author: Johnson, J.

text:
    Hickman v. The Ohio State Life Insurance Company.

      Accident insurance — Defense of exposure to obvious risk or danger — Jury to determine facts pleaded — Prejudicial - error in charge to jury — Error for court of appeals to render final judgment.

    1. In an action on a policy of accident insurance which contains a proviso exempting the insurer from liability for injury resulting from exposure to obvious risk of injury or obvious danger, the fact that the injury resulted to the insured while and because of exposing himself to a risk or danger which was obvious to him at the time is a sufficient defense to the action.
    2. When, in such an action, an issue of fact is made by the pleadings, as to whether the injury to the insured resulted while he was exposing himself to a risk or danger which was obvious to him at the time, and there is no substantial conflict in the testimony of the witnesses on the trial, but the unconflicting testimony discloses a variety of circumstances from which different minds might reasonably arrive at different conclusions as to that issue, it is the duty of the court to submit the determination of it to thei jury.
    3. Under such circumstances, when the court of appeals finds prejudicial error in the charge of the trial court to the jury, the judgment of the trial court should be reversed and the cause remanded for further proceedings according to law, and it is error for the court of appeals to enter final judgment.
    (No. 14675
    Decided May 4, 1915.)
    Error to the Court of Appeals of Cuyahoga county.
    The facts are stated in the opinion.
    • Messrs. Howell, Roberts & Duncan, for plaintiff in error.

      Messrs. Metsger & Johnson and Messrs. Brandt & Brandt, for defendant in error.
   Johnson, J.

Samuel C. Hickman held a policy of accident insurance in the defendant insurance company in the sum of $600. His wife, the plaintiff in error, was the beneficiary named in the policy. Hickman was killed at a place known as Luna Park Motordrome in Cleveland. The motordrome was a racing track where motorcycle races were given for public entertainment. The track was constructed somewhat upon the shape of a saucer. The company conceded that Hickman’s death was due to external, violent and accidental means, within the terms of the policy, and conceded its liability on the policjr, but sought to limit the recovery to $120, being one-fifth of the face of the policy, by reason of the following provision which it contained: “In event of injury, fatal or otherwise, * * * due wholly or in part, directly or indirectly, to disease or bodily infirmity * * * or from exposure to obvious risk of injury or obvious danger * * * the limit of the company’s liability shall be one-fifth of the amount which would otherwise be payable under this policy.”

In its answer in the municipal court, in which the case originated, the defendant alleged that Hickman “sustained such injuries by suffering himself to exposure to obvious risk of injury or obvious danger,” and that, therefore, defendant’s liability should be but one-fifth of the amount which would otherwise be payable under the contract of insurance.

The reply of Mrs. Hickman denied that her husband exposed himself to obvious risk of injury or to obvious danger.

The cause was tried to a jury in the trial court, in which there was a verdict and judgment for the full amount of the policy with interest. This judgment was affirmed by the court of common pleas. The court of appeals reversed the judgments below, and proceeding to render the judgment which it held the municipal court should have rendered, entered final judgment for the sum of $120, with interest, in favor of Mrs. Hickman, who prosecutes this proceeding to reverse the judgment of the court of appeals and affirm that of the common pleas.

The evidence showed that Hickman and his wife, whom he'had recently married, went to the park to witness the races on the evening of the tragedy. Inside of the track, which was about a quarter of a mile in circumference, there is what is known as the “pit,” to which automobiles and other vehicles were admitted and were backed up to a rope enclosing the track. Outside of the roped enclosure was a space of level ground about fifteen feet in width, ending at its outer edge in a groove or curve, from which the track rose in the shape of a saucer to a height of twelve or fifteen feet, and above this track were seats for spectators. Hickman and his wife went into these seats, where they were seen by one Sweitzer, the driver of an ambulance which was in the “pit.” Sweitzer called to them to come down and sit in the ambulance, which they did. Sweitzer. explained to Mr. Hickman that he was alone that evening and wanted Hickman to give him a lift in case of accident. While these men were seated in the rear of the ambulance, facing the track, the race was called, and some four or five riders started their machines around the track. As these riders were circling the course at high speed, one of them, Grimes, as he was passing the part of the track almost in front of Sweitzer and Hickman, fell from his machine. The man and the machine came rolling down the incline into the level part of the track. There was a starter, who, by means of certain lights which had been provided near the starting stand to be used as signals, had signaled that riders should come off the track because one of them had failed to get his machine ready. The lights were some distance from where Hickman was located, and the plaintiff in error claims that the evidence shows that they were not seen by him or his associate. She also claims that neither Hickman nor Sweitzer knew that .the riders had been called off the track, but supposed that the race was going forward. When the mishap occurred to Grimes and his machine there was great excitement. The people in the audience rose to their feet. Sweitzer called to Hickman, and together they rushed to the aid of the fallen man. They reached him about the time that he arrived at the bottom of the track. Sweitzer says they reached him before he was able to get up. The rider, Grimes, thinks that he was on his feet before they reached him, but they got to him almost instantly. As Sweitzer and Hickman reached the place where Grimes and his machine lay, and were attempting to get him and his machine away from the track, another rider, who, in obedience to the signal to come off the track, had come down the groove and was going at a rapid rate of speed, struck Hickman and instantly killed him. There was no substantial dispute between the witnesses as to this state of facts.

