text:
    Ide v. The State of Ohio.

      Municipal charter — President of city commission — Exercise of judicial functions of mayor — Section 7, Article XVIII, Constitution, 1912.

    A provision in a municipal charter, adopted under authority of Section 7 of Article XVIII of the State Constitution, continuing in force the general laws of the state conferring judicial functions upon mayors of cities and villages, to be exercised by the president of a city commission, who is elected a member of that commission by the qualified electors of the municipality, is not in conflict with any provision of the Constitution of Ohio.
    (No. 15442
    Decided January 23, 1917.)
    Error to the Court of Appeals of Erie county.
    On the 28th day of July, 1914, the city of San-dusky, Ohio, adopted a charter which by its terms took effect for all purposes on the 1st day of January, 1916.
    This charter provides for a “Commission-Manager Plan” of government, consisting of a commission of five citizens elected at large, which commission constitutes the governing body with powers to pass ordinances, adopt regulations, appoint a chief administrative officer to be known as the city manager, and exercise all powers provided in the charter.
    The charter further provides, that the city commission shall organize by electing one of its members president, who shall preside at all meetings of the city commission; who may use the title of mayor in any case in which the execution of legal instruments of writing, or other necessity arising from the general law of the state, so requires; and who “shall have the judicial functions of a mayor under ' the laws of Ohio until such time as such judicial' functions can or may be by and under authority of > the constitution and general laws of the state per- ; formed by some other officer appointed or elected for j that purpose.”
    This charter further provides that “all general laws of the state applicable to municipal corporations, now or hereafter enacted, and which are not in conflict with the provisions of this charter, or with ordinances or resolutions hereafter enacted by the city commission, shall be applicable,” and that “all persons holding office at the time this charter is adopted shall continue in office and in the performance of their duties until provision shall have been otherwise made in accordance with this charter for the performance or discontinuance of the duties of any such office,” and that “when such provision shall have been made the term of any such officer shall expire and the office be deemed abolished,” but that the powers which are conferred and the duties which are imposed upon any officer, board or department of the city under the laws of the state, or under any city ordinance or contract in force at the time of the taking effect of this act, shall, if such office or department is abolished by this charter, thereafter be exercised and discharged by the city commission, officer, board or department upon whom are imposed corresponding functions, powers and duties by this charter or by any ordinance or resolution of the city hereafter enacted.

      In pursuance of these charter provisions, a city commission was elected, and that commission organized by electing Robert Koegle, one of its members, president.
    On the 20th day of January, 1916, the plaintiff in error, Fred Ide, was charged by affidavit with keeping a place where intoxicating liquors were being unlawfully sold, in violation of Section 13195, General Code.
    The defendant, Ide, filed a motion to quash this affidavit, which motion was overruled, and thereupon he entered a plea of not guilty. The cause was tried on the 2d day of February, 1916, before the said Robert Koegle, president of the city commission of the city of Sandusky, Ohio, who found the defendant guilty, and sentenced him to pay a fine of $500 and costs.
    Motion for new trial was filed and overruled. A bill of exceptions was allowed and signed, and a petition in error filed'in the court of common pleas of Erie county, which court affirmed the judgment. Thereupon error was prosecuted in the court of appeals, which court affirmed the judgment of the common pleas court.
    This proceeding in error is prosecuted in this court for the purpose of reversing the original judgment and the several judgments of affirmance entered by the common pleas and court of appeals.

      Messrs. Hart & Schoepfle, for plaintiff in error.

      Mr. James Flynn, prosecuting attorney; Mr. E. C. Turner, attorney general; Mr. C. R. Bell and Mr. Frank Davis, Jr., for defendant in error.
   Donahue, J.

The important question presented by the record in this case is the question of. the authority of Robert Koegle, president of the city commission, to exercise judicial functions.

It is contended upon the part of the plaintiff in error:

1. That a city cannot by charter create a judicial office, such power being conferred upon the legislature by Sections 1 and IS of Article IV of the Constitution of Ohio.

2. That even if a municipality has the power to establish by charter a municipal court, that under the provisions of Section 10 of Article IV of the Constitution it has no power to confer judicial authority upon anyone not elected as a judicial officer.

It is sufficient to say in reference to the first contention that this charter does not purport to establish a court, but, on the contrary, provides that the president of the city commission shall have the judicial functions of a rriayor under the general laws of Ohio, and may use the title of mayor in any case in which the execution of legal instruments of writing, or other necessity arising from the general law of the state, so requires. If, therefore, this officer has any judicial powers whatever, they are conferred upon him by the general laws of the state, and not by any provision of the charter further than that it designates him as the municipal officer who shall to this extent be mayor of the city of Sandusky, until such time as his judicial functions can or may be, by and under authority of the constitution and general laws of the state, performed by some other officer appointed or elected for that purpose.

While it is true that he was not elected mayor' of the city of Sandusky, he was elected as a member of the city commission, with the knowledge on the part of the electors that his election as such commissioner would make him eligible to be selected by the city commission to exercise the judicial functions of mayor under the general laws of the state.

Under the provisions of this charter, the judicial powers of a mayor are not conferred upon one not elected by the people to serve in an official capacity including the exercise of judicial functions, when assigned to the performance of such duties in the manner and method provided by the charter adopted by the qualified electors of the city.

This would seem sufficient compliance with the provisions of Section 10 of Article IV of the Constitution.

The power conferred by this charter upon the city commission to elect one of its members, who, in addition to his other duties, shall exercise the judicial functions of mayor, is similar in some respects to the provisions of Sections 4549 and 4569, General Code, but much more clearly in conformity . to the constitutional provisions relating to judicial officers.

The first of these sections authorizes the mayor, in cities having no police judge, to designate a justice of the peace to perform the duties of the mayor in criminal matters in the absence or during the disability of the mayor. The latter section provides that during the absence, inability, or disability of the police judge, the mayor may select for that purpose a reputable member of the bar, or a justice of the peace residing within the city, who shall have the jurisdiction and powers conferred upon judges of police courts.

In Ex parte Strang, 21 Ohio St., 610, it was held that under the provisions of Section 174 of the municipal code an appointment by the mayor of a member of the bar to hold police court, in the absence or disability of the police judge, regardless of the constitutionality of the statute, is an appointment by one having colorable authority, and that the person so appointed is an officer de facto, and as such his authority cannot be collaterally attacked. The question of the constitutionality of the act authorizing such appointment, however, was not decided.

This proceeding in error is prosecuted to reverse the judgment in a cause pending before an officer whose authority to exercise judicial function was challenged before trial and rendition of judgment. Whether the question can be raised in this way or only in an action in quo warranto it is not now necessary to decide.

Under the constitution of this state a lieutenant governor is elected to discharge certain specific duties attached to that office, yet in case of the death, impeachment, resignation, removal, or other disability of the governor, the powers and duties of that office devolve upon the lieutenant governor; and if the lieutenant governor, while executing the office of governor, shall be impeached, displaced, resign or die, or otherwise become incapable of performing the duties of the office, the president of the senate shall act as governor; and if the president of the senate shall be rendered incapable of performing the duties of governor, the same shall devolve upon the speaker of the house of representatives.

Neither of these officers is elected governor of Ohio, although the constitution requires that the governor shall be elected. All of these officers, who succeed in the order named to the office of governor, are elected officers, some of them, however, only being elected in the county or district of their residence, and yet they may in turn succeed to the office of governor.

It is true that this is by reason of specific constitutional provisions, yet, nevertheless, the principle obtains that an elected officer, on the happening of a certain contingency, may exercise additional functions, other than those pertaining to the specific office to which he was elected.

If the office of mayor is retained by the charter to the extent of the judicial functions exercised by mayors of other cities, Under the general laws of the state, then this method of selection is not unconstitutional.

It is claimed, however, that the office of mayor is abolished by the charter. It is true that Section 78 of the charter provides that when the term of any existing officer shall expire, the office shall be deemed abolished, but it further provides that the powers conferred and the duties imposed upon such officer shall thereafter be exercised and discharged by the commission, officer, board, or department upon whom are- imposed corresponding functions, powers and duties by this charter or by any ordinance or resolution of the city enacted after the adoption of the charter. But even if Section 78 sustains the claim of counsel for plaintiff in error, this entire charter must be construed as a whole.

Construing Section 78 in connection with Section 7 it is apparent that this charter retains the office and title of mayor with all the judicial powers of mayors of other cities undér the general laws of Ohio.

It was held by this court in the case of Flotron v. Barringer, 94 Ohio St., 185, that the character of an officer is determined more by the powers and duties of the office than by the name given to the officer; that the city commission provided for in the charter of the city of Dayton, in so far as its legislative authority is concerned, corresponds to the council of other cities, and is, to all intents and purposes, the council of that city, notwithstanding that that commission is vested with further governing powers not possessed by councils of other municipalities and not legislative in character.

There is a clear analogy between the principle announced in that case and the case afe bar. In this case, excepting administrative functions, the president of the city commission is authorized to exercise the authority conferred by the general laws of the state upon mayors in municipalities having no charter. The charter designates him as president of the city commission, but it also authorizes him to use the title of a mayor in any case in which the execution of legal instruments of writing, or other necessity arising from the general law of the state, so requires.

