author: Gilmore, J.

text:
    Gardner et al. v. Conn et al.
    1. As between a copartnership and a creditor thereof, a note given in the-firm name, without authority, by one partner, after dissolution, for a debt of the firm, the parties to the note intending to bind, and believing the note was binding on the firm, will not extinguish the firm debt.
    2. As between the partners themselves, such transaction will not discharge-the non-consenting partner from liability to make contribution to the-partner paying the debt.
    Error to the District Coui’t of Brown county.
    Robert Conn, John P. Helbling, John Henry, James M-Manning, James P. Mooney, and J. W. and E. M. Gardner, on the 10th day of November, 1871, entered into a partnership, for the purpose of carrying on the business of packing pork, “ for the then ensuing pork season.”
    The first five named were interested to the extent of one-sixth, each, and the two last named, together one-sixth. The firm lost money in the venture.
    The original action was brought in the court of common pleas, in April, 1873, by Conn, Helbling, and Henry against the Gardners to compel a settlement of the partnership affairs, and also to compel the latter to make contribution to the former to the extent of one-fourth of certain designated claims against the firm, which it was alleged they had paid, including the amount of two promissory notes, which are particularly described in the agreed statement of facts made in the district court, which is set out below.
    The Gardners by answer aver, in substance, that the members of the firm fully settled all the firm accounts and losses, and dissolved the partnership on the 9th of November, 1872, and that on the same day, the firm being indebted to the First National Bank of Ripley, the partners liable for four-sixths thereof, namely, Conn, Helbling, Henry, and the Gardners, each settled one-sixth of such firm indebtedness with the bank, and that the notes in controversy (being those described below in the statement of facts), were given to the Bank, or to its cashier, by Manning and Mooney, in payment of their respective portions of the firm indebtedness, being one-sixth each, and that the firm name was signed to the notes, “ without the knowledge and consent of these defendants, and that these defendants never did give their consent thereto.” The reply put the averments of the answer in issue.
    On the trial of the cause, on appeal, in the district court, the parties agreed to the following facts in the case, which were acted upon by the court, and made part of the record by bill of exceptions, to wit :
    “ The two promissory notes set out in the petition, dated November 9, 1872, one calling for five hundred and eighty-three dollars and fifty-eight cents, made payable to W. T. Galbreath, cashier Eirst National Bank of Ripley, in sixty days, signed by J. M. Manning, as principal, and by the firm of Conn, Helbling & Co., as surety, and a note of same date, payable to same party, calling for three hundred and forty-nine and thirty-eight one-hundredth dollars, payable in ninety days after the date, and signed by Manning & Mooney, as principals, and the firm of Conn, Helbling & Co., as surety, was given as part payment for other notes that were due from the firm of Conn, Helbling & Co. to the Eirst National Bank of Ripley, under the following arrangement between the parties: All the parties herein named were members of the firm of Conn, Helbling & Co., and said firm was indebted to the Eirst National Bank of Ripley, Ohio, and on the 9th day of November, 1872, they all met at the Eirst National Bank of Ripley, and agreed among themselves that they would settle up the then existing bank debt, by making k proper division of the bank debt of the firm among the individual members of said firm. After the partners had made this arrangement between themselves, John ~W. Gardner and E. M. Gardner executed their separate note, payable to the bank in one hundred and twenty days, for their share of said bank' debt; they then left the bank. Conn, Helbling, and John Henry also executed their notes to the bank for their share of the hank debt, all of which were accepted by the bank. The hank refused to accept the notes of Manning, and Manning & Mooney, unless they gave security on their notes, and refused to give up the notes they then held against Conn, Helbling & Co. Then all the members of said firm of Conn, Helbling & Co. being present, except the Gardners, the clerk of the company signed the firm name to said notes of J. M. Manning, and Manning & Mooney, as security for Manning, and Manning & Mooney, the Gardners never consenting that the firm name should be signed to said notes as security thereon. At the date of said notes and at the time the firm name was signed to the notes, above set out and described, as security thereon for J. M. Manning and for Manning & Mooney, the firm owed other •claims and debts, some of which were spoken of by the members of the firm at the date of said notes, to wit: the 9th day of November, 1872. After this date the parties contributed to and paid off several claims. The firm had no effects, having sold out their partnership effects, nor had they any claims due them at said date. At the date of the notes set out in the petition, the cashier of the First National Hank of Ripley, refused to receive the notes of J. M. Manning and Manning & Mooney, regarding them as insolvent at the time, and at the maturity of the notes they were insolvent. It is further agreed that all the items of ■account set out in the petition of the plaintiffs are correct, except-the notes in the petition described. This being the evidence offered by the parties the ease was submitted to the court.”
    There was a judgment for the plaintiffs, against the Gardners, for one-fourth of the amount of the notes in ■question. A motion for a new trial was overruled, and a bill of exceptions taken and made part of the record.
    By this proceeding, the plaintiffs in error, defendants below, seek the reversal of the judgment of the district court.

      W. PL. Sly, for plaintiffs in error : ,
    The notes given for the so-called “ bank debt ” were new contracts. They differed in amounts, the time of payment, were executéd by different parties, the relation of principal and surety was created, and thus many of the ■essential elements of the contract were changed. The partnership debt, manifestly, was merged in the individual obligation of the executing partner (principal payor), and thereafter ceased to be the debt of the firm. McNaughton v. Partridge, 11 Ohio, 223. See also Shinkle v. First National Bank of Ripley, 22 Ohio St. 516.
    It follows that the partners who did not consent to, or join in, the'se notes, are not liable to contribution.
    The proofs are clear, that the firm’s name was attached ■as surety for other members of the firm, these plaintiffs being absent, and not assenting, or afterward ratifying this act, that the notes were given for the portions of the losses which had been distributed to and assumed by these members, who were the principals to the notes. See 1 Disney, 27 ; 19 Mc. 355; 18 Pick. 505 ; 13 Wend. 522 ; 3 Esp. 108; 1 Ind. 188; Story on Part. § 322; 4 McL. 383.

      Loudon $ Yomig, for defendant in error:
    We deny that the partnership had been dissolved. Still, if there had been a dissolution, we fail to see how it could help the plaintiffs.
    “ Though partnerships may be terminated by limitation of time, or the completion of the business which was its •subject, yet as to partnership responsibilities, they continue until all are discharged.” See Horsey v. Heath, 5 Ohio, 356, 357.
    “ When a partnership is dissolved, it is not dissolved with regard to things past, but only with regard to things future. With regard to things past, the partnership continues, and always must continue.” See Wood v. Braddick, 1 Taunt. 104, cited in Parsons on Partnership, top page 410, note u.

    This is not a case of a member signing the firm name to a note after dissolution. It is the case of the continuance of a firm indebtedness upon a renewed note, given by a majority of the partners. No new note was created at the bank. The old debt remained outstanding, at least so much of it as was the proportional share of the insolvent partners, whose notes were secured by the firm. It was simply a chauge in the form of the evidence of the debt. See Horsey v. Heuth, 5 Ohio, 356, cited supra.

    It is not a case of merger; the debt continued to be the debt of the firm.
    Where a sealed instrument is taken for a simple contract debt, the contract merges in the sealed instrument, because it is of a higher character. But when a promissory note is given in lieu of, or in renewal of another promissory note, it is a misnomer to call it a merger. In some cases, dependent on the understanding of the parties, the latter note may operate as a discharge or extinguishment of the former.
   Gilmore, J.

If the bank had brought an action, on the notes mentioned in the agreed statement of facts, against the firm of Conn, Helbling & Co., or if the plaintiffs, claiming to be subrogated to the rights of the bank under the notes, had brought an action against the Gardners thereon, it may be conceded that in neither case would the latter have been liable on the notes; for it sufficiently appears in the agreed statement, that the notes were executed after the dissolution of the partnership, without the knowledge or consent of the Gardners.

After dissolution, a co-partner is not authorized, in the absence of authority, to use the name of the firm in creating new contracts or liabilities. 8 Esp. 108; Lockwood v. Comstock, 4 McLean, 383; Palmer v. Dodge, 4 Ohio St. 21. It is on this doctrine that the Gardners claim that the firm debt was paid by the new notes, as to the shares of Manning and Mooney, and that they are discharged from liability in reference thereto.

