text:
    Brimson v. The State of Ohio.

      •Contempt of court — Judgment of circuit court affirming sentence of fine and costs hy common pleas court — May he reviewed hy Supreme Court, when — Section 56J¡9, Revised ■ Statutes.

    A judgment of the circuit court affirming a sentence of fine and costs adjudged by the court of common pleas in a contempt proceeding, may, by virtue of Section 5649, Revised Statutes, be reviewed in this court even though the amount involved be less than three hundred dollars.
    (Decided November 13, 1900.)
    Motion by defendant in error to dismiss.

      Gluts. B. Deschant, prosecuting attorney, and Wm. McDonald, for the motion.

      R. E. Hamill and Runyan & Stanley, contra.

   By the Court :

On March 17, 1898, Brimson, the plaintiff in error, was adjudged guilty of contempt by the court of common pleas of Warren, and ordered to pay costs and a fine of one hundred dollars. April 23,1900, the judgment was affirmed by the circuit court. To this judgment error was prosecuted in this court. The present motion is by defendant in error to dismiss the case-on the ground that under section 6710, Revised Statutes, as amended April 25, 1898, (93 O. L., 255), this court has no jurisdiction, the amount of the judgment being less than three hundred dollars.

We consider the point not well taken. Contempt is-quasi criminal in its nature. The actions embraced, within the purview of section 6710 are of a civil nature, and hence do not include proceedings in con-, tempt; and, as section 5649 provides without qualification that: “The judgment and orders of a court or officer made in cases of contempt may be reviewed on error,” and as there appears no reason to limit such review to any particular court, it would follow that a sentence in contempt imposed by the common pleas., and affirmed in the circuit court may be reviewed by this court without respect to the amount of the fine.imposed.

Motion overruled*


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Kaiser et al. v. Wells et al.

      Filing of "brief by plaintiff in error — Reinstatement of case for failure, when.

    The rule which requires the brief of the plaintiff in error to be filed “within five months after the filing of the petition in error” does not admit of any doubt or misunderstanding which would justify the reinstatement of a case which has been dismissed for want of compliance with its requirement.
    (Decided November 20, 1900.)
    Error to the circuit court of Washington county.
    On Motion to reinstate.

      •John O. Brenan, for motion.

      Nye & Follett, contra.

   By the Court :

The petition in error in this court was filed on the 12th day of May, 1900. As to the filing of briefs the case is therefore governed by rule 2, as revised in 1899, .and by its terms expressly made applicable to all cases in which petitions in error are filed on' or after February 9, 1900. The pertinent sections of the rule as then amended are as follows:

Section 1. It is hereby made the duty of the plaintiff, or party holding the affirmative, within five months after the filing of the petition in error, to have filed with the clerk ten printed copies of a brief or argument thereon, containing a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the printed record, as is necessary to show how the questions arise, with marginal reference to the headings and points made, and whenever the constitutionality or construction of a statute is involved, the brief shall contain a copy of such statute; and for want of such printed copies being so filed, unless good reason be shown to the contrary, the cause will be dismissed for want of prosecution, or otherwise disposed of at the discretion of the court.

Section 2. It is hereby made the duty of the defendant in error, or party holding the negative, if he-desires to be heard, to file ten copies of a like brief, printed with like references, within seven- months-after the filing of the petition in error.

Section 3. A copy of the printed record and of the brief of the plaintiff shall be served on defendant in error or his counsel forthwith; and the brief of defendant in error shall be served on opposite counsel forthwith upon the filing of the same. All reply briefs-must be filed and served on opposite counsel within eight months after the filing of the petition in error.

Section 4. Proof of service of all briefs shall be,, immediately after the making of such service, filed with the clerk. And failure to so file may be ground for dismissal of the cause.

The brief of plaintiff in error not having been filed within five months after the filing of the petition in error as required by Section 1 the cause was dismissed.

On November 3d, the plaintiff in error filed a motion, with an affidavit for the reinstatement of the case, which is asked for the following reasons: The brief was not placed in the hands of the printer until the 8th of October, it being so short that it should have been printed within twenty-four hours,and counsel believing that the time for filing it did not expire until October 18th. The printer did not place the printed brief in the hands of counsel until the 15th of October, and on the 16th copies were served on adversary counsel.

The former rule upon the subject required the brief of the plaintiff in error to be filed within “a reasonable time” before the uncertain event of the call of the case. The elements of uncertainty which it involved gave rise to many misapprehensions as to the operations of the rule, and much time of counsel and the court was consumed in presenting and hearing motions to reinstate. To avoid such consumption of time, and to get rid of the uncertainty which sometimes gave merit to such motions, the present rule was adopted. The dates which it fixes are as definite as those fixed by the statutes which limit proceedings-in error or prescribe the date for filing printed record. There can be no merit in an application which assumes that the rule, or its operation, has been misapprehended. The benefits anticipated from the-operation of the rule can not be realized unless it is enforced. If it should be suspended to relieve one of' the consequence of his inattention it would have to be abrogated by suspension for all. The rule intimated should be applied in all cases, but it is announced in a case in which the brief was purposely-withheld from the printer until within ten days of the time when counsel supposed it should be filed. The time allowed, five months, is supposed to be ample, if carefully used, for the preparation of briefs in all cases; but it is not intimated that consideration will not be given to timely applications for leave to file briefs at a later date than that fixed by the rule, if it appears that the time allotted, though carefully-used, is insufficient for proper preparation.

Motion overruled.


author: Davis, J.

text:
    Gamble, Admr., v. The Akron, Bedford & Cleveland Railroad Company.

      -Conductor on electric car — Exchanges places with motorman— Fatally injured — Question of contributory negligence — Supreme Court will review reversal of circuit court, when— Supreme Court practice.

    1. Where it affirmatively appears that the circuit court reversed the judgment of the court of common pleas for errors of law only, its-judgment of reversal will be reviewed by the Supreme Court. Wetzell v. Richcreek, 53 Ohio St., 62, approved and followed,
    :2. Where a conductor on an electric car, who is also a competent motorman, temporarily exchanged places with the motorman, there being at the time no apparent danger of accident, to enable the latter to eat his dinner, and while the conductor was running the car a collision occurred with a snowplow running around a curve in the opposite direction, solely through the fault of the defendant’s train dispatcher, fatally injuring the conductor, the latter is not chargeable with contributory negligence merely by being in the place of the motorman and standing at his post while endeavoring to avert the impending collision.
    (Decided November 27, 1900.)
    Error to the Circuit Court of Summit county.
    The plaintiff in error brought suit in the court of •common pleas to recover for the death of Justus H. Walborn, who was a conductor on the defendant’s railroad. On the day of his death the train dispatcher -of the defendant ordered him to take his car and proceed northward from Akron to Vier’s switch. The train dispatcher had forgotten, when he gave this •order, that he had already ordered a snow plow to proceed southward from Bedford station to Harlow’s •siding, a point several miles south of Vier’s switch. A collision resulted, and Walborn was fatally injured. After his car left the power house on its trip northward, the decedent took up the fares of passengers and then requesting the motorman to eat his dinner at the rear end of the car and watch the trolley in the meanwhile, took charge of the controller and ran the car until the motorman had finished eating. About this time tbe motorman went forward and stood near the entrance of tbe vestibule, from two to five minutes, when tbe snow plow appeared, coming in tbe opposite direction around tbe curve. Tbe motorman retreated from his position and tbe decedent stood at bis post and at once reversed the car when tbe circuit-breaker overhead flew1' out. He replaced it and held it in its place with one band and continued to keep tbe car reversed until tbe collision occcurred.
    Tbe trial in tbe court of common pleas resulted in a verdict for tbe plaintiff. Motion for a new trial was overruled and judgment entered upon tbe verdict. Tbe circuit court reversed tbe judgment of tbe court of common pleas, upon tbe following findings of error:
    1. That under tbe evidence in this case, it was tbe duty of tbe court to have said absolutely to tbe jury, that tbe rules printed in tbe red book, so far as they were introduced in evidence before tbe jury, and also “Exhibit 2” appearing in tbe bill of exceptions, bearing date October 4, 1896, wrere rules of the Akron, Bedford & Cleveland Railroad Company governing tbe conduct and specifying tbe duties of motormen and of conductors, in running and operating said company’s cars, and the court erred in submitting to tbe jury the question of wdiether or not those were rules of the defendant company.
    2. Under tbe evidence in this case, it was tbe duty of tbe trial court to say to tbe jury that there was no evidence in the case tending to show any abrogation or waiver of the said rules, and the court erred in omitting to so charge the jury.
    3. Said court of common pleas erred in charging the jury that it should determine whether or not the said Akron, Bedford & Cleveland Railroad Company had rules.
    4. Said court of common pleas erred in charging the jury that there was evidence tending to show that the rules of the company had been abrogated and strict performance thereof waived, and erred in submitting that question to the jury.
    5. Said court of common pleas erred in submitting to the jury the question as to what were the rules of said The Akron, Bedford & Cleveland Railroad Company.
    6. The court of common pleas charged the jury as follows: “Did the deceased know or have the opportunity to know or be informed as to the nature and extent and character of the rules?” This was error and under the evidence the court should have charged that said Walborn did know of the existence of said rules and their contents.
    7. Said court of common pleas erred in submitting to the jury the question as to whether Justus H. Walborn, decedent, violated the rules of the company.
    8. Said court of common pleas erred in submitting to the jury the following question: “Did the decedent at the time, and on the day of this accident, violate these rules, or any of them?” Whereas, under the evidence in said case, it was the duty of the court to say to the jury that the deceased did go into the vestibule of the car, and did violate the rules of the company in respect thereto.