In so far as he exercises judicial functions, he is the mayor of the city of Sandusky, with authority to use that title.

Judgment affirmed.

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


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    Fassig v. The State, ex rel. Turner, Attorney General.

      Workmen’s compensation — Section 35, Article II, Constitution, 1912 —Power of general assembly to make law effective — Legislature cannot confer judicial powers — Upon tribunals other than courts — May clothe administrative officers with prescriptive duties — In aid of judicial procedure — Validity of Section 27 of compensation act — Employer entitled to trial by jury, when —Compensatory rights of injured employe — Confined to limits of employment.

    1. In the exercise of the power granted by Section 35, Article II of the Constitution, to pass a compulsory compensation law, the general assembly is authorized to include all such reasonable provisions as are necessary to make the law effective and to accomplish the purpose expressed in the constitutional provision referred to.
    2. The line which separates power to make laws from power to interpret and apply laws is not exactly defined. The legislature cannot confer upon tribunals, other than courts, powers which are strictly and conclusively judicial. But in providing for the enforcement of its enactments, it may clothe administrative officers with power to ascertain whether certain specified facts exist, and thereupon to act in a prescribed manner, without delegating to such officers legislative or judicial power within the meaning of the constitution.

      8. The provisions of Section 27 of the workmen’s compensation act (103 O. L., 72, 82), constitute a valid exercise of the legislative power, not repugnant to the federal or state constitution, nor to any limitation contained in either.
    4. On the trial of an action brought pursuant to Section 27 of the same act against an employer who has failed to comply with the law and with the order of the commission, the defendant ' employer is entitled to a trial by jury; but on the finding of the issues in favor of plaintiff, the amount of the verdict will be the sum fixed by the commission under the schedule provided in the statute.
    5. The provisions in Section 35, Article II of the Constitution, and in the statute with reference to an injury received in the course of employment refer only to an injury which is the result of or arises out of the employment. Such provisions do not cover any injury which has its cause outside of and disconnected with the employment, although the employe may at the time have been engaged in the work of his employer in the usual way.
    (No. 15313
    Decided January 23, 1917.)
    Error to the Court of Appeals of Franklin county.
    The attorney general, on behalf of Frank Pond, brought suit in the court of common pleas of Franklin county against Percy Fassig, the plaintiff in error. Pond was an employe of Fassig, who was an employer in the state of Ohio, having in his service five or more workmen regularly employed in the same business, or in or about the same establishment.
    The plaintiff in error did not contribute to the state insurance fund and had not been granted by the industrial commission the privilege to compensate direct his injured employes or the dependents of his killed employes.

      On August 22, 1914, Pond sustained an injury in the course of his employment with Fassig. He made application to the commission to have the amount of compensation due him for his injury fixed under Section 27 of the workmen’s compensation law (103 Ohio Laws, 82).
    The commission fixed the amount of compensation due Pond and ordered plaintiff in error to pay the amount within ten days after the receipt of notice. The plaintiff in error did not comply with the order, and suit was instituted for the recovery of the amount of the award, together with a penalty of fifty per cent. ,
    An answer and reply were filed, and a motion was interposed by the plaintiff in error for judgment on the pleadings. The court of common pleas sustained this motion on the ground that Section 27 of said act, under which Pond proceeded, was unconstitutional. This judgment was reversed by the court of appeals, and this proceeding is brought by the plaintiff in error to reverse that judgment.

      Messrs. Wilson & Rector; Messrs. McGhee, Davis & Boulger; Mr. C. M. Voorhees; Messrs. Booth, Keating, Peters, & Pomerene and Mr. J. F. Rogers, for plaintiff in error.

      Mr. Edward C. Turner, attorney general; Mr. John G. Price and Mr. Eugene Carlin, for defendant in error.

      Messrs. Payer, Winch & Rogers, by leave, filed brief on the unconstitutionality of the provisions for self-compensators.
   Johnson, J.

The contention of the plaintiff in error is that Section 27 of the act referred to infringes Section 5 of Article I of the Bill of Rights, which provides that right of trial by jury shall be inviolate; that it is obnoxious to Section 16 of the same Article, which provides that all courts shall be open and every person shall have remedy by due course of law; that it is the taking of property without due process of law; that it confers judicial power upon a nonjudicial tribunal; that it is an infringement of Section 35 of Article II of the Ohio Constitution; and that it is a denial of the equal protection of the law as guaranteed by the Federal Constitution.

Section 35 of Article II of the‘Ohio Constitution was adopted in September, 1912, and provides: “For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, administered by the state determining the terms and conditions upon which payment shall be made therefrom, and taking away any or all rights of action or defenses from employes and employers; but no right of action shall be taken away from any employe when the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of employes. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all rights of claimants thereto.”

The act referred to was passed pursuant to the grant of power contained in the above provision of the constitution. The act was, in effect, an amendment of the act of May 31, 1911, which provided for the creation of a state liability board of awards, which should establish a state insurance fund from premiums paid by employers and employes in the manner prescribed in the act.

This court, in upholding the constitutionality of the earlier statute, pointed out that it was not compulsory or coercive, and the general scheme of the law, with the provisions for the collection, control and disbursement by the state of the insurance fund provided for by its terms, was sustained as a valid exercise of the police power by the legislature. After the decision just referred to, Section 35, Article II,'was adopted by the people as an amendment to the constitution.

It is manifest that the paramount purpose of the amendment was to leave no doubt as to the power of the legislature to pass a compulsory act for the establishment of a state insurance fund to be administered by the state, to which fund employers should be compelled to contribute. It empowered the general assembly to take away any or all rights of action or defenses from employes or employers, subject to certain conditions named.

The sentiment which brought about these consecutive advance steps was of slow but sure growth. It came to be believed that employes should receive compensation for injuries received in the course of their employment, without reference to questions of negligence, unless the injury was caused by their own wilful act; that as a matter of justice, based upon scientific considerations, injuries to workmen in the course of their employment, which were not caused by their own wilful act, should be regarded as a charge upon the business in which they were engaged. This principle and the position in the line of causation which employers sustain in industrial pursuits, are the foundations upon which rest the enactments to compel employers to contribute to state compensation funds. The obligation which arises from that basic relation has been sanctioned by the judgment of society as necessary to the public welfare.

The pertinent part of Section 27, which is attacked, is as follows: “Any employe whose employer has failed to comply with the provisions of section twenty-two hereof, who has been injured in the course of his employment, wheresoever such injury has occurred, and which was not purposely self-inflicted, or his dependents in case death has ensued, may, in lieu of proceeding against his employer by civil action in the courts, as provided in the last preceding section, file his application with the state liability board of awards for compensation in accordance with the terms of this act, and the board shall hear and determine such application for compensation in like manner as in other claims before the board; and the amount of compensation which said board may ascertain and determine to be due to such injured employe, or to his dependents in case death has ensued, shall be paid by such employer to the person entitled thereto within ten days after receiving notice of the amount thereof as fixed and determined by the board; and in the event of the failure, neglect or refusal of the employer to pay such compensation to the person entitled thereto, within said period of ten days, the same shall constitute a liquidated claim for damages against such employer in the amount so ascertained and fixed by the board, which with an added penalty of fifty percentum, may be recovered in an action in the name of the state for the benefit of the person or persons entitled to the same. And any employe whose employer has elected to pay compensation to his injured, or to the dependents of his killed employes in accordance with the provisions of section twenty-two hereof, may, in the event of the failure of his employer to so pay such compensation or furnish such medical, surgical, nursing and hospital services and attention or funeral expenses, file his application with the state liability board of awards for the purpose of having the amount of such compensation and such medical, surgical, nursing and hospital services and attention or funeral expenses determined; and thereupon like proceedings shall be had before the board and withlike effect as hereinbefore provided.”

The sections preceding Section 27 deal with three classes of employers:

First: Employers who comply with the provisions of the statute and pay premiums into the state insurance fund under Section 22.

Second: Employers who are authorized under that section by the industrial commission to directly compensate their injured employes instead of paying premiums to the state insurance fund.

Third: Employers who do not comply with the law.

As to employes of employers who do not comply with the law, Section 26 provides that such employers shall be liable to their employes for damages suffered by reason of personal injuries sustained in the course of employment caused by the wrongful act, neglect or default of the employer, or his agents or employes, and in such case the defendant shall not avail himself of the defense of the fellow-servant rule, of the assumption of risk or of contributory negligence; and Section 27 then enacts that any employe, whose employer has failed to comply with the provisions of the law, who has been injured in the course of employment, etc., may, in lieu of proceeding against his employer by civil action in the courts, file his application with the commission for compensation in accordance with the terms of the act.