But the bank is not suing, nor do the plaintiffs bring their action upon the notes. They sue for a settlement of the partnership. The gist of their special claim against the Gardners is, in substance, that they have paid $1,351.33 of the firm indebtedness, and ask that the Gardners may be adjudged to pay to the plaintiffs their proportionate share thereof, and for equitable relief.

The Gardners admit the payments and their liability to contribute as claimed, except as to the aggregate amount of the notes mentioned.

Assuming that the agreed statement inferentially, but sufficiently, shows that the notes of Manning and Mooney, signed in the firm name as surety, in the absence of and without the consent of the Gardners, were received by the bank in payment, of their share of the firm debt, we must then look to the agreed statement to ascertain the purpose and intention of the partners present in giving, and the bank in receiving, the notes, in order to determine the effect of the transaction (1) as between the co-partnership and the bank, and (2) as between the partners executing the notes without authority and the non-consenting partners.

Eirst. We think the agreed statement clearly shows that Conn, Ilelbling, and Henry intended to bind the firm as surety for the amount of the notes, and that the bank supposed the firm was so bound when it accepted the notes as-payment pro tanto of the firm debt.

But inasmuch as the parties were mistaken as to the-legal effect of the transaction, the bank, as between it and the firm, was not bound by the acceptance of the notes. It did not get what the makers intended to give, nor what it supposed it was getting in payment, and, hence, the-notes did not operate as a payment or extinguishment of the firm debt, which still continued to subsist in its favor against all the members of the firm.

In Davis v. Desaque, 5 Whar. 529, it is said: “ Where-the separate note of one partner is taken by a creditor-holding the note of the firm, it is a question of intention whether this amounts to an extinguishment of the joint-debt.” See, also, Perrin v. Kane, 19 Maine, 355 ; Mason v. Wickersham, 4 Watts & Serg. 100.

Second. On principle it must follow that, when Conn,. Helbling, and Henry made payment to the bank, they paid a subsisting firm debt, and that, as between themselves- and the Gardners, the latter must make contribution.

On the facts agreed upon there is no error in the judgment of the district court.

Judgment affirmed.


source: Caselaw Access Project

author: Okey, J.

license: Public Domain

text:
    The State ex rel. Henderson v. Bell.

      1. Under sections 4X1 and 412 of the municipal code (66 Ohio L. 217; 67 Ohio L. 77), a grant by the council of a municipal corporation to build a street railroad must be made by ordinance directly to a corporation, individual, or individuals to be therein named; and the authority to make the grant can not be delegated by the council to any officer or board.

      ~2. The consent of property owners provided for in the act of 1866 (63 Ohio L. 55; S. & S. 137), as amended in 1868 (65 Ohio L. 112 ; S. & S. 139), to the construction and operation of a new street railroad, is not required since the amendment of section 412 of the municipal code (67 Ohio L. 77); and the consent mentioned-in the last mentioned section, by whomsoever obtained, inures to the benefit of the lowest bidder.
    Mandamus. An alternative writ was issued from this •court, in this case, in March, 1878; and an answer having been filed, the case came on for trial on the writ, answer, 'testimony, and arguments of counsel.
    The facts, so far as it is necessary to state them, are as ■follows; On November 16, 1877, the common council of the city of Cincinnati adopted an ordinance, to take effect from its passage, entitled “ an ordinance to establish a .-street railroad route through Eden park, and along certain streets in the city of Cincinnati, to be known as Route No. 16 of Street Passenger Railroads.” In that ordinance, the route of the proposed railway was designated, and the terms and conditions upon which the grant would be made were set forth, and the board of public works of the city was directed as to the manner in which it should publish notice inviting bids as to rates of fare, and accept bond from the successful bidder. Sections 13 and 14 of the ordinance are as follows:
    “ Seo. 13. It shall be the duty of the board to accept the lowest responsible bid for said route, and said bidder is hereby authorized to construct said route according to the ■terms of this ordinance, on filing a writteu acceptance thereof with the board of public works, and a bond hereinafter provided for, in the sum of twenty-five thousand dollars, for the faithful performance of the terms of this ordinance. No bid shall be accepted by said board unless accompanied by the consentid writing of a majority of the property-holders on the line of the proposed street railroad and the bond above provided for : provided, however, that if auy bid or bids be received from any corporation, individual, or individuals, unaccompanied with the requisite written consents of property-holders, offering or agreeingto carry passsengersat lower rates of fare than proposed in any bid accompanied with such written consent, then the grant shall be given to the one presenting a bid at such lower rates of fare, .as aforesaid, providing that such bid last aforesaid be accompanied with a statement that the absence of such written consents is due to another’s previously obtaining them; and the road shall then be built by such lowest bidder under and by virtue of the consents presented by the higher bidder or bidders.
    “ Sec. 14. The rights granted hereunder shall be for the term and period of thirty years only, and the said company shall pay and save the city harmless from any damages for which it may be liable for any injury to persons or property on account of this grant or the operation of the cars hereby authorized.”
    Notice was published as required in the ordinance, and two bids wTere received. On opening the bids it was ascertained that John J. Henderson, the l’elator, was the lowest bidder as to rates of fare, but he was unable to procure the written consent of the majority of property-holders on the line of the proposed street railway represented by the feet front of lots abutting on the streets along which the railway was proposed to be constructed. George B. Kerper, for himself and his associates, the other bidder, had obtained the written consent of such majority, and they accompanied his bid. Henderson tendered his bond, in proper form, to the board of public works, but the board, on Jan-■nary 17, 1878, awarded the contract to Kerper and his associates, on Kerper’s bid.
    The command of the alternative writ was that the board should be required to award the grant and contract to Henderson, for the construction and operation of the railway, or show cause why it refuses to do so.

      Paxton Sf Warrington, for the relator.

      Matthews, Bamsey Matthews, and Bates, Perkins § Goetz, for respondent.
   Okey, J.

The action of the council, with a view to the establishment of a street railway in a city or village, may be invoked by a corporation, individual, or individuals, making application in writing that leave be granted to construct such road. The council may thereupon “ prescribe the terms and conditions upon and the manner in which such road shall be constructed and operated, and the streets and avenues which shall be used and occupied therefor.” 66 Ohio L. 217, § 411.

Notice of the application must be given “by the clerk of the eoi'poration, in one or more of the daily papers, if there be such, and if not, then in one or more of the weekly papers published in the corporation, for the period of at least three consecutive weeks.” 67 Ohio L. 77, § 412. This notice may properly contain the statement that bids will be received, and the right to build the road awarded, on a specified day, “ to the corporation, individual, or individuals that will agree to carry passengers upon such proposed railroad at the lowest rates of fare,” and in the manner and subject to the conditions so prescribed. Ib.

In prescribing the terms and conditions upon which the railway may be constructed and operated, and the time and manner in which notice shall be given, bids received, and the result of the bidding ascertained, the action of the council may be by ordinance, general or special, or in such other form as it may deem proper ; though ultimately the terms and conditions must be embodied in an ordinance; and, doubtless, council may direct that the notice may be given and the bids received and opened by the board of public works or any officer. But the notice being given, and the bids received and opened, council must determine to whom, according to such bidding, the privilege of constructing and operating the railway must be awarded.

There is this further condition precedent to any grant of such authority, that the grantee “ shall have previously obtained the written consent of a majority of the property-holders on the line of the proposed street railroad, represented by the feet front of lots abutting on the streets along which such road is proposed to be constructed.” Sec. 412.

At the time of the passage of the municipal code of 1869, •of which secs. 411 and 412 are parts, the subject of consents was pi’ovided for in the act of 1866, amended in 1868 (63 ■Ohio L. 55 ; 65 Ohio L. 112; S. & S. 137, 139, §§ 105, 106, and 113). Although secs. 105 and 106 wex*e expressly repealed by that code, while sec. 113 has not been repealed in terms, yet it is evident that sec. 412, as amended (67 Ohio L. 77), was intended as a substitute for sec. 113, as to new routes, and so far the latter section has ■ceased, to have any force.

Equally certain it is that the consents mentioned in sec. 412 need not, in terms, be given to the person who is the lowest bidder; for the contract can be awarded to him alone, and the consents, it matters not by whom obtained •or to whom given, are in substance assent to the construction and operation of the railway in the designated streets, and hence must inure to the benefit of the lowest bidder.