      9. Said court of common pleas erred in submitting to the jury the following question: “Did such violation on his part, if it is shown that the rule was violated, help to produce or proximately cause the injuries which he received on that day?” Whereas, it was the duty of the court to say to the said jury that the vestibule of said car was a place of known greater danger than the conductor’s post of duty, in the rear of the car, as fixed by the rules of the company, and that his voluntary act of going into said vestibule and taking upon himself the management of the motor, was an act of negligence upon his part, contributing to the injuries sustained by him, which resulted in his death.
    10. Said court of common pleas erred in refusing to charge the jury as requested by the defendant below in its requests Nos. 2, 3, 4, 5, 6, 7, 8, 9,10, and 11, respectively, appearing in the bill of exceptions.
    11. Said court of common pleas erred in adding the modifications to defendant’s requests Nos. 3, 4, 5, 6, 7, and 8, respectively, as appears in the bill of exceptions.
    12. Said court of common pleas erred in charging the jury by giving requests Nos. 1 and 3 of plaintiff below.
    13. The entire charge of the court below was misleading in that it necessarily would lead the jury to the proposition that if the decedent, when he was in the vestibule and running the motor, did nothing to bring the cars together, and was not an active agent in the collision, that the plaintiff might recover.
    14. Said court erred in its charge to the jury in defining negligence as follows:
    “It consists of some act or omission of duty that in the natural and ordinary course of events might cause all the injury complained of,” and in saying to the jury
    “It is a question of fact for you to determine from all the evidence and circumstances of the case, whether Walborn’s conduct on the day and at the time of the occurrence of this injury constituted negligence or the want of ordinary care, as I have defined that.”

      Grant & Bieber and Rowley & Bradley, for plaintiff in error.
    That a person who, when a collision is imminent, does not desert a post of danger, when he might do so seasonably and so secure his own safety, but remains, and is injured in his effort to save life, is not necessarily chargeable with contributory negligence, is a position sustained by a great weight of authority. Central R. R. Co. v. Crosby, 74 Ga., 737; Kelly v. Railway Co., 50 Wis., 381; Knapp v. Railway Co., 65 Iowa, 91; Ransier v. Railway Co., 32 Minn., 331; Fickett v. Railway Co., 39 Atl., 996; Weick v. Lander, 75 Ill., 93.
    In these and many other cases the question is left to the jury as a matter of fact.
    In the proposition which we are now maintaining, there is the additional element of the injured person having left a place of safety. The strong probability, amounting almost to a certainty in this case, is that if he had remained in the rear of the car he would have met with an injury all the same, because the conduct of the motorman in the face of danger shows what was to be expected from him had the latter remained in charge of the motive power of the car. But whether this is so or not, we still contend for the principles that it was the right and duty of the deceased to leave a place of safety and to expose his life to hazard under the circumstances disclosed by the record here. Steel Company v. Marney, 42 Atl., 60, 5 Am. Neg. Rec., 159; Bailey on Master’s Liability, p. 418; Railroad Co. v. Reaney, 42 Md., 130; Gibney v. State, 137 N. Y., 1, 33 N. E. Rep., 142; Eckert v. Railroad Co., 43 N. Y., 502; Pennsylvania Co. v. Lagendorf, 48 Ohio St., 316, 28 N. E. Rep., 172; Linnehan v. Sampson, 126 Mass., 506; Pennsylvania Co. v. Roney, 89 Ind., 453; Donahoe v. Railway Co., 83 Mo., 563; Condiff v. Railroad Co., 45 Kan., 260, 25 Pac. Rep., 562; Cottrill v. Railway Co., 47 Wis., 634, 3 N. W. Rep., 376; Peyton v. Railway Co., 41 La. Ann., 862, 6 Southern Rep., 690; Beach on Contributory Neg., Secs. 24, 25, 26, 34 and 373; Haley v. Earle, 30 N. Y., 208; Railway Co. v. Lyons, 4 Am. Neg. Rep., 175; Shearman and Redfield on Neg., 207 (b.); Smith, Admx., v. The Powell Co., 23 Bull., 437, 10 Dec. (Re.) 799; Railway v. Bondron, 2 Am. and Eng. R. R. Cases, 30; Wharton on Neg., 303 and 323; Railway Co. v. Krayenbuhl, 67 N. W., 447; Ford v. Railway Co., 110 Mass., 240; Horan v. Railway Co., 56 N. W., 507; Reed v. Railway Co., 72 Iowa, 170; White v. Railway Co., 16 Southern Rep., 248; Locke v. Railway Co., 46 Iowa, 109; Gates v. Railway Co., 39 Iowa, 45; Marshall (or Brydon) v. Stewart, 2 Macq. H. L. Cas., 30; Railway Co. v. Watson, 90 Ala., 68; Railway Co. v. Pearson, 12 So., 176; Railway Co. v. Graham, 10 So., 283; Railway Co. v. Roney, 89 Ind., 453.

      Ford, Snyder, Henry é McGrow and Allen & Cobbs, for defendant in error.
    On the merits of the case the decision of the circuit court rests upon the rule laid down in Wolsey v. Railway Co., 33 Ohio St., 227.

      If the employe has suffered injury brought about by a violation of the plain instructions of his principal, he cannot hold his principal liable therefor. Railway Co. v. Eis, 2 C. C., 3 and 5, 1 Circ. Dec., 329; Railway Co. v. Ackworth, 10 C. C., 583, 6 Circ. Dec., 622; Johnson v. Railway Co., 11 C. C., 553, 5 Circ. Dec., 290; Railway Co. v. Litz, 18 C. C., 653, 7 Circ. Dec., 282.
    Plaintiff in error, however, seeks to avoid the inference of contributory negligence, flowing from his decedent’s violation of rules, by recourse to three several doctrines, approved by this court, viz.:
    1. “When a person without his fault is placed in a situation of danger, he is not to be held to the exercise of the same care and circumspection that prudent persons would exercise where no danger is present.” Penn R. R. Co. v. Snyder, 55 Ohio St., 342.
    2. “When the negligence of the defendant in a suit upon such ground of action is the proximate cause of the injury, but that of the plaintiff only remote, consisting of some act or omission not occurring at the time of the injury, the action is maintainable.” Kerwhacker v. Railway Co., 3 Ohio St., 172.
    3. “It is not negligence per se for one to voluntarily risk his own safety or life in attempting to rescue another from impending danger.” Penn. Co. v. Langendorf, 48 Ohio St., 316.
    The first of these contentions affords its own refutation. The rule is expressly qualified by the use of the phrase “without his fault,” and it cannot be contended that the decedent in the case at bar was acting as motorman in the front vestibule, a post of known greater.danger, “without his fault.” He was in the continuous voluntary violation of an express provision of the rules and regulations so long as he remained in thgt place. The train dispatcher’s error was irrevocable long before the cars came in sight of one another. His negligence was complete the moment the order was given, and beyond recall. But decedent’s negligent conduct persisted thereafter. Of course, time is not ordinarily the sole test of proximate cause. But where defendant’s negligence competes with plaintiff’s negligence, in determining which is the more proximate cause, in cases like the one at bar, time is the approved test. Railway Co. v. Kassen, 49 Ohio St., 230; Railway Co. v. Krichbaum, 24 Ohio St., 119.
    (1) That the violation of a rule of the defendant company which is known, or should be known to an employe of said company, constitutes such negligence on the part of such employe as will bar a recovery.
    (2) But even in the absence of such rule, or any violation thereof, an employe who voluntarily assumes a post of danger outside of the scope of his duties, and as a consequence is injured, he cannot recover for such injuries. Thompson on Negligence, Vol. 2, p. 1017; Brown v. Byroads. 47 Ind., 435.
    In conclusion, we submit the following additional authorities: Railroad Co. v. Langdon, 92 Pa. St., 21; O’Neill v. Railway Co., 45 Ia., 546; Railway Co. v. Wilson, Admr., 88 Tenn., 316, 12 S. W., 720; Abend v. Railway Co., 111 Ill., 202; Railway Co. v. Wallace, 76 Tex., 636; Beyer v. Railway Co. (Ala.), 21 Southern Rep., 952; Wilcox v. Railway Co. (Tex.), 33 S. W., 379; Railway Co. v. Reilly, 40 Ill. Appeals, 416; Downey v. Railway Co., 28 W. Va., 732; Torrey v. Railway Co., 147 Mass., 412; McGucken v. Railway Co., 77 Hun., 69; Thornton v. Tuley, 41 Mo. App., 432; Railway Co. v. Miles, 40 Ark., 298.

      The rule enunciated in these cases is protective of the soundest public policy; it conserves the interest both of employe and general public, in holding the employe of a carrier to his post of duty, and to the careful observance and obedience to, those regulations which are promulgated for the benefit and safety of those who travel and of the employe himself.
   Davis, J.

It is said that this is a case in which one ground of reversal may have been that the judgment was against the evidence; and that therefore the judgment of the circuit court should not be reviewed in this court. Dougherty v. Railway Co., 56 Ohio St., 725. Whatever the circuit court might have done, it is very clear that it did not reverse the judgment of the common pleas on the weight of the evidence; for every one of the fourteen findings of error relates, to the charge to the jury, or that which it is claimed should have been given in charge to the jury, in regard to the alleged violation of the rules of the company. Inasmuch as the circuit court must pass on all errors assigned, it must be presumed that the court found no errors except those specified. Hence we are not justified in assuming that considerations of the weight of the evidence entered into the judgment of reversal. Wetzell v. Richcreek, 53 Ohio St., 62.

