petitioners to comply with the terms of the order and make payment as directed, in order to acquire the right to have the road opened for the use of themselves and the public. So that when they neglected to make the payment of $145.00 required to be paid January 1,1891, their right under the order establishing the road terminated, unless the default should be waived by the plaintiff, which was not done. To hold otherwise would be to establish an unjust and oppressive practice. It would give the petitioners the power at any time to open the road by making payment, whether at the day or not, without any right in the land owner to compel payment. This would materially affect the value of the owner’s land, and be a cloud on his title. He could not improve it as prudence might suggest, nor sell to advantage, if he desired to do • so. Hence, such an order for the opening of a road by petitioners must be strictly complied with as to making payments, of the right will, and should, be lost.

Again, we think it clear, that this is such a cloud as may be removed by the decree of a court at the suit of the land owner. The proceedings before the commissioners apparently establish a public highway on his lands, which, from the default of the petitioners, is not such in fact. As observed by the judge delivering the opinion in Bogert v. City of Elizabeth, 27 N. J., 568, 572: “It is highly desirable that land should be freed from every lurking and unsubstantial claims, for even the ■suspicion of such claim, no matter how ill-founded, ■affects the value of the property when on sale.” 'This was said in construing a statute of the state of .New Jersey, furnishing a remedy for quieting "title, substantially like our own. Section 5779, Revised Statutes. It is further observed, that “The policy which the statute is designed to promote is beneficial and enlightened, and it should be received with favor.” The decision was followed and approved by this court in construing ■our own statute. Rhea v. Dick, 34 Ohio St., 420, 423.

Two objections are, however, made to the maintenance of the action: (1) That the plaintiff has an adequate remedy at law by a proceeding in error ; (2) That the defendants are not the proper parties.

1. It will be conceded, that if, in this case, the plaintiff could obtain relief by a proceeding in error, such proceeding would be an adequate, as well as the proper remedy. Upon a cursory examination of Dwiggins v. Denver, 24 Ohio St., 629, it mig’ht seem that such is the case. But it will be observed that in that case, the error consisted in the order of the commissioners, directing the road to be opened before the expiration of the time fixed for the payment of the money. The error was apparent on the record, and the court properly reversed the order. Here no such objection can be taken to the order. The road is not to be opened until the payments are made. The fact entitling the plaintiff to relief — non-payment of the money as required — is dehors the record, and cannot be reached by a proceeding in error. Haff v. Fuller, 45 Ohio St., 495. If the board of commissioners abused its discretion in giving too much time in which to make the payments, the plaintiff, in not prosecuting error from that fault, may be regarded as having waived it. But this would in no way affect his right to insist on the performance of the order as made. He could elect to abide by the order, and insist on its performance, and if not performed, treat the order as at end, and ask a court to remove the cloud created by it upon the title to his land; and if thereby the petitioners lose what they had gained, it is the result of their own negligence.

2. As to the proper defendants. The proceeding for the establishment of the road was begun, as it had to be, by the petitioners. In such proceeding, in case of an appeal, it is required to be docketed by the probate court, under the style of “the petitioners as plaintiffs and the appellants as defendants.” Where proceedings in error are instituted, the petitioners are made defendants; and so, where a remedy by injunction is sought. And where, as in this case, the proceeding had, simply cast a cloud upon the title of a land owner, which he seeks to have removed, the petitioners are, for like reasons, the proper parties defendant. Until an absolute order has been made, under ■which the road can be opened, the proceeding must be regarded as pending and subject to the control of those by whom it was instituted ; no condemnation is effected, and the public acquires no right in the land as a highway; and so until then, it is not a necessary, nor proper party, to any suit affecting the proceeding.

It may not have been necessary to make the commissioners parties. They acted simply in a ministerial capacity, exercising quasi judicial functions. But they made no motion to be dismissed from the action; and joining them with the petitioners, though probably not necessary, does not render the judgment quieting plaintiff’s title, erroneous.

Judgment of the ci/rcwit court reversed, and that of the common pleas affirmed.