There is a still further prerequisite to the grant of such .authority, in the act relating to the board of public works of Cincinnati: “ No grant of the use of any street or highway in such city, for the purpose of a street or other x-ail-road, or any extension thex-eof, shall be made or renewed, •unless first recommended by said board.” 73 Ohio L. 43-46, §12.

When all these px’eliminary steps are taken and facts ascertained — that is, when, on such application, council has fixed the terms and conditions on which a railway may be-constructed and operated, and notice has been given, bids received, the lowest bidder as to fares ascertained, the the board of public works assents to the grant, and such lowest bidder complies with the terms and conditions prescribed — then, and not until then, the council may pass the-ordinance granting the right, as provided in § 412. And that ordinance is not a general authority inuring to the-benefit of the company which, or person who, may thereafter receive the award to construct and operate the railway; but a grant by the council directly to the corporation to-which, or the individual or individuals to whom, the contract is then awarded. There can, in such case, be no-grant without a grantee expressly named therein. Rut when these steps are taken, facts ascertained, and grant made, such corporation, individual, or individuals, on complying with the conditions prescribed, will be fully authorized to construct and operate the railway. What course-must be pursued, however, if it becomes necessary to appropriate lands, or the right of way, for such railway, we do not decide.

Sections 411 and 412, above mentioned, and the act, already referred to, relating to the board of public works of Cincinnati, have been repealed and re-enacted, with certain changes, the nature and extent of which we are not now called on to determine. See 75 Ohio L. 161, 419. In view of this fact, we deem it unnecessary to trace, in this opinion,, the course of legislation and decision, which we were required to pursue in the laborious examination we made of this case. It is sufficient to say that we have been confirmed, by such examination, .in the belief that the words of the statute, requiring the grant to be made by ordinance to a corporation, individual, or individuals therein expressly named,, are imperative. The authority of the council is granted by statute, which must be substantially pursued; and clearly that body can not delegate its power, in this particular, to any board or officer. The council can, indeed, only make the grant to the lowest bidder, and its action in granting authority to any other corporation, individual, or individuals, where that is done, may be restrained, if application is made in proper time; but that local legislative body can not be compelled to make a grant of such authority, even to the lowest bidder. It follows, necessarily, from the views here expressed, that the board of public works of Cincinnati, which the council can clothe with no authority to pass an ordinance, can not be compelled to perform the act which the relator desires it to perform.

Peremptory writ refused.


text:
    Wilson v. The State of Ohio.
    1. In an indictment for burglary in a church (74 Ohio L. 248), the ownership of the church must be averred.
    2. An averment in the indictment that the burglary was committed in “the Saint Bridget’s Church and Meeting House” is merely descriptive of the church, and has no reference to ownership.
    Error to the Court of Common Pleas of Greene county.

      Snodgrass $ Sehnedley, for plaintiff in error, claimed that the ownership of the building should appear in an indictment for burglary; that for aught that appears from the indictment under consideration, the accused may have been the owner of the building broken into. See Pucker v. State, 18 Ohio, 308; Muling v. State, 17 Ohio St. 583; Alfele v. Wright, 17 Ohio St. 238; Bauer v. State, 25 Ohio St. 70. The name, “Saint Bridget’s Church and Meeting House,” is not the name of a natural person, nor does it indicate ownership.

      Isaiah Pillars, attorney-general, for the state,
    on the question as to the indictment containing an averment of ownership, cited People v. McCloskey, 5 Parker’s Cr. 57; State v. Rand, 33 N. H. 216; 28 Ind. 321; Commonwealth v. Williams, 2 Cush. 582.
   Gilmore, J.

The defendant below, plaintiff in error, was indicted, convicted, and sentenced for burglary.

Omitting the formal parts, the crime is charged in the indictment in these words: “That Joseph Wilson, late of said county, on the 16th day of February, in the year of our Lord one thousand eight hundred and seventy-eight, in the county of Greene aforesaid, in the night season of the same day, to wit, about the hour of twelve at night óf the same day, in the county of Greene aforesaid, into the Saint Bridget’s Church and Meeting House, there situate and being, did willfully, maliciously, burglariously, feloniously, and forcibly break and enter, with intent, then and there, and thereby, the personal goods, chattels, and valuable property of the said Saint Bridget’s Church and Meeting House, then and there being, then and there feloniously, willfully, and burglariously, to steal, take, and carry away.”

The first question presented on the record is this: Should the ownership of the church have been alleged in the indictment ? If so, then this further question arises : Is such ownership alleged ?

1. Sir Edward Coke defines a burglar as follows: “A burglar is, by the common law, a felon, that in the night breaketh and entereth into a mansion house of another, of intent to kill some reasonable creature, or to commit some felony within the same, whether his felonious intent be executed or not.” 3 Inst. 63.

As to burglary in a church, he says : “If a man do break and enter a church in the night, of intent to steal, etc., this is burglary, for ecdesia est domus mansionalis omni~ potentis Dei” lb. 64.

But Lord Hale shows that an indictment for burglary in a church need not lay the offense as committed in a mansion-house. 1 Hale P. C. 556.

In 2 East’s P. C. 512, it is said the offense must be laid to be done in a mansion or dwelling-house, and not in the house of such an one only. “But this rule extends only to the case of burglarly in a private house; for if, as has been hinted before, the offense may be committed by breaking open a church, . . it seems agreed to be more proper to lay the indictment according to the truth of the facts; and therefore stating that the prisoner feloniously and burglariously broke and entered, etc., the parish church of D., etc., is sufficient.”

A parish is one of the ecclesiastical subdivisions of the territory of England, and consists of that circuit of ground which is committed to the charge of one person, or vicar, or other minister having cure of souls therein; and the church therein is endowed with the tithes that arise within the circuit assigned. 1 Bla. Ill, 114. The church belongs to the parish, and hence, in an indictment for burglary in a church, the ownership was properly laid in the parish in which the church was situate.

It therefore clearly appears that in an indictment at common law for burglary in a church, it was necessary to state the ownership of the church in the manner above stated.

We come now to the statute of Ohio, and ask: In an indictment under it for burglary in a church, is it essential that the ownership of the church should be alleged ?

Our statute provides as follows : “ Whoever, in the night season, maliciously and forcibly breaks and enters any dwelling-house, kitchen, smoke-house, shop, office, storehouse, warehouse, malt-house, still-house, mill, pottery, factory, water-craft, school-house, church or meeting-house, barn or stable, or railroad car, car factory, or station-house, with intent to commit a felony, or with intent to steal property, etc., shall, etc.” 74 Ohio L. 248.

In a case of burglary, in a dwelling-house, under a statute in substance the same as the above, the indictment laid the property in Sarah Bowen, a married woman, living apart from her husband, and it appeared that she was in possession of the dwelling-house in question, as dower in the ■estate of a former deceased husband.

The question was not whether it was necessary to allege •ownership in the indictment, but whether it was sufficient to lay it in a married woman; and the court held that it was well laid. In delivering the opinion, Spalding, J.r notices the difference between the common-law definition of burglary, and that given by the statute then under consideration ; the former making it burglary to break and enter the mansion or dwelling-house of another, and the latter any dwelling-house; and he seems to have been in doubt, as to whether, under our statute, it was necessary to-aver ownership at all in an indictment for the burglary of a dwelling-house. This is the only instance in which -I am aware of any doubt being even impliedly expressed upon the subject. In the same case, in determining the degree-of force necessary to be exerted to constitute a breaking in burglary, the court by analogy, followed the common law. While we agree with the court in its conclusion as to the-title that will sustain an allegation of ownership, we do not share in the doubt impliedly expressed as to the necessity' of averring ownership in an indictment for burglary in a dwelling-house. Ducher v. State, 18 Ohio, 308.

In the interpretation of our statute, we will follow the analogies of the common law of burglary, giving to particular words the meanings they have therein acquired."

■ The necessity of this in the present case is obvious. At. common law a man could not commit a burglary in his own mansion or dwelling house. The breaking must be into another’s mansion or dwelling-house. Bishop on Crim. Law, section 104. In au indictment, the rules of criminal pleading require that all the facts constituting the offense-must be specifically set forth, and if any fact or circumstance which is a necessary ingredient in the offense be-omitted in the indictment, such omission vitiates the indictment. The ownership is an essential ingredient in the-offense. Mr. East says: “It is necessary to-ascertain to whom the mansion-house belongs, and to state that with accuracy in the indictment.” 2 East’s P. C. 513.