We do not adopt the theory which seems to have prevailed in the circuit court. Rule 3, for conductors, merely defines the regular position of the conductor when not collecting fares. It does not prohibit him from temporarily occupying any other position. By general rules. 4 and li, he has full charge of the car while in service; and this implies that he may be anywhere in the car while in the performance of duty. In an emergency, such as, for example, an accident to, or sudden illness of, the motorman, he might be in the vestibule in the place of the motorman; and if competent to do so, as it appears that Walborn was, might act as motorman. So far as appears here, there was no violation of either the letter or the spirit, of these rules, construed together, when Walborn temporarily exchanged places with the motorman in order that the latter might eat his dinner. It does not appear that the company’s property, or the safety of passengers, was in any way imperiled by this arrangement; and there was no occasion to apprehend an emergency which would call for them to be in their respective places. It would seem that in this instance the conductor exercised his judgment and authority, under the rules, reasonably and prudently. The case is not, therefore, akin to those cases in which a servant voluntarily and needlessly, and not in the performance of duty to the master, places himself in a position of greater peril.

But, if it be conceded that Walborn was in a prohibited position at the time he was fatally injured, it seems to us that the same result must be reached. The blunder of the train dispatcher put everybody on the car in peril. His act was the sole and proximate cause of the collision. Not a thing that Walborn did contributed to bring about the collision; and he heroically died at his post in trying to prevent it. Nothing is alleged against him, except that he was in the most dangerous position, where all were in common danger, without the fault of any. Under such circumstances, it is nothing short of absurdity to contend that because he was killed instead of another, or possibly all, the company should escape all liability for its wrong. But it is argued that he should have deserted Ms temporary post and have gone back to his proper position; in other words, that he was negligent in remaining. But if he had run away without attempting to reverse, and the other people on the car had been killed or mangled, would any court acquit the company of negligence in that respect? If the contention of counsel is correct, it involves the contradiction that Walborn was negligent in remaining, and would have likewise been negligent if he ran away. Who among us is sufficient for the decision of such things in an emergency? We are not willing to accept it as the law that a motor engineer, or a locomotive engineer, is guilty of contributory negligence merely because life remains in his dangerous position and continues his efforts to avert calamity from the passengers behind him. Beach on Cont. Neg., Sec. 42. And Walborn was, for the time being, the motor engineer of that car, and as such responsible for the safety of the passengers being carried therein.

We find no prejudicial error in the record. It was hardly necessary to have bothered with the elaborate charge and requests to charge, in this case. Upon the evidence in the case, the court would have been justified in directing a verdict for the plaintiff.

The judgment of the circuit court is reversed and that of the common pleas affirmed.


author: Spear, J.

text:
    King v. King, Exr., et al.

      Contract by which one agrees to live with and care for another —And not marry during the service — Consideration that other party will amply provide for servitor — Contract not invalid for restraint of marriage.

    1. A contract by wbicb a person agrees to live with and take care of another during his life, and further agrees not to marry during such service, in consideration of the agreement of the other that he will provide for her amply sufficient to make her comfortable and well off, is not necessarily an invalid contract. Although the promise not to marry is in itself a void promise, as against public policy, yet it is but an incident to the main engagement which is for labor and care. And if that service be fully performed, and the recipient fails to perform his engagement during life, the other may maintain an action against his estate on the contract.
    2. In such case the mischiefs likely to ensue to the public by permitting a recovery, notwithstanding the void stipulation, would be less than those likely to follow a holding which would encourage the violation of contracts and the repudiation of just obligations after full value had been received.
    (Decided November 27, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiff in error was the plaintiff below. Her action was to recover for personal services rendered in the performance of a contract made with James Howland, in 1881, whereby she agreed to live with him and take care of him during his life. He was a man of means, well advanced in years, without family, living on Euclid avenue in Cleveland, and much of the time in ill health. The plaintiff was a daughter of his niece. She performed the contract on her part, the service extending from the year 1881 to 1896, when Howland died. The contract, as stated in the 'petition, was that “this plaintiff agreed with the said James Howland that she would refrain from marriage-while he should live, and that she would live with him and take care of him while he lived; and he, in consideration thereof, agreed that he would provide for-her amply sufficient to make her comfortable and. well off.” Howland, in his will, left to plaintiff a legacy of five hundred dollars, but, save small amounts of' money given her from time to time, did not perform the contract. A recovery was had in the common pleas. The judgment was reversed by the circuit, court because of error in the charge in instructing the-jury that the contract was a legal one, and if proven to have been made as alleged, and duly performed by plaintiff, there might be a recovery. To reverse this, judgment of reversal this proceeding is prosecuted.

      John F. Glark and Geo. L. Phillips, for plaintiff in. error.
    To determine whether a contract falls within any of the legal inhibitions, we must have regard to its general scope and character, and not alone to provisions thereof that are mere incidents of the general engagement.
    This was not an engagement not to marry; it was a. contract for services. The agreement to remain unmarried during the period of service was simply and only to enhance the value of the services, and was a. mere incident of the contract, and therefore does not vitiate the general engagement. Gas Co. v. Dairy Co., 60 Ohio St., 96.
    The object of all law is, to protect legal rights, to-enforce legal obligations, and to promote justice and honest dealing. This object is sought by adherence to great ruling principles. But adherence to settled principles is not a blind adherence. The supreme-concern of the law and its administration is the general welfare, embodied in the law’s ruling maxim, salus populi suprema lex. It is the business of the law and its administration to enforce the performance of contracts. But there are classes of contracts the enforcement of which will not be promotive of the general welfare; and these contracts the courts, following the maxim, that the general welfare is the highest law, refuse to enforce. But this exception has its limitations — limitations promotive of the general principle. When a contract Las been made that falls within an exception, and the court finds the parties in a situation with reference thereto that will make its enforcement more promotive of the general welfare than refusal to enforce, the exception does not apply. Lester v. The Bank, 33 Md„ 558; 1 Sto. Eq. Jur., 298.
    Corporations, like individuals, are bound by their contracts; but, like individuals again, they are not-bound by contracts that are beyond their powers. As a general rule, such contracts are void, and impose no obligation. But a corporation may not avail itself of the defense of ultra vires, where the contract was entered^ into in good faith, and the corporation has had the full benefit of performance by the other party. Hays v. Gas Co., 29 Ohio St., 330.
    If an engagement that is in partial restraint of marriage is against public policy, how much more is it against public policy, that when one party to such •contract has in good faith performed all her covenants, the other should take the benefit of the contract and the performance thereof, and repudiate his covenants, all of which are legal! Burkholder’s Appeal, 105 Pa. St., 31.

      Smith & Blake and Marvin & Shupe, for defendants in error.
    That it was the intention of the parties to the contract to restrain marriage there can be no doubt from the contract itself and from the testimony given by plaintiff’s witnesses, as is shown by the bill of exceptions.
    Contracts which are in restraint of marriage have been uniformly held to be illegal by the authorities, 9 Am. and Eng. Ency. Law, p. 918; Clark on Contracts, p. 443; Hartley v. Rice, 10 East, 22; Sterling v. Sinnickson, 5 N. J. Law (2nd Southard), 756; White v. Benefit Union, 76 Ala., 251; Weeks v. Hill, 38 N. H., 199; 91 Ind., 202; 13 Mo., 211; 94 Ind., 292;, Waters v. Tomwell, 9 Md., 291; Greenhood on Public Policy, in the Law of Contracts, p. 480.
    Courts having been created by law for the purpose of properly administering the same, have invariably held that it was no part of the duty of the court to give aid and assistance to those who sought it in the enforcement of or relief from such contracts, as were' either illegal, immoral, or against public policy. 101 Mass., 363.
    And, the rule that the court will not assist or aid either party to an illegal contract is the same in equity as in law. It is well settled law in Ohio that relief' will not be granted by the court to one whose claim is based upon or grows out of an illegal contract. Roll v.Raguet, 4 Ohio, 400; Thomas v. Cronise, 16 Ohio, 54; Widoe v. Webb, 20 Ohio St., 431; Kahn, Jr., v. Walton, 46 Ohio St., 195; McQuade v. Rosecrans, 36 Ohio St., 442; Ins. Co. v. Hull, 51 Ohio St., 270.
    The rule that courts will not assist the parties whose claim is based upon an illegal contract is not; made for the benefit of a defendant, but on the ground that courts will not lend their aid to assist one who enters into an illegal contract, and will leave the parties where it finds them. In this case, had James Howland paid in advance the price which it is now sought to make his estate pay to the plaintiff, in consideration of the promised performance by plaintiff of the contract to refrain from marriage, and if plaintiff had immediately thereafter violated the terms of said contract and entered into matrimony, James Howland could have had no relief, and could not have recovered the money which he might have paid to induce the performance of such contract.
    The authorities hold that it makes no difference whether or not the contract has been performed on one side. The courts will not grant relief nor place the party in statu quo. Hooker v. De Palos, 28 Ohio St., 251.
    If the courts should establish the rule, as contended for by plaintiff in error, that a contract, though illegal, having been executed on one side, the other party to the contract should be held to perform his part of it, this would be placing a premium on the carrying out of such contracts, and thus encourage the very thing which it is the policy of the law to discourage.
    The rule is' that if the consideration to be paid is single and entire the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items. 2 Parsons on Contracts, 5th Ed., p. 519; Clark on Contracts, p. 471-473; Laskey v. Bd. of Education, 35 Ohio St., 519.
    We hold that if James Howland, as stated in plaintiff’s petition, “agreed that he would provide for her amply sufficient- to make her comfortable and well oft,” that does not mean that he would will any portion of his estate to her or make her comfortable and well off at or after his death; that the proper inter-, pretation of that contract is, that during his life, while she was living with him as a member of his family, he would provide for her amply sufficient to make her then comfortable and well off, and not at his decease, by will or otherwise. What did he do? This was an uncle living on the most aristocratic and fashionable street in the city of Cleveland. He took ■a niece to live with him who before that time was residing on one of the least desirable streets in the city. During the time she lived with her uncle, as set forth in the answer (some fifteen years), she was provided with a comfortable home, educated and surrounded hy all the opportunities and pleasures that her position on Euclid avenue afforded.
    The rule of law is, that where a near relative goes into a family, lives as one of the family, has the opportunities and privileges of one of the family, no wages or compensation is to be paid by the head of the family, and, hence, we think for the above reasons there is no cause of action set forth in the petition, as found by the circuit court. Lovet v. Price, Wright, 89; Willis v. Dun, Admr., Wright, 133; Hawthorne v. McClure, 4 C. C., 11, 2 Circ Dec., 390; Pollock’s Exr. v. Pollock, 2 C. C., 143, 1 Circ. Dec., 410.
    If this contract was originally void, that is, if it was not legal for her to make such a promise, then the same could not be afterwards ratified and affirmed, nor would the fulfillment of her part of the same permit her to recover the compensation to be received. Hardy v. Publishing Co., 41 Minn., 188; Greenhood on Public Policy in the Law of Contracts, Rule 9, p. 8; Shenk v. Phelps, 6 Illinois App., 12.
   Spear, J.

