text:
    Tod v. Wick Brothers & Co.
    t. The act of May 4, 1869 (66 O. L. 98), “to regulate the execution and transfer of notes given for patent rights,” is not in conflict with section 8 of the first article oij the constitution of the United States, nor of the act of congress enacted in pursuance thereof, relating to the granting of letters patent.

      2. Where a negotiable promissory note, given for an interest in a patented invention or discovery, not having the words, “ givenfora patent right ” .. written,or printed thereon, is negotiated to one having knowledge of its consideration, he takes it subject to such defenses, and such only, as would have existed against it, if such words had been legibly written or printed thereon.
    3. Where, in an action by an indorsee of a negotiable promissory note, which, in the hands of the payee, was void for want of consideration, the defense is interposed that the plaintiff is not an innocent holder for value, the amount paid by the plaintiff for the note is only important as it affects the good faith of the purchase.
    4. Where the indorsee of a negotiable promissory note pays cash therefor, he is a purchaser in the usual course of trade, notwithstanding the fact that he paid for the note a sum less than its fair and reasonable value.
    ■5. A patented invention which is capable of being applied to some practical or beneficial use, and is not frivolous, or injurious to the well-being of society, is valid, without regard to the degree of its utility, and an interest therein constitutes a sufficient consideration for a promissory note, or other contract.
    '6. Where the district court has reversed the judgment of the court of common pleas, and granted a new trial, this court will not reverse the judgment of the district court, unless clearly satisfied that a new trial ought not to have been granted.
    Error to tbe District Court of Malioning County.
    Hugh B. Wick and Paul Wick, partners by the firm name •of Wick Brothers & Co., brought an action as indorsees against Henry Tod, on a promissory note in the following words and figures:
    “ $5,000.00. Youngstown, O., April 9, 1873,
    “ Twelve months after date, I promise to pay to the order of H. K. Forbes, five thousand dollars at First National 'Bank of Youngstown, O. Yalue received, with interest, six per cent.
    “HENRY TOD.”
    Tod’s first defense was, that the note sued upon was given by defendant for an interest in a pretended patent right for a pretended improvement in “ Mortising Machines,” without the words, “ Given for a patent right,” written or printed in said note, as required by the statute law of Ohio ; and that plaintiffs, at the date of their purchase of said note from the payee, were cognizant that the same was given for an interest in such patent.
    The second defense was, that said pretended patent right was neither new, valid, nor of any value as a patent, but was worthless, and that the payee and one R. N. Pool, a joint owner of the patent, and acting for himself and Forbes, among other things, falsely and fraudulently represented that said patented invention was .new in some of its parts, and in its combination and arrangement, and in its movements, and was of great value and utility, and that plaintiffs had knowledge of said facts at the date of the purchase of said note.
    Another defense was that the payee of the note fraudulently concealed from Tod, at the time he executed and delivered the note, that it was agreed between said payee and Tod;s attorney, who had been acting for him in the premises, that the words, “ Given for a patent right,” should be written thereon, said Tod being ignorant that the statute required said indorsement, and also ignorant of such agreement.
    The plaintiffs, in reply, denied knowledge that said note was. given for an interest in a patented invention, and alleged that, they bought the note, before due, in the usual course of trade, for value, and in ignorance of any defect or-infirmity therein. They also alleged that they were assured by the'defendant, by letter, before their purchase of said note, that the same would be promptly paid at maturity, and that, in reliance thereupon, they purchased said note in good faith.
    It appears from the bill of exceptions sealed at the trial, that evidence was offered by each party tending to support the facts alleged by them to exist. The evidence disclosed the fact that the plaintiffs, as bankers, purchased said note a day or two after its date, paying therefor $4,400. The letters patent and specifications attached were offered in evidence, and commented on by the court in its charge.
    The court, among other things, charged the jury as follows:
    “If this note was given for an interest in a patent right,, which was of no value, .or if the note was obtained by fraud, even though the patent right was of value, then the parties to. whom it was given, to wit, Pool and Forbes, could not recover thereon, and then plaintiffs cannot recover tinless they are protected by certain rules of law which I will explain hereafter.
    “ If you find that Pool obtained from defendant the note ¡sued upon for an interest in the patent right, with the knowledge as to the statutory requirements, and under such circum■stances and by the means alleged in the amended answer, then ¡said note, while in the hands of Forbes or Pool, was invalid as to them whether said patent right had any validity or not, and they or either of them, if suing,- would not be entitled to recover on the note.
    “ If said note was obtained from defendant by said Pool for .a patent right consideration, and the patent right was invalid •or was worthless, then neither he nor Forbes could recover thereon, if suing.
    “ If the consideration of the note was an interest in a patent .right, and if it was agreed that said note should have the words, Given for a patent right,’ written on the note when made, .and said Pool, by the fraudulent means alleged in the answer, obtained said note of defendant without said words, defendant being ignorant of said statute requirement and of said agreement as to said words, then neither Pool nor Forbes, if suing, -could recover on the note, even if the patent had some validity and value.
    “If the note was given for a patent right, and if Forbes and Pool knew that the statute, .under a penalty of fine and imprisonment, required said words'to be printed or written on it, and if, for the purpose of evading said law, they omitted said words from said note, they could not, either of them, if suing, recover upon it, even if the patent right was valid and valuable.
    “ If said note was given for an interest in a patent right, and if said patent right was invalid or worthless for any reason, then neither said Forbes nor Pool could.recover thereon, if suing.
    “ If the note was given for a patent right, and if that patent right was' valid and valuable, then said Forbes and Pool, if •suing, could recover if the note was obtained honestly and fairly and without fraud, and if, further, said words, ‘ Given for a' patent right,’ were not omitted by design, but were omitted by mistake merely. But neither Forbes nor Pool could recover, if .they were plaintiffs here, if said note was obtained by fraud, or given for a worthless patent right, or if said ’words were, omitted by design for the purpose of evading the law, even if" the patent right was valuable.
    “ If said note for any reason could not be collected by Forbes and Pool, then Wick Brothers & Co. cannot recover in this-action unless they are protected by the commercial ’rule, as it is called, or are protected by this letter of Mr. Tod’s by way of' estoppel, which I will explain more fully hereafter.
    “ A few words 'as to the commercial rule aside from and. distinct from this estoppel.
    “ If plaintiffs purchased this note before it was due, for a. valuable consideration, and in the usual course of trade, without knowledge of facts which impeach its validity between Tod and Forbes and Pool, then your verdict should be for plaintiff's.. And this is the commercial rule.
    “Three of these propositions must be affirmatively established by the plaintiffs before they are protected, to wit: Purchased before due, for a valuable consideration, and in the-usual course of trade, and when they do that, they are entitled to recover, unless defendant shows knowledge on their part of facts which impeach its validity.
    “ If this note could not be collected by Forbes and Pool, and. if you so find, and if you further find that said plaintiffs acquired it for substantially or considerably less than what plaintiffs had reason to believe was its fair and reasonable value,, then the plaintiffs cannot recover by reason of the commercial rule; that is, to bring the plaintiff's within the protection off the commercial rule they must satisfy you affirmatively that they paid a fair and reasonable value for the note and in the-usual course of trade.
    “ If you find from the proof that $4,400 was much less than-the fair and reasonable value-of said note in the market of Youngstown, where the note was made payable, and where the-plaintiff's and defendant lived, and if you find that plaintiffs were acquainted with the defendant, his means and circum stances, and knew him to be perfectly good and responsible,, then plaintiffs would not be regarded as Iona fide purchasers for a fair and reasonable value and- in the usual course of business in the commercial sense, and could not recover-of defendant unless Pool and-Forbes conld recover. By this iaif and reasonable value which they must have paid for the note, I mean such sum as would not notify them that there was something wrong in the note. If it was offered at and sold for a sum so disproportioned to its fair and reasonable value as to indicate an imperfection in the note, and show bad faith or want of honesty on the part of plaintiffs, that would not be a fair and reasonable value, and they cannot be protected.
    “ What is meant by .the usual course of trade ? It does not mean that plaintiffs must have been accustomed to buy notes like i ho one in controversy; but if they paid a fair and reasonable sum for the note, as defined above, and bought it before due, and if it does not appear that plaintiffs acted in bad faith in such purchase, then they did purchase in the usual course of trade. But if they did not pay a reasonable sum for the note, but if the sum was grossly inadequate, or if they did not, in buying, act in good faith, then you should find that they did not purchase in the usual course of trade.
    “ If the plaintiffs bought the note before due, for awaluable consideration, fair and reasonable value, and in the usual course of trade, then the plaintiffs ought to recover unless the defendant shows affirmatively that they, the plaintiffs, had knowledge of facts which impeach or destroy its validity, as between Pool and Tod.
    “ If the jury find that the plaintiffs, at the time they obtained the note, knew that the note was given for an interest- in a patent right, then they would hold the note on the samé terms as Forbes and Pool, and subject to the same defenses as against them, and if for any reason they could not recover, then plaintiffs would not be protected by the commercial rule.
    “ The patent of Forbes, mentioned in the answer and exhibited in evidence is not a patent for any of the things or devices or functions mentioned in the specifications attached, but simply for the combination of all, as stated in his claim at the end of the specifications — crank, pitman, &c. I refer you to the paper introduced in evidence. If the machine made under the letters patent, and according to the claim therein, was substantially the same as other machines which had been in use before the claimed invention of Forbes, then this- patent right was of no value. So also it is of no value in preventing others from making and using other machines which would contain any less ■or any greater number of parts, nor a combination of the same number of parts, any one of which should substantially differ from any of the parts in the machine described in the letters patent, and therefore it would not constitute an exclusive Or valuable monopoly if other machines slightly variant in parts, or form or combination would produce the same result;
    , “The Forbes patent, if not valid, or if worthless, would not be a sufficient consideration for the note in the hands of the original parties to the note.”
    To the various propositions of the foregoing charge' the plaintiffs excepted.
    The jury returned a verdict for the defendant, Tod, on which judgment was rendered.
    On error to the district court the judgment was reversed, on the ground that the court below erred in charging the jury as follows: ‘
    “ If the note was given for a patent right, and if Forbes and Pool knew that the statute, under a penalty and fine and imprisonment, required said words to be written or printed on it, and if, for the purpose of evading said law, they omitted said words from said note, they could not, either of them, if suing, recover upon it, even if the patent right was valid and valuable.
    “But neither Forbes nor Pool could recover if they were plaintiffs here, if said note was obtained by fraud, or given for a worthless patent right, or if said words were omitted by design, for the purpose of evading the law, even if the patent right was valuable.
    “ If the jury find that the plaintiffs, at the time 'they obtained the note, knew that the note was given for an interest in a patent right, then they would hold the note on the same terms as Forbes and Pool, and subject to the same defenses as against them; and if for any reason they could not recover, then plaintiffs could not be protected by the commercial rule.”
    No other questions arising on the record were passed upon by the district court.