It will be observed that the employe of such an employer has two remedies, and he must elect which one he will pursue. He cannot have both. He may sue his employer, as at common law, and, in that suit he is permitted to recover whatever damages he is able to show he has sustained; or, he may, in lieu of such suit, apply to the commission for. compensation under the act. In the latter event, the board is required to proceed in like manner as in other claims. They must find whether the employer is one within the terms of the act, that is, whether he had five or more employes regularly engaged, etc., whether he had paid premiums to the state insurance fund, whether the claimant has suffered an injury which he received in the course of his employment, and if so, its nature and extent, and whether it was self-inflicted. If the claimant is one who is shown to be entitled to compensation, the amount is fixed in accordance with the provisions of the statute. In other words, the proceeding where the employe asks for compensation is up to this point precisely as if the employer had complied with the law. It is then the duty of the commission to order the employer to pay the amount of the award to the employe, “and in the event of the failure, neglect or refusal of the employer to pay such compensation to the person entitled thereto, within said period of ten days, the same shall constitute a liquidated claim for damages against such employer in the amount so ascertained and fixed by the board, which with an added penalty of fifty percentum, may be recovered in an action in the name of the state for the benefit of the person or persons entitled to the same.”

The grant of power to the general assembly to pass a compulsory law carries with it, as incident thereto, the power to include all such reasonable provisions as are necessary to make the law effective. The proceeding laid down is in full keeping with the provisions of Section 35 of Article II of the Constitution, and is one to compel the employer to perform his part in the general scheme of industrial protection.

The plaintiff in error contends that his constitutional rights have been infringed in the respects above set forth. While it cannot be said that one who comes into court, confessing that he has failed to comply with the express provisions of a statute, is to be denied the privilege of asserting the invalidity of the statute as the reason for his noncompliance with it, still he must realize that any penalties that are visited upon him for such noncompliance with the terms of the statute are not to be complained of in the event of its being finally upheld. While different provisions of the constitution are referred to as being violated, the contention as to all rests upon substantially the same grounds.

It is claimed first that the right of trial by jury is violated. As to this, it must be noted that upon failure of the employer to comply with the statute, and upon his failure to comply with the order of the commission to pay the compensation fixed to the person entitled to it, the same shall constitute a liquidated claim for damages against such employer in the amount fixed, which with an added penalty of fifty per cent, may be recovered in an action in the name of the state for the benefit of the employe.

This is a necessary proceeding to compel the employer to do the thing which the general assembly was authorized to require by the constitutional amendment. It is at once manifest that the provisions of the section whose validity is attacked are important and essential steps in the administration of the law itself and are vital to the accomplishment of its beneficent purpose. The suit for the liquidated or stipulated amount is not a suit as at common law by the employe for damages sustained. The employe has waived the right to bring such a suit by claiming compensation. A suit for damages is one for the recovery of an unliquidated sum in an action at law. The suit by the state for the amount of the compensation under Section 27 is not one for negligence of any kind. It has no regard for such a thing. It is simply based on the fact of injury in the course of employment. The recovery in the damage suit is presumed to wholly compensate the injured person, but when he elects to accept compensation it is fixed in accordance with the schedule. The action to recover it is a statutory action, and under the amendment the statute properly fixes the measure of recovery. The action against the employer to recover the amount so ascertained and fixed must be brought in a court of general jurisdiction, and the defendant employer is entitled to a trial by jury. He is entitled to make the defense that he is not an employer of five or more employes, etc.; that the injury to the beneficiary was not received in the course of .employment, or that it was wilfully self-inflicted; or he might show that he had paid his premium into the insurance fund. The defense that he would not be entitled to make in the case simply goes to the amount of compensation, for that is fixed pursuant to the statute.- If the issues stated are found against him, and he pays the amount fixed by the board, he has only paid what other employers pay W'ho comply with the provisions of the law, together with the penalty which the law imposes on him for not obeying it. Inasmuch as the amount recovered is not determined by proof of the actual damages sustained, but is such an amount as is fixed by the statute when the administrative board has ascertained the facts to which the statute would apply, there is nothing for the jury to pass upon on that question. It is a sum that is liquidated or stipulated by the statute. As was said by Judge Mcllvaine in C., S. & C. Rd. Co. v. Cook, 37 Ohio St., 265, 273, in which the validity of a statute giving a fixed penalty against a railroad company for overcharging was involved: “If an issue had been joined, for the trial of which either party might, of right, have demanded a jury, upon the finding of the jury upon the issue for the plaintiff below, the amount of their verdict would have been controlled by the statute.” These views are also sustained in Commissioners v. Church, Admr., 62 Ohio St., 318, 345, and Reckner v. Warner, 22 Ohio St., 275.

There is no denial of trial by jury as to any issue which the employer is entitled to raise.

It is also claimed that the section under examina- i tion infringes on the judicial power of the state in; that it confers upon an administrative board judicial ; functions. The judicial power of the state is vested by Section 1 of Article IV of the Constitution in the courts named in that section, and it is contended that the duties.laid upon the industrial commission are judicial in character and call for the exercise of judicial power.

From what has been already shown it will be seen that the proceedings before the commission, and its order, are merely administrative, and simply lay the foundation for a suit in a court of competent jurisdiction in which the employer has due process and all rights preserved. .

In State, ex rel. Yaple, v. Creamer, Treas., 85 Ohio St., 349, at page 400, the following was said as to the same contention:

“Of course if the board is a court there is an end of the whole matter. The statute would be unconstitutional. For if the board is a court it has not been created in accordance with the manner provided by the constitution.
“We do not consider the board of awards a court, or invested with judicial power within the meaning of the constitution.
“It is created by the act purely as an administrative agency to bring into being and administer the Insurance fund, and the fact that it is empowered fo classify persons who come under the law and to ascertain facts as to the application of the fund, does not vest it with judicial power within the constitutional sense.
“Under our system the executive department of the government has many boards to assist in the administration of its affairs.
“In State, ex rel., v. Hawkins, 44 Ohio St., 98, it is said: ‘What is judicial power cannot be brought within the ring-fence of a definition. It is undoubtedly power to hear and determine, but this is not peculiar to the judicial office. Many of the acts of administrative and executive officers involve the exercise of the same power.’ The court then shows that many boards hear and determine questions affecting private as well as public rights, and quotes with approval from State, ex rel., v. Harmon, 31 Ohio St., 250: The authority to ascertain facts and apply the law to the facts-when ascertained pertains as well to other departments of government as to the judiciary.’ ”

In Hunter v. Colfax Consol. Coal Co., 154 N. W. Rep. (Iowa), 1037, it is said, at page 1060, concerning a similar claim: “According to Sabre’s Case, 86 Vt. 347, 85 Atl. 694, Ann. Cas. 1915C, 1269, such acts confer the power upon investigation to apply the general provisions of law to particular circumstances and situations, and may validly leave much of detail to the discretion of a commission; that though they, may, in a sense, clothe an administrative body with quasi judicial functions in some respects, this is authorized by the police power, and confers power merely to determine facts upon which existing law shall operate, which is a conferring of auxiliary or subordinate legislative powers. The act takes away the cause of action on the one hand, and the ground of defense on the other, and'merges both in a statutory indemnity, fixed and certain.”

In 6 Ruling Case Law, Section 175, page 175, it is said: “In accordance with the power of the legislature to enact laws the effect and operation of which is made dependent on the happening of certain contingencies, the condition selected may be the ascertainment of particular facts by executive or other officers. This has given rise to the well established distinction that although the legislature cannot delegate its powers to make a law yet it can delegate a power to determine some facts or state of things on which the law may depend. The mere fact that an officer is required by law to inquire into the existence of certain facts and apply the law thereto to determine what his official conduct shall be, and that these acts may affect private rights, does not constitute an exercise of judicial power. Accordingly a statute may leave to nonjudicial officers the power to declare the existence of facts which call into operation its provisions, and similarly may grant to commissioners and other subordinate officers power to ascertain and determine appropriate facts as a basis for procedure in the enforcement of particular laws.”

In Field v. Clark, 143 U. S., 649, at page 694, the court quote with approval from Locke’s Appeal, 72 Pa. St., 491, 498: “The legislature cannot delegate its power to make, a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government.” And in Reetz v. Michigan, 188 U. S., 505, 507, it is said: “Indeed, it not infrequently happens that a full discharge of their duties compels boards, or officers of a purely ministerial character, to consider and determine questions of a legal nature. Due process is not necessarily judicial process.”

Much that has been already said applies with equal force to the remaining claims of plaintiff in error that the section in question denies .to the employer in question the due process of law and the equal protection of the law, in violation of the provisions of the state and federal constitutions referred to.

An additional objection is made against the validity of Section 27. It is said that the provision with reference to an injury “in the course of employment” permits an award to be made to one whose injury did not arise out of the employment. We do not think this contention is well taken. The language is found in the constitutional amendment as well as in the statute. It was plainly the intention of the framers of the amendment, and of the statute, to provide for compensation only to one whose injury was the result of or connected with the employment, and would not cover any case which had its cause outside of and disconnected with the employment, although the employe may at the time have been actually engaged in doing the work of his employer in the usual way.

Counsel for some employes of employers who have elected to make compensation under the statute have filed a brief in this case, in which they assert that Section 22 of the act under consideration, which authorizes employers under the conditions named therein to directly compensate their injured employes, is invalid because there is no provision in the act itself by which an employe of such an employer, who makes application to the board for compensation and is refused, may have any relief whatever.

The validity of Section 22 has been considered in another case not yet reported and the court is unanimously of opinion that it is a valid provision.