The sole ground of reversal is that the contract is void, because against public policy, being in restraint of marriage. Hence there could be no recovery. That contracts in restraint of marriage are void, as being contrary to the public policy of the law, is conceded. But the question here is whether the contract to render service, fully performed by the one party, so rests upon the promise not to marry, or is so tainted by that part of the agreement, as to be incapable of enforcement. The consideration moving to the agreement on the part of Howland to make ample provision for his niece was, on its face, twofold: one, the promise to perform the service agreed upon, the other not to marry during the continuance of such service. The first was a valid promise and of itself sufficient to support the promise of the other party; the second was a void promise, not affording any consideration whatever. As given in text books, and numerous decisions, the general rule is that if one of two considerations for a promise be merely void, the other will support the promise, although if one of two considerations be unlawful, the promise of the other party is void; and yet this rule has many exceptions, as will be shown later on. That is, if one of two considerations isvoid merelyfor insufficiency, and not for illegality, the other will support the contract. Widoe v. Webb, 20 Ohio St., 435; MetC, on Con., 246; Chitty on Con., 988; 1 Parsons on Con., 456; Comst. on Con., 24; PiKard v.cottels,Yelv., 56; Bliss v.Negus. 8 Mass., 51; Carleton v. Woods, 28 N. H., 290; Woodruff v. Hinman, 11 Vt., 592; King v. Sears, 2 C.M.&R. 48; Erie Railway Co. v. U. L. & E. Co., 35 N. J. L., 240; Bradburne v. Bradburne, Croke El., 149. This distinction between a contract merely void, and an illegal contract, would seem to be an important one. Courts, as a general proposition, are open for the enforcement of contracts, not for their destruction. So that, where parties have deliberately entered into a contract, valuable to them, and one has received the full advantage of it, the general policy of the law is to exact proper performance by him who has thus obtained the advantage, and some substantial defect should be shown before a court will refuse enforcement; a mere technical objection should not prevail. Now a void contract is one which has no legal force,, and which, for that reason, cannot be enforced; an unlawful contract is one to do an act which the law forbids, or to omit an act which the law enjoins, and for that reason is non-enforceable. There is no provision, either by statute or at common law, which enjoins upon any particular person the duty to marry, nor can anyone be punished for not marrying. To marry, or not to marry, is left to the free choice of all who are eligible to marriage. Hence ■to omit to marry is not illegal, though the promise to omit is one which the law will not enforce. Tt would appear naturally to follow that the only result of making such a promise would simply be that no legal right could be founded on the promise and no remedy afforded for its breach. It is difficult to see any good reason for denouncing such contract as illegal in the sense of violating any law, or of placing parties who may have entered into it outside the pale of the law.

But, aside from this, in the present case the promise on the part of the woman which was of value to the man was the promise to care for him. The promise not to marry was a mere incident to the main purpose, entered into simply because it was supposed that, by remaining single, the woman could the better perform her contract. It was immaterial to the man whether she married or not so long as she fulfilled her promise as to care. In other words, the promise to remain unmarried did not enter into or become part of the substance of the general agreement; that agreement was for the performance of services. If the performance was adequate, and the services rendered in a satisfactory manner, their value could neither be enhanced nor diminished by the fact that they had been rendered by a single woman rather than a married one; so that, had the plaintiff married, yet, if she satisfactorily performed her contract, the recipient of the services would lose nothing by the fact of marriage. As matter of fact she did not marry, whether because of the contract, or for reasons wholly apart from it, is not material, for she was under no obligation to marry nor to refrain from so doing. She did perform the service; that the verdict and judgment of the comlnon pieas settles to all intents and purposes for the present inquiry. As above stated, the promise not to marry, although void because against public policy was not illegal as against positive law, and it is not easy to perceive how its presence in the contract, or its observance by her, or both facts, could place the parties in what is termed in pari delicto, i. e., in a position where the law should adjudge them guilty of its violation, and hence refuse relief for that reason in the face of the fact that the claimant had fully performed.' In such case the maxim in vari de licto melior est conditio possidentis, has, in reason, no application, and we think ought not to have application in law.

Courts refuse to enforce or recognize certain classes of acts because against public policy on the ground that they have a mischievous tendency, and are thus injurious to the interests of the state, apart from illegality or immorality. A contract in restraint of marriage is of this nature. But, as before suggested, it does not follow that all contracts which may have an element of insufficiency, and may be void as to one feature, are incapable of enforcement, pr even that all that are illegal will not be enforced. Decisions are abundant in support of the proposition that even where the acts of the parties have been in violation of positive law the contract may, under some circumstances be enforced. A case in point is Lester v. The Bank, 33 Md., 558. The bank’s charter forbade a director, under penalty of fine and imprisonment, to borrow money from the bank. It was claimed that the act of thus lending by the bank was null and void; that no rights could accrue from it and hence no action could be had by either party based upon it. The court held, however, that: “Contracts made in violation of statute, are not necessarily incapable of enforcement because of their illegality. Whether the courts will enforce them or not, is a question of public policy, and they will be enforced when it may be adjudged that such policy requires their enforcement.” Robinson, J., in the opinion, remarks that: “Public policy, it must be borne in mind, lies at the basis of the law in regard to illegal. contracts, and the rule is adopted not for the benefit of parties but of the public. It is, evident, therefore, that cases may arise, even under contracts of this character, in which the public interests will be better promoted by granting than by denying relief, and in such the general rule must yield to this policy,” and cites 1 Story’s Eq. Jur., sec. 298. This policy of the law finds expression in our statutes authorizing the recovery back of money lost at gaming, and the decisions under them; See also, Burkholder’s Appeal, 105 Penna. St., 31. To justify refusal of relief to the plaintiff, on the ground referred to, the court ought to be ready to hold that the public mischiefs would be greater by permitting a party to recover who had made and performed a contract otherwise well founded but embracing an agreement not to marry while in its performance, than by permitting the other party to have the full benefit of meritorious service for nothing, thus repudiating his agreements, all of which were legal and based upon at least one consideration entirely adequate and wholly lawful. We are not prepared to make such a holding, but are clearly of opinion that no mischiefs to the public would result from sustaining a right to recover in a case like the present comparable to those Avhich would 'follow a contrary holding, one which would encourage the violation of contracts and the repudiation of just obligations after full value had been received.

Other phases of the case are argued by defendants in error. The printed record presented embraces only the question here treated. If is not the duty of the court to hunt through portions of the record not printed in the quest of other reasons why the judgment of the common pleas should have been reversed, and we decline to do so.

The judgment of the circuit court will be reversed and that of the common pleas affirmed.


author: Burket, J.

text:
    The Peoples and Drovers Bank v. Craig as Administrator of the Estate of D. Furtwangler.

      Promissory note — Indorsed and sent for collection — Collector no power to sell or transfer — Amount of note remitted by collector regarded as payment, when — Maher becomes liable on reissue of note, when — Instructions to jury as to conceded facts.