      The defendant below now seeks the reversal of the judgment •of the district court and the affirmance of that of the common pleas.

      George M. Tuttle., for plaintiff in error:
    As to what is meant by the words, “ fair and reasonable value,” see 6 Ohio St. 448; 9 Ohio St. 461; 14 Ohio St. 396; 20 Ohio St. 281; 9 Barn. & Cress. 208.
    As to the validity and construction of the act of 1869 (66 ■Ohio L. 93), — it applies to only negotiable notes or instruments. 30 Ohio St. 101.
    It is conceded that notice of the general nature of 'the consideration of a note does not constitute notice of defects in it nor in the note based upon it. This not only seems to me reasonable, but it has been determined in this court. Sacket v. Kellar, 22 Ohio St. 554. Independently of the statute, there■fore, the presence in the note of the words required, would not alone be sufficient to qualify the negotiability of the note. It is the statute, therefore, which thus qualifies the effect of paper thus made.
    The power to make the statute in question involves the power to act upon the negotiability of promissory notes given ■for patent rights. But at the same time it must be conceded that where the power exists to cut off this negotiability in the •cases in question, still giving it in others, there the power exists to pass this statute with all its penalties and prohibitions. If the legislature may, and does undertake restrictions upon negotiability to this extent, then the' use of such paper in terms •negotiable must tend to defraud the rights of some one, either that of the maker or that of the indorsee, and this may be met 'by prohibitions and penalties.
    That such power exists somewhere cannot be denied. That it exists in our legislature, in the absence of positive restriction upon it, is equally clear. Baker v. Cincinnati, 11 Ohio St. 542; Lehman v. McBride, 15 Ohio St. 592.
    If the act in question be in contravention of any superior law, it is that of this legislation, which, for distinction, we may •■call the patent law of congress. And it must do this, by reason that it undertakes to restrict the negotiability of paper in the cases in question, and that by doing so it would contravene the law in question, if it should prevail.
    But before this can be shown, it must be shown that the patent law of congress gives negotiability to such paper when in terms negotiable, that it does this without state legislation, and so does it that state legislation cannot take it away. If tile-patent laws do not so give negotiability to paper, then some olher law gives it, and the law which takes it away only contravenes that law, and does not contravene the patent law of •congress. A law which contravenes the patent law must either take away what the patent law gives, or must give what the-patent law denies, or must qualify the one or the other in a. Avay in which the patent law does not qualify it. And this-giving or denying by the patent law must be such a gift or denial that a state law cannot take it away.
    On the contrary, if state legislation gives negotiability do-promissory notes that are in terms negotiable, the patent law does not give it. And whether negotiability in such cases is or is not given by legislation in the first instance, yet if state, legislation can take it away, then the patent law of congress does not give it.
    • In this view, it is entirely idle to say that the present Jaw discriminates against patents, and that patents have their existence and their value by act of congress.
    The question is not whether the right of the patentee is^ given, by congress, but what is that right which is given by congress; not whether congress gives value to a patent, but what are the elements of that value; not whether the act in question discriminates, but whether in discriminating it contravenes any right given by the law of congress. If many sense the supposed rights are given by the patent law, are they so-given that they cannot be taken away by state legislation ?
    As to the negotiability of promissory notes, and their origin, see Clerke v. Martin, 2 Ld. Raym. 757; 9 B. & C. 213 ; I Term R. 148 ; 2 East, 359; Chitty on Bills, 517, ch. 12, pt. 1, 12th Am. from 9th London ed.; Byles on Bills, 4; Bayley on Bills, 1; 1 Cranch, 290 ; 2 Cranch, 311; 5 Crunch, 322; 2 Pet. 321 ;
      4 Pet. 366 ; 4 How. 404; 9 How. 263; 5 Call, 16; Hardin, 217; 2 Bibb, 34; 1 Dallas, 441; 1 Blackf. 14; 2 Gaines Gas. 321; 16 Martin, 277; Chase (Ohio) Statutes, 221; 14 Ohio, 542; 3 Kent, 72; Story on Prom. Notes, § 6.
    Prom these authorities it seems to be evident:
    1. That in the division of power between the federal and state governments, the power to create and to regulate the negotiability of promissory notes is vested in the state government. Upon this subject the determinations of the United States court must be conclusive when made. I take it to be clear that there is no want of authority of that court. But with that, all state authority is found to concur.
    2. No law of any state, which can be justified by pre-supposing that the negotiability of promissory notes within its. limits must be conferred by an act of the legislature, can be held to be in conflict with the constitution of the United States.
    3. The power to put an end to the .making of negotiable promissory notes in the state of Ohio, so far as respects a transfer free of the equities of the- maker, inconsistent' with the terms of the note, is in the state.
    4. With this power necessarily exists the power to prohibit the use in Ohio of paper made therein, which is, in terms, negotiable.
    As already observed, if such paper be made of no effect as to-this quality of it, its use must tend to defraud, and the legislature has the power to prohibit it and to punish it.
    5. It is a necessary consequence of these doctrines that the patent law of congress does not confer the power to make such paper in Ohio, nor the right to use it in Ohio when made therein.
    6. It is a necessary consequence that to take away the right to make such paper in Ohio, and the right, when made in Ohio, to use it therein, does not contravene any right granted by the patent law of congress.
    It seems to me the constitutionality of - this statute is demonstrated. But it is not necessary to demonstrate; it is enough that the contrary is not clearly shown. And see Haskell v. Jones, 17 Alb. L J. 267.

      As to the instruction to the jury as to what would have been the right of Pool and Forbes to recover, under certain circumstances. These instructions must, of course, have been predicated upon the state of the case, at that time before the court, which was:
    1. In this case it is admitted that the statutory words were not in the note.
    2. The words not being in, it must be assumed in the absence of denial, that the payee and his agents, to whom it was given, knew, when it was received, that the words were not in the instrument. There was no evidence tending to contfadict such knowledge. I should say there was no averment to that effect, but certainly no proof. The court, therefore, had the right to assume that such knowledge existed.
    8. The party “ taking ” the note must be considered to know what the statute required.
    4. The party thus acting intelligently and voluntarily, must be presumed to have acted with the design to evade the provisions of the statute.

    5. The object of this statute is protection against fraud. It is important to observe that it does not place the opposite parties in such a case in pari delicto. It inflicts a penalty on but one. The question now is, where the taking of the note is in violation of the second section, not merely in the act, but in the intention, is it a valid instrument % There are three considerations which seem to me conclusive of the matter.
    1. The act, with the intent, is visited with a penalty. That implies a prohibition. Chitty on Contracts, 694, 695 ; Vining v. Bricker, 14 Ohio St. 334.
    2. The act is expressly prohibited. Prohibition is as directly contained in the mandatory words of the first section as if they were in the form of a prohibition.
    3. The object is the prevention of fraud.
    There is no stronger caso óf a prohibition in a statute; and' unless the act clearly evinces- that this note is not to be void, it must be so held. Chitty on. Cont. 693, 5 Am. ed.; Vining t. Bricker, 14 Ohio St. 334.

      A. W. Jones, of Jones & Murray, for defendants in error:
    The act of May 4, 1869 (66 Ohio L. 93), is unconstitutional and void, because in conflict with the constitution of the United States and the powers expressly delegated to congress. U. S. Const. art. 1, § 8 ; McCullough v. Maryland, 4 Wheat. 436; Weston v. Charleston, 2 Pet. 462; 12 Wall. 457; 9 Wheat. 740 ; 5 Otto, 488; 95 U. S. 475; Sinot v. Davenport, 22 How. 227; Bank v. New York, 2 Black, 620 ; Ward v. Maryland, 12 Wall. 418.
    The statute of the United States gives to an inventor the right for a certain term to a monopoly of his invention, absolutely, and as his private property, with the right to sell as any other property is sold. And see 22 Ohio St. 554.
    But, by the said act of 1869, the presumption now being, both in fact and in law, that the patent is void and worthless, the invention neither new or novel, and that the letters patent were procured by a fraud and deceit, and that the purchaser of such must know all the facts by instinct, and more, that the commissioner of patents did not properly understand the patent laws of congress, and either through ignorance or corrupt motives granted a patent wholly beyond the line of his duty.
    I insist that the Ohio statute is more than a limitation upon the right to sell; it is actually a limitation upon the right of property in the invention. It takes away that very valuable presumption that says that it is valuable, and substitutes in its place the presumption that it is utterly worthless, and procured by frauds and perjuries, and that it is a matter of such public notoriety that every person at his peidl must know of it. 10 How. 190.
    If any limitations are to be made upon these rights granted the patentee, it certainly must be by the power that creates, and that has the sole and exclusive management thereof. 2 Bisl. 309; 43 Ind. 167; 37 Mich. 309; 70 Ill. 109 ; 23 Minn. 24.

      Thomas W. Sanderson, also for defendants in error.
   Boynton, J.