The trial court charged the jury that if the deceased went on the track in order to save life the law would not impute carelessness to him, or to any one who attempts to save life, unless the attempt was made under such circumstances as to constitute rashness in the estimation of prudent persons, and that the question for the jury to determine was, Was it rash?

The court further charged that if, under the circumstances, a prudent man would obey the impulse to save life, the exposure is not voluntary.

It is conceded by counsel that a proviso in a policy, which exempts the insurer from liability for injury resulting from “voluntary exposure to unnecessary danger,” does not apply where one under the impulse of the moment rushes to a place of danger in an effort to save life, unless the act is so rash that a prudent man would not take the risk.

In U. S. Mutual Accident Assn. v. Hubbell, 56 Ohio St., 516, it was held that the term “voluntary exposure to unnecessary danger” in an accident policy does not embrace every exposure of the assured that might have been avoided by the exercise of due care on his part. ' It relates to dangers of a substantial character of which the assured at the time had knowledge,. and to which he purposely and consciously exposed himself, intending at the time to assume all risk.

The phrase quoted in that case is omitted from the policy involved in this case, and the clause “exposure to obvious risk of injury or obvious danger” is substituted. There is here no qualification of the word “exposure” by the use of the word “voluntary,” and instead of “unnecessary danger” “obvious danger” is provided as an exception. The omission of the word “voluntary” in the new policy is not conclusive, however, because an exposure to obvious risk necessarily implies that the risk must be obvious to the person exposing himself, to-wit, the insured, at the time he exposes himself. On the other hand it would seem to be clear that by the substitution of the word “obvious” for the word “unnecessary,” a different meaning was intended to be given to the exception included in the policy. “Unnecessary” has been defined “not required by the circumstances of the case.” “Obvious” has been defined “easily discovered, seen or understood, plain, manifest, evident, palpable.” It was doubtless recognized that danger encountered in the effort to save life might reasonably be, and had by the courts been decided to be, involuntary and necessary, and, therefore, covered by the policy. This view is confirmed by the fact that in the new form it is provided that where the danger was obvious and injury occurred, the liability was not avoided entirely, but was cut down to one-fifth of the face of the policy.

We think it apparent that this form was adopted to meet the situation with which the companies were confronted by the construction which the courts had put upon policies as formerly worded. Therefore, the court of appeals correctly held that the trial court erred in charging the jury as above stated.

Having practically concluded that if the decedent had exposed himself to a risk which was obvious, the liability of the company was limited to one-fifth of the face of the policy, the court of appeals reversed the judgments of the courts below and entered judgment in favor of Mrs. Hickman for that amount. In entering final judgment we think there was error. That course was taken because the court concluded that there was no dispute as to the facts.

There was a direct issue in the pleadings as to whether the deceased met his death by reason of exposure to obvious risk of injury or obvious danger. It is true that there was no material difference or conflict in the statements of the different witnesses as to the occurrence. Each of the witnesses related the circumstances as he saw them, and each stated some detail not referred to by any of the other witnesses.

If the things which Hickman did under the circumstances constitute as an ultimate fact the exposure of himself to obvious danger, then the exception stated in the policy applied. But there was a dispute between the parties as to-the conclusion of fact to be drawn from the different circumstances related by the witnesses. Defendant in error claims that these circumstances show the obvious danger referred to. Plaintiff in error claims that there was in the situation no element or fact known to Hickman, or which he should have known, that would have caused him to anticipate that any of the other machines were likely to come along on the level part of the track, upon which he was when attempting to rescue the fallen man, and further, that as Hickman must have seen the situation the riders were upon the inclined portion of the track and would in all probability have continued there until the race was ended.

Sweitzer testified that he did. not know when he started on the track that a signal had been given to the riders to come down off the track, and Mrs. Hickman testified, in answer to the question whether there were any men riding on the flat part at the time, that they were all up on the top of the track. Grimes testified that the flat part was ten or twelve feet wide, and that while the racing was going on it was not very dangerous “for people to be on the-flat part.”