    1. Where a negotiable promissory note is indorsed for collection and sent to the place of payment, the person receiving such note with such indorsement, has no power to sell or transfer the note. His power is limited to collection.
    2. Where a person receiving such note, remits the amount thereof out of his own funds to the owner as though he had in fact collected the note, such transaction is a payment and extinguishment of the note, and not a transfer thereof.
    3. If such payment is made with the assent of the maker, he becomes liable as for money paid to his use, or liable on the note as a re-issued note; but as to a maker who does not assent to such payment, there is no liability, either on the note or for money paid to his use.
    4. A person making such payment is, as to non-assenting makers, a volunteer, and not entitled to subrogation.
    5. Where the controlling facts are conceded on the trial, it is not error for the court to direct the jury to bring in a verdict in accordance with such facts.
    (Decided November 27, 1900.)
    Error to the Circuit Court of Fayette county.
    On February 19, 1887, R. A. Robinson, H. L. Robinson and D. Furtwangler made and delivered their promissory note to Norman McLean, Admr., and thereby promised to pay to him or order at the People’s and Drovers’ Bank of Washington C. H., Ohio, $480.00, in six months after date. The payee duly indorsed the note before maturity to one William Harry, who also duly indorsed it, and it was by the holder duly indorsed for collection and forwarded at maturity to said People’s and Drovers’ Bank for collection, and was received by said bank and entered upon its collection register, by the cashier, who was said R. A. Robinson, the maker of the note, and who was also principal, said H. L. Robinson and D. Furtwangler being his sureties.
    R. A. Robinson, cashier of the bank, and who was also maker of the note, drew a draft on the Fourth National Bank of Cincinnati, the correspondent of said People’s and Drovers’ Bank, for the amount of the note, and remitted the same to the party from whom the note had been received, and put the note among the cash items of the bank, where it remained until the bank made an assignment for the benefit of creditors in the month of October, 1895, when it passed into the hands of the assignees under the assignment. Afterward the bank was reorganized, and this note, with other assets of the defunct bank, passed from the assignees to the new bank, the present plaintiff in error. D. Furtwangler having died in the meantime, Eli Craig was appointed administrator of his estate, and the new bank having presented the note to him for allowance, and the same having been rejected, an action was commenced on the note by the new bank against the two Robinsons, and Mr. Craig as such administrator.
    The two Robinsons made no defense, but the administrator of D. Furtwangler answered, denying that the bank was the owner of the note, denying the transfer by the assignees, alleging want of power to make such transfer, and averring that the old bank received the note for collection and for no other purpose, that the note was fully paid by R. A. Robinson, cashier, and that the surety was released. Certain demurrers and a motion having been disposed of, there was a reply filed, in effect a general denial.
    The cause was tried to a jury, and at the close of the plaintiff’s testimony, counsel for the administrator demurred to the evidence, and requested the court to direct the jury to return a verdict for the defendant, which the court did; and thereupon the jury brought in a verdict for the defendant, to all of which the plaintiff excepted. A motion for a new trial was overruled, exceptions taken, and judgment entered on the verdict. The circuit court affirmed the judgment, and thereupon the bank filed its petition in this court seeking to reverse the judgments of the courts below.
    The evidence tended to prove, in addition to the above facts, that at the time the draft was drawn to pay the note, Mr. Robinson, the cashier, had no funds in the bank and his account was overdrawn, that he drew no check on the bank to pay for the draft, that when he forwarded the draft in payment, of the note he took the note out of the collections and placed it among the cash items, that it was the custom of the bank when notes were paid, to stamp them “Paid,” and that this note was not so stamped, that under the course of business of thé bank notes purchased were sometimes put into the cash items, that it never became the owner of paper except at the request of some one to purchase it, that the note would go into the cash items by request only, that notes are not paid by the bank unless some arrangement is made with the bank for an equivalent) and that when a draft is issued something must be given to the bank for it.

      Humphrey Jones, for plaintiff in error.
    The real issue in the case, and the one upon which it turned, was that of payment. The defendant Craig' as administrator, claimed that the note had been paid by Robinson, if not absolutely, at least as to Furtwangler, and that the old People’s & Drovers’ Bank, by reason of payment of the note having been made, never became the owner and holder of it as against Furtwangler.
    We claim that the evidence very strongly tends to establish by inference the fact that the People’s and Drovers’ Bank, on the 27th day of August, 1887, accepted and received the note in payment for the draft of the same amount which it that day issued; that the' issuing of this draft for the amount of that note must have been at the instance of some of the makers upon the note, and that the taking and holding of the note by the bank, in lieu of or as the equivalent of the draft,, must also have been at the instance and under procurement from some of the makers of the note.
    The bank had a perfect right to purchase and advance the amount of that note to the holder thereof, at the request of the principal maker, and it had a perfect right to hold the note for its protection and security for the money thus advanced.
    It could only be without remedy, and could only be deprived of the security which the note afforded, by merely volunteering to pay the amount of it; if the bank was a mere volunteer in advancing the amount of the note to the holder, it then could not recover either as against Robinson or as against any other' makers upon the note, but if it was not in the attitude of a mere volunteer, but took the note in the usual course of business, and accepted the note as a. valuable asset, at the request of some one upon it who was pledged to pay it, it then did not become a volunteer.
    A party paying an obligation or debt of another is not a volunteer where he is requested to pay, or where he is compelled to pay for the protction of his own interests.
    A party may be súbrogated to all the rights of the holder of paper by advancing the amount due upon the same, either at the request of the holder or at the request of the maker. Coe v. Railway Co., 31 N. J., 105; Tradesmen v. Thompson, 32 N. J., 133; Vol. 24 of Am. and Eng. Ency. Law, 283; Gashe v. Lumber Co., 31 Bull., 189, 5 Dec., 130; Putnam v. News Co., 14 Rec., 56, 14 Bull., 109, 6 Dec. (Re.) 1231.
    The agreement may be made with either the debtor or creditor. Frivell v. Zuber, 67 Texas, 275.

      Mills Gardner, for defendant in error.
    The bank claims that they paid the note and carried it in the bank as a “cash item.” That when the People's and Drovers’ Bank made an assignment for the benefit of creditors in October, 1895, this paper was found among the cash items, and that it passed to the assignees in and by virtue of the general assignment of the assets and property of the insolvent bank; and this is the character of the title on which the plaintiff in error seeks to recover.
    The old People’s and Drovers’ Bank never became the owner of the paper. It was indorsed to them only for collection, and was what is known in law as a “restrictive indorsement.” The indorsee in such case can only collect the money due on it. He cannot sell or hypothecate the instrument for his own benefit; nor can he hold the indorser liable to himself. 1 Daniel on Negotiable Inst., Sec. 698.
    Indorsement for collection is not a transfer of the title to indorsee, but merely constitutes him the agent of the indorser to present the paper, demand and receive payment and remit the proceeds. National Butchers’ & Drovers’ Bank v. Hubhell, 117 N. Y., 384, 15 Am. State; 515; Freeman’s Nat. Bank v. National Tube Works, 21 Am. Rep., 161, 151 Mass., 113.
    Where a bank to which notes, etc., have been sent for collection makes a general assignment for the benefit of creditors, does not acquire any title to such paper.
    Successive indorsers, of same kind, each acting by direction of preceding endorser. 21 Am. R., 161; 1 Daniel on Negotiable Inst., Sec. 598c; Mechanics Bank v. Packing Co., 1 Mo. App., 200, 70 Mo., 643; Blane v. Crane, 23 Am. Rep., 129.
    The words “for collection” which are frequently inserted in indorsements of negotiable paper put in banks to be collected, make the indorsements restrictive; and the indorser may show that he was not the owner of the paper and did not mean to transfer title either to it or its proceeds when collected. Such indorsement merely makes the indorsee agent for the indorser to collect the amount due, but does not invest him with such title as to make him a proper plaintiff in a suit. 1 Daniel Negotiable Inst., Sec. 698d.
    Payment is not a contract. It is the discharge of a contract. Daniel, Negotiable Inst., Sec. 1221; Lancy v. Clark, 61 N. Y., 209.
    Payment cannot be construed into a purchase. 2 Daniel Negotiable Inst., Sec. 1222; Burr v. Smith, 21 Bart., 262.

      An action for money had and received may lie against the party who procures the surrender of a. note without payment. 2 Daniel Negotiable Inst., Sec. 1222; Penobscott R. R. Co. v. Mayo, 67 Me., 470; Morris v. Faurot, 21 Ohio St., 155; Osborn v. McClelland, 43 Ohio St., 284; Church v. Swope, 38 Ohio St., 493; 1 Daniel Negotiable Inst., Sec. 726, last clause.
    The plaintiff obtained no title to the note.
    1. He did not purchase it of the payee- nor any one of the indorsees who had title.
    2. It was not indorsed to the People’s and Drovers’ Bank to transfer title, but for collection only.
    3. If the bank paid it at maturity for the principal, that did not transfer title. The bank could only obtain title by express agreement with the owner off the note. Paying the note, if they did, was only a matter of accommodation to the maker, and when paid could not be reissued. 1 Daniel Negotiable-Inst., Sec. 1238.
    Assignees for creditors get no title.
    If the note was paid by the bank at the request of R. A. Robinson, the principal on the note, that would be a complete discharge of the sureties. Robinson might be a debtor to the bank, not on the note but for-money had and received. Wing v. Terry, 5 Hill, 160; Griffith v. Reed, 21 Wend., 502.
   Burket, J.

The unknown custom of the bank and its private manner of conducting its banking business, could not have the legal effect of changing the rules relating to negotiable instruments, and therefore this case must be determined by a consideration of what was in fact done by the holder of the note, the-bank, and not by the private customs and manner of' transacting the business of the bank. The holder indorsed the note for collection and forwarded it with that indorsement to the bank, and the bank received it for collection, and entered it on its collection book and placed it among its collections, and afterward drew a draft on its Cincinnati correspondent for the amount of the note, and forwarded the draft in payment of the same to the one from whom it had so re-ceived it, and then placed the note into its cash items without stamping it paid. As to the holder of the note who so forwarded it for collection, this was a payment and extinguishment of the note, and not a transfer to the bank. The draft to pay the note was forwarded by Mr. Robinson, the cashier, either in his individual capacity, or in his official capacity as cashier. If in his individual capacity, it was clearly a payment and extinguishment of the note. If in his official capacity as cashier, his act was the act of the bank, and was a voluntary payment, and not an acquiring of the note by transfer, because the note was not sent to the bank to be by it transferred, but to be by it collected, that is, that it should receive payment, and upon payment the note should become extinguished. The indorsement was a restricted one, and the bank had no authority to do more than receive payment, and it could not keep the note alive after payment for any purpose. Payment even by a volunteer was the death of the note. A person who volunteers to pay the note of another cannot by such payment make himself the owner of the note without the knowledge and consent of the holder thereof. He can not act both as buyer and seller at the same time, bargaining with himself. Randolph on Commercial Paper, Sec. 720; Daniel, Neg. Instru., Sec. 698d; Bank v. Hubbell, 117 N. Y., 384; 15 Am. St. Rep., 515; Bank v. Bank, 5 C. L. B., 611; 3 Fed. Rep., 257.