The several questions arising upon the record will be considered without special reference to the order in which they' were presented in argument'. We meet at the outset the question of the validity of the act of May 4, 1869 (66 O. L. 93), entitled “An act to regulate the execution and transfer of notes given for patent rights.” The court of common pleas held the act valid, and gave to it the effect of preventing a judgment in favor of the plaintiffs below upon the note sued on, if the words, “ Given for a patent right,” were omitted therefrom by design, and the plaintiffs had knowledge that the consideration of the note was an interest in a patented invention, although the patent was perfectly valid. Whether the district court was moved to reverse the judgment of the court of common pleas upon the ground that the act above referred to was in conflict with section 8 of article 1 of the constitution of the United States, and of the act of congress relating to granting letters patent, or upon the ground that, assuming the validity of the statute, the court erred in the construction placed upon it, does not clearly appear. But as the validity of the act is directly •involved, it becomes our duty to decide upon it. The whole purpose of the act, as was stated in State v. Brower, 30 Ohio St. 101, was “to enable the makers of negotiable instruments, given for patent rights, to .make the same defense thereon, against any holder thereof, that could be made against the original holder or party to whom it was given.” This being the manifest aim and purpose of the act, it follows, that before it can be declared to be in conflict with the • act of congress, it must clearly and decisively appear, from a consideration and comparison of the provisions of the two acts, that the rights which the act of the state was intended to secure to the maker of the note, are repugnant to the rights of the patentee, derived under the act of congress. To determine whether this repugnancy exists or not, it is necessary to ascertain what effect the granting of letters patent has upon the right of property in the thing or article patented. This can best be done by reference to decided cases.

In Jordon v. Overseers of Dayton, 4 Ohio, 295, the court, upon consideration of the nature and extent of the rights acquired under letters patent for useful discoveries, said: “ Although the inventor had, at all times, the right to enjoy the fruits of his own ingenuity, in every lawful form of which its use was susceptible, yet, before the enactment of the statute, he had not the power of preventing others from participating in that enjoyment to the same extent with himself; so that, however the world might derive benefit, no profit ensued to himself. The ingenious man was therefore led either to aban•don pursuits of this nature, or to conceal his results from the world. The end of the statute was to encourage useful inventions, and to hold forth, as inducements to the inventor, the ■exclusive use of his invention for a limited period of time. The sole' operation of the statute is to enable him to prevent •others fi’oin using the products of his labors, except with his ■consent. But his own right of using is not enlarged or affected.” This doctrine was expressly approved by the suprem e •court of the United States, in Patterson v. Kentucky, 97 U. S. 501, although the question arising — and decided — in that case, had more especial reference to the right of a state, in the exercise of its police powers, to regulate and" control the use of an article patented under the act of congress.

By a statute of Kentucky, oils and fluids, which might or •could be used for illuminating purposes, and which would .ignite and permanently burn at a temperature less than 130° Fahrenheit, were condemned for illuminating purposes, and their use prohibited. Patterson was indicted for selling Aurora •oil in violation of said act. He claimed, in defense, that the zright to sell said oil in any part of the United States, although within the class of oils condemned by the statute, was secured to him as assignee of the patentee by an assignment of letters patent granting to the patentee and his assigns the exclusive right to sell said oil in any part of the United States and the territories thereof; and insisted, that “ no state could, consistently with the federal constitution and the laws of congress, prevent or obstruct the exercise of that right, either by express words of prohibition, or by regulations which prescribe tests to which the patented article could not be made to conform.” In ■denying the validity of this claim, tLe court, speaking through .Mr. Justice Harlan, said: £: Congress is given power to promote the progress of science and the useful arts. To that end it may, by all necessary and proper laws, secure to inventors, for limited times, the exclusive right to their inventions. That power has been exerted in the various statutes prescribing the terms and conditions on which letters patent may be obtained. It is true that letters patent, pursuing the words of the statute, do, in terms, grant to the inventor, his heirs and assigns, the exclusive right to make, use, and vend to others his invention or discovery, throughout the United States and the territories, thereof. But, obviously, this right is not granted or secured, without reference to the general powers which the several states of the Union unquestionably possess over their purely domestic affairs, whether of internal commerce or of police.” And furthér on in the opinion it was added, that “ the right to' sell the Aurora oil was not derived from the letters patent, but it existed, and it could have been exercised before they were issued, unless it was prohibited by valid local legislation. All which they primarily secure is the exclusive right in the discovery.” From these cases, it Would seem clearly to follow, that the only right the patentee acquired by his letters patent, which he did not possess before they were granted, is the right to exclude others from a common use and enjoyment of the thing or article patented, without his consent, thereby securing to himself, for a limited period of time, a monopoly of the benefits arising from its lawful use.

The act of congress under which the letters patent were issued does not undertake to impart negotiability to promissory notes; nor does it, in any manner, prescribe, or attempt to prescribe, the character or form of security that may be taken upon a sale of an interest in the patent. Nor does it give to a note payable to order or bearer when in the hands of an .innoeent holder the effect to cut off defenses existing against the payee-or indorser. It grants to the patentee, and his assigns, the exclusive right, for a fixed period, to make, use, and vend ■to others his invention or discovery throughout the United States and the territories thereof. U. S. Revised Statutes, § 4884.

This is the extent of the immunity or privilege which the act confers. The right to regulate the form and prescribe the effect of paper taken • in commercial transactions has always been regarded as belonging to the states, and such right has .been exercised in this state during the whole period of its existence. 1 Chase, 221.

If the act of congress were held to confer, of its own force, the right to receive negotiable paper upon a sale by the patentee of an interest in the invention, accompanied by such incidents or immunities as will protect the same in the hands of an innocent holder against prior equities or defenses, it would seem to require a uniform operation throughout the United States; and hence, in those states where it is provided that a transfer of paper, although in form and in fact negotiable, shall not impair the right to any defense existing against the payee, the effect would be to defeat the operation of the law of the state as respects property in patented inventions and discoveries, thereby giving to such property an immunity which is denied to every other species or kind. It is very clear that the act was intended to have no such effect.

But the objection is urged, that such legislation imposes conditions upon the transfer of patent rights, and thereby interferes with, and discriminates against, the right that the patentee acquired under his letters patent. This is the ground upon which those decisions rest, that hold such legislation void as in conflict with the act of congress.

The fact, however, seems to be completely ignored that the exclusive right, secured to the patentee and his assigns, to malee, use, and vend the discovery, is property, in no higher sense, and possesses no greater incidents or immunities, than property acquired by purchase at common law.

In a strict legal sense, property, whether the term is applied to things animate or inanimate, consists in the right to their use, enjoyment, and disposition. 1 Black. Com. 138; 2 Kent, 320; Wynehamer v. The People, 13 N. Y. 378 ; Morrison v. Semple, 6 Binn. 98; Eaton v. B. C. & M. R. R. Co., 51 N. H. 511. The right of property in a patented invention or discovery, and a right of property in any other article or thing which is the subject of ownership, are the same. The jus disponendi belongs to both. The owner of either has the complete right to sell or give away the entire interest that he possesses. "With this right the statute in nowise interferes. But the legislature, in our judgment, has as complete power to withdraw from negotiable paper that quality which protects an indorsee against defenses existing against the payee or indorser, where the same was given for an interest in a patented invention, as where the same was given for any other kind of property.1 To hold otherwise would be, in effect, to deny the power of the legislature to repeal the act of February 20, 1820 (1 S. & C. 862), which prescribes the form and effect of negotiable instruments, and to substitute therefor another, limiting the effect of such paper in its power to cut off prior defenses thereto, to certain classes of commercial transactions. That this may be done by the legislature is obvious enough.

JBut there is another consideration which has a very significant bearing upon the point under discussion, and that is, that no injury results to the patentee by subjecting negotiable paper received for an interest in the invention to the same defenses in the hands of an indorsee before maturity, as could be interposed against it before it was negotiated. If the patent is valid, and there is no fraud in its sale, there can be no defense to the note in an action against the maker by whomsoever brought. Whoever in such case owns .the note may recover its full amount. And whether the note is negotiable or not, is quite immaterial.

But if the patent is worthless, and consequently furnishes no consideration for the note, such note in the hands of the payee is void; and if, being negotiable, he sells or transfers it to an innocent holder before maturity, for value, he, by that act, perpetrates a fraud upon the maker, for which he is liable to the full extent of the injury caused by such sale and transfer. Darst v. Brockway, 11 Ohio, 462; Decker v. Mathews, 2 Kern. 313; Calkins v. Smith, 48 N. Y. 614; Kost v. Bender, 25 Mich. 515; Murray v. Burling, 10 Johns. 172.

Upon the same principle, and as a sequence from it, where the payee transfers negotiable paper, void in his hands, to an innocent holder, and re-purchases from him or a subsequent holder, the paper becomes affected with the original infirmity, and the payee cannot recover. Kost v. Bender, supra ; Ken nedy v. Daly, 1 Scho. & Lef. 379; 1 Daniels on Neg. Ins. § 805.

Tlie same principle applies where estates held in trust are •conveyed by the trustee to a bona fide purchaser, and re-purchased by him from the same or a subsequent purchaser. In such case the trust re-attaches. Church v. Ruland, 64 Penn. St. 432; Shutt v. Large, 6 Barb. 373; 1 Story Eq. Juris. §§ 409, 410 ; 1 Perry on Trusts, § 222. Hence, the only effect of the statute being to let in defenses against the indorsee or "transferree, upon which defenses, or the facts constituting them, if the statute did not exist, the payee would be liable to the maker, if the latter was compelled to pay the note to an inno■cont holder, it is difficult to see that the statute interferes with •or deprives the payee of any substantial right.

The cases cited in argument in support of the alleged invalidity of the statute are divisible into two classes. To the first Ex parte Robinson, 2 Biss. 309, and Chittenden v. White, 23 Minn. 24, may be said to belong; but an examination of the •statute, the effect of which was there involved, shows the two ■cases to be clearly distinguishable from the present. The other eases seem - to support the claim of the defendants in error '(Hollida v. Hunt, 70 Ill. 109; Woolen v. Banker, 6 Am. L. Record, 236 ; Cranson v. Smith, 37 Mich. 309; Helm v. First National Bank of Huntington, 43 Ind. 167; 53 Ind. 454); but it is a noticeable fact that in none of them, except Hollida v. Hunt, is any allusion made to the question of the power of the state to prescribe the form and declare the effect of negotiable paper; and in that case, all that is said upon the subject is that the section requiring the words, “ Given for a patent right,” to be written or printed on the note, cannot be regarded as limited to that object.