In order that an issue should be required to be submitted to the jury it is not essential that there be such a conflict in the testimony of different witnesses as makes it necessary for the jury to determine disputes or questions of veracity. That is not the only province of the jury. They have another important function and duty. Where there is no dispute or conflict in the testimony of different witnesses, but nevertheless the unconflicting testimony discloses a variety of circumstances from which different minds may reasonably arrive at different conclusions as to the ultimate fact shown by such evidence, then it is the duty of the jury to determine such ultimate fact, even though the trial judge should himself be convinced as to what the conclusion should be. Of course, when the ultimate fact is undisputed there is presented simply a question of law. These principles are well fixed. Ellis & Morton v. The Ohio Life Ins. & Trust Co., 4 Ohio St., 628; Cincinnati Street Ry. Co. v. Snell, 54 Ohio St., 197; Darling v. Younker, 37 Ohio St., 487, 494.

In this case the question whether Hickman exposed himself to obvious risk or obvious danger was one of fact, to be determined by the jury in the light of all the circumstances shown by the testimony.

The judgment of the court of appeals in so far as it reversed the judgments of the courts below will be affirmed, and in so far as it finally determined the case will be reversed and the cause remanded for further proceedings according to law. '

Judgment reversed.

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


source: Caselaw Access Project

author: Wanamaker, J.

license: Public Domain

text:
    Erie Railroad Co. v. The S. H. Kleinman Realty Co.

      Basements — Way of necessity — Title passes, when — Use not limited, when — Private rights of way — Not included within Section 8895, General Code — Grade crossings.

    1. An easement by way of necessity passes from the original grantee to his successors in title, whether few or many.
    2. Such easement is not limited in its use to the original use of the lands, but expands and fluctuates to meet the growth, development and changed condition of such lands.
    * 3. Private rights of way by necessity, or otherwise, are not included within the terms of Section 8895, General Code, under the language “All crossings, hereafter constructed, whether of highways by railroads, or of railroads by highways, shall be above or below grade thereof.”'
    (No. 14628
    Decided May 4, 1915.)
    Error to the Court of Appeals of Cuyahoga county.
    In February, 1859, The Cleveland & Mahoning Railroad Company granted the lands involved in this case to one Stetson, excepting therefrom, however, its right of way, being a 100-foot strip of land. This 100-foot strip of the railroad company divided the lands conveyed so that about one-fifth of the tract lay north of the railroad and adjacent to a public highway and the remainder lay south of the railroad and without access to the highway or the other lands except over this 100-foot strip of the railroad company. In the deed from the railroad company to Stetson there was a covenant that:
    “Said grantee [the said Stetson], his heirs and assigns, being bound to erect and forever maintain a good and substantial fence on both sides of said. Cleveland and Mahoning railroad across the above described premises.”
    From the time of the grant from The Cleveland & Mahoning Railroad Company to Stetson up to July 31, 1911 (at which time it was purchased by defendant in error), the land was used for farming or pasturing purposes and there had always been a 15-foot crossing maintained over the railroad right of way from one tract to the other.
    •The plaintiff in error has succeeded to the rights of The Cleveland & Mahoning Railroad Company and defendant in error has succeeded to the rights of said Stetson.
    In 1912 defendant in error platted the lands involved herein with a view of selling the lots for residence purposes, and attempted to make a private crossing 40 feet in width at a new place. Thereupon plaintiff in error erected fences on both sides of its right of way, closing both the proposed new crossing and the old crossing so that the lands south of the railroad were absolutely inaccessible to the lands and highway north of the railroad.

      The above facts are shown in the agreed statement of facts.
    Defendant in error then brought its action in the court of common pleas praying for a permanent injunction restraining the railroad company from interfering with plaintiff “in the construction, maintenance and use of said private crossing over the right of way of said railroad and that upon final hearing said injunction may be made perpetual and for such other relief as is just and equitable.”
    The court of common pleas and the court of appeals, to which an appeal was taken, refused the injunction as to the new crossing, but permanently enjoined plaintiff in error from in any way interfering with defendant in error’s using and maintaining for all purposes the original private crossing.
    The ground upon which the courts below sustained the realty company’s claim to a private crossing was:
    1. That the original grantee, Stetson, had a way of necessity over said 15-foot strip, and
    2. That the realty company was the successor in title of said Stetson and his grantees.
    ■ The Erie Railroad Company complains, first, that there was no such way of necessity; second, that if there had been it was limited to the original use made by Stetson, to-wit, for agricultural purposes, and, third, that such way of necessity was subject to be defeated by the statute providing for the abolition of grade crossings.