If we depart from the analogies of the common law, and hold that ownership of the church burglariously broken and entered is not an essential element in the crime of burglary, then it need not be alleged in the indictment; and adTiering strictly to the language of our statute a man may be convicted of burglary in any dwelling-house, any office,. any shop, even though they may belong to himself. This-would overthrow the whole theory of the common law in reference to burglary and other kindred offenses against property, in which an offense committed by one person,, against the property of another, is always contemplated. Ve hold, therefore, that .ownership is an essential element in burglary committed in a church, and must be laid in the indictment; but it need not be laid or proved with the-technical strictness that was required at common law. Ducher v. The State, supra; Huling v. The State, 17 Ohio St. 583.

2. Is such ownership sufficiently alleged in this indictment ?

We think not. It is alleged that the burglary was committed in the “ Saint Bridget’s Church and Meeting House.”It does not appear that this is anything more than a name by which a church is known, and can not be regarded as. an averment of ownership. In legal effect it is the same-as if the allegation had been that the burglary was committed in a church, without naming it, which would be-wholly insufficient. Such an allegation is not the equivalent of the “ Store-house of the Gulf Brewery,” as the-property was described in The People v. McClosky, 5 Parker’s C. R. 57. Nor like The State v. Rand, 33 N. H. 216, where the property was described as belonging to and “ being the Bank of New Hampshire Savings Bank, in Concord.” Which cases are cited by counsel for the state in support of the indictment.

Nor is it like Burke v. The State, decided at the present, term, in which the property was described as “ a certain car, belonging to the Pittsburgh, Cincinnati, and St. Louis Railroad Company.” Ante, 79.

To make the allegation in the indictment under consideration, the equivalent of the allegation in either of the cases just cited, it should have been alleged that the “ Saint Bridget’s Church and Meeting House ” belonged to some-person or persons in their own right, or as trustees of some religious sect, denomination, or association, or otherwise, .as the facts required.

For want of such an averment, the indictment does not ■charge a crime, and is, therefore, fatally defective.

The judgment of the court of common pleas is reversed, and the defendant discharged.

Judgment accordingly.


author: Boynton, J.

text:
    Corry v. Campbell.
    1. Proceedings to modify a judgment prosecuted under section 535 of the code of civil procedure, to correct an irregularity in obtaining a judgment or order, must be commenced within three years after the judgment was rendered or order was made.
    2. The remedy by petition for rehearing, authorized by section 56 of the act of 1831, directing the mode of proceeding in chancery (Swan’s Stat. 714), being inconsistent with the code of civil procedure, was not saved to suitors by the sixth section of the act of March 14, 1853 (1 S. & 0. 383), “to amend an act relating to the organization of courts of justice and their powers and duties,” passed February 19, 1852.
    3. The remedy by bill of review does not exist in respect to an action commenced and prosecuted under the code.
    . Motion to modify a judgment heretofore rendered afhnning a judgment of the District Court of Hamilton county.
    At the April term, a. d. 1874, of the District Court of Hamilton county, the defendant in error recovered a judgment against the plaintiff in error, upon .certain assessments made upon lots and lands owned by the plaintiff, and bordering and abutting on Jefferson street, in special road village of Walnut Hills, Mt. Auburn, and Clintonville. To reverse this judgment a petition in error was afterward prosecuted in this court, which prosecution resulted in the affirmance of the judgment of the district court, on the 23d day of' March, 1875. Subsequently the cause was removed, by writ of error, to the Supreme Court of the-United States, where tihe judgment of this court was affirmed. On the 11th day of April, 1878, the present motion was filed to modify said judgment of affirmance rendered in this court.
    The motion is as follows : “ And now comes William M.. Corry, and moves the court to modify the judgment heretofore rendered in this court in the above entitled case, to-wit, on the 23d day of March, 1875, for the reason that, in effect, by inadvertence and mistake, the lien thereby declared in favor of the said Hugh Campbell was held to extend over the entire blocks numbered 25 and 32, respectively, instead of to the usual depth of lots in that neighborhood, which is one hundred feet; that said judgment,, and the judgment to be rendered upon the mandate from the Supreme Court of the United States, be so modified that the lien of the said Hugh Campbell may be held to-extend only to the usual depth of lots in the neighborhood, to wit, one hundred feet.”
    The plaintiff asks, in the event that he is not entitled to-the relief sought by the rules of practice provided by the code of civil procedure, that the motion be treated as an. application for a rehearing, or for leave to file a bill of review.
    When the case was here for affirmance or reversal of the judgment of the court below, no suggestion was made, nor was any issue taken, by the pleadings upon which the-cause was tried below, on the point, that the lien extended over lands that ought not to have been bound for the payment of the assessment.

      J. J. Glidden, for the motion.

      Paxton § Warrington, contra.
   Boynton, J.

Assuming that the power of the court to-entertain the motion, in the present case, is conferred by the code of civil procedure, steps calling for its exercise were not taken sufficiently early, in point of time, to be of .any avail to the plaintiff in error. Section 584 authorizes the court of common pleas, or district court, to vacate or modify its own judgment or order after the term at which ■such judgment or order is made. The section is divided into nine subdivisions, each of which contains one or more .grounds upon which such judgment or order may be vacated or modified. The cause here relied on, and stated in the motion for the modification of the judgment, if founded on any ground named in said section, would seem to be “irregularity in obtaining the judgment.” The language of the motion is, that “ in effect, by inadvertence .and mistake, the lien ” declared by thejudgment was held to ■extend over the entire blocks “ instead of to the usual depths -of lots in that neighborhood.” The error complained of is not claimed to result from any mistake or omission of the •clerk, nor to arise from any cause except oversight or mistake in failing to detect the same, and, therefore, the most favorable view to be taken for the plaintiff' is' to ascribe it to .an irregularity in obtainingtlre judgment. But whetherthe error be referred to this, orbe such as might be referred to any other of the causes mentioned in any of the subdivisions of the ■section, the time within which relief should have been sought expired some time before the motion was filed therefor. Section 542 extends the provisions' of title sixteen of the code, which follow section 533, so far as the same may be appli•cable, to the judgments andfinal orders of the supreme court, but limits the parties to the same time within which to commence proceedings, as that provided for the commencement ■of proceedings in the court of common pleas or district •court. Section 541, requires the proceedings to vacate or modify the judgment or order in the court of common pleas ■ or district court, for the causes mentioned in subdivisions four, five, and seven, of- section 534, to be commenced within two years from the rendition of the judgment, unless the party entitled thereto be an infant, married woman, •or of unsound mind, and then within two years from the removal of such disability; and for the causes mentioned an subdivisions three and six, within three years from the rendition. of the judgment; and in subdivision nine withim -one year after the defendant has notice of the judgment. It therefore follows,' that, if the relief prayed for could have been obtained under the power conferred by section 534 of the code, if sought at an earlier day, the right to invoke the .action of the court after March 23, 1878, to obtain such relief, was barred by the foregoing provisions of the statute.

The plaintiff, however, asks, in case the court is of the ■opinion that the motion should have been filed within three years from the date of the judgment affirming the judgment of the district court, in order to obtain the relief provided for by the code, that the same be treated as an application for a rehearing of the case in error, or for leave to file a bill of review; and claims that such remedy is authorized by section 6 of the act of March 14, 1853 (l S. .& C. 383). That section, inter alia, provides that “all process and remedies authorized by the laws of this state when the present constitution took effect, not hereinbefore provided for, may be had and resorted to in the courts of the proper jurisdiction under the present constitution, . . . so far as such process and remedies . . . are not inconsistent with the the act entitled an act to establish a •code of civil procedure,’ nor with laws passed since the present constitution took effect, and which laws are still in force.” In Longworth v. Sturges, 2 Ohio St. 104, it was held ■that the 56th section of the chancery practice act of 1831 .(Swan’s stat. 714), authorizing a- rehearing in certain cases, had no application to this court, or its predecessor, the ■court in bank.