The implication from this intimation seems to be, that if the •statute were limited to the object of regulating the form and •declaring the effect of negotiable paper, it would not be opposed to the act of congress; but not being limited to that object, the repugnancy exists. If this is the principle asserted, it seems to us to be opposed to the decided current of authority, which holds that the motives of the legislature, in the exercise of an admitted power, cannot be inquired into. Cooley ConstLira. 186, and cases there cited.

This point was directly involved in Doyle v. Continental Ins. Co., 94 U. S. 535, where it was said, in a ease of alleged, conflict between a state statute and an act of congress, that if' the act of the state is otherwise legal, it is quite out of the-power of any court to inquire what was the intention of those-enacting the law.

In Haskell v. Jones, 86 Penn. St. 173, in construing a similar act to the one under discussion, the court, while granting that no state could interfere with the right of a patentee, secured tollina by the acts of congress, to sell and assign his patent, held that such was not the operation of the act, and that there was-nothing therein interfering with any just right of the holder of a valid patent.

To the same eftoct is Hunter v. Henninger, subsequently decided by the same court (37 Leg. Int. 412). .Such seems to us-the sounder doctrine, and we therefore hold that the act in question is not in conflict with the constitution of the United States, nor with the act of congress relating to the issuing of letters patent.

The court charged the jury, that if the words Given for a patent right ” were omitted from the note by design, and the plaintiff below had knowledge that the note was given for an interest in the patent, they could not recover upon it, although the patent was perfectly valid. It is true that the second section of the act makes it a penal offense, “ to take, purchase, sell or transfer ” any promissory note, not having said words written or printed legibly and prominently on the face thereof, with knowledge- that the eon•sktoration of the same consisted of a right acquired in the patented invention; and it is also true, as a general rule, that v. core a statute prohibits an act and affixes a penalty to its-performance, the act is void. But where the law which prohibits the act, or contract, at the same time limits its effect, or •do lares the consequences which shall follow its violation, the-general rule does not apply. Rossman v. McFarland, 9 Ohio St. 369; Vining v. Bricker, 14 Ohio St. 331. The question is one of legislative intent. Harris v. Runnells, 12 How. 79 ; Smith v. Mawhood, 14 M. & W. 450. That the legislature-•did not intend any other effect to follow, where the note, not having the statutory words thereon, was received by an indorsee or purchaser with notice of its consideration, than if such words were placed thereon, is, we think, obvious from the language of the first section. After providing that such note or instrument, that is, a note or instrument having the words “ Given for .a patent right ” written or printed thereon, in the hands of any pnchaser or holder, shall be subject to the same defenses as in the hands of the original owner or holders, the act proceeds as follows : “ And any person who shall purchase or become the holder of any promissory note, or other negotiable instrument, knowing the same to have been given for the consideration aforesaid, •shall hold such note or other instrument subject to the same •defenses as in the hands of the original owner or holder, although the words‘ given for a patent right,’ shall not be written or printed thereon.” The word “ defenses ” in both of these clauses has the same meaning, and is limited to such matters of defense as grow out of the transaction in which the note or other negotiable instrument originated.

It follows, therefore, that the action of the district court in reversing the judgment of the common pleas was proper, unless counsel for the plaintiff in error is right in the claim that the ■effect of such erroneous instruction was obviated by the verdict of the jury upon the other issues. . The jury found “ the issues joined” for the defendant. This, doubtless,'means all the .issues, and hence, if there was any issue upon the trial of which no error intervened, the finding upon which will support the judgment, it is quite immaterial whether the court erred in its rulings touching the other issues or not. Sites v. Haverstick, 23 Ohio St. 626; Butler v. Kneeland, Id. 196; Union Central Life Ins. Co. v. Sutphin, 35 Ohio St. 360. While this rule is well settled, the fact is not to be overlooked that we are asked to reverse a judgment of reversal, and that in order to do this we must be satisfied that that judgment was clearly wrong. 'The court will not interfere and prevent a new trial already ordered by an inferior reviewing tribunal, unless clearly satisfied that such trial ought not to have been granted.

The issue upon the trial of which it is alleged that no error intervened, is the one arising out of the allegations by the defendant below, that the note, to the knowledge of Wick Bros. & Co., was given for a worthless patent right, and was consequently void for want of consideration, and the denial of' these allegations upon the part of the plaintiffs. Under this issue the defendant below was required to show, in the first place, that the patent was of no value. It then became the-duty of the plaintiffs, in order to avoid the consequences resulting from a want of consideration in the note, to show that they purchased the note before due, in the usual course of trade, and for value, upon showing which, the burden shifted to the defendant, to establish the fact that the plaintiff received’ the note with notice of its infirmity. Davis v. Bartlett, 12 Ohio St. 534.

Evidence was offered upon these questions by both parties,, the pleadings agreeing upon the fact, that the amount paid by the plaintiffs for the note was $4,400, and upon the further fact that the note was purchased by the plaintiffs at the counter of' their bank, long before it was due. In view of the facts thus-admitted by the pleadings, the only question open to proof had respect to the validity of the patent, and if worthless,, notice of that fact by the plaintiffs, as well as of the fact that, an interest in the patent formed its consideration. The court charged the jury, that “ to bring the plaintiffs within the protection of the commercial rule,” before stated, “they must satisfy you affirmatively that they paid a fair and reasonable-value for the note, and [purchased the same] in the usual course-of trade.” And further, “If you find from the proof that $4,400 was much less than the fair and reasonable value of said note in the market of Youngstown, where the note was-made payable, and where the plaintiffs and defendant lived, and if you find that plaintiffs were acquainted with the defendant, his means and circumstances, and knew him to be perfectly good and' responsible, then plaintiffs would not be regarded as bona fide purchasers for a- fair and reasonable value in the-usual course of business, in the commercial sense, and could not recover of defendant, unless Pool and Eorbes could recover. By this fair and reasonable value, which they must have paid for the note, I mean such sum as would not notify them that there was something wrong in the note.

“ What is meant by the usual course of trade ? It does not mean that plaintiffs must have been accustomed to buy notes like the one in controversy; but if they paid a fair and reasonable sum for the note as defined above and bought it before due, and if it does not appear that plaintiffs acted in bad faith in such purchase, then they did purchase in the usual course of trade. But if they did not pay a reasonable sum for the note, but if the sum was grossly inadequate, or if they did not, in buying, act in good faith, then you should find that they did not purchase in the usual course of trade.”

N ow, while it is very true, that the court said to the jury, by a somewhat unhappy use of language, that “ by fair and reasonable value,” he meant such “ as would not notify them,” the plaintiffs, “ that there was something wrong in the note,” he had just said to them, as a matter of law, that if the sum paid was less than the fair and reasonable value of the note in the place where the note was made, and where both plaintiffs and defendant lived, and if they, the plaintiffs, were acquainted with the fact that the defendant was perfectly good and responsible, then they could not be regarded as bona fide purchasers for a fair and reasonable value, and in the usual course' of business, and hence could not recover, unless the note was valid in the hands of the payee. This proposition in its length and breadth amounts to this: that no one, no matter how honestly he may act, can safely purchase negotiable paper, void in the hands of the payee, for a sum less than a jury would say was • its fair and reasonable value, if he knows that the maker is pecuniarily responsible. Or in other words, that the circumstance that the maker, to the knowledge of the purchaser, is abundantly able to pay his debts, when coupled with the fact that the paper is bought at a value much less than its actual worth, makes the purchase, as matter of law, mala fide. This, we think, is not the law. The circumstance that the note was purchased at a value less than it was fairly worth, was in no otherwise important than as bearing upon the good faith of the purchase; and this was a question for the jury. Cromwell v. County of Sac, 96 U. S. 60 ; 2 Parsons on Notes & Bills, 428 ; 1 Daniel on Neg. Inst. § 777.

Again, the court gave the jury to understand that in order to a purchase of a note in the usual course of trade, it is both necessary that a reasonable sum should be paid therefor, and that the same should be purchased in good faith. This was a misconception of the meaning of that phrase. It is said, in 1 Daniel on Neg. Inst. & Prom. Notes, § 780, that the term “ usual course of trade,” “ is meant to describe a transfer according to the usages and customs of commercial transactions.” Without undertaking to define its exact scope or meaning, it is evident that a purchase of negotiable paper- by a bank at its counter for cash is receiving the paper in the usual course of trade, whether its fair or reasonable value was paid or not.

The remaining question involves the correctness of the instruction relating to the validity of the patent. After instructing the jury that the patent was not for any of the things, devices or functions, mentioned in the specifications therefor, but simply for the combination of all of them, and that if the machine made under the letters patent, and according to the claim therein, was substantially the same as other machines which had been in use before the claimed invention of Forbes, that the patent was of no value, the court added: “ So also it is of no value in preventing others from making and using other machines which would contain any less, or any greater number of parts, or a combination of the same number of parts, any one of which should substantially differ from any of the parts in the machine described in tlie letters patent, and therefore it would not constitute an exclusive or valuable monopoly, if other machines slightly variant in parts, or form or combination would produce the same result.

“ The Forbes patent, if not valid, or if worthless, would not be a sufficient consideration for the note in the hands-of the original parties to the note.”

We have encountered some difficulty in our endeavor -to ascertain tlie exact meaning of this language. If it was designed to say, that, admitting the patent to be valid, it still was of no value, if other machines containing a less or a greater number of parts, or a combination of the same number of parts, if. any ■one of them differed substantially from any of the parts of the Eorbes patent, the charge was erroneous. If the patent is valid, any interest in it, without regard to the degree of its utility, or its pecuniary value, constitutes a sufficient consideration for a promissory note.

If capable of being applied to some practical or beneficial use, and is not frivolous or injurious to the well-being- or morals •of society, it is a valid patent, although other similar machines may be of greater utility. Lowell v. Lewis, 1 Mason, 182, 185; Bedford v. Hunt, Id. 303 ; Hash v. Lowell, 102 Mass. 60 ; Kneass v. Schuylkill Bank, 4 Wash. C. Ct. 12; Many v. Jagger, 1 Blatchf. 372. So, too, the charge was erroneous, if the court meant to say that the patent would be of no value, if ■other machines subsequently patented, or not patented a,t all, which were slightly, but not substantially variant in parts, form or combination, would produce the same result.