There are some cases both in England and this country in which a stranger paying a note has been held to be a purchaser, subject to all equities of other parties; but in all those cases there was something in the transaction itself showing an intention at the time to become such purchaser, coupled with a power in the holder to sell and transfer the instrument.

The bank furnished the money and remitted it tO' the holder of the note as payment, and the holder received it as payment and had no information that the money was not paid by the makers. Such a transaction is a payment and extinguishment of the note, and not a transfer thereof.

As Mr. Robinson, the maker and also cashier, made the transaction, he must have ■ assented thereto, and become bound to the bank by such assent for a repayment of the money so paid to his use; or an action might be maintained by the bank against him on the note as a re-issued note; but as to the other makers who did not so assent, there was no re-issue of the note, and no liability for the money so paid without their knowledge or consent. Randolph on Com. Paper, Sec. 1425.'

The doctrine of subrogation has no application to payments made by a mere volunteer, and the bank in this case was purely a volunteer. There was no lien or security in the case to be kept alive by subrogation, and therefore it is useless to further consider that question in this case. Randolph on Com. ’Paper, Sec. 1439.

The controlling facts in this case were conceded on the trial, and the jury could not lessen the force of those facts by a consideration of the custom of the bank and its manner of doing business, and therefore-those customs and manner of doing its business were-immaterial, and the court was right in directing a verdict in accordance with such conceded facts.

The plaintiff having no cause of action upon the conceded facts on the trial, the rulings of the court, upon the demurrers and motion are immaterial and need not be considered.

Judgment affirmed.


author: Williams, J.

text:
    Wilder et al. v. McDonald et al.

      Assignee for benefit of creditors — Not assignee of assignor’s lease — May adopt or reject the lease — Assignment does not terminate the lease — Rights of lessor as to rents.

    1. An assignee for the benefit of creditors, by accepting the trust,does not become the assignee of a lease belonging to his assignor, nor personally liable on the covenants of the lessee. Nor, is he bound to accept the assignment of the lease, if in his opinion it will be unprofitable to the creditors to do so; and, he is entitled to a reasonable time to elect whether to adopt or reject the lease.
    2. The assignment, however, does not terminate the lease, nor discharge the obligations of the lessee. The lessor is entitled to have his claim for rent allowed by the assignee, so that it may participate, in its proper order, in the trust fund; and it is not a valid objection to such allowance or participation, that the rent, or any part of it, is not then due.
    (Decided November 27, 1900.)
    Error to the Circuit Court of Hamilton county.
    On the 16th day of October, 1890, the plaintiffs in error, who were then the owners of a tract of about, six acres of land in Hamilton county, known as Block No. 7, demised the same, by lease duly executed and acknowledged, to William H. Neff, his administrators and assigns, for the term of five years then next ensuing. The lessee agreed to pay an annual rental of nine hundred and thirty dollars for the premises, in ■equal monthly installments of seventy-seven dollars and fifty cents on the fourteenth day of each month ■during the term, commencing with the month following the execution of the lease; and,it was also provided in the lease, that in default in the payment of any installment of the rent for thirty days after its maturity, the lessor might re-enter and terminate the lease. The lessee further covenanted to pay all taxes, charges and assessments that should be levied on the premises during the term. The lease contained a ■clause giving the lessee, his heirs and assigns, an option to purchase the premises, at any time before the expiration of the lease, for the sum of fifteen thousand five hundred dollars; and, on his election to make the purchase, the lessors covenanted to convey by general warranty deed. The lessee took possession, and paid the rent as it accrued until February, 1892, since which time no rent has been paid; nor have the taxes, assessments or charges levied on the premises during the term been paid.
    On the 10th day of May, 1892, Neff, the lessee, made an assignment, in due form of law, of all his property, real and personal, for the benefit of his creditors, to Alexander McDonald, William J. Breed, and William M. Ramsey, each of whom, except McDonald, qualified and entered upon the execution of the trust. Ramsey, however, resigned in the following June, his resignation was accepted, and Robert M. Ramsey was appointed and qualified as his successor in the trust.
    In August, 1896, the lease having then expired without an election to purchase, the lessors brought the action below, against the defendants in error, to charge them individually, as assignees of the lease, with the unpaid rent, and the taxes and assessments laid on the premises during the term of the lease, amounting, in the aggregate, to something over three thousand dollars. The petition alleges that the defendants accepted the assignment of the lease, received all of its benefits and privileges, and owned and enjoyed the same and the leasehold estate during the remainder of the term ensuing after the 10th day of May, 1892.
    These allegations of the petition were denied by answer, and the defendants plead in bar an adjudication of the court of insolvency of Hamilton county, upon an application of the plaintiffs to that court to require the defendants, as assignees of Neff, to pay the taxes and assessments which became a charge on the leased premises during the term, by which adjudication, the plea avers, it was determined that the lease was not accepted by the assignees or trustees of Neff’s estate. The plaintiffs demurred to the plea, on the ground that the parties and subject matter involved in the proceeding in the insolvency court, were different from those in this suit. The demurrer was overruled; and, without further pleadings, the cause was tried to the court, which, at the request of the plaintiffs, made a finding of the facts, wherein, in addition to those already stated, the court found, that the leasehold property in question was vacant land without improvements of any .kind, that neither of the assignees of Neff took possession of it, and that soon after the assignment was made they notified the plaintiffs, in writing, that they did not intend to take possession. The plaintiffs, however, did not re-enter, nor do any act to prevent the assignees from holding, occupying and enjoying the leasehold during the term, of the lease, or any of the privileges it conferred. On these facts the court held that the defendants did not accept the assignment of the lease, nor become liable for the rent reserved, or the taxes, or other charges for which the lessee was bound.
    The final judgment which followed was affirmed by the circuit court.
    i?. T. Crawford, for plaintiffs in error.
    Interest of W. H. Neff in the leasehold premises at the time of executing these documents as lessee under this lease was:
    First: His interest as lessee under the lease proper to occupy and enjoy the premises for the term.
    Second: The privilege or option to purchase the title of lessors in the premises.

      Gilbert v. Port, 28 Ohio St., 276.
    He had a clear power and right to convey both these, either to one, or to convey one of them to one party and the other to another. If he conveyed both to one party, and the conveyance in law was not sufficient to convey one, and was sufficient in law to convey the other, the conveyance would be. good as to the interest the document was sufficient to convey, if not good as to the other.
    This document should receive that construction which will preserve the rights of the parties under the contract in either aspect.
    First: Our first proposition is, that the leasehold estate of William H. Neff, lessee, was included in, and did pass, by the deed from him to defendants; that deed conveying all the real estate of the said William H. Neff wherever situated. That a party is in law the owner of real estate if he has the right to acquire title to it, or the real estate of a man includes any real estate he has the right to acquire the title to. Avery, Lessee, v. Dufrees, 9 Ohio, 145; Biggs v. Bickel, 12 Ohio St., 49.
    Second: Our second proposition is, that Neff, the lessee, at the time of executing this document, had two distinct legal rights under the lease, viz.:
    (1) The right to occupy under the lease.
    (2) The option, or right, to purchase.
    (3) That defendants, by notifying plaintiffs soon after these conveyances were made to them, that they had not and did not intend taking possession of the leasehold premises, did thereby impliedly assume and inform plaintiffs thereby, that they were then the owners of the said leasehold estate, and owned all the privileges, and were bound by all the express covenants of the lessee in said lease; that on this assumption of defendants, plaintiffs are entitled to the same judgment against defendants if they were not the owners of the leasehold as if they were; that defendants áre estopped to deny this assumption of theirs of the ownership of the leasehold estate, and that they communicated to plaintiffs, and plaintiffs acted on their assumption so communicated to them by defendants. Beardsley v. Foot, 14 Ohio St., 414.
    All parties assumed, and had the right to assume, that defendants were the owners of the leasehold estate.
    Fifth: On the demurrer to the second defense in the answer, we say:
    (1) The insolvency court of Hamilton county was not a court of competent jurisdiction.
    (2) It was a judgment and finding in an ex parte proceeding, and was within the class of proceedings of the case of Feuchter v. Keyl, 48 Ohio St., 357.

      (3) The proceeding was not against defendants; it is said to be one to “require the assignee and trustee of said estate to pay taxes and assessments required to be paid by the lessee under the lease.”
    (4) If that had been an action in a competent court by plaintiffs against defendants in the representative capacity for this claim, and resulted in a judgment for defendants, it would be no bar to an action by plaintiffs in this action against defendants personally. Becker v. Walworth, 45 Ohio St., 169: Conger v. Atwood, 28 Ohio St., 134.
    The fact that assignees, or assignee and trustee, never accepted this lease, is not a common fact to that proceeding and this'action. Hixson v. Ogg, 53 Ohio St., 361.
    Nor are any pleadings or any averments that there were any issues in that proceeding, or that there were any adverse parties to it. Koelsch v. Mixer, 52 Ohio St., 207.
    On the facts we contend: That the leasehold estate of Neff, lessee, in the premises was included in, and did pass by the deed from lessee to defendants.
    As above stated, Neff, the lessee, at the time of making this deed, had a clear right to obtain title in fee to the leasehold premises; and a party is said to have a real estate in any lands he has the right to acquire title to; it is not essential that he have title in him if he has the right to acquire it. Lessee of Avery v. Dufrees, 9 Ohio, 145; Biggs v. Bickel, 12 Ohio St., 49.
    On these authorities the leasehold premises was the real estate of Neff, the grantor, at the time this deed was made, for he had a clear right to acquire the title in fee, and it was a right he could enforce in a competent court.