It must be remembered that this act was passed in the exercise of the police power, fortified by the grant of power contained in the amendment to the constitution in question, which in itself is but an assertion of the police power. It is an effort to in some degree meet the requirements of new conditions which have come in an age full of revolutionary changes in industrial methods.

No one has a vested right in rules of the common law. Rights of property vested under the common law cannot be taken away without due process, but the law itself as a rule of conduct may be changed at the will of the legislature unless prevented by constitutional limitations. The great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to new circumstances. Mondou v. N. Y., N. H. & H. Rd. Co., 223 U. S., 1; Munn v. Illinois, 94 U. S., 113; Martin v. P. & L. E. Rd. Co., 203 U. S., 284, and Western Union Tel. Co. v. Commercial Milling Co., 218 U. S., 406.

Our constitutions were made in the contemplation that new necessities would arise with changing conditions of society.

Mr. Justice Matthews, in Hurtado v. California, 110 U. S., 516, 531, said: “As it was the characteristic principle of the common law to draw its inspiration from every fountain of j'ustice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mold and shape it into new and not less useful forms.” The constitutional guaranties which existed prior to the adoption of Section 35, Article II, must be considered in the light of the later expression. The former provisions cannot be construed to neutralize the positive grant of power contained in the later one. General lan-, guage in our constitutions, applicable to conditions; that prevailed in the early periods of our govern- j mental existence, must yield to new and express provisions which the people have found to be demanded by necessity and wise policy. The whole subject must be viewed in the light of present conditions and not of those under which common law doctrines were developed.

Viewed in the light of experience and of the well-determined principles which we have suggested, the act under consideration seems to us to be equitable and just in its fundamental provisions, to both the employer and employe. It places employers who pay premiums into the state fund, and those who are authorized by the commission under the law to directly compensate their injured employes, and employers who do not comply with the law, upon such terms of equality as are practicable under the circumstances and situations voluntarily assumed by each. If an employer may arbitrarily refuse to obey the law — if he may demand that the procedure as to him shall be as before the amendment and before the statute — then the attempt of the people to secure a more enlightened and scientific method of dealing with this important subject will have been in vain.

We think the section in question is plainly justified by the amendment (Section 35 of Article II of the Constitution) and by the principles declared in many states and by the supreme court of the United States. Matter of Jensen v. Southern Pac. Co., 215 N. Y., 514; State, ex rel. Davis-Smith Co., v. Clausen, 65 Wash., 165; Borgnis v. Falk Co., 147 Wis., 327; Sexton v. Newark Dist. Tel. Co., 84 N. J. Law, 85; Cunningham v. Northwestern Impr. Co., 44 Mont., 180, 217, and State, ex rel., v. Creamer, 85 Ohio St., 349.

In the well-known case of Noble State Bank v. Haskell, 219 U. S., 104, which involved the constitutionality of a law enacted in the exercise of the police power to establish bank depositors guaranty funds created by levy on each of the banks, the objection as to the taking of property without due process of law and the denial of equal protection of laws was made, and the court say, at page 110: “In the first place it is established by a series of cases that an ulterior public advantage may justify a comparatively insignificant taking of private property for what, in its immediate purpose, is a private use. * * * It may be said in a general way that the police power extends to all the great public needs. Camfield v. United States, 167 U. S. 518. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.”

Entertaining these views we conclude that the judgment should be affirmed.

Judgment affirmed.

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


text:
    Smith v. The Industrial Commission of Ohio.

      Workmen’s compensation — Section 35, Article II, Constitution, 1912 —Validity of Section 27 of compensation act (103 O. L., 72, 82)— Employer entitled, to trial by jury, when.

    (No. 15431
    Decided January 23, 1917.)
    In Prohibition.
    This is a petition for prohibition filed by Daniel M. Smith against the Industrial Commission of Ohio. The petition alleges that on or about September 15, T916, one Ben E. Smith filed his claim against this plaintiff before said commission because of injuries received by him while in the. employ of plaintiff, whereby his right eye was destroyed and left eye affected; that said application for compensation was made under Section 27 of the workmen’s compensation act of Ohio; that plaintiff herein filed his answer with the commission denying the jurisdiction of the said commission over plaintiff or the subject-matter in controversy; that said answer set forth that plaintiff was not a subscriber to said state insurance fund, and had not elected to pay compensation under the provision of Section 22 of said act; that his answer further denied that he was an employer of a sufficient number of employes at the date of said injury to bring him within the terms and. conditions of said statute; that the commission afterwards announced its decision and found that said employer had not taken out insurance in the state department, that he was an employer of labor, and, on the date of the injury of Ben E. Smith while in his employ, had more than five men in his employ, and that because of his failure to take out such insurance and pay the premium, or elect to pay insurance, as provided in the law, he became indebted to said Ben E. Smith in a large sum of money; that notice to this effect was received by this plaintiff on October 12, 1916; and that the defendant is about to attempt to enforce said order and direct the attorney general of the ' state to bring an action against this plaintiff for the recovery of the amount fixed, with fifty per cent, penalty. Plaintiff further avers that all of said proceedings are and have been unlawful and void because of the unconstitutionality of said Section 27.

    The prayer of the petition is that a writ of prohibition may issue from this court restraining the defendant from proceeding further in the prosecution of said claim, that said award and order may be declared null and void, and for such other and further relief as is right and proper.
    The attorney general filed a demurrer to the petition, which was argued by counsel and submitted to the court.

      Mr. P. M. Smith, for plaintiff.

      Mr. E. C. Turner, attorney general; Mr. John G Price and Mr. Eugene Carlin, for defendant.
   Johnson, J.

Substantially the same objections to the validity of Section 27 of the act referred to are urged by counsel for the plaintiff as were presented to this court in the case of Fassig v. The State, ex rel. Turner, Atty. Genl., decided this day.

For the reasons given in the opinion in that case the demurrer to the petition in this case will be sustained and the petition dismissed.

Petition dismissed.

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


author: By the Court.

text:
    Jones et al., Partners, v. The People's Bank Company.

      Negotiable instruments — Check drawn in favor of fictitious payee —At instance of drawer’s agent — Drawee bank liable to drawer, when — Good faith of drawer — Diligence of bank — Constructive agency — Charge to jury.

    (No. 15123
    Decided January 23, 1917.)
    Error to the Court of Appeals of Putnam county.
    This is a proceeding in error to reverse the judgment of the court of appeals. C. H. Jones and G. E. Jones, plaintiffs in error, were partners engaged in the business of manufacturing lumber and lumber products at Columbus Grove, Putnam county, under the firm name of J. F. Jones’ Sons, and, as such, recovered a judgment for $2,805.32 in the court of common pleas, against the defendarit in error, The People’s Bank Co., for payment by the' latter of ten checks drawn, with one exception, by J. F. Jones’ Sons in favor of fictitious persons.

      One V. B. Pangle was engaged in like business in said village, and at sundry and divers times bought timber for the Jones company. The Jones company carried on its books an open account with Pangle, in which, with numerous miscellaneous items of credit and debit, appear respective entries concerning certain of the timber hereinafter mentioned and the checks which were the subject of the litigation in the court below.
    The various checks involved in this case were issued by the Jones company at the instance and direction of Pangle, upon representation by Pangle to the Jones company that he had bought or contracted to buy from the various payees mentioned in said checks certain lumber of the amount and value set forth in said checks. The payees in said checks were for the most part fictitious persons, unknown to the Jones company, but believed by them to be real persons with whom Pangle had contracted for the sale of lumber which was to go to the Jones company, and for which the check was payment in whole or in part. The names of the fictitious payees were of course forged on the backs of the checks by some one, and the amounts paid by a chain of banks and finally charged by The People’s Bank Company, defendant in error, against the account of the Jones company in said bank.
    • Mr. Kent W. Hughes and Mr. H. D. Grindle, for plaintiffs in error.

      Mr. W. H. Leete and Mr. J. O. Ohler, for defendant in error.
   By the Court.

This case is affirmed upon the memorandum of opinion of the court of appeals, particularly that part of it which reads as follows:

“In the present case the jury should have been charged that where part of the amount of a check was actually intended by plaintiffs below for Pangle, as the evidence in relation to the one in the name of Fred P. Reidy, shows it to have been; or where Pangle devoted the amount or part thereof, of the proceeds of a check, or the equivalent of its proceeds, or part thereof, to the acquiring of the particular timber on account of which such check, was in whole or in part, issued, and delivered, as in the instance of the checks in the names of O. A. Earnest, C. Balmer, and Fred P. Reidy, severally, there could be no recovery by plaintiffs below, of such amount so actually intended for Pangle, or the sum or sums so devoted to the acquisition of such particular timber.
“This for the reason that the most obvious fundamentals of manifest justice must preclude recovery, inasmuch as such checks entirely or partially as the case may be, accomplished the very purpose which they were created to serve.”

The court of appeals set aside the judgment of the court of common pleas and remanded the case for a new trial, which makes pertinent further suggestions of error that would have justified the reversal.