In Water Meter Co. v. Desper, 101 U. S. 335, it was said to be a well-lcnown doctrine of patent law, that the claim of a combination is not ■ infringed if any of the material parts of the combination are omitted. It is equally well known that if .any of the parts is only formally omitted, and is supplied by a mechanical equivalent, performing the same office and producing the same results, the patent is infringed.” See also Planing Machine Co. v. Keith, Id. 479, and Buck v. Hermance, 1 Black, 398. Without pursuing the question further, it is ¡sufficient to say, the judgment of the court of common pleas having been reversed by the district court, that we are not convinced that the error appearing on the record did not justify such reversal.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The State of Ohio on relation of Hugh Houston, v. John F. Oglevie, Auditor of State.
    Under the act of April 16, 1867, entitled “An act to authorize and require-the payment of bounties to veteran volunteers,” as amended April 16, 1880 (77 Ohio L. 294), the class of volunteers therein designated as “re-enlisted veteran volunteers” does not embrace “veteran volunteers ” who were not in the field at the time of their enlistment as veteran, volunteers.
    Mandamus.

      J. H. Bowrna/n, for plaintiff.

      George K. Nash, Attorney General, for defendant.
   By the Court.

The relator seeks a peremptory writ of mandamus to compel the auditor of state to issue to him a warrant on the state treasury for $100, under section 1 of the act of April 16, 1867, entitled “ An act to authorize and require the: payment of bounties to veteran volunteers,” as amended April 16, 1880. 77 Ohio L. 294.

To entitle the relator to the relief sought, it must appear that; he was a “ re-enlisted veteran- volunteer,” as the statute does-not confer the right to bounty upon any other. There is no-doubt that the title of the act refers to troops in the United. States service,- during the late war of the Rebellion, known and designated in such service as “ veteran volunteers,” and the act,, in express terms, confers the right to bounty upon “re-enlisted veteran volunteers,” thereby excluding such “ veteran volunteers ” as do not come within the description of “ re-enlisted ” veteran volunteers.

The “ veteran volunteer” force was organized under general order No. 191, of the "War Department, issued on June 25, 1863. That order provides for the enlistment' and re-enlistment of troops for three years or during the war, from three classes of persons: 1. Able-bodied men, between the ages of eighteen and forty-live years, who had theretofore been enlisted,, and had served for not less than nine months. 2. Volunteers or militia, then in the service, whose term of service would expire within ninety days, and who would, at the expiration of such term, have been in the service at' least nine months, provided their re-enlistment should take place before the expiration of their then term of service. 3. Volunteers serving in three years’ organizations who might re-enlist, after the expiration of ninety days; provided, under amendatory Q-eneral Order 305, of September 11, 1863, that at the date of their re-enlistment they had less than one year to serve.

That “ veteran volunteers ” were confined to these classes does not admit of a doubt; but whether all who went into the service, under this order, for three years or during the war, from each of these classes, became veteran volunteers,” is not so clear.

Order 191 defines veteran volunteers, as follows: “ In order to increase the armies now in the field, volunteer infantry, cavalry and artillery may be enlisted, at any. time within ninety days from this date, in the respective states, under the regulations hereinafter mentioned. The volunteers so enlisted, and such of the three years troops now in the field as may re-enlist in accordance with the provisions of this order, will constitute a force to be designated “Veteran Volunteers.” Erom this definition or description, it is quite clear that the veteran force was composed of volunteers who “ enlisted ” under the order, and of volunteers who “ re-enlisted ” under the order; and it is equally clear that the “ re-enlisted veterans ” were confined to-such of the three years troops then in the field as might re-enlist under the order. Whether “ enlisted ” veterans were confined to such able-bodied men who had been discharged after nine months’ service, and who “ enlisted ” in the respective states, or embraced also volunteers or militia then in the service, whose term of service expired within ninety days, and who again enlisted while in the service for three years, or during the war, is hot so clear. But, however that may be, we are satisfied that “ re-enlisted veteran volunteers,” under this order, embrace only those of the three years’ troops then in the field, who re-enlisted after two years’ service, as provided in. General Order No. 305.

This view of the legislative intent is the more satisfactory, because of the fact that the phrase “ re-enlisted veteran volunteers,” has been so construed ever since the passage of the act •of April 16, 1867, by the executive department of the state government, and nevertheless, the legislature, in the amendment of April 16, 1880, retained the identical phrase without any expression of dissatisfaction with its uniform construction.

Writ refused.


author: White, J.

text:
    June v. Purcell.
    1. The principle decided in Qa/oit v. Chambers (3 Ohio, 496), that the owners of lands situate on the banks of navigable streams running through the state are also owners of the beds of the rivers to the middle of the stream, as at common law, has become a rule of property, and, irrespective of the question of its original correctness, ought not to be disturbed.
    2. The same rule applies to lands bordering on the Sandusky river, in the tract of two miles square surveyed and sold under the act of congress of April 26, 1816. 8 Statutes at Large, 308.
    3. Hence, the riparian owner can recover for sand tortiously taken from the bed of the river.
    Error to the District Court of Sandusky County.
    The oiiginal action came into the court of common pleas by •appeal.
    April 8, 1873, John Purcell filed his petition in said common pleas court against Daniel L. and Daniel S. June, setting forth that he is the owner, in fee simple and in actual possession, of out-lots number 61 and 62, in said city of Fremont, Sandusky county, Ohio, which said lots were designated in the ■original survey thereof as tracts number 23 and 24 in the United States Reservation of two miles square at the foot of the lower rapids of the Sandusky river. That said lots or tracts comprise all of the large island in the Sandusky river, which is a navigable stream.
    That said Purcell owns to the center of the river, subject, however, to the right in the public to navigate the same.
    That a portion of the bed of the river 'immediately adjacent to'the westerly side of said island had, at the time of committing the wrongs complained of, risen so high as to form a distinct ridge or bar, which at ordinary stage of water was left dry. That said bar lies wholly between the center of said river and said island, and connects with said island by a narrow neck, bar or ridge.
    That about December 1, 1870, and at other times between that day and the commencement of this action, the said Daniel L. and Daniel S. June, wrongfully and unlawfully entered upon said premises, dug up, took and carried away from said bar or ridge, and converted to their use, one ■ hundred and twenty wagon loads of said Purcell’s sand, earth and soil, being the alluvium and accretions so as aforesaid deposited upon the bed and shore of said river adjacent to and on the westerly side of said island, to said Purcell’s damage, &c.
    Daniel L. and Daniel S. June, answering, admit:
    That the lots described in Purcell’s petition comprise the large island in the Sandusky river, which is a navigable stream^ That said island is situate in the city of Eremont, Sandusky county, Ohio, and within the United States Reservation of two miles square at the foot of the lower rapids of the Sandusky river.
    They also admit that during the month of December, 1870, they caused to be taken and removed from the bed of the river, below the low-water mark thereof, opposite said island and between it and the center of the river, about sixty wagon loads of sand. They deny all statements of facts contained in said Purcell’s petition not in this their answer specifícally admitted.
    At the April term, 1873, the court found the issues in favor of the plaintiff and assessed his damages at $10 for which judgment was rendered.
    The motion of the defendants for a new trial having been overruled, a bill of exceptions was taken, embodying all the evidence.
    The following are the material parts of the bill of exceptions :
    “ Be it remembered, that on the trial of said action to maintain the issues on the part of the plaintiff, the following facts were agreed to by the defendants, and with the consent of both the plaintiff and defendants, received and considered by the court as evidence in said action on behalf of the plaintiff, that is to ■say, that at the date of the alleged trespass herein, the plaintiff was the owner in fee, and was in the actual possession to the •ordinary or low-water mark, of out-lots sixty-one (61) and sixty-two (62), the same being out-lots twenty-three (23) and twenty-four (21), according to the original survey thereof, in the city of Fremont, Sandusky county, and state of Ohio. That said •out-lots comprise all of the large island in the Sandusky river, which is a navigable stream, and within the Reservation of two miles square at the foot of the lower rapids of said river. That •within the bed of said river, on the north-west side of said island, opposite the willow tree designated in the sixth course in the record of the survey and field notes hereto attached, and marked exhibit ‘ A,’ as being £ 10 inches in diameter, bearing very much down stream, marked with six notches,’ and between ■said island and the center or thread of the stream there is a sand-bar, lying parallel with said island, the result of gradual and imperceptible accretions to the bed of said river, which sand-bar at ordinary or low-water, is surrounded by water. That during the month of December, a. d. 1870, the defendants dug up, took, and carried away from the north-west side ■of said sand-bar, and between said island and the center or thread of said stream, about 60 wagon loads of sand, of the value of ten dollars. Whereupon the plaintiff rested. Thereupon, the defendants, to maintain the issues on their part, gave, in evidence on the trial of said action, the record of the plat and field notes of a survey of said out-lots, made by the United States in the month of July, a. d. 1816, under and :n accordance with an act of Congress approved April 26th, 1816, and, £ entitled an act providing for the sale of the tract of land at the lower rapids .of the Sandusky river,’ of which record a copy duly certified is hereto attached, marked exhibit ‘A’ and made part hereof. Also, the following facts were agreed to by the plaintiff, and, with the. consent of both parties, admitted and considered by the court as evidence on the trial of said action on behalf of the defendants, that is to say, that by the survey of the Reservation of two miles square at the foot of the lower rapids of the Sandusky river, made by the United States, in the month .of July, 1816, under and in accordance with the act of congress aforesaid, none of the subdivisional lines of said survey extended to or embraced the bed of the aiver, but that, on the contrary, all of the subdivisional lines of said survey, approaching the river, were so run as to extend ■only to certain points on the bank of the river at greater or less distances from the margin of the water, which points ai'e ■designated by said survey as corners to the respective subdivisions of said Reservation. And also that the river was meandered on the bank thereof, to and from said respective corners. And thereupon defendants rested. Whereupon fhe court found and ruled that the aforesaid act of congress under which said •surveys were made, reserved only an easement to the public ■of the right to navigate the waters of said river, and that by said act and the said surveys of the United States, made under said act as afoi’esaid, the boundary line of plaintiff’s said land was not restricted to the margin of the water at ordinary or low-water mark, but that the same extended to the 9enter or thread ■of the stream, and that the plaintiff, being the owner of the island aforesaid, was by virtue thereof the owner of the bed of •the river opposite to said island to the center or thread of the stream, subject only to the light of the public to navigate the waters thereof, and thereupon rendered a judgment in favor of the plaintiff against the defendants.”
    The following is exhibit “ A,” attached and referred to in bill of exceptions.