The question, whether, independently of the provisions •of said act, the court, being governed by the known usages of courts of equity, as understood and applied by the chancery courts of England.and of the several states, ought to entertain the petition for rehearing, was also considered, and decided in the negative. Upon this point, the court; remarked: “ We have carefully considered it, aided by the practice of other courts, and have arrived at the conclusion that petitions of this character ought not to be entertained.” In Myres v.. Myres, 6 Ohio St. 221, it was further held, that “ in a proceeding under the statute, to contest the validity of a will, the remedy by petition for rehearing, if ever authorized in such proceeding, was superseded by the code of civil procedure.”

The first of these cases is decisive of the question, that the petition for rehearing, which was authorized by section fifty-six of the act directing the mode of proceeding in chancery, is not applicable to this court; and the second determines, that such remedy, in whatever court it is sought to be enforced, is inconsistent with the provisions of the code, and therefore not saved to suitors by section six of the act above quoted.

It remains to inquire whether, and if so, to what extent, the remedy by bill of review still exists. The act directing the mode of proceeding in chancery, referred to above, having been repealed by the code, the remedy by bill of review therein provided, no longer exists, unless saved by the provision above given of the act of March 14,. 1853. That act saves to suitors the remedy by bill of review, authorized by the chancery practice act of 1831, provided such remedy “is not inconsistent with the provisions of the code of civil procedure.” That such remedy, resorted to in cases commenced after the code went into operation, ■wherein it is sought to vacate or modify a judgment, for a mistake or irregularity in obtaining or rendering it, is in-. consistent with the provisions of the code of civil procedure, seems to us very clear. Section 602, first providing that the provisions of the code shall not apply to proceedings in actions or suits pending when it takes effect, but that they shall be conducted to final judgment or decree, in all respects as if it had not been adopted, declares,that “ the provisions of this code shall apply after a judgment, order, or decree heretofore or hereafter rendered, to the proceedings to enforce, vacate, modify, or reverse it, except as provided in section five hundred and thirty-three.” Section 533 is as follows : “ The final orders or decrees of courts of chancery, heretofore, or which may hereafter he, rendered in any chancery proceeding pending at the time this code takes effect, may be reviewed in the same manner, and within the same time, as if this code had not taken effect • and all suits in chancery pending at that time, may be prosecuted to final decree, in like manner.

These sections, by a just construction of their provisions,, confine the right to the remedy by bill of review to cases-pending when the code took effect, and to orders and decrees before then rendered by courts of chancery. The-cases of Longworth v. Sturges, 4 Ohio St. 690; Grant v. Ludlow’s Adm’r, 8 Ohio St. 1, and Trimble v. Longworth, 13 Ohio St. 431, were of this character. In Myres v. Myres, Supra, it was held: “In all proceedings after the taking-effect of the code, to vacate, modify, or reverse final orders,, judgments, or decrees in civil cases, the code of civil procedure applies, in special statutory proceedings' and in-cases in chancery, as well as at law — saving only the old. remedy by bill of review.” By reference to the case it will be seen that the remedy by bill of review, the right to-which was there held to be saved, is that authorized by section 533, above recited.

It was the object of the code to furnish a uniform mode of procedure for civil actions, and to provide a remedy for the correction of all errors committed in the trial of civil causes. This is manifest from the terms of section 603. That section provides that “ rights of civil action, given or secured by existing laws, shall be prosecuted in the manner provided by this code, except as provided in section 604. If a case ever arise, in which an action for the enforcement and protection of a right or the redress or prevention of a. wrong cau not be had under this code, the practice heretofore in use may be adopted, so far as may be necessary to■ prevent a failure of justice.” The proceedings provided for by section 604, are, while pending, exempted from the operation of the code, but, after final judgment, all proceedings to review or modify them must be such as are authorized by the code. Hobbs v. Beckwith, 6 Ohio St. 252; Ex parte Collier, Id. 55. It may be, and indeed is quite probable, that the error alleged to have been committed in the present case, is one, the correction of which should have been sought-during the term at which the same was ■committed. This proceeding, in, effect, -would seem to be an application, after the term, for a rehearing of the case in error, in order to secure á decision adverse to the former •one, not only on a point to which, on the original hearing, the mind of the court was not directed, but concerning which the pleadiugs in the case and the assignment of error were entirely silent. If this practice were permitted, there would be no end to litigation. In our opinion, the remedy, by bill of review, is inconsistent with the code, and •does not exist in respect to any action commenced and prosecuted under its provisions.

Motion overruled.

Okey, J., having been of counsel, did not participate.


author: By the Court.

text:
    The State ex rel. Wilcox v. Bauder.
    TTuder section 11 of the act of 1876 (73 Ohio L. 127, 131), relating to the fees of officers, the sheriff is entitled to compensation out of the county-treasury for serving subpenas for witnesses to appear before the grand jury, and section 12 of -the same act has no application in such case.
    Mandamus.
    The facts disclosed in the petition are, that, on October 22, 1878, the relator presented to Bauder, as such auditor, an itemized bill, properly certified, for services rendered by the relator, as sheriff of Cuyahoga county, ■during the years 1877 and 1878, amounting to $1,046.23, in .■serving and returning subpenas for persons therein named to appear before grand juries of that county, and demanded .a warrant on the treasurer for that amount. The auditor, admitting that the services were performed, that they were worth the amount claimed, that the costs are taxed in conformity to the statute, and that the relator has received no -compensation therefor, declined to issue the warrant solely on the ground that, as matter of law, the fees could not be paid from the county treasury, except under section 12 of the act -of 1876 (73 Ohio L. 127), relating to the fees of officers.

      8. M. Eddy, and E. J. Blandin, for the relator.
   By the Court.

In Kyle v. The Commissioners of Greene County, 26 Ohio St. 46, in giving construction to the stattites then in force, relating to the fees of sheriffs, this court held that for services rendered by that officer in serving and returning subpenas for witnesses to testify before a grand jury, he was not entitled to any compensation except as allowed under, and subject to the limitation in the act of 1867 (S. & S. 366, § 14). The ground of that decision was that such services were not then “ particularly provided for,” within the meaning of that act, and hence could only be paid for in accordance with that act, under which the payment of fees there provided for could not exceed three hundred dollars.

The act of 1876 (73 Ohio L. 127), by which the statutes referred to in that case were repealed, contains these provisions :

“Sec. 11. That the fees and compensation of sheriffs shall be as follows : .... For serving and returning-a subpen a for each person named therein to appear before the grand jury, twelve and a half cents, to be paid by the •county upon the certificate of the clerk.

“ Seo. 12. That the court of common pleas in each county, shall make an allowance of not more than three hundred dollars per annum for the sheriff, for services where the state fails to convict, or the defendants prove insolvent, and for other services not particularly provided for, to be paid in the manner pointed out in the act to which this is supplementary.”

We think the legislature, by the words quoted from section 11, intended to change the law in force when Kyle v. Commissioners was decided, as to compensation for serving such subpenas. The sheriff, under the act of 1876, is to be paid for that particular service out of the county treasury, without regard to the provisions of section 12, which have no application to such a case.

Peremptory mandamus awarded.


author: McIlvaine, J.

text:
    Morehead v. The State of Ohio.
    1. The right of a defendant, under section 3, chapter 6, of the penal code (74 Ohio L. 344), to have ballots drawn from the box to make the number of competent jurors thirty-six, exists only when the deficiency arises from the absence of jurors, or by reason of the grounds of incompetency named in section 2. To supply the places of jurors challenged for other causes, talesmen should be called from the bystanders as provided in section 9, and where the record does not show the ground of challenge, it will not be presumed that the challenge was made for any cause stated in section 2.
    2. In a criminal prosecution, where the state offers in evidence against the accused a part of a declaration or conversation, the defendant is entitled to have the whole of such declaration or conversation given to the jury. But there is no rule of law which requires the jury to reconcile the whole, if possible, with the fact of innocence. The whole declaration or conversation, and each part thereof, as well that which tends in his favor as against him, is entitled only fo such weight as is fairly due to it in the judgment of the jury.
    3. An instruction by the court to the jury, that the state must prove the material elements of the crime beyond a reasonable doubt, fully secures to the defendant the benefit of the legal presumption of his innocence.
    4. Upon the trial of an indictment for murder in the first degree, a '■ er-dict of guilty of murder in the second degree, without expressly acquitting the defendant of murder in the first degree, is good. Such verdict is equivalent to “ not guilty ” of the higher degree of the crime charged.
    Motion for leave to file a petition in error to the Court of Common Pleas of Muskingum county.