      To reverse -the judgments below error is here prosecuted.

      Messrs. Cushing, Siddall & Lamb, for plaintiff in error.

      Mr. E. P. Strong; Mr. Carl Shuler and Messrs. . Tolies, Hogsett, Ginn & Morley, for defendant in error.
   Wanamaker, J.

As to the first question— Was there a way of necessity? — the evidence, as disclosed by the record, is unmistakably in favor of this holding, but were there doubt about it we would feel bound by the finding made by the court of appeals, for this is, at most, a mixed question of fact and law.

Upon the second question, as to whether or not the original way of necessity used by Stetson in 1859, for agricultural purposes, we hold that the use of the easement may enlarge to meet the use of the lands. Otherwise the easement, instead of being an advantage and benefit to the lands, would become a bond and a burden upon the lands.

The policy of the law as to easements should be one that encourages the growth and development of lands. If Stetson enjoyed this easement for the benefit of his entire farm south of the track, the same easement would be available if Stetson should divide up the farm into five-acre parcels for gardening and truck farming and sell each parcel to a different person, and if the development of these lands brought them within or near to a municipal corporation and resulted in their being platted and divided into building lots, Stetson’s easement by way of necessity would pass to each separate lot owner.

The third and last question of the case is: “Is such easement after all subject to the statutory policy of this state as to the abolishment of grade crossings ?”

As already indicated, Stetson’s right to this easement attached in 1859, a half century before the statutes were enacted providing for the abolition of grade crossings, and certainly no one would claim that the statutes are retroactive. But more than that, counsel seem to have confused the rights of Stetson and his successors in title to a private crossing with the public crossing regulated by statute. Section 8895, General Code, uses this language: “All crossings, hereafter constructed, whether of highways by railroads, or of railroads by highways, shall be above or below the grade thereof.” It is quite manifest that this applies only to public highways and cannot, by any possible construction, be made to include private ways, especially private ways of necessity.

We do not regard the questions with reference to cuts and fences as important to this case, and the judgment of the court of appeals is affirmed.

Judgment affirmed.

Nici-iols, C. J., Johnson, Jones and Matthias, JJ-, concur.


author: Donahue, J.

text:
    Thompson v. Redington et al. Dittmer v. Prentiss.

      Courts of appeals — Jurisdiction—Election contests — Power of general assembly to provide therefor — Section 21, Article II, Constitution.

    1. The constitution of Ohio vests the judicial power of this state in the courts and specifically defines and limits both the original and the appellate jurisdiction of the courts of appeals. The general assembly of the state cannot enlarge or restrict this jurisdiction in matters judicial, but may provide by law for the exercise of that jurisdiction.
    2. In the absence of express constitutional provision therefor, the general assembly of Ohio cannot assign to the judicial branch of the government any duties other than those that are properly judicial, to be performed in a judicial manner.
    3. Under the provisions of Section 21 of Article II of the Constitution, the general assembly has the power to determine before what authority and in what manner a trial’ of contested elections shall be conducted. In the exercise of this power it may in its discretion confer jurisdiction upon any of the courts of this state to hear and determine election contests.
    (Nos. 14798 and 14813
    Decided May 4, 1915.)
    Error to the Court of Appeals of Lorain county.
    Error to the Court of Appeals of Henry county.
    In case No. 14798, the plaintiff in error, W. B. Thompson, and the defendants in error, Horace G. Redington and Fred F. Thomas, were candidates for judge of the court of common pleas of Lorain county, at the election held November 3, 1914, and the canvassing board of that county, on the 6th day of November, 1914, found that W. B. Thompson received 4985 votes, Fred F. Thomas 2460 votes and' Horace G. Redington 4982 votes, and declared W. B. Thompson elected to that office.
    On the 10th day of November, 1914, Horace G. Redington filed in the court of appeals of Lorain county a petition to contest the election of W. B. Thompson, under provisions of Section 5137, General Code, to which petition W. B. Thompson filed a general demurrer, which demurrer was overruled by the court.
    The defendant, W. B. Thompson, then filed an answer, admitting that he was a candidate at the general election held in Lorain county on November 3, 1914, for judge of the common pleas court; that Horace G. Redington and F. F. Thomas were also candidates for the same office, and that there was but one judge of the common pleas court to be elected; that the canvassing board of that county canvassed the returns of the vote cast for common pleas judge at this election, and found and declared as a result of said canvass that W. B. Thompson received 4985 votes, F. F. Thomas 2460 votes and Horace G. Redington 4982 votes, and declared W. B. Thompson elected to the office of common pleas judge for Lorain county; admits that the petitioner took an appeal from this finding, and denies each and every other allegation and averment in the petition contained, and, further answering, avers that he was duly elected at such election as common pleas judge of Lorain county, that the canvassing board so declared and issued to him a certificate of election, and said certificate, with a fee of $5, was deposited with the secretary of state of Ohio, as provided for by law, and that by reason thereof he is entitled to a commission from the governor, countersigned by the secretary of state, authorizing him to act as such common pleas judge for the duration of the period of time for which he was elected.
    The court of appeals found on the issue so joined that 4985 ballots were cast for W. B. Thompson and 4985 ballots were cast for Horace G. Redington, and that as no candidate received a plurality of all the votes cast at said election for said office, there was no choice of candidates, and that neither of said candidates for the office of common pleas judge was elected at said election.
    This proceeding in error is brought to reverse this judgment of the court of appeals of Lorain county in this action.
    In the second above-entitled action, No. 14813, H. R. Dittmer commenced a similar action in the court of appeals of Henry county to contest the election of P. C. Prentiss for the office of judge of common pleas court of that county. On motion to dismiss the petition that court held that it had no jurisdiction in a proceeding to contest an election' for the judge of common pleas court; that Section 5137 et seq., General Code of Ohio, in so far as they attempt to confer jurisdiction on the court of appeals to hear and determine an election contest, are unconstitutional and void. A petition in error is filed in this court to reverse that judgment of the court of appeals of Henry county.