In the main, so far as the plaintiffs’ contentions below are concerned, this is the same type of case as Armstrong v. National Bank, 46 Ohio St., 512, and a part thereof, from the opinion of Minshall, C. J., at page 523, is here particularly recited, and reaffirmed :

“If the drawer of a check, acting in good faith, makes it payable to a certain person or order, supposing there is such person, when in fact there is none, no good reason can be perceived why the banker should-be excused if he pay the check to a fraudulent holder upon any less precautions, than if it had been made payable to a real person; in other words, why he should not be required to use the same precautions in the one case as in the other; that is, determine whether the indorsement is a genuine one or not. The fact that the payee is a non-existing person does not increase the liability of the bank to be deceived by the indorsement. The fact is that an ordinarily prudent banker would be less liable to be deceived into a mistaken payment by a fictitious indorsement such as this was, than by a simple forgery. The determination of the character of an)' indorsement involves the ascertainment of two things: (1) the identity of the indorser, and (2) the genuineness of his signature; and no careful banker would pay upon the faith of the genuineness of any name, until he had fully satisfied himself both as to the identity of the person and the genuineness of his signature.”

But in the instant case the defendant by answer has so modified the fundamental issues of the Armstrong case as to obviously distinguish the case at bar.

The first defense interposed is the usual general denial. The second defense charges “that plaintiffs were guilty of a want of ordinai'y care and diligence in executing and delivering said checks, and each of them to said V. B. Pangle, and that in the exercise of due care, under the circumstances, plaintiffs could, would and should have discovered said fraud.”

The third defense charges want of due diligence and care upon the part of the plaintiffs after the issue of the checks, and after the bank and the plaintiffs had settled their accounts, averring that more than a year had elapsed from the time of said settlements before notice of the alleged forgeries was given the bank.

The fourth defense especially charges “that the said V. B. Pangle was in the employ of the said plaintiffs during all of said time in the purchase of timber and other merchandise for the plaintiffs and was held out by the plaintiffs to the defendant to be their agent, with authority to act for them.”

The fifth defense especially charges that the plaintiffs carelessly and negligently delayed notifying the bank of said alleged fraudulent practices, that meanwhile said Pangle became insolvent, and that by reason of the delay and the insolvency the bank would be unable to reimburse itself as against said Pangle if it should be determined that said checks were not genuine checks properly endorsed.

The sixth defense charges that “said V. B. Pangle was the agent, servant and employee of plaintiffs, and engaged in acting for them in the purchase of supplies for their manufacturing business, and said several checks were issued by plaintiffs either in payment for supplies before that time purchased by said Pangle for plaintiffs, or were given to said Pangle on account of supplies.”

The seventh defense pleads a provision of the negotiable instrument’s code as a valid defense.

As to this seventh defense the trial court charged as follows:

“We charge you, gentlemen of the jury, that the rule of law that a negotiable instrument made payable to a fictitious person or order is, in effect, an instrument payable to bearer and needs no endorsement to pass it to another in the commercial world and affairs, applies only where it is so made with the knowledge of the party making it and does not apply where the maker or makers, supposing the payee to be a real person and intending payment to be made to such person or his order, is induced by the fraud of another to so draw it.”

There is error in this part of the charge by reason of the fact that one of the defenses interposed here was that Pangle was the agent of the Jones company, and there was no inconsiderable evidence offered in support of that defense. The court should have added that if Pangle was the agent of the Jones company in the issuing of such checks, Pangle’s knowledge was knowledge of the Jones company.

The same vice appears in the next paragraph of the charge, which refers to Pangle as a “third person.” Now, if, as claimed by the defendant, Pangle was in fact an agent of the Jones company, he was not a third person within the contemplation of that part of the charge.

Again. The fourth defense is to the effect that the Jones company held out to the world, including the bank, said Pangle as their authorized agent concerning matters such as are involved in the case at bar. And yet there is no portion of the charge devoted to this issue as set out in the fourth defense. There is a charge upon actual agency, but not upon the distinctive matter pleaded in this defense. Whether he was or was not agent, the fourth defense charges that the company held him out to the world as agent; and, therefore, if such be the fact, it would estop the company from denying agency even though Pangle was not in truth such agent.

Again. Upon the question of agency, the court charged as follows:

“If you shall find, gentlemen, by a preponderance of the evidence in the case that the man V. B. Pangle, was the agent or representative of the plaintiffs and acting for them as such at the time or times when it is alleged the plaintiffs executed the several checks in question and delivered them to the said Pangle, by him to be delivered thereafter to the said several payees named in said checks, and that the plaintiffs, by so treating and dealing with and through said Pangle placed it in the power of said Wangle to defraud the said plaintiffs in the matter of the said issuing and delivery of said several checks, and in. the matter of the alleged forgeries, by endorsement, of said checks, and that the defendant bank had no knowledge or notice of the relations, if any, at the time or times mentioned, existing between the plaintiffs and said Pangle in the matter of the issuing, passing and endorsing of said checks, and further that the plaintiffs did not use ordinary care and prudence in the matter of its alleged dealings and transactions with said Pangle and in the matter of the issuing and delivery of said several checks, then the plaintiffs cannot recover in this action and your verdict should be for the defendant.”

It is unfortunate that the court here undertook to combine two or three defenses, any one of which was complete in itself, and practically held that before the defendant could prevail in any one of them he must establish all of them by a preponderance of the evidence. That of course is not the law. Each of these defenses, with the issue of fact involved in each, should have been stated separately to the jury, in simple language, and with instruction that if they found the fact to be thus and so, in accordance with such defense, then their verdict should be for the defendant; and thus seriatim, taking each defense.

In .connection with the defense of agency, or holding out of agency, it. was highly important for the court to charge what agency is and how such relation of agency may be created. Notwithstanding this was one of the focal points of the case, there is nothing in the charge as to what constitutes agency or as to how such relation can be established between the parties.

This case, under the pleadings and the evidence, calls for a substantial compliance with the doctrine laid down in the syllabus of The Baltimore & Ohio Rd. Co. v. Lockwood, 72 Ohio St., 586:

“In submitting a case to the jury, it is the duty of the court to separate and definitely state to the jury, the issues of fact made in the pleadings, accompanied by such instructions as to each issue, as the nature of the case may require.”

It might be urged that these errors in the charge were immaterial and technical at best, and, therefore, should be disregarded. But the question of agency and the holding out as agent, upon which estoppel was invoked, and the question of due care and diligence upon the part of the Jones company, not only in the issuing, of checks but in the inspecting of settlements, were the most vital ones in the case to be submitted to the jury, and the instructions should have been pertinent and plain without increasing beyond the legal measure the burden of proof upon the defendant.

Certainly there were many striking and significant facts in this record in the testimony of the plaintiffs’ own witnesses tending to support the various defenses of the bank, particularly those of agency, holding out as agent, and due care and diligence both in the making of the checks and the inspecting of the settlements; but none of these could be fairly and properly considered by the jury except under proper charge from the court.

Judgment affirmed.

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


text:
    Zangerle, Auditor, et al. v. Thompson.

      Taxation — Assessment of realty — Qualifications of assistant assessor —Resident of district — Sections 3349, 3350 and 3353-1, General Code (106 O. L., 250, 252) — Injunction.
    (No. 15390
    Decided January 23, 1917.)
    Error to the Court of Appeals of Cuyahoga county.

      Mr. Cyrus Locher, prosecuting attorney; Mr. Frederick W. Green, assistant prosecuting attorney; Mr. Edward C. Turner, attorney general, and Mr. H. C. Sherman, for plaintiff in error.

      Messrs. Thompson, Hiñe & Flory and Messrs. Ford, Snyder & Tilden, for defendant in error.
   By the Court.

The petition in this case sought to enjoin John A. Zangerle, as county auditor of Cuyahoga county, from “certifying and delivering to the county treasurer any assessment of the land of plaintiff made by defendant Charles R. Haydn and differing from the assessment made by the quadrennial assessors, as shown by the duplicate for 1915.” The petition also sought to enjoin the county treasurer from collecting taxes and assessments appearing upon that duplicate.

The court of common pleas sustained a general demurrer to the petition.

The court of appeals, on appeal, overruled the general demurrer to the petition, and, the defendants not desiring to answer, judgment was rendered by that court upon the demurrer.

It was alleged that the county auditor appointed one Charles R. Haydn as an assistant assessor, and that at the time of his appointment Haydn was not a citizen possessing the qualifications of an elector of Ward 9, not having resided in the ward for a period of twenty days.

Section 17 of the Parrett-Whittemore act (106 O. L., 250) provides that an assessor shall be a citizen possessing the qualifications of an elector of such ward or district; and Section 18 of the same act provides that the assistant assessor shall possess all the qualifications of an elected assessor.

These sections of the law are mandatory and specifically require that the assistant assessor shall be an elector of the ward or district s'elected for appraisal. In providing for this feature the general assembly may well have had in mind a policy of requiring a resident elector to be appointed to assess property within a specified district, since a resident would have a better knowledge of conditions and values of property than a nonresident; and, as showing the solicitude of the general assembly upon that subject, by Section 22 of the same act it is provided that in case of a vacancy in the office of assessor such vacancy should be filled by the appointment of an elector of such ward or district.