      This general description in a deed was sufficient of “all the real estate of grantor wherever .situated” to and did include this leasehold estate. Allen v. Parrish, 3 Ohio, 107; McChesney v. Wainwright, 5 Ohio, 452; Lessee of Barton v. Morris, 15 Ohio, 408.
    All the legal and equitable title of Neff in the leasehold premises did pass by this deed, even if the title was defective. Paine v. Mason, 7 Ohio St., 198.
    No value was attached to the right to occupy or enjoy the premises, under the lease is clear, when lessee and his assignees declined to occupy when they had the clear right to do so.
    On the facts and issues presented by this record it is not easy to distinguish this case on principle from the case of Woodland Oil Co. v. Crawford, 55 Ohio St., 161.
    Defendants are estopped to deny they were the owners of this leasehold and liable for all the covenants of lessee therein, whether this leasehold was conveyed to them or not. Defendants represented it had been conveyed to them, to plaintiffs, and plaintiffs acted on these representations of defendants. Beardsley v. Foot, 14 Ohio St., 414.
    It was of no consequence to plaintiffs whether defendants had, or had not, taken possession, or intended to take possession, of the leasehold premises; and the notice of defendants had the effect and did induce plaintiffs to do just what defendants intended the notice would induce plaintiffs to do, i. e., waive their right to enter and avoid the lease during its continuance.
    On the authority of the eases of Conger v. Atwood, 28 Ohio St., 134, and Becker v. Walworth, 45 Ohio St., 169, we say that the fact that the assignment from lessee to defendants was one in trust for the benefit of creditors in no way changes the personal liability of defendants here.

      Maxioell & Ramsey and Wm. W. Ramsey, for defendants in error.
    The main question is, has an assignee for the benefit of creditors under the Ohio insolvency laws the right to elect whether or not he will accept and be bound by the terms of a lease from the assignor? It is submitted, both on authority and principle, that he clearly has this right. The question has never been determined by this court. The exact question, however, was determined by the superior court of Cincinnati, sitting in general term, in 1888, and has since, that time been considered by the bar of this state as settled law. Cincinnati v. Goodhue, 20 Bull., 370, 10 Dec. (Re.) 345; Copeland v. Stevens, 1 Barn. & Ad., 593.
    The same principle is also applied in the matter of receiverships. It is well settled that a receiver, even although he takes possession of leased property, has a reasonable time to elect whether or not he will accept it. Beach on Receiverships, Sec. 379; also Trust Co. v. Wabash Ry., 150 U. S., 287.
    If the rule were otherwise, in addition to the hardship on the creditors, it would be a great hardship on the assignees, for if they do accept leases, they are personally liable for the rent. If, therefore, plaintiff’s contention is correct, any person accepting an assignment might be financially ruined by such personal liability, by reason of there being leases included in the assignment reserving large rentals, but of no value, and the assets of the estate not being sufficient to pay such rents. Carter v. Hammatt, 12 Barb., 253; Burrill on Assignments, p. 475.

      We are unable to find a single authority in this country where'there is a decision to the contrary, and certainly no authority bearing even remotely on this question is cited by plaintiff’s counsel. In the case of Woodland Oil Co. v. Crawford, 55 Ohio St., 161, the assignment was not made for the benefit of creditors, and it was made expressly subject to the terms of the lease.
    It is well settled that a lease may be surrendered by parol. The assignees notified the lessors that they would not accept the lease or take possession, and the filing thereafter of claim for rent with the assignees was equivalent, even if the lease did pass to the assignees, to a surrender and acceptance thereof.
    The question as to whether or not the lease in question was accepted by the assignees is res adjudicata. The answer sets out that the plaintiffs filed a petition in the insolvency court of Hamilton county to require the assignee and trustee to pay the taxes and assessments required to be paid under this lease, and that upon full hearing of the cause the court determined that the lease was never accepted by the assignees or assignee and trustee. The court below overruled the demurrer to this defense, holding that the question had been determined in the insolvency court. Plaintiffs’ counsel now claims that the insolvency court was not one of competent jurisdiction. The demurrer admits the truth of these allegations. The learned counsel does not explain why he filed the. petition in question in the insolvency court, if that court had no jurisdiction. We submit, however, that the court did have jurisdiction.
    Whether or not the assignees accepted the lease was the question in issue in the insolvency court. If they had not accepted it, it was the duty of the assignees to test the claim, and if the court had held that they did accept it, they certainly could not have been heard thereafter to dispute that particular question of fact, although the suit might be against them individually. Corcoran v. Canal Co., 94 U. S., 741.
   Williams, J.

It is a general rule that one who accepts the transfer of a leasehold estate takes it subject to the terms and conditions of the lease, and becomes bound for the performance of all the covenants-of the lessee; and he is therefore liable directly to the lessor for the rent. The question here is, how far, if' at all, that rule is applicable where, as in this case, the lessee holding an unexpired term, makes an assignment, under our statute, of all his property for the benefit of his creditors. It would probably not be controverted that, whatever beneficial interest Neff held by virtue of his lease was a property right which was included in, and passed under, the' general assignment, and which the assignees, if' deemed of sufficient value by them, might have brought to sale. The proceeds of the sale would belong to the trust fund to be administered. In the event of such sale the purchaser would become the assignee of the lease, and bound on the lessee’s covenants. But, if the leasehold estate be of no value, or of less value than the burden it imposes on the lessee, so that its acceptance by the assignee in insolvency instead of being for the benefit of the creditors, would materially jeopardize their claims, is the assignee bound to accept the transfer of the leasehold interest subject to the burdens of the lease, or, is he at liberty, without incurring individual liability, to reject it in the interest of the creditors? That is the practical question in the case. Some English cases. are found which hold that an assignment for the benefit of creditors which includes a term of years, must be given the same effect, with respect to the liability of the assignee, as other assignments of a lease; and, consequently, an assignee in insolvency who accepts the trust has no discretion to reject the term with its burdens; the only way to escape personal liability on the lessees’ covenants being to decline the appointment. The assignments in these cases appear to have been made under the common law, and their effect and mode of administration, in many respects, were essentially different from that of assignments by insolvent debtors under our statute. By the former, the powers and duties of the trustee were defined, and the manner of distribution regulated, by the instrument of assignment, which became an agreement with the creditors who chose to come into the assignment. Those creditors alone became entitled to participate in the fund, and then only in the mode, and to the extent, prescribed in the instrument, which, in its construction and operation was governed by the rules applicable to contracts. An assignment under the statute is something different. The assignee is required to file the instrument of assignment in the proper court of insolvency, and qualify by taking a prescribed oath and giving sufficient bond to insure the faithful execution of his trust. That gives the court jurisdiction over him, and the assigned property, and parties interested. Whatever terms and conditions may be contained in the deed of assignment to the contrary, the statute determines its effect and operation to be for the equal benefit of all the assignor’s creditors in the order provided in the statute, and defines the powers, duties, and course of proceeding, of the assignee, for the accomplishment of a final distribution of the assigned property in accordance with specific requirements of the statute; and, from the beginning to the conclusion of the administration the assignee is under the control, and subject to the orders, of the court. The assignee acquires no personal interest in the property assigned, and is little more than a mere instrumentality, like a ministerial officer, in the hands of the court, for the purpose of effectuating a proper and speedy execution of the trust. So long, therefore, as his proceedings, conform to the commands of the statute and of the court having power to regulate his conduct and settle his accounts, there appears to be no sound principle upon which he could be made personally chargeable with any obligation of his assignor. It would seem to be enough to charge him with such liability Avhen he is guilty of a violation of his duties, and not for their faithful performance,

In his relation to the assignor, the estate assigned, the creditors for whose benefit the assignment is made, and to the court, as well as in the method of procedure for the administration of the trust, his position is much like that of assignees in bankruptcy, with respect to whom it has long been the settled rule, that they were not bound in accepting the trust, to accept a term of years that belonged to the bankrupt, subject to the rent and covenants; and without such acceptance they did not become personally responsible to the lessor. The reason of this rule, as stated by Lord Ellenborough, in Gopeland v. Stephens, 1 Barn. & Ald., 593, is that “the object of the statute and of the.assignment being the payment of the bankrupt’s debts, and the assignees under the commission being trustees for that purpose,.the acceptance of the term, which, instead of furnishing means of such payment, would diminish the fund arising from other sources, cannot be within the .scope of their trust or duty.” This reason applies with equal force in a case of assignment under our statute. And we accordingly find that, in this country, this rule adopted in bankruptcy cases is applied to voluntary assignments of insolvent debtors. In Burrill on Assignments, page 475, that author says: “Where a debtor, being a lessee of premises, makes a general assignment of all his property for the benefit of his creditors, and the assignee simply accepts the assignment, he will not be bound as assignee of the lease for the payment of rent to the landlord of the premises, but if he elects to accept the interest of the assignor and to enter under it, he becomes so bound.” In Trust Co. v. Wabash Ry. Co., 150 U. S., 299, the court say: “The general rule applicable to this class of cases is undisputed, that an assignee or receiver is not bound to adopt the contracts, accept the leases, or otherwise step into the shoes of the assignor, if in his opinion it would be unprofitable or undesirable to do so; and he is entitled to a reasonable time to elect whether to adopt or repudiate such contract.”

In Smith v. Goodman, 149 Ill., 75, that court said: “It might very well be that a term, of years in land might be so burthened with the performance of conditions that it would be wholly valueless for any purpose of the trust. For that reason it has uniformly been held that the assignee may accept the assignment and enter upon the execution of the trust without becoming the assignee of the lease held by the insolvents, unless he elects to do so.” In volume 3, Second Edition of the Am. & Eng. Ency. of Law, pages 125-6, it is laid down as the settled rule, that: “An assignee for the benefit of creditors, who accepts the trust, is not bound to accept a leasehold estate included in the assignment, and, if he does not elect to do so, is not liable as assignee of the lease;” and, he “does not become personally liable for the rent of premises leased to the assignor, by continuing in possession for the-sole purpose of executing his trust, if such continuance was consistent with ordinary prudence.” A number of American cases are there cited which sustain the text; and we find none to the contrary. We-are relieved of any necessity of determining in this, case what possession or acts of the trustee would amount to an acceptance of the lease, for the trial court found, not only that there was no acceptance-by the defendants in error, but that they expressly rejected it, by notice in writing, soon after the assignment was made, and took no possession of the leased premises. We also find it unnecessary to pass upon the plea of res adjudicata.