      “ Meanders of the big island below the lower rapids in the ■Sandusky river, opposite the town of Croghansville.

      “ Beginning at a sycamore 12 inches in diameter, marked with 3 notches on the north side, thence:

    “Found this island to contain 15N acres; then divided the island into two equal parts, setting the post at the N. W. side of it at the willow tree, notched on the sixth course, and run- a division line thence across the island S. 46 deg. E. and set a post on the river bank corners, to lots 23 and 24.
    “ July 11, 1816.”
    The judgment having been affirmed by the district court, the present proceeding in error is prosecuted by the plaintiff's in error, in this court, to obtain the reversal of the judgments of both courts.

      J. JR. Bartlett, for plaintiff in error :
    I. The Sandusky river is a public navigable stream, and as a corollary from this, the riparian proprietors own the fee of the soil only to high-water mark, and the proprietorship of the bed of the stream below ordinary high water is in the state for the use of the public.
    II. If the Sandusky river is not navigable in the supposed common law sense of that term, then the common law doctrine that the riparian owner of the bank owns to the center of the stream has no'application to this case, because the premises granted are clearly and explicitly limited to the banks, and the grantor had no power to go beyond. The English rule of determining the character of a public navigable river by the ébb and flow of the bide is inapplicable to this country. If the water is navigable in fact, it is to’be deemed pxiblic. The Sandusky liver is navigable in fact, above this island, and by the acts of congress of May 18, 1796 (1 U. S. Laws, 468, § 9), and April 26, 1816 (3 U. S. Laws, 308. 309), it is declared to be a public highwaxj ; consequently, in law it must be regarded a public navigable rivei*. Buel v. Long, 18 Ohio St. 529, 531; Hickok v. Hine, 23 Ohio St. 523; People v. Canal Appraisers, 33 N. Y. 461, 490; McManus v. Carmichael, 3 Iowa, 1, 27; Tomlin v. D. B. & M. R. R. Co., 32 Iowa, 106, cited 7 Am. Rep. 176; Hine v. Tevor, 4 Wall. 555-565; The Genesee Chief, 12 How. U. S. 445-454; Woolrych on the Law of Waters, 40; The Daniel Wall, 10 Wall. 557. The Sun-dusky being a legal public nmigable stream, the common law consequences of navigability attach to such legal navigability,, and one of the common law consequences of navigability is, that the riparian propiietor owns the fee of the soil, only tO' ordinai'y high-water mark, and the proprietorship of the bed of the stream, below ordiixary high-water, is in the State, for the use of the public. 3 Kent Comm. “ Riparian Rights,” §427; 1 Bouv. Inst. No. 428, p. 171; Woolrych on the Law of Waters, ch. 1, 2; Angell on Tide Waters, 19, 67; Hale De Jurs Maris, in 6 Cow. 539 ; Chapman v. Kimball, 9 Con. 38,. 40, citing Harg. Law Tracts, 12, 13, 17, 32; McManus v. Carmichael, 3 Iowa, 1, 29, 48; Haight v. Keokuk, 4 Iowa, 199 ; Tomlim v. D. B. & M. R. R. Co., 32 Iowa, 106, cited in 7 Am. Rep. 176; People v. Carnal Appraisers, 33 N. Y. 487; La Plaisance Bay Harbor Co. v. Monroe, Walker Ch. (Mich.) 155, 168; Pollard’s Lessee v. Hagan, 3 How. U. S. 213, 229, 230; Goodtitle v. Kibbe, 9 How. U. S. 471; Stevens v. Paterson, &c. R. R. Co., 34 N. J. Law, 532; Smith v. Leonnis, 8 N. Y. 472 ; Monongahela Bridge Co. v. Kirk, 46 Penn. 112; Bullock v. Wilson, 2 Port. 436; Elder v. Burns, 6 Humph. 358, 336; Stewart v. Clark, 2 Swan, 9; People v. Gutches, 38 Barb. 656, 666, 668 ; Wisconsin River Imp. Co. v. Lyons, 30 Wis. 61; Railroad Co. v. Schurmeir, 7 Wall. 272, 287-289.
    !£■ the'. Sandusky is not a public navigable stream in the supposed common law sense of that term, then we say the common law doctrine'that the proprietor of either bank of an unnavigable stream. owns to the middle or thread of the stream, or, ag usually expressed, ad medium filwm aquae, never was of universal application, and, as understood at the present day, Operates only in giving construction to calls in a grant, or conveyance, referring in general terms to a river or stream as a boundary, and-when the intention is not clearly apparent to stdp short of the middle of the stream. 3 Rent Comm. § 427; Angelí on Water-courses § 9, 23; 5 Wend. 423; 17 Wend. 570; 26 Wend. 403. It could never be applied where the terms of the grant clearly denote the intention to stop at the edge or margin of the river, or where the grantor had no power to go beyond. The right of a riparian owner to claim to the middle of the stream is therefore merely prima fade, and may be rebutted by showing that the calls in his conveyance limit him to the bank or shore, or that his grantor had no power to carry him further. The United States being the exclusive proprietor and exercising the right of eminent domain, has the undoubted right to deal with its property in such manner as it deems best, and if the precaution is taken to express its intention in clear and explicit language, there is nothing left for a court of justice to do but to enforce its grants, according to such intention.
    In giving construction to government grants, the rule of a-grant being construed most strongly against the grantor, does not apply. The government being but a trustee for the public, its grants are to be construed strictly against the grantee in favor of the government. McManus v. Carmichael, 3 Iowa, 38; Varrick v. Smith, 9 Paige, 547; Wetmon v. Story, 22 Barb. 414; Canal Company v. People, 5 Wend. 444, 460, 464; Canal Company v. People, 17 Wend. 574, note 612; La Plaisance Bay v. Monroe, Walker Ch. (Mich.) 155; Charles River Bridge v. Warren Bridge, 11 Pet. 544; Stombridge Canal v. Wheeley, 2 Bam. Add. 792.
    In the case of United States grants by patent for lands bothering on meandered and unsurveyed streams, it cannot be presumed that it was the intention to convey to the middle of ■ the river, for the sale being regulated by law, which provides only for disposal of lands previously surveyed and platted, and .the grants by the United States in their patents therefore have only relation to the surveys, plats, and field notes. Railroad Co. v. Sehurmeir, 7 Wall. 272, 287-289 ; Jackson v. Freer, 17 Johns. 28; La Plaisance Bay v. Monroe, Walker Ch. 155, 168 ; Chenneworth v. Haskell, 3 Pet. 96 ; McIver v. Walker, 4 Wheat. 447; Pearsall v. Post, 20 Wend. 116 ; W. Riv. Imp. Co. v. Lyons, 30 Wis. 61-64.
    These surveys and plats are the guides of the land officers in making their sales, and they have no authority to embrace unsurveyed land in the patent.
    Such a sale is therefore wanting in all the characteristics' which at common law are necessary to call into force the maxim ■ad medium filum aguce.

    No language could more emphatically denote the intention to stop at the margin of the water, than that used in the act referred to for the sale of the reservation at the foot of the lower rapids of the Sandusky river, viz.: “ Provided, that m no case -shall the subdivisional limes be so run as to extend to, or embrace the becl of the river.” The surveys, field notes, plats, and patents, and all the terms employed in the description, have refer’ence only to the premises actually surveyed, platted, and .areas computed, and they could not, by any rational construction be applied to the unsurveyed bed of the river, neither could there well be a clearer case of want of power to carry the grantee beyond the margin of the river. So well established is the rule, that the United States officers can make no sale or conveyance of land, except in pursuance of statutory provisions,, that the supreme court of the United States, has repeatedly decided that patents issued without such prerequisite authority are entirely void. Polk’s Lessee v. Wendall, 9 Cranch, 99 Stoddard v. Chambers, 2 How. U. S. 289; Wills v. Stoddard, 8, How. U. S. 345; United States v. Stone, 2 Wall. 526;: McManus v. Carmichael, 3 Iowa, 38, 39.
    The bed of a river is a substantive matter of grant, and cam only pass as such. It can never pass as incident or appui’tenant to a grant. Child v. Starr, 4 Hill (N. Y.) 382 ; 17 Mass. 289; 4 Hill (N. Y.) 369; 2 Ohio, 308; 11 Ohio, 311; 32 How. Pr. 439; 13 N. Y. 296; 53 Ill. 19 ; 45 Me. 9; 4 Rob. 35 ; 5 Rob. 192; 42 Barb. 60; 5 Wheat. 374.