In the case of State, ex rel. Godfrey, v. O’Brien, Treas., ante, 166, it was held that the provisions of the act in question, providing for the appointment of county boards of revision, were unconstitutional. Inasmuch as the framework of the act provided for an investigation of valuations and assessments made during the current year, upon complaint of a taxpayer, it is self-evident, in view of the decision in question, that there can be no remedy available to'the taxpayer in the form provided in the Parrett-Whittemore 'act, and, that, shorn of this remedy, there remains to the plaintiff only an appeal to the chancery side of the court.

The judgment of the covurt of appeals is affirmed.

Judgment affirmed.

Jones, Matthias, Johnson and Donahue, JJ., concur.

Wanamaker, J., not participating.


text:
    The State, ex rel. Reamer, v. Houck et al., Judges, et al.

      Courts of appeals — Jurisdiction on appeal — Failure to challenge below — Writ of prohibition refused by supreme court, when — Action to quiet title — Injunction — Court procedure.

    (No. 15451
    Decided January 23, 1917.)
    In Prohibition.

      Mr. Smith W. Bennett, for relator.

      Mr. W. S. Merrell, for respondent Elrado E. Reamer.
   By the Court.

On September 17, 1914, Clement L. Reamer brought an action in the court of common pleas of Coshocton county, wherein he sought a decree quieting his title as against the claim of Elrado E. Reamer and to enjoin him from trespassing upon lands therein described. Elrado E. Reamer, the defendant in that action, filed an answer denying the ownership by the plaintiff of a portion of the land described in his petition, claiming that he, the defendant, was the owner thereof, and by cross-petition sought to have his title thereto quieted as against the claims of the plaintiff, and an injunction restraining the plaintiff from trespassing upon said land, and also judgment for damages occasioned by the plaintiff in tearing down fences theretofore constructed by the defendant upon the disputed tract. A reply filed by the plaintiff made up the issues in the case, which were tried in the common pleas court of that county and a judgment entered quieting the title of the plaintiff in the lands described, perpetually enjoining the defendant from setting up any claim thereto, and dismissing his cross-petition.

Thereupon the defendant Elrado E. Reamer duly perfected his appeal of said cáuse to the court of appeals of said county. No further pleadings were filed in that court. No motion to dismiss the appeal was filed and the case went to trial and final judgment in the court of appeals without any question being raised as to the appeal or as to the jurisdiction of the court of appeals to hear the case. Upon such hearing the court of appeals entered a judgment dismissing the petition of the plaintiff Clement L. Reamer and finding in favor of the defendant Elrado E. Reamer on his cross-petition, and entered a decree quieting his title to the real estate in question; also entered a finding that plaintiff had trespassed upon said premises of the defendant and destroyed his fences theretofore erected on the land in dispute, and found and assessed damages therefor in the sum of $250, for which judgment was rendered against the plaintiff.

Thereafter the plaintiff filed his motion here asking that the court of appeals be directed to certify the record in the case to this court. Upon the motion of the defendant the plaintiff’s motion for an order to certify the record was stricken from the files for the reason that it was not filed within 70 days after the entry of judgment in the court of appeals. Now Clement L. Reamer brings his action in this court and asks that a writ of prohibition be awarded prohibiting the respondents named, being said Elrado E. Reamer, the judges of the court of appeals of the fifth judicial district and the sheriff of Coshocton county, from proceeding further with the enforcement of said judgment, and that the order and judgment of the court of appeals be vacated and held for naught.

The pleadings in this case are in substantial accord as to the facts, which are as above stated. Plaintiff plants his claim for a writ of prohibition upon the contention that the court of appeals had no jurisdiction to render said judgment in favor of the defendant and against the plaintiff, upon the cross-petition in that case, and that such judgment is void for want of jurisdiction of the subject-matter thereof by the court of appeals of Coshocton county.

As we have seen, no motion to dismiss the appeal was filed or presented at any time and no question whatever raised as to the jurisdiction of the court to hear and determine the case in the manner and form presented, nor was any objection made to a full and complete hearing by the court of appeals of all the issues made by the pleadings in the case, nor to a final determination thereof. Even if the questions now presented were here by virtue of proceedings in error the contention made by the plaintiff would be unavailing under the rule established by this court in the case of Drake et al., Trustees, v. Tucker et al., 83 Ohio St., 97, and followed in subsequent cases. It is quite obvious therefore that the plaintiff is not entitled to the extraordinary writ. of prohibition which may be invoked only where no other adequate remedy is available.

Writ refused.

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

Nichols, C. J., and Jones, J., not participating.


author: Jones, J.

text:
    Village of Richwood v. Algower.

      Election contest — Marking ballot by elector — Form of ballot — Section 6130, General Code — Intention of voter — Writing of name on ballot — Misplacing cross-mark — Ballot invalid, ivhen — Section 6134, General Code — Intoxicating liquors.

    1. A ballot upon which a voter has written his name is invalid and should not be counted.
    2. A ballot containing the word “no” written by the voter in the blank space opposite the negative proposition submitted under the provisions of Section 6130, General Code, is of such character that it is impossible to ascertain the intention of the voter and should be excluded from the count.
    3. In an election held under the foregoing provisions of the code, where the affirmative and negative propositions have been printed within enclosed spaces and separate enclosed blank spaces have been provided to the left of each for the placing of a cross-mark therein, and the voter has placed his cross- ' mark entirely outside of the spaces in which the propositions are printed and entirely outside the blank spaces to the left thereof, it is impossible to ascertain the intention of the voter of such ballot and such ballot is invalid and should not be counted.
    (No. 15277
    Decided January 30, 1917.)
    Error to the Court of Appeals of Union county.
    On January 12, 1915, an election was held in the village of Richwood, Union 'county, Ohio, under the provisions of Section 6127 et seq., General Code, for the purpose of determining “whether the sale of intoxicating liquors as a beverage” should be prohibited within the municipal limits. The village contained two voting precincts. The certified result of the election showed that in the north precinct the drys cast 157 votes, the wets 145, and in the south precinct the drys cast 112 votes, the wets 123, thus giving a majority of one vote in favor of the drys. The contestor, Carl Algower, thereupon instituted proceedings to contest the validity of the election, under the provisions of Section 6134, General Code.
    The form of ballot submitted to the electors contained affirmative and negative propositions, each of which was printed within an enclosed blank space, and separate, enclosed blank spaces, opposite and to the left of each such proposition on the ballot, were provided for the purpose of having the electors make their cross-mark therein. The géneral form of ballot is contained in the opinion following.
    The result of the election turned upon the validity of eight certain ballots cast at such election, which were attached to the record as exhibits. Exhibits “6,” “7,” “10,” “11” and “J” were all similar to the form of ballot contained in the opinion, and exhibit “I” was siniilar to those exhibits except that it contained an additional cross-mark, immediately above and without the blank space, opposite the affirmative proposition. Exhibit “L” contained the name of A. C. Smart written in with, and immediately below, the affirmative proposition, but contained no cross-mark. Exhibit “9” contained no cross-mark, but had the word “No” written in the enclosed blank space immediately opposite and to the left of the negative proposition.
    The judges of election in the north precinct counted exhibit “L” in favor of the dry proposition and rejected exhibits “I” and “J” from the count, fn the south precinct the judges counted exhibits “6,” “7,” “9,” “10” and “11” in favor of the wets. The official count, so certified, resulted in 269 votes dry and 268 wet.
    On a hearing the probate court found that one disqualified voter voted for the drys, and, further, deducted exhibit “L” from the dry total. It also deducted exhibits “6,” “7,” “10,” “11” and “9” from the wet total and refused to count exhibits “I” and “J” in favor of either proposition, thus leaving a majority of four in favor of the drys. The common pleas court affirmed the probate court, finding that there was no error manifest upon the face of the record, but its entry does not specifically pass upon any of the disputed ballots. The court of appeals, by a divided court, reversed the lower courts, it appearing by its journal entry that the five ballots marked with an “X”.below and outside of the block to the left of the negative proposition should be counted in favor of that proposition. These five ballots were exhibits “6,” “7,” “10,” “11” and “J.” Upon the undisputed facts that court ordered the case remanded to the probate court with instructions to correct the returns accordingly, showing the corrected total of 267 votes for the dry proposition and 268 for the wet or negative proposition. On motion of plaintiff in error the cause was directed to be certified to this court for hearing on error.

      Mr. James McCampbell and Mr. J. A. White, for plaintiff in error.
    . Mr. C. A. Hoopes; Mr. P. E. Dempsey and Mr. Timothy S. Hogan, for defendant in error.
   Jones, J.

As to three of the disputed ballots there seems to be a unanimity of judgment in the lower courts that each of them was invalid and should not be counted. This is manifestly true of exhibit “I,” where it was impossible to determine the intention of the voter upon the propositions involved, for the reason that he had made two cross-marks, one of which was above the affirmative proposition submitted and the other below the negative proposition, neither of them being included within anjr of the blank spaces on the ballot. Exhibit “9” was also properly excluded. The placing by the voter of the word “No” in the blank space to the left of the negative proposition was a double negative, and it is not clear whether the voter intended to emphasize his dissent from the * affirmative proposition submitted, or to emphasize his dissent from the negative proposition, to the left of which he had undertaken to write that word. Likewise the ballot described as exhibit “L” is properly excluded from the count for the reason that it contained a distinguishing characteristic identifying the voter who had cast that ballot. The purpose of the Ohio Australian ballot law is primarily to safeguard the secrecy of the ballot. Where this system of balloting has been adopted in the several states it has been held, irrespective of the fact whether the state law condemns these specific violations of the secrecy of the ballot, that a mark of this character placed upon the ballot in such form as to identify the voter thereof is against the policy of the law and invalidates the ballot. Were it otherwise, the purpose of the law would be defeated and there might result a wide field for bribery and corruption. Section 13271, General Code, emphasizes this policy by penalizing an elector who purposely marks his ballot so that it may be identified.