      Charles G. Beard, for the motion,
    claimed that there was error in that no reason is shown why four of the original panel were excused. The court had no right to excuse four of the panel. 74 Ohio L. 344, § 3.
    Will a valid reason be presumed ?
    The course pursued by the court in directing the jury to be filled from the bystanders, and refusing the demand of the defendant that the names be drawn from the box, was not that which is authorized by Schufflin v. The State, 20 Ohio St. 233.
    The court erred in refusing to charge, as requested by defendant, “ that when the declarations or conversations of a defendant in a criminal prosecution against him are given in evidence by the state, the whole of such declarations or conversations must be taken together, as well those for him as against him, and considered by the jury, and reconciled, if possible, with the fact of his innocence of the crime charged against him.” Blackburn v. The State, 23 Ohio St. 641; Murphy v. Hagerman, Wright, 293.
    The court erred in refusing to charge as requested on the subject of “ presumption of “ innocence.” Fuller v. The State, 12 Ohio St. 433.
    There was error in that the verdict did not respond to the whole of the indictment. Ohio L. 1877, 352, § 5; Ohio L. 1869, 312, § 168; 1 S. & C. 416, § 39; Stewart v. The State, 5 Ohio, 241; White v. The State, 13 Ohio St. 569.

      A. W. Train, and John It. Stonesipher, prosecuting attorney, contra:
    1. As to the first error complained of. The record shows that four of the original panel were excused “for good cause shown.” Marlin v. The State, 16 Ohio, 364.
    If the record was silent, it would be presumed that good cause was shown. Until the contrary appears, every court is presumed to have acted and decided correctly. Wagers v. Dickey, 17 Ohio, 440; Johnson v. Mullen, 12 Ohio, 10; Coil v. Willis, 18 Ohio, 28; Palmer v. Yarrington, 1 Ohio St. 253 ;
      Bethel v. Woodworth, 11 Ohio St. 893; L. M. R. R. v. Collett, 6 Ohio St. 182.
    The law did not require the court to cause talesmen to be-drawn from the box. Criminal Code, title 3, chap. 6, § 9 (74 Ohio L. 345).
    The defendant below had not exhausted his peremptory challenges when twelve jurors were obtained, against none of whom the defendant preferred a challenge. Mimms v. The State, 16 Ohio St. 221; Erwin v. The State, 29 Ohio St. 186.
    ■ And the record does not show that the defendant was prevented from challenging any one of the twelve jurors 'who tried him. There was no error in impaneling the jury. Schufflin v. The State, 20 Ohio St. 233.
    3. The charge refused as to the declarations and conversations of defendant, etc., was calculated to mislead the jury, and induce them to believe that matters of admissions and conversations of the defendant were to receive separate and special attention; secondly, that the jury ■were required to give to his exculpatory declarations the same weight as to the inculpatory, while it should be left to the jury to say w'hat weight ought to be-given to each; thirdly, the charge refused was calculated to induce the jury to believe that they must make-a special effort to reconcile the admissions of the defendant with his innocence, while.the jury should take-all the evidence together and consider it as a whole; fourthly, The court could not adopt the propositions of defendant in the words presented, and properly refused the whole. Blackburn v. The State, 23 Ohio St. 146; Callahan v. The State, 21 Ohio St. 306; C. & P. R. Co. v. Sargent, 19 Ohio 452; Inglebright v. Hammond,, 19 Ohio, 337; Walker v. Berlin, 2 Ohio St. 598; Eckels v. The State, 20 Ohio St. 515; Adams v. The State, 29 Ohio St. 412.
    4. The charge refused on the subject of presumption of innocence was substantially given by the court. Stewart v. The State, 1 Ohio St. 66; Bond v. The State, 23 Ohio St, 349; Bolen v. The State, 26 Ohio St. 371; Davis v. State, 25 Ohio St. 373.
    5. The verdict the jurors gave when the jury was polled is their verdict. The indictment charges murder in the second degree as well as murder in the first degree. Under the statute the jury were authorized in finding the defendant guilty of either of the three degrees of homicide. Crim. Code, title 2, chap. 7, § 5, 74 Ohio L. 352.
    The statute (74 Ohio L. 352) provides that the jury “ may find the defendant not guilty of the degree charged, and guilty of any inferior degree;” but the jury are not obliged to say in their verdict that they find the defendant not guilty of the higher degree. This section (5) does not relate to the form of the verdict, but simply to the power of the jury. Dicks v. The State, 3 Ohio St. 89-92.
    A general verdict of guilty of murder in the second degree is sufficient to sustain the conviction. Bailey v. The State, 4 Ohio St. 440; Buck v. The State, 1 Ohio St. 61 Hummel v. The State, 17 Ohio St. 628; Schoonover v. The State, 17 Ohio St. 294; Tabler v. The State, 34 Ohio St. 127.
   McIlvaine, J.

The plaintiff in error was indicted for the murder of John W. Brock. The indictment contained two counts, each charging murder in the first degree. On the trial he was found guilty of murder in the second degree, and was sentenced to imprisonment for life. Numerous matters have been assigned for error, but we find no' error in the record, for which the judgment should be reversed. A few only of the assignments will be noticed in this report.

Under sections 1 and 2 of chapter 6 of the penal code (74 Ohio L. 344), thirty-seven jurors were summoned and appeared. The first twelve named in the venire were placed in the box, and thereupon, as a juror was excused from the panel upon the challenge of either party, the juror next named in the venire was called into the box. When the venire was exhausted, and only eleven jurors remained in the box, the prisoner demanded that ballots should be drawn from the box to supply the place of those thereafter challenged; but the court directed the parties “to proceed with any challenges they had with the eleven so remaining in the box. Whereupon the defendant challenged six of the eleven, and the court directed the sheriff to fill the panel from the bystanders, which was accordingly done, aud challenges continued till twelve remained in the box against whom no challenge was alleged.” The defendant had not exhausted his peremptory challenges when the twelve so remaining, and against whom no objection was made, were duly sworn, etc.

We see no error to the prejudice of the defendant in the manner of impaneling the jury. The defendant was not deprived of any right of challenge, or prejudiced in the exercise of the right. The talesmen were properly called from the bystanders under section 9 of said chapter. The record does not show a case for supplying the deficiency of jurors by drawing from the box, as provided in section 3 of the chapter.

2. The defendant requested the court to charge the jury that “where the declarations or conversations of a defendant in a criminal prosecution against him are given in evidence by the state, the whole of such declarations or conversations must be taken together, as well those for him as against him, and considered by the jury, and reconciled, if possible, with the fact of his innocence of the crime charged against him.”

This request was properly refused. Where the state offers in evidence a part of a declaration or conversation of the accused, it is quite true that the whole of such declaration or conversation should be admitted, as well that which is for as that which is against him. But there is no rule of law which requires the jury to reconcile the whole, if possible, with the fact of innocence. ' Such weight should be given to the whole and to each part as it is entitled to in the judgment of fair and impartial triers.

3. The defendant also requested the court to charge “ that the defendant is, in law, presumed to be innocent of the crime charged against him until every fact necessary to convict him is fully proved.” In the form requested the court refused to give it. The court, however, in its general charge, having enumerated and explained the several elements of the crime charged, instructed the jury that “the law requires, in a criminal case, that the state should prove the material elements of the crime beyond a doubt.” The question, therefore, is, whether, having so charged, the court erred in refusing to give the instruction requested. Unquestionably, the defendant was entitled to- the benefit of the legal presumption of his innocence. We think, however, that it was given to him. The benefit of the presumption of innocence was fully and practically secured to him in the instruction that the state must prove the material elements of the crime beyond a reasonable doubt.

4. The verdict as recorded is in the form following: “ Each of said twelve jurors severally responded that he found the defendant guilty of murder in the second degree, as charged in and by said indictment.”

It is contended that the verdict is defective, in not responding to the charge of murder in the first degree.

It is provided in the 5th section of chapter 7 of the code : “ When the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any inferior degree ; and if the offense charged is murder, and the accused is convicted by confession in open court, the court shall examine witnesses and determine the degree of the crime, and pronounce sentence accordingly.”

The first clause in the provision quoted was intended to define the power of the jury in such cases, and not to control the form of the verdict.