If the action had been against the assignees of Neff to compel them, in their trust capacity, to allow the plaintiffs’ demand for the rent accruing under the-lease, and for the unpaid taxes and assessments, as a valid claim entitled to participate, in its proper order, in the distribution of the fund arising from the assigned property, the facts of this case, would have required a judgment different from that rendered by the-courts below. For the assignment did not terminate the lease, nor discharge the obligation of the lessee to pay the rents, taxes, and charges according to its covenants. On the contrary, these obligations continued to be a liability of the lessee which might be made the basis of a valid claim by the lessors, as. general creditors, entitling them to share, in the-proper order, in the distribution of the fund that came-to the hands of the assignees in virtue of the assignment. And it could be no valid objection to tbe allowance of such claim, or its participation in the trust fund, that the rent, or any part of it, had not become due at the time of the assignment, or its distribution, unless the lessors had re-entered, or otherwise put an end to the lease. In that respect the claim must stand on the same footing as other unmatured debts of the assignor. Smith v. Goodman, 149 Ill., 75.

The purpose of the action below, however, was to .'hold the persons to whom the assignment was made, individually liable on Neff’s covenants in the lease, •on the ground that, by accepting the assignment for the benefit of his creditors they became assignees of the lease, and so bound for his obligation to pay the rent reserved, taxes, and the other charges. And the lower courts properly held, we think, that the defendants were not so liable.

Judgment affirmed.


author: Minshall, J.

text:
    The State v. Messenger.

      Regulation of burdens on improved roads — Section 4904, Rev. Stat. — Rule as to width of tire — Power of county commissioners to prescribe increased weight in vehicle — Validity of act — Indefiniteness in averments of indictment may be ground of motion to quash and not of demurrer — Pleading —Constitutional law.

    1. Indefiniteness in the averments of an indictment should he taken advantage of by a motion to quash and not by demurrer.
    2. Where it is averred in an indictment, framed upon section 4904, Revised Statutes, prohibiting the carrying of a certain weight over certain improved roads in a vehicle having a. tire of three inches in width, that the accused carried a greater weight than that permitted “in a vehicle having a tire of three inches and no more,” the averment is certain to a common intent, and a demurrer to the indictment on this ground should be overruled.
    3. Section 4904, Revised Statutes, giving to county commissioners the power to prescribe the increased weight over 2,000 pounds that may be carried in vehicles having a width of tire three inches or upwards, over certain improved roads, in their counties, is not unconstitutional.
    (Decided November 27, 1900.)
    Exceptions of the Prosecuting Attorney to the rulings of the Court of Common Pleas of Wyandot county.

      Carey & Parker and Benjamin Meek, for plaintiff.

      Elm Carter, for defendant.
   Minshall, J.

Messenger was indicted at the April term, 1900, of the common pleas of Wyandot county on the charge that on the 10th day of February, 1900,. at the county aforesaid, he “did unlawfully and knowingly, transport over the free and gravel and macadamized roads of said county of Wyandot in a vehicle having a tire of three inches and no more, a burden of 7170 pounds, contrary to the statutes of the state of Ohio and the regulation of the county commissioners of Wyandot county, prescribed and made in pursuance and authority of such statutes, which regulation is as follows: “It shall be unlawful to transport over the gravel and macadamized roads in Wyandot county, Ohio, in any vehicle having a tire of three inches in width, a burden of more than three thousand and five hundred pounds; and on any vehicle having a tire of four inches in width, a burden of more than seven thousand pounds, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Ohio.”

To this indictment the defendant demurred on the ground that the facts therein stated do not constitute an offense against the laws of the state. The demurrer was sustained and the prosecuting attorney excepted. The object of this proceeding is to test the accuracy of the ruling.

The indictment was framed upon the provisions of section 4904, Revised Statutes, which, so far as applicable to the question raised, reads as follows:

“It shall be unlawful for any person or persons, firm or corporation, in any county having free or toll macadamized, graveled or stone roads, to transport over such roads, in any vehicle having a tire of less than three inches in Avidth, a burden of more than two thousand pounds. The county commissioners of every county shall constitute a board of directors for their respective counties, with poAver to prescribe the increased weight in quantity greater than two thousand pounds that may be carried in vehicles having a width of tire three inches or upwards, and cause such regulations to be recorded in their journal. All persons violating this act or any regulations duly prescribed by the aforesaid board of county commissioners made in pursuance hereof, shall be guilty of a misdemeanor.”

The principal objection raised is, that this section confers legislative power upon the commissioners, and is therefore unconstitutional. But, before considering this, we will notice an objection that relates to the definiteness of the indictment. The objection is to the averment that the inhibited burden was transported “in a vehicle having a tire of three inches and no more,” and the claim is that, for aught that appears, this may mean three inches in thickness or three inches in circumference. This is an objection that, if available at all, should have been taken on a motion to quash, and not by demurrer, if by any fair intendment, it can be construed to refer to the width of the tire. A motion to quash is, under our code of criminal procedure, the appropriate method of raising an objection to the indefiniteness of the averments of an indictment, and is waived by demurring to it. Section 7253, Revised Statutes. Where a motion to quash is sustained the party may be held to plead to a new indictment in which the error in the former one has been corrected. But on the sustaining of a demurrer, the defendant is entitled to his discharge; for a court cannot assume that he is guilty of an offense not charged. Now it will be observed that the statute relates to the width of tires and the burthen that may be carried thereon, and in no way concerns their thickness or circumference, and the indictment concludes with the usual averment, contrary to the statutes in such cases made and provided, which could not be true if the averment, to which objection is taken for its uncertainty, did not relate to the width of the tire. By common acceptance a three inch tire is understood to mean a tire three inches in width. It was then certain to a common intent, and therefore sufficient on demurrer.

We are clearly of the opinion that the statute is not unconstitutional; in other words, it does not confer legislative power on the commissioners. By reference to the statute it will be observed that the burden that may be transported in any county over its improved roads, in a vehicle having a tire of less than three inches, is limited to 2000 pounds; and power is then conferred on the commissioners to prescribe the increased weight that may be carried in vehicles “hav-, ing a width of tire three inches or upward.” It will thus be observed that the commissioners do not prohibit any one from transporting a greater weight than is fixed by them in any case, nor do they fix a penalty for so doing. This is done by the statute. It is the statute that prohibits the transporting of a greater weight than is fixed by them, and it is the statute that imposes the penalty on any one for so doing. The commissioners in the exercise of an administrative function conferred on them by the legislature, simply determine the increased weight that may be transported in vehicles having a tire of three inches or upwards. When this has been done by them, the law prohibits the carrying of burdens in excess of the weight so fixed, and adds a penalty for its violation. The regulations of the commissioners without the provisions of the law would be of no effect whatever. Nothing, inlaw, would be prohibited, and no penalty would be incurred by anyone in disregarding the regulations of- thn commissioners. It seems then clear that the commissioners of the county, in acting under this statute, do not act in a legislative capacity. The penalty that is imposed for the violation of a law is a part of its very essence. Take away the penalty, or the sanction of the law, and it is no law. All analytical writers are agreed on this. The commissioners only determine the facts on which the law is to operate; and as said by Agnew, J., in Locke’s Appeal, 72 Penn. St., 491: “The legislature cannot delegate its power to make a law; but it can make a law to delegate power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.” Gordon v. State, 46 Ohio St., 607; Railroad Co. v. Commissioners, 1 Id., 77.

There is certainly much propriety in this statute. The burdens that may prudently be transported on vehicles of a certain width of tire must be largely relative to the character of the country, its business and the kind of material employed in roadmaking. Such contingencies cannot be adequately provided for in detail by a statute applicable alike to all parts of the state, and are therefore wisely left to be determined by the commissioners of the several counties. Under the statute the power conferred is administrative rather than legislative. In Elliott on Streets and Roads, where the subject has been treated with much learning and ability, it is said by the author, “It is quite well settled that purely and strictly legislative powers cannot be delegated. It is not, however, always easy to determine Avhat powers are strictly and purely legislative in such a sense as to be incapable of delegation. The authorities are well agreed, however, that jurisdiction and power oyer public ways may be conferred upon local governmental agencies.” Elliott on Streets and Roads, sec. 424. And in the following section it is said, that “The legislature may-grant to local governmental agencies very broad and comprehensive authority. It has, indeed, been said that they may be endowed with ‘legislative sovereignty.’ But, as we believe, it is not quite accurate to say that public corporations may be invested with sovereign power, although it is unquestionably true that they may be invested Avith powers in their nature legislative and sovereign. The authorities are in substantial harmony upon the proposition that the legislature may invest local bodies with exclusive jurisdiction over the public ways of the locality, but it can hardly be said that such bodies can be invested with sovereign powers.”

Counsel have commented on the supposed inconvenience that may result from a diversity of regulations on the subject in the different counties of the state. There may be some inconvenience to individuals in conforming to such regulations. But this must be so where any matter is regulated. The question, however, in such cases, is not whether no inconvenience will result to anyone, but whether the inconvenience is greater than any good that may result from a regulation. This is a matter for the legislature, and we must assume, was rightly determined by it.

Exceptions sustained.