In the lower courts, however, the main question turned upon the issue whether the five ballots, viz., exhibits “6,” “7,” “10,” “11” and “J” should be excluded from the count or whether they should be counted in favor of the wet or negative proposition; and the solution of this question determines the judgment in this case. These ballots were, each of them, substantially as follower

It will be noted that these ballots contain a horizontal line directly under the negative proposition, enclosing it within a space of its own. They also contain a vertical line separating the propositions submitted from two enclosed blank spaces on the left, and the cross-mark was made immediately below and entirely without the blank space where the law provides it should be.

The Ohio ballot law relating to this subject is as follows:

Section 5070, General Code, provides:
“8. If a question is submitted, the elector shall make a cross-mark in the blank space at the left of and before the answer which he desires to give.
“9. No ballots shall be rejected for any technical error which does not make it impossible to determine the voter’s choice.”
Section 6130, General Code, provides:
“The ballots at the election, held under the provisions of the next three preceding sections, shall be printed with an affirmative and a negative statement, to-wit: ‘the sale of intoxicating liquors as a beverage shall be prohibited,’ ‘the sale of intoxicating liquors as a beverage shall not be prohibited,’ with a blank space on the left side of each statement in which to give each elector an opportunity to clearly designate his choice by a cross mark as follows :
The sale of intoxicating liquors as a beverage shall be prohibited.
“(........) The sale of intoxicating liquors as a beverage shall not be prohibited.”

For the reason that the election laws of the various states vary as to the efficacy of ballots marked without the space specifically provided by their election laws, it is obviously difficult to obtain a rule of uniformity from the authorities cited. Suffice it to say that with a view to preserving the right of elective franchise to the citizen elector, in the absence of statutory provisions invalidating the ballot, the courts of this country have generally adopted a rule of liberality for the purpose of ascertaining and safeguarding the intention of the voter in the exercise of his constitutional privilege, and the Ohio statute above quoted emphasizes that feature when it provides that no ballot shall be rejected for technicalities which do not make it impossible to determine the voter’s choice. If the courts of other states have held that certain requirements for marking ballots are mandatory, it is because the specific, laws of such states relating thereto make ballots marked in noncompliance therewith invalid, or direct that they shall not be counted. And it is because of these distinctive features in the several jurisdictions that the courts generally have differed in their holdings as to whether the requirements are mandatory or directory.

The provisions of our law, requiring the cross-mark to be placed in the block directly opposite to the name voted for or proposition submitted, are directory. The Ohio law stipulates that no ballot shall be rejected if it is possible to determine the voter’s choice, but the converse of the statement follows, that if it is possible to determine the voter’s choice the ballot should not be rejected.

Applying a liberal rule to the ballots in dispute this court is unable to determine the voter’s choice between the two propositions submitted to him. There should be some effort at least of compliance with the requirements of the law. So far as these ballots are concerned they may have been voted by illiterates unable to distinguish the propositions submitted. Such evidently was the character of the elector who voted exhibit “1.” Or they may have been marked by electors who did not desire to commit themselves on the issue submitted. If the cross-mark had impinged on the horizontal line below the negative proposition, there would have been reason. to hold the ballot valid, in as much as the voter had thus identified and associated his cross-mark with the proposition submitted; likewise, had there been no horizontal line printed on the ballot below the negative proposition, the cross-mark might then also have been so associated with the full space so provided as to exhibit an intention to vote for the proposition embodied therein. These ballots are plainly distinguished from those reported in the case of State, ex rel. Bambach, v. Markley, 9 C. C, N. S., 561, affirmed by this court without opinion in 76 Ohio St., 636. In that case the cross-mark was made at various places within the column occupied by the name of Bambach alone, and it was there held that it was the evident intention of the voters to vote for the person occupying that column, but had there been another name in the independent column occupied by Mr. Bambach it is obvious that all the ballots thus marked would not have been credited to Mr. Bambach.

For the reasons stated the judgment of the court of appeals is reversed and the judgments of the probate and common pleas courts affirmed.

Judgment reversed.

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

Newman, J., dissents from the third proposition of the syllabus and from the judgment.


author: Newman, J.

text:
    The State, ex rel. Brittain, v. The Board of Agriculture of Ohio.

      Civil service commission — Appeal from order of removal — Hearing limited to statutory grounds — Upon which order of removal based — Section 486-170, General Code — Mandatory requirement that appointing authority — Furnish employe with reasons for removal.

    1. The state civil service commission in the hearing of an appeal from an order of removal of an employe, under the provisions of Section 486-17», General Code (106 O. L., 412), is limited to a consideration and determination of the existence of the statutory ground or grounds upon which the order of removal was based by the appointing authority.
    2. The provisions of that section do not confer upon the commission authority to hear an appeal from an order of removal , made by an appointing authority where the employe has not been furnished its reasons for the removal.
    3. The provision of Section 486-17», General Code, that in all cases of removal the appointing authority shall furnish the employe its reasons for the order of removal, is mandatory and the failure of the appointing authority to comply with this provision is fatal to such order and the same is a nullity.
    (No. 15337
    Decided January 30, 1917.)

      Error to the Court of Appeals of Franklin county.
    This is a proceeding in mandamus originating in the court of appeals of Franklin county. The plaintiff filed a second amended petition of which the following is a copy:
    “The' relator, William L. B. Brittain, says that on or about the 1st day of February, 1915, he was duly appointed by the Agricultural Commission of ‘Ohio to the position of drug inspector of the dairy and food division of the Agricultural Commission of Ohio; that said appointment was made from an eligible list, duly certified by the Civil Service Commission to the said Agricultural Commission of Ohio as the result of competitive examination for said position; that he held and occupied said position from the time of said appointment and thereafter, and that he still is the lawful incumbent of the said position; that on or about the 21st day of July, 1915, the Board of Agriculture of Ohio became by operation of law the successor of the Agricultural Commission ofi Ohio, which said Board, of Agriculture duly reappointed and duly ratified the appointment of the relator; that the tenure of the relator in said position, which was and is in the classified service of the state, was during good behavior and efficient service; that the said defendant board has never determined that relator’s behavior has not been good or his service inefficient, or that relator has been guilty of incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of the provisions of the civil service laws, or of the rules of the Civil Service Commission, or of any other failure of good behavior, or of any acts of misfeasance, malfeasance or nonfeasance in office.
    “The relator further says that notwithstanding his said title to his said position, the defendant board has since October 9, 1915, refused to recognize the relator as the incumbent of the said position, and has refused to permit him to perform the work and duties of said position, although the said relator is ready and willing and has on many occasions offered to perform the duties of the said position.
    “The relator further says that on or about October 9, 1915, the secretary of the Board of Agriculture of Ohio furnished the relator with an excerpt from the minutes of the said Board of Agriculture of Ohio, of which the following is a copy:
    “ ‘Moved by Mr. Williamson, seconded by Mr. Myers, that the report of the committee be adopted and that Mark Kidd be appointed as drug inspector and Mr. William L. B. Brittain be dropped. Upon roll call all members voted yes.’
    “Relator further says that the said. Board of Agriculture did not at the said time or at any other time, except as hereinafter stated, furnish him with the reasons for the said attempted removal, nor did the said Board give the relator a reasonable time, or indeed any time, to make and file an explanation, but that on or about January 6, 1916, about three months after the said action of the Board on October 9, 1915, the said relator received a letter from T. L. Calvert, Chief of the Dairy and Food Division of the Board of Agriculture of Ohio, stating that he enclosed therewith charges filed with the State Civil Service Commission relative to the relator’s dismissal from the department. Enclosed with said letter was a paper purporting to be a copy of a communication from the said Calvert and the secretary of the defendant board, which said communication was dated December 11, 1915, and was addressed to the Civil Service Commission of Ohio. This communication purported to be as follows:

      “December n, ipi$.

    “Civil Service Commission of Ohio,
    . “Columbus, Ohio.

    “Gentlemen :
    “Mr. W. L. B. Brittain was dropped from our department on October 9th, 1915, on account of his having accepted other employment. He is .catalogued with the Queen City College of Pharmacy as Professor Theoretical Pharmacy and Director of the Pharmaceutical Laboratory, Dean of the Course in Pharmacy. We refer you to pages 6 and 22 of the Queen City College of Pharmacy catalogue.
    “The Board felt that they were not justified in retaining a man in their employ who was devoting a part of his time to some other institution.
    “A letter from the president of the Ohio State Pharmaceutical Association under date of October 4th, says: T do not think he can render both positions efficient service.’

      “We assure you that this change was not made for political reasons. Under these conditions the Board of Agriculture felt it their duty to make the change. '
    “Trusting this explanation is satisfactory and will meet with your approval, we are
    “Your very truly,
    “(Signed) T. L. Calvert,

      “Chief of Division.