The question here does not come within the rule of the common law, which requires the verdict to respond to all the counts in the indictment: and yet there are many cases which hold that a verdict of guilty under one count is equivalent to a finding of not guilty under other counts in the same indictment. It is quite clear that such a verdiet would bar the further prosecution for any offense-charged in the indictment. But here the verdict responds to both counts, and fails only to negative the charge of the higher offense described in the indictment. "Wo think, however, that there is no reasonable doubt "that the jury intended by their verdict to acquit of the higher degree of crime charged in the indictment, and that the verdict is equivalent to saying that the defendant is guilty, as charged in the indictment, of murder in the second degree only.

The same question, although it does not appear to have ' been urged, was in the ease of Leslie v. The State, 18 Ohio St. 390, wherein the judgment was affirmed. . The exact ■point, however, has been ruled in accordance with our ■views. Brooks v. The State, 3 Humph. 25, and The State v. Lessing, 16 Minn. 75. See also 1 Chitty C. L. 641, and 2 Whart. C. L., § 1119.

Motion overruled.


text:
    The State of Ohio ex rel. Field et al. v. Williams, Auditor of State.
    A single branch of the general assembly can not, by resolution, allow compensation for extra services performed by its sergeant-at-arms, such compensation being inhibited by section 29, article 2, of the constitution unless the services were provided for by pre-existing law, or the ' allowance be ratified by two-thirds of the members elected to each branch of the general assembly.
    Application for a peremptory mandamus.

      jRodney Foos, for the relator.

      Isaiah Pillars, attorney-general, for the respondent.
   Gilmore, J.

The relators were respectively elected first and second assistant sergeant-at-arms of the senate, and respectively served as such during both sessions of the sixty-second general assembly, that adjourned sine die May 7, 1877. On the first day of May, 1877, the senate renolved “ that the first and second assistant sergeant-at-arms he allowed the per diem of twenty days for extra and faithful services performed during the sessions of the general assembly, and that the president of the senate be authorized to certify to said per diem” The same was duly certified. On the 5th of May, 1877, the general appropriation act was passed, which appropriates sixty-five thousand dollars-for “ per diem and mileage of the members of the general assembly, and per diem and mileage of the clerk, assistant-clerk, sergeant-at-arms, assistant sergeant-at-arms, messengers, pages, and other employes, under the laws and resolutions of the senate and house.” On this state of facts, therelators ask that the auditor of state may be compelled by mandamus to issue warrants on the treasury in their favor for the per diem of twenty days, being one hundred dollars-'each. The auditor refuses to issue the warrants, solely on the ground that, under the case made by the relators, he is inhibited from so doing by the provisions of section 29, article 2, of the constitution, which reads as follows: “No extra compensation shall be made to any officer, public-agent, or contractor, after the service shall have been rendered or the contract entered into; nor shall any money be-paid on any claim, the subject-matter of which shall not-have been provided for by pre-existing law, unless such compensation or claim be allowed by two-thirds of the-members elected to each branch of the general assembly.”

If the auditor is right in his construction of this section,, then he properly refused to issue the warrants, and can not be compelled to do so by mandamus.

The first clause of the section quoted inhibits the allowance of extra compensation to any officer, public agent, or contractor, after the services shall have been rendered or the contract entered into.

This language is very broad, and was intended to embrace all persons who may have rendered services for the public-in any capacity whatever, in pursuance of law, and in which the compensation for the services rendered is fixed by law,. as well as persons who have performed or agreed to perform services in which the public is interested, in pursuance of contracts that may have been entered into in pursuance of law, and in which the price or consideration to be received by the contractor for the thing done, or to be done, is fixed by the terms of the contract.

In the first, compensation, in addition to that fixed by law at the time the services were rendered, and, in the second, the allowance of compensation in addition to that stipulated in the contract, is inhibited by the first clause of the section.

The compensation of the relators as first and second assistant sergeant-at-arms was fixed by law at five dollars “ for each day’s attendance during the session of the general assembly.” S. & S. 696, § 2.

It is unnecessary to determine whether the relators, while .acting as first and second assistant sergeants-at-arms, were or were not “ officers,” within the strict meaning of that word, as usually understood. They were, while discharging their duties, serving the public at a fixed compensation, and were, therefore, whether they be regarded as statutory officers or as public agents, within the meaning of the first clause of the section, which inhibits them from receiving extra compensation after the services were rendered.

It is suggested in argument that the allowance of “ the per diem of twenty days for extra and faithful services,” which is the language of the resolution, is not an allowance of extra compensation, within the meaning of the clause of the section in question; but an allowance for services performed, in addition to their services as sergeants-at-arms. The answer to this is, that the allowance is made to the “ first and second assistant sergeants-at-arms,” and the allowance, as we understand it, was made to them as such “ for extra and faithful” services. Now, they were required to take an oath to “ faithfully and diligently discharge the duties required of them in their respective offices.” S. & C. 669, § 8. They were, therefore, bound to perform their duties faithfully and diligently, and, if this was done, the performance in addition thereto of extra services in discharge of their duties would not be possible.

In short, if the resolution had made an allowance of “ one hundred dollars as extra compensation,” etc., it would have been nothing more than the equivalent of the words used \ and this is what is in terms inhibited by the clause under consideration.

In the second place, it is contended by counsel for the- relators that if the allowance is inhibited by the first clause-of the section, it may be allowed, notwithstanding the second clause, which only inhibits the payment of money “ on any claim, the subject-matter of which shall not have been provided for by pre-existing law, unless such compensation or claim be allowed by two-thirds of the members elected to each branch of the general assembly.” To take the allowance in this case out of the inhibition of this clause, it is contended that the payment of the allowance was provided for by pre-existing law. The proposition of counsel on this point is this: “ The resolution allowing this compensation is, to all intents and purposes, incorporated in the-general appropriation act of May 5, 1877, which act operates as a temporary amendment of the law of 1866, and therefore meets the requirements of the second clause of section 29. Article 2 of the constitution says that the el aim shall be provided for by pre-existing law.”

Conceding, for the purposes of the argument, that the-senate resolution became part of the appropriation act by reference, and that the latter act was a temporary amendment to the laxv of 1866 ; still the pi-oposition is unsound,, for the following reasons : 1. The pre-existing law of 1866, made no provision for the payment of compensation for extra and faithful services rendered by the relators. 2. The senate resolution, providing for the payment of compensation to the relators for extra and faithful services, was passed after such services were rendered. It follows, that inasmuch as there was no pre-existing law upon which the resolution of the senate was based, the resolution was inhibited by the second clause of the constitution, above-■quoted. The only remaining ground upon which the relators could claim the extra compensation provided by the .senate resolution, would be by showing that the general appropriation act not only included the claim, but that it was passed by a majority of the members elected to each branch of the general assembly, which does not appear in this case.

We must, therefore, regard the resolution of the senate 'in this case, as an effort on its part to allow' the relators extra compensation for faithful services after such services were rendered, as assistant sergeant-at-arms, in the absence •of a pre-existing law providing for such extra compensation, and without the concurrence of two-thirds of the members elected to each branch of the general assembly; .and must hold that the action of the senate, in this respect, w'as prohibited by the section of the constitution above •quoted.