      Everett S Fowler, for defendant in error:
    The question as to who owns the beds of navigable rivers in Ohio, or, in other words, what are the rights of riparian ownem in such streams, was clearly settled in Gavit v. Chambers, 3 Ohio, 496, cited and approved in Lamb v. Rickets, 11 Ohio, 315 ; Walker v. Board of Public Works, 16 Ohio, 544; and abundantly supported by the text-books and numerous authorities of other states. Some of these authorities aro: Angelí on Watercourses, 6 ed., edited by J. C. Perkins, p. 16, §§ 10, 11, 12, 13, 14, 15, 16; 3 Kent Comm. 11 ed., p. 427 ; 2 Wash. Real Estate, 451, 452, and § 46 on p. 632; Brown v. Chadbourne, 31 Maine, 9; Storer v. Freeman, 6 Mass. 439; Hatch v. Dwight, 17 Mass. 289; Clermont v. Carlton, 2 N. H. 369 ; Adams v. Pease, 2 Conn. 438; Warner v. Southworth, 6 Conn. 471; People v. Platt, 17 Johns. 195; Hooker v. Cummings, 20 Johns. 90; Exp. Jennings, 6 Cow. 518; 5 Paige, 137; 5 Wend. 447; 14 Wend. 358 ; 17 Wend. 571; 20 Wend. 111; 22 Wend. 425; 26 Wend. 404; Arnold v. Mundy, 1 Halst. 1; Brown v. Kennedy, 5 Har. & J. 195 ; Hays v. Bowman, 1 Rand. 417; Hammon v. McLaughlin, Taylor, 84; Hay

      den v. Campbell, 8 Ala. 9 ; Young v. Harrison, 6 Geo. 141; Jones v. Water Lot Co., 18 Geo. 539 ; Morgan v. Reading, 3 Smedes & M. 366 ; Morgan, v. Livingston, 6 Martin, 216 ; Municipality No. 2 v. Cotton Press Co., 18 La. 278; Middleton v. Pretchard, 8 Scamm. 510.
    The United States statutes at large (vol. 3, p. 309), under which the survey of the Reservation was made, including the island in question, contains this provision: “ That in no case shall the subdivisional lines be so run as to extend to or embrace the bed of the river, which is hereby declared a public highway.”
    The ordinance of 1787 provides that the navigable waters .leading into the Mississippi and St. Lawrence shall be common .highways and forever free, &c.
    Considered in connection with this proviso in the ordinance, .and in connection with section 3 of the act under which this •survey was made, the reason for the proviso in the act, and its ■effect, become clear.
    The proviso in the act of congress referred to was simply a ■compliance with the terms of the ordinance. The Sandusky river is a navigable river; it leads to the St. Lawrence. Congress was bound to preserve it a highway.
    Section 3 of the act directs the sale of “ all the land contained in the cession of two miles square, excepting salt springs and lots set apart for the support of schools.
    Is not the bed of the river, where sand can be taken above the water, land ? Was it not ordered to be sold ? The whole bed of the river under water is land, and we claim it was sold tinder the provision of the act.
   White, J.

The ruling of the courts below is in accordance with the decision of this court in Gavit v. Chambers decided in 1828. 3 Ohio, 496. In that case it was held, that in this ■■state the owners of land situate on the banks of navigable ■streams running through the state, are also owners of the bods of the rivers to the middle of the stream, as at common law. The same doctrine has been recognized in subsequent cases, and has become a rule of property in this state. Lamb v. Rick ets, 11 Ohio, 311; Walker v. Board of Public Works, 16 Ohio, 544. The rule is in accordance with the doctrine of the-common law, which regards all non-tidal streams, that are navigable in fact, as mere highways ; and the same rule prevails in. most of the states.

In Jones v. Soulard, decided in 1860, the rule was applied •by the supreme court of the United States, to the Mississippi river. In speaking of the rule, it is said in the opinion : “We-■think this as a general rule too well settled, as part of the American and English law of real property, to be open to discussion ; . . . The doctrine, that on rivers where the tide ebbs and .•flows, grants of land are bounded by ordinary high-water mark, hás no application in this case; nor does the size of the river alter the rule. To hold that it did, would be a dangerous tampering with riparian rights, involving litigation concerning the-size of rivers as matter of fact, rather than proceeding on estab'lished principles of law.” 24 How. U. S. 65. See also, Delaplaine v. C. & N. W. R’y Co., decided in 1877, by the supreme-court of Wisconsin, 42 Wis. 214; and Braxton v. Bressler, decided by the supreme court of Illinois in 1872, 64 Ill. 488.

In Sloan v. Biemiller, 35 Ohio St. 492, it was held that the rule did not apply to Lake Erie and its bays; and a similar-ruling was made in Wisconsin, in Delaplane v. C. & N. W. N. W. R'y Co., supra.

The plaintiffs in error rely on the case of Railroad Company v. Schurmier, decided by the supreme court of the United States in 1868. 7 Wall. 272.

In that case it was declared that the common law rules off riparian ownership did not'apply, under the acts of congress,, to lands bordering on navigable non-tidal streams, where the-title to such lands is derived from the United States.

Rut in the subsequent case of Barney v. Keokuk (94 U. S. 338), it is said, whether, as rules of property, it would now be-safe to change the doctrines of the common law where they have been applied, is for the several states themselves to determine. “ If they choose to resign to the riparian proprietor,, rights, which properly belong to them in their sovereign capacity, it is riot for others to raise objections.”

The common law doctrine, having been incorporated into the jurisprudence of this state at so early a day, and having been regarded as a rule of property for more than half a century, it onglit not now, irrespective of the question of its original correctness, to be disturbed., To disturb the rule now, “wouldbe •a dangerous tampering with riparian rights.”

The decision in Gavit v. Chambers related to the Sandusky river, the same river that is involved in the present case; but the land in question in that case was surveyed and sold under the act ci May 18, 1796. Ohio Land Laws, 35. In the present case the land was surveyed and sold under the act of April 26, 1816. 3 U. S. Statutes at Large, 308.

It is contended on behalf of the plaintiffs in error, that the decision in Gavit v. Chambers does not apply to the act last named. It is true the case arose under the former act, but the doctrine of the common law which it lays down in regard to the rights of jiparían owners must be kept in view in giving construction and application to the act now in. question.

It is admitted in the agreed statement that “ none of the sjibdivisional lines of the sjirvey extended to, or embraced the bed of the river, but that, on the contrary, all of the sub-divisional lines approaching the river were so ran as to extend only to certain points on the bank of the river, at greater or less distances from the margin of the water, which points are designated by the survey as corners to the respective subdivisions of the reservation. And also that the river was meandered on the bank thereof, to and from said respective corners.”.

That the meander-lines ran in surveying portions of the public lands bordering upon navigable rivers, are run, not as boundaries of the tract, but as a means of ascertaining the quantity of land to be paid for by the purchaser1, was decided in Railroad Company v. Schurmeir, supra. The meandej’-line, therefore, in the present instance, not being a boundary line, the only boundary was the river; aud the question is, when the boundary line of a riparian owner is thus described, where is it to be located? Gavit v. Chambers answers, at the middle of the stream, as at common law.

The act -n question provided for the survey and sale of the tract of two miles square, at the lower rapids of the Sandusky river, ceded by the Indians to the United States, by the treaty of Greenville.

The second section provided that, previously to the disposal of the tract,' the surveyor-general should re-survey and mark the exterior lines of the tract, conformably to a survey previously made. It also required him “to cause divisional linos to be run through 'each fractional section, and that of the adjoining quarter section, so that each subdivision, having one front on the ri/oer, may contain, as near as may be, eighty acres. And in like manner to cause the large island, lying in the west half of section number one, to be surveyed, and the same to 'be divided into two equal parts.”

One of the provisos in the section is, “ That in no case shall the subdivisional lines be so run as to extend to, or'embrace the bed of the river, which shall be deemed, and is hereby declared to be, a public highway.”

The third section provides, “ That dll the leund contained within the aforesaAd cession, of two miles square, shall, with the exception of as many town lots and out-lots as in the opinion of the secretary of the treasury may be necessary to reserve for the support of schools within the same, and with the exception also of the salt springs, and the land reserved for the use of the same, be offered for sale to the highest bidder,” &c. It is also pi’ovided that “the divided quarter sections and fractional sections shall not be sold for less than two dollars per acre; the in-lots for less than twenty dollars each, nor any out-lot for less than at the rate of five dollars per acre.”

It seems to us that the only exceptions or reservations from sale intended by the act, were the lots for the support of schools, the salt springs, and the land for the use of the same, and the use of the river for the purposes of a highway.

In the argument for the plaintiffs in • error, stress is laid on the provision requiring the snbdivisional lines to be so run as not to extend to or embrace the bed of the river. But if it was intended not to embrace the1 bed of the river as land to be paid for, which’ was in accordance with the policy of the government, it was necessary Tor the line's'tó-be thus run, in order to ascertain the quantity of land in each subdivision and the •amount- to be paid therefor by the purchaser.

Judgement affirmed.


author: MoIlvatne, C. J.

text:
    The State of Ohio on relation of Charles Parrott and others v. The Board of Public Works of the State of Ohio.

      1. The special appropriation act of May 13,1878 (75 Ohio L. 539), whereby the board of public works was limited to $20,000 of the appropriation from the general revenue in the purchase of dredges, &c., required to keep the public works in repair, was not intended as a limitation upon the power to purchase implements necessary to keep the works in repair, as conferred upon the board by the act of April 4, 1859 (Revised Statutes, 1901), nor upon the power of the board to use the income of the public works, arising from tolls, fines and water rents, for the purchase of such necessary implements, as appropriated by such special act. And although the appropriation thus made expired, by constitutional limitation, at the end of two years, a like appropriation was made in the general appropriation act of 1880.
    '2. The board of public works having purchased of the lessees of the public works certain dredges, &c., for $38,820, to be paid as follows : $20,-000 in hand, and balance in equal payments at three and six months, and being afterwards advised, and believing that the promise to pay in excess of $20,000 was unauthorized and void : Besclved, to pay on such contract the said sum of $20,000, leaving it to the lessees to obtain a ratification of the contract by the general assembly, and an appropriation to pay the balance ; and, thereupon the lessees, with knowledge of said resolution, accepted the $20,000.