    “(Signed) R. W. Dunlap,

      “Secy. Board of Agriculture.

    “Relator further says that the compensation attached to said position is Twelve Hundred Dollars ($1200.00) per annum; that the said' position was at the time of the appointment of relator, is now, and has been since that time, in the competitive classified service of the State of Ohio.
    “Wherefore the relator prays that a writ of mandamus be issued from this court ordering the defendant, the Board of Agriculture of Ohio, to recognize relator as the lawful incumbent of said position as drug inspector of the dairy and food division of the Board of Agriculture of Ohio, and to assign to him the duties of said position, and to permit him to perform and exercise the powers, duties and functions of said position; and that the said Board be further ordered to issue the necessary orders or warrants to the relator for his compensation at said rate from and after October 9, 1915; and for all other relief either in law or equity to which he may be entitled.”

      The defendant filed a general demurrer to this second amended petition, which was sustained, and the plaintiff not desiring to plead further the court of appeals dismissed the amended petition and rendered judgment in favor of the defendant for costs.
    Plaintiff in error then filed his petition in error in this court asking that the judgment of the court of appeals be reversed.

      Mr. Henry T. Hunt and Mr. Alfred Bettman, for plaintiff in error.

      Mr. Edward C. Turner, attorney general; Mr. John G. Price and Mr. Wm. H. Middleton, for defendant in error.
   Newman, J.

The relator on the 9th day of October, 1915, was drug inspector of the dairy and food department of the board of agriculture of Ohio, which position was and is in the classified civil service of the sítate. On that date the secretary of the board of agriculture furnished relator with an excerpt from the minutes of the board, of which the following is a copy: “Moved by Mr. Williamson, seconded by Mr. Myers, that the report of the committee be adopted and that Mark Kidd be appointed as drug inspector and Mr. William L. B. Brittain be dropped. Upon roll-call all members voted yes.”

It is urged by counsel for the defendant in error that the relator is asking the court to control the action of the defendant in error in removing him, an act which involved the exercise of its discretion and judgment. We do not understand that this is the position taken by the relator. In his second amended petition he proceeds upon the theory that he was never legally removed from his position, that he is still an incumbent, that defendant in error has refused to recognize him as such and to assign to him the duties of the position, and he asks that a writ of mandamus issue ordering the defendant in error to recognize him as the lawful incumbent, to assign to him the duties of the position, to permit him to perform and exercise the powers, duties and functions of said position, and that the board be required to issue the necessary orders or warrants for his compensation.

The question then for determination is, Was there a legal removal of the relator from the position which he held? It becomes necessary therefore to examine the provisions of Section 486-17a, General Code (106 O. L., 412), which relate to the tenure of office and removals in the civil service of the state and are as follows:

“The tenure of every officer, employ [employe] or subordinate in the classified service of the state, the counties, cities and city school districts thereof, holding a position under the provisions' of this act, shall be during good behavior and efficient service; but any such officer, employe or subordinate may be removed for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.
“In all cases of removal the appointing authority shall furnish such employe or subordinate with a copy of the order of removal and his reasons for the same, and give such officer, employe or subordinate a reasonable time in which to make and file an explanation. Such order with the explanation, if any, of the employe Or subordinate shall be filed with the commission. Any such employe or subordinate so removed may appeal from the decision or order of such appointing authority to the state or municipal commission, as the case may be, within ten days from and after the date of such removal, in 'which event the commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the commission, and it may affirm, disaffirm or modify the judgment of the appointing authority, and the commission’s decision shall be final; provided, however, that in the case 'of the removal of a chief of police or chief of,the fire department of a municipality an appeal may be had from the decision of the municipal commission to the court of common pleas of the county in which such municipality is situated to determine the suf-_ ficiency' of the cause of removal. Such appeal shall be taken within ten days from the finding of the commission.”

The purpose of the civil service law is to continue in positions those who are efficient, faithful and trustworthy. By force of the provisions of the section we have quoted the relator was entitled to hold his position during good behavior and efficient service. The defendant in error could remove him, but there was a limitation on the power to remove. There must have existed one or more of the grounds enumerated in the statute before an order of removal could be made, and, then, the process for removal as therein prescribed must have been followed.

It is provided that “in all cases of removal the appointing authority shall furnish such employe or subordinate with a copy of the order of removal and his reasons for the same, and give such officer, employe or subordinate a reasonable-time in which to make and file an explanation.” ' The order of removal, a copy of which was served on the relator, recited that he had been “dropped” as drug inspector. No reason whatever for the order accompanied the same. No charge of delinquency was brought to his attention. He did not know upon which of the statutory grounds the order of removal was based. The law certainly contemplates that the employe.is to be advised of the charge against him in terms sufficiently explicit to enable him, if he sees fit, to make and file an explanation. It is further provided that “Such order with the explanation, if any, of the employe or subordinate shall be filed with the commission.” This is mandatory upon the appointing authority. An employe “so removed” — that is, one who has been removed upon one of the grounds set out in the statute, and to whom has been furnished a copy of the order and the reasons therefor, that he may make and file an explanation with the appointing authority if he sees fit, and, as we view it, afford the appointing authority an opportunity to reconsider the order if the explanation warrants it — may appeal to the state or municipal commission within ten days from and after the date of removal. After notice to the appointing authority the commission shall hear or appoint a trial board to hear such appeal within the time fixed by the statute, and may affirm, disaffirm or modify the judgment of the appointing authority.

It is said by counsel for tifie defendant in error that if the reasons for removal are in any way jurisdictional to an appeal then the state commission upon an appeal would be limited to a hearing and determination of the reasons which move an appointing authority to dismiss an employe from his position. We are of the opinion that the commission is, in the hearing of the appeal, confined to a consideration and determination of the truth of the charge or charges of delinquency upon which the order of removal is based and of which the employe has been advised.

The state commission under the provisions of the statute is not the removing authority. It is to hear the appeal and is to “affirm, disaffirm or modify the judgment of the appointing authority.” It is to determine whether the judgment of the appointing authority in removing the employe upon the charge set out in the order is correct, that is, whether the statutory ground upon which the order is based in fact exists. To hold that the state commission can affirm the judgment of the appointing authority, and assign as a reason therefor the existence of a statutory ground for removal other than that which the employe is given opportunity to explain, would be giving to the commission a power which is expressly conferred upon the appointing authority. We do not think it was contemplated that an order of removal can be made by the appointing authority, based upon a statutory ground, and, after the case is appealed and. it appears that such ground did not exist, that then the state commission can affirm the order of removal upon a ground not theretofore brought to the attention of the employe.

The court of appeals in sustaining the demurrer of the defendant in error held that the so-called order of removal was so far final and complete as to entitle the relator to prosecute an appeal to the state civil service commission, and that mandamus therefore did not lie.

In the case of Hornberger, Director of Public Safety, v. State, ex rel. Fischer, ante, 148, certain provisions of the civil service law passed April 28, 1913 (103 O. L., 698), were before the court for consideration. One of the provisions of that act which was pertinent to the inquiry was that in case an employe was discharged, whether appointed for a definite term or otherwise, the appointing officer was required to furnish the person discharged a copy of the order of discharge and the reasons therefor and afford him a reasonable time within which to make and file'an explanation. In that case the relator had brought a proceeding in mandamus to compel the appointing power to reinstate him. In the opinion it is said: “It is urged that relator should have filed his explanation with the civil service commission when he received notice of his discharge and a statement of the reasons therefor, and having failed to avail himself of the remedy thus provided he cannot secure redress by a proceeding in mandamus. But there was nothing for the relator to explain. His discharge was not ordered because of any failure, misconduct or delinquency on his part. No charge was made against him, consequently there was nothing for the civil service commission to consider or determine. The only reason stated for relator’s discharge was that an eligible list was available, and the attempted discharge raised only the question as to the correctness of* the interpretation of the law upon which the action of the director of public service was based. No answer or explanation which the- relator could have filed would have authorized the civil service commission to determine that question. The law does not require the doing of a vain and useless thing.”

The language used in that case is in point here: “No charge was made against him, consequently there was nothing for the civil service commission to consider or determine.” We cannot, therefore, concur in the view of the court of appeals that the order was so far final as to entitle the relator to prosecute an appeal.

The relator was denied his right to appeal because the appointing authority did not furnish him any reasons for his discharge at the time the order of removal was served upon him. This failure on the part of the appointing authority to comply with this mandatory provision of the law was fatal to the order of removal and we hold that the same was a nullity.

The order of removal in the instant case, according to the contention of defendant in error, was effective on October 9, 1915. An appeal to the state commission can be made only if taken within ten days. So that what was done on December 11, 1915, the sending of a letter to the state commission, written by certain officers of the board of agriculture, and the furnishing of a copy of this letter to the relator on January 6, 1916, are unimportant and immaterial. This seeming attempt to comply with the statute, two months after the order of removal was made, could not validate the action of the board taken on October 9th.

For the reasons we have given the court of appeals should have overruled the demurrer to the second amended petition. The judgment is reversed and the cause is remanded to the court of appeals for further proceedings according to law.

Judgment reversed.

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