Writ refused.


author: White, C. J.

text:
    Bussing’s Executors v. The Union Mutual Life Insurance Company of Maine.
    In a life insurance policy the payment of premiums was to cease after ten years. The policy contained a provision that, after two or more of the annual premiums had been fully paid, the policy might be exchanged for a paid-up non-forfeiture policy, for an amount equal to the sum of one-tenth of the amount insured for each premium which had been so paid. A condition of the policy was that, if the amount of any annual premium should not be fully paid on the day and in the manner provided for, the policy should be “null and void and wholly forfeited” and that in case the policy became null and void, all payments which had been made thereon should be forfeited to the company. Held, That the right of the assured to exchange the policy for a paid-up non-forfeiture policy was limited to the time during which the policy was in force.
    Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    On the 16th October, 1865, the defendant issued its policy of life-insurance, insuring the life of'William P. Van Deursen in the sum of $5,000, for the benefit of the said Nan Deursen, his executors, administrators, or assigns. 'The conditions of the policy so far as involved in this ae-tion are as follows :
    “ That whereas, ¥m, P. Van Deursen . . . has .applied to the Union Mutual Life Insurance Company, by his application dated October 10, 1865, for insurance on ■the life of ¥m. P. Van Deursen, . . ■ . and has also agreed to pay the sum of $251.26 on the 16th day of October, in every year, for ten consecutive years ; and now, the first payment of the before mentioned annual premiums having first been received by the company, . . . and in consideration of such payment having been so received and of the provisions herein for future payment of premiums, the said company do hereby insure thé life'of ¥m. P. Van Deursen, aforesaid, in the amount of $5,000, from the 16th day of October, 1865, at noon, for and during the whole continuance of his life; payments of premium to cease after ten years; and it is hereby understood and agreed that after two or more of said annual premiums have been fully paid, this policy may be exchanged for a paid-up non-forfeiture policy, for ■ an amount equal to the ■sum of one-tenth of that hereby insured for each and every premium which shall have been so paid — requiring no further payments of premiums, subject to no assessments, but •entitled to its apportionment of the profits of the company, made upon their table, No. 1, of regular whole-life rates. The said insurance to be, in either case, by either form of policy, for the sole and separate use of the said ¥m. P. Van Deursen,” etc. . . . “ Provided especially, and this policy is made and it is accepted- by the assured . . . upon the express condition that if the amount of any annual premium herein provided for, is not fully paid, with the interest due thereon, on the day and in the manner so provided for, then this policy shall be null and void and wholly forfeited.” . . . “And it is also a condition of this policy, accepted by the assured therein, that in case it becomes null and void, all payments made thereon, and all dividend credits accruing therefrom and remaining unpaid, shall be forfeited to the company; and no outstanding scrip certificate of any such credit shall entitle the holder thereof to any claim upon the company on account thereof.”
    “And in case of the termination of this policy, whether by forfeiture or otherwise, prior to the time of declaring any dividend of profits by said company, the holder thereof is not entitled to participate in such dividend.” . . . “ Said company shall have the right to set off any demand they shall have against said assured, his assigns or representative, arising incidentally to, or in connection with, this insurance against any claim for which this company shall be liable thereon. . . . “ Special agreement.— It is expressly understood and agreed, and this policy is accepted by the assured upon the condition that if, at any time, any note, check, or draft (other than the usual premium note for one-half of the annual premium) shall be given in payment or part payment of any premium then due or to become due for or on account of this policy, and such note, check, or draft shall not be paid according to the provisions thereof,-then this policy shall become immediately void, and the company be thereby released from all obligations under it.”
    In the margin of the policy, in a conspicuous place, and in display type, is printed the term “ non-forfeiture,” and on the back of the policy it is indorsed “Hate October 16, 1865, term of non-forfeiture.” The policy was countersigned and delivered by the agent of defendant at Cincinnati, and all the payments of premiums made on it were made at Cincinnati.
    In 1866, Van Heursen assigned the policy, with the assent of the company, to George H. Bussing. Eive yearly premiums were paid on the policy, as follows, viz :
    Cash. Note. Interest on note.
    1. 16 Oct., 1865..........$150 75 $100 51
    2. “ ' “ 1866........151 26 100 00 $6 OB

      S. “ “ 1867.......... 151 26 100 00 12 '03
    4. “ “ 1868.......... 151 26 100 00 18 03
    5. “ “ 1869.......... 151 26 100 00 24 03

      On the last date, what was termed a settlement was made, as follows, viz:
    r*H á JO o P4
    “ Union Mutual Life Insurance Company Settlement, October 16,1869.
    Annual premium........................$251 26
    Cash part of premium 60 per cent............. 151 26
    Interest on 4 notes................................. 24 03
    Extra premium on permit........................
    Total cash payment..............$175 29'
    40 per cent, note, part of this premium...$100 00
    Amount of notes now returned............ 400 51
    500 51
    Less present value of surplus to credit... 114 51
    Total new note..........$386 00”
    Thus the notes given in part payment of the first four premiums were surrendered to the maker, and a new note taken for the balance of $386, as per above statement.. The note taken for the $386 was as follow's, viz :
    gs -3 o m s iJ.2 w 8 P3 « <! a Sh O
    “$386.00. Cincinnati, October 16,1869.
    “Twelve months after date I promise to pay the-Union Mutual Life Insurance Company or order three-hundred and eighty-six dollars, with interest at six per cent, per annum, for value received.
    “ And it is an express condition of the acceptance of this note by the said company, in part payment of the annual premium for policy No. 15,154, which condition is fully agreed to by the promisor herein, that such acceptance shall in no wfise affect the condition in this policy respecting the forfeiture thereof, in case of the non-payment of any other portion of said aunhal premium.
    [Signed,] W. P. Van Deursen.”
    [Each policy must be settled separately. -No note will be accepted that includes the premium of more than one number.}

      No other or further premiums were paid on the policy, and on the 9th of October, 1876, William P. Van Deursen •died. Whereupon the assignee furnished the company with proofs of the death of the assured, and in due time made demand for $2,500, less the amount of outstanding premium notes and interest, as upon a paid-up policy.
    The company having refused to comply with such demands, the original action was brought to recover the .amount.
    Upon the foregoing state of fact, the court found for the ■defendant, and rendered judgment accordingly.
    The object of the present proceeding is to obtain the reversal of this judgment.

      C. D. Robinson, for plaintiffs in error,
    claimed that the failure to pay the sixth premium did not forfeit the policy .and all rights under it. Ins. Co. v. Stratham, 3 Otto, 30; Little v. Ins. Co., 5 Big. 129; Hull v. Ins. Co., 5 Big. 562; Symonds v. Ins. Co. (Minn.), 6 Ins. L. J. 605; Dutcher v. Ins. Co., 5 Big. 665 ; Fowkes v. Assurance Co., 3 Best & Smith, 917.

      Sayler § Sayler, for defendant in error,
    claimed that the policy was wholly forfeited, and cited Ins. Co. v. McMillan, 24 Ohio St. 67; Roberts v. Ins. Co., 1 Disney, 355.
   White, C. J.

We find no error in the judgment.

The controlling question in the ease is, whether the right •of the assured to exchange the policy for a paid-up non-forfeiture policy, is limited to the time during which the policy is in force.

The plaintiff bases his right to recover on the ground that the right is not thus limited. His position is that the right to make the exchange is absolute, and may be exercised as well after the policy has become forfeited as before •such forfeiture.

By the policy, the company, in consideration of the payment of the first premium and of the provisions in the policy for the future payment of premiums, insure the life of the assured in the amount of five thousand dollars, for and during the continuance of his life, the payment of premiums to cease aften ten years.

The provision in regard to the exchange is, that after two or more of the annual premiums have been fully paid, •the policy may be exchanged for a paid-up non-forfeiture policy, for an amount equal to the sum of one-tenth of the amount insured for each and every premium which shall have been so paid.

Following the foregoing provision of the policy is the condition, that if the amount of any annual premium herein provided for is not fully paid, with interest due •thereon, on the day and in the manner so provided for, then this policy shall be null and void and wholly forfeited.”

There is also a condition that in case the policy “becomes null and void, all payments made thereon, and all dividends and credits accruing therefrom and remaining unpaid, shall be forfeited to the company.”

A further condition is, that if any note, check, or draft (other than the usual premium note for one-half of the annual premium) shall be given in payment or part payment of any premium, and such note, cheek, or draft shall not be paid according to the provisions thereof, then the policy shall become immediately void, and the company be ■thereby released from all obligations under it.

It seems to us from these provisions, that the right of the policy-holders to make the exchange is required to be exercised during the life of the policy.

The object of the provision authorizing'the exchange •was to enable the policy-holder to exchange the conditional liability of the company on the existing policy for a policy •on which the liability would be unconditional, and thus relieve himself from the payment of future premiums.

It Avas not the intention of the parties, in the event of the policy becoming void on default in the payment of premiums, that it should still-remain good as a policy pro tanto, for the premiums which had been paid. No such intention is found in the terms of the policy. The stipulation is. merely for an exchange. Moreover, such an intention would be contrary to the express condition, that if the-policy became void, all payments which had been made-thereon should be forfeited to the company.

The term “ non-forfeiture,” printed on the margin of the-policy, and the indorsement on the back of the policy, can not vary the plain meaning of the terms of the contract; and no charge is made against the company of practicing any fraud or imposition in issuing the policy.

Leave refused. .