      Held, That the lessees were not thereby precluded from demanding payment from the board, in accordance with the terms of the contract.
    3. The state is not bound by the terms of a general statute, unless it be so expressly enacted.
    4. In the absence of a statute requiring it, or a promise to pay it, interest cannot be adjudged against the state for delay in the payment of money.
    -5. In a proceeding in mandamus, where judgment is given for the plaintiff, section 6753 of the Revised Statutes does not authorize the assessment of damages against the state in favor of the relator.
    Mandamus.
    Previous to the year 1861, tbe public works of the state were under the exclusive control of the board of public works.. During that year, the public works were leased to the relators for a term of ten years, which was afterward extended ten years, more. In 1878, the lessees having abandoned the public works,, because of an alleged violation of the contract of lease, the-general assembly, by joint resolution adopted May 11, required the board of public works to take immediate possession thereof. On the 18th of same month, the board, being in possession of the works, entered into an agreement with the lessees for the purchase of dredges, boats, tools and other implements necessary to keep the public works in repair and fit for navigation, and agreed to pay therefor the sum of $38,820, in three payments, to wit: $20,000 in cash and the balance in two-equal payments in three and six months.
    The property so purchased, having been on the day of sale-delivered by the lessees to the board, on May 23, the board,, by proper warrant upon the state treasury, did cause the said, sum of $20,000 to be paid to the lessees; but upon maturity of said deferred payments, the board neglected a.nd refused to* pay the same, or cause the same, or any part thereof, to be paid,, and have hitherto so neglected and refused.
    "Whereupon, on this showing, and the further allegation that there is, in the treasury of the state of Ohio, subject to-the order and control of said board, more than $40,000, applicable to the payment of said indebtedness, an alternative writ of mandamus, upon the relation of said lessees, has been issued by this court, commanding said board to issue its warrant to the auditor of state in favor of said relators for the-amount duo them (including interest) on said contract, or show cause why the same is not done.
    ■By answer, the board of public works shows for cause why they have not complied with the command of this writ, certain matters which are sufficiently stated in the opinion of the court..
    The cause is now submitted on demurrer to this answer.
    . Eddy & Halm, for plaintiff.

      J. T. Holmes and George K. Nash, attorney-general, for defendant.
   MoIlvatne, C. J.

In the first place, the defendants claim, that at the time the agreement was made, there was no authority or power in the board of public works to purchase dredges, boats and other implements at a price in excess of $20,000, and, therefore, the agreement to pay in excess of that sum is void. This claim is based on an act passed-May 13, 18T8, entitled “An act to appropriate money to repair the public works and render them fit for navigation.” By this act, in addition to tolls, fines and water-rents of the public works, the sum of $30,000, from the general revenue of the state, was appropriated “for the purpose of putting said works in such state of repair as will prevent an overflow and render them fit for use at the opening of„ navigation,” and it was provided, that of said sum of $30,000, “ that not exceeding twenty thousand dollars,” . . . “may be used in leasing or purchasing the necessary dredges, and other boats, implements, tools, horses and mules, required to keep said works in repair.” In this statute we find no limitation upon the power of the board in making such purchases. The limitation is solely upon the use of the appropriation from the general revenue. If necessary, any, sum in excess of $20,000, to be paid for such implements, might have been taken from the tolls, 'fines and water-rents of the public works. So that, in this act of appropriation, there was ample provision made for the payment of the whole amount of relator’s claim, provided only, that in addition to the $20,000, the receipts of tolls, fines and water-rents should prove sufficient to make up the amount.

Ample power to enter into the contract with the relators was conferred upon the board of public works, by the act of April 4, 1859, entitled “ An act conferring certain powers on, and prescribing certain duties of, the board of public works.”' Although the necessity for the exercise of the powers herein conferred was, in a great measure suspended during the time the lessees were in possession of the public works, it was fully revived (the act not having been repealed) as soon as the board was again put in possession of the w-orks, under the resolution of May 11, 1818. And here it may be remarked, that the necessity and propriety of makiúg the .-purchase, at the time •and under the circumstances, are not questioned; while, on the other hand, it appears that the purchase was very advantageous to the state.

In the next place, it is claimed, that the funds in the treasury subject to the control of the board are not applicable to the payment of relator’s demand. It is true that the special appropriation act of May 13,1878, cannot now be looked to as an authority for using the funds in the treasury for such payment, as section 22 of article 2 of the constitution provides, “No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law; and no appropriation ■shall be made for a longer period than two years.” But section 3 of the general appropriation act of April 15, 1880 (77 Ohio L. 254) provides, “ That there is hereby appropriated from any money coming into the treasury, as receipts from the public works, the following sums, to wit: For the maintenance, repairs, compensation of superintendent, and other employees of the public works, not otherwise herein provided fox’, the receipts from tolls, rents, fines and other income, heretofore, and ■since the 15th day of November’, 1879, received or hereafter .ax’ising from the use of the public wox-ks, not otherwise appropriated.” The funds in the treasui’y sought to be reached, are of this description, and we see no reason why they should not be used for the payment of relator’s claim. To hold that this ■appropriation can be applied only to liabilities incurred' after the passage of the act, would be unjust and unwarranted.

The answer further sets up, that on May 23, 1878, the contract with relators was modified by the Board of Public Wox’ks, hy the following action, as recorded upon its minutes:

“Board met. Present, Messrs. Thatcher, Schilder and Evans.

“The attoxmey-genex’al vex’bally submitted his opinion, as requested yesterday, to the effect, that the board could not ex-need in the pux’chase of the boats, tools, &c., of the lessees, the •sum of $20,000, appropriated for that pux’pose.

“ On motion of Mr. Evans, the following preamble and ■order were then adopted by a unanimous vote of the board, to wit:

Whereas, This board, on Saturday, the 18th inst., resolved to buy the dredges, boats, tools, &c., belonging to the lessees of the public works of this state, at the sum of $38,820, under the erroneous impression that the board could use a part of the revenues of the public works, in their purchase, in part,, and

“ Whereas, The attorney-general has given his opinion, that no such use can be made of the revenues of the public works under the existing laws; therefore,

Resobed, That the terms of said agreement to purchase be modified in this, to wit: That the board of public works will now pay to said late lessees the sum of $20,000 on account of said tools, &c., the same being the amount appropriated for that purpose, May 13,1878, leaving the lessees to depend upon the affirmance of said contract of purchase by the general assembly, and the making of the necessary appropriation to pay the remainder of said consideration to the general assembly.

“ Thereupon, on motion of Mr. Schilder, the following order was adopted, to wit:

“ Ordered, That the president of this, board issue his chock on the auditor of state in favor of the lessees of the public works for $20,000, on account of the purchase of dredges, boats, horses, tools and implements, bought of them on the 18th inst., as per schedule furnished.”

And it is averred that relators, with full knowledge of the above action of the board, acquiesced therein, and received the payment of said $20,000.

It is quite evident, that the sole inducement which led to the action of the board on the 23d inst., was the belief induced by the opinion of the attorney-general, that the contract of the 18th inst. was void for want of power in the board to make it, and the sole object of such action was to affirm the contract as far as was in the power of the board, leaving it to the legislature to ratify the unauthorized stipulations.

Except for this belief, which we have already shown was erroneous, no such action would have been taken by the board; and certainly any acquiescence on the part of the lessees to a modification of the contract (if any were shown) must be attributed to the same mistake. But the only fact, or act of the lessees tending to show acquiescence in a modification of the agreement of the 18th inst. was the receipt of the $20,000, after knowledge of the action of the board on the 23d. This is not sufficient to bind the lessees to such modification. The payment and receipt of the $20,000 were in strict accordance with the contract of the 18th. Plainly, there was no consideration moving to or from either party, to induce or support a modification of the contract, and, for all that appears, the relators may insist upon the original terms of the agreement.

It is also insisted by the defendants, that the claim of relatora, being one against the state, interest thereon cannot be allowed.

On the other hand, it is claimed that the relators are within the terms and meaning of the statute which provides “ That all creditors shall be entitled to receive interest on all money after the same shall become due, either on bond, bill, promissory note, or other instrument of writing, or contract for money or property.” That the words of this statute are broad enough to embrace the claim of relators is not disputed; but it is contended that the state is not embraced within the general words of a statute, and can be held to be within the purview of a statute only when so declared expressly or by necessary implication.

The doctrine seems to be, that a sovereign state, which can make and unmake laws, in prescribing general laws intends thereby to regulate the conduct of subjects only, and not its own conduct.

It' is a familiar doctrine, that a state is not affected by the statute of limitations, however general its terms may be. Greene Township v. Campbell, 16 Ohio St. 11; Josselyn v. Stone, 28 Miss. 753. Upon the same principle, it has been held, that a statute providing that costs shall follow the event of every action or petition,” does not apply to a party prevailing against the state even in a civil cause. State v. Kinne, 41 N. H. 238. Indeed, the doctrine of the common law ex-pressed in the maxim, “ The king is not bound by any statute, if he be not expressly named to be so bound ” (Broom Leg. Max. 51), applies to states in this country as well. Moreover, upon tlie same principle rests tlie well-settled doctrine tliat a state is not liable to be sued at the instance of a citizen. Not because a citizen may not have a just claim against the state, or may. not suffer injury at the hands of the state; but because it must be assumed that the state will ever be ready and willing to act justly toward its citizens in the absence of statutes or the intervention of courts. Coster v. Mayor, 43 N. Y. 399.

In view of these principles, we must hold that the state, as a •debtor, is not within the purview of the statute above quoted, •and cannot be adjudged to pay interest upon any claim against her in the absence of a promise, expressed or implied, to do so; •and it is not claimed that any such promise has been made to relators. Attorney-General v. Cape Fear Navigation Co. 2 Ired. Eq. 444; Auditorial Board v. Arles, 15 Texas, 72; State v. Thompson, 5 English (Ark.) 61; 9 Opinions of Attorneys-General, 57.

It is suggested, however, that even in the absence of a statute, or an agreement, requiring the state to pay interest upon relator’s claim, that damages, in place of interest, might be awarded, under section 6753 of the revised statutes, which provides, If judgment be given for the plaintiff, the relator may recover damages which he has sustained, to be ascertained by the court, or a jury, or by a referee, or master, as in a civil .action.” This section certainly does not contemplate an award •of damages against the state, in whose name alone the writ of mandamus can be prosecuted. And to assess damages in this •case to be paid out of moneys in the treasury belonging to -the state, would be in effect an assessment against the state. And to assess them against the members of the board of public works would be unjust, for several reasons: 1st. The members now composing the board, and sued, are not the same members who composed the board during the greater part of the time during which payment has been delayed. 2d. The delay has been occasioned by an honest conviction that there was no authority in the board to make payment.

If the relators have, been injured by delay in making payment, they can look only to the general assembly for redress.

Peremptory writ awa/rded.