      Mr. George L. Glitsch; Mr. G. B. Findley; Mr. D. H. Aiken and Mr. G. A. Resell, for Thompson, plaintiff in error.

      Mr. T. A. Conzvay and Mr. C. G. Washburn, for Redington et al., defendants in error.

      Messrs. Smith, Beckwith & Ohlinger, for Dittmer, plaintiff in error.

      Messrs. Donovan & Donovan; Mr. George A. Meekison; Messrs. Brown, Hahn & Sanger and Messrs. Webster & Kirtley, for Prentiss, defendant in error.
   Donahue, J.

The principal question presented by the record in these cases, and the one common to both, is the question of the jurisdiction of the court of appeals to hear and determine a contest of an election of common pleas and superior judges.

Section 5137, General Code, as ¿mended (103 O. L., 423), specifically confers upon the court of appeals exclusive, original jurisdiction in the contest of election of common pleas and superior judges, and provides that any elector of the city, county or subdivision may contest the election of any judge by taking an appeal from the finding and decision of the canvassing board which finds and declares the result of the election of such judge to the court of appeals of the county in which the contestee resides. Section 5138, General Code, provides that “The appeal shall be in the form of a petition, addressed to the court, in which shall be set forth in brief and plain terms that such appeal is taken, by whom and upon what grounds the election is contested.” In these particulars and the further provisions as to notice of appeal and service of a copy of the petition upon contestee, the contestor in each of these cases has fully complied. If these sections of the statutes are constitutional, then the court of appeals has jurisdiction to hear and determine a contest of election of common pleas and superior court judges.

It is claimed on behalf of the contestees that the jurisdiction of the court of appeals is defined and limited by Section 6 of Article IV of the Constitution; that the general assembly of Ohio is without authority to enlarge such jurisdiction, and that even if the general assembly has authority to confer jurisdiction upon the court of appeals in matters judicial, the power to hear and determine election contests is not a judicial power, within the.meaning of Article IV of the Constitution, and the legislative branch of our state government cannot assign to the judicial branch any duty other than those that are properly judicial, to be performed in a judicial manner.

Section 6 of Article IV of the Constitution, as amended September 3, 1912, provides that “The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law.”

It is clear from this provision of the constitution that, in so far as judicial powers are concerned, the court of appeals obtains all its jurisdiction, both original and appellate, directly from the constitution itself. The general assembly has no power to extend or limit its jurisdiction, but is limited solely to the power to provide by law for the exercise by that court of the jurisdiction conferred upon it by the constitution.

That elections belong to the political branch of the government, and that any authority conferred by the general assembly of Ohio under Section 21 of Article II of the Constitution to try contested elections is not judicial power within the meaning of Section 1 of Article IV of the Constitution, which vests-the judicial-power of the state in the courts, is no longer an open question in Ohio. (Link v. Karb, Mayor, 89 Ohio St., 326; The State v. Harmon, 31 Ohio St., 250.) It follows, therefore, that if the general assembly has no authority, under the provisions of Section 6 of Article IV of the Constitution, to confer judicial power upon the court of appeals in matters properly judicial, it certainly could have no authority, under the same provision of the constitution, to confer powers not judicial upon that court, and unless such authority is found in Section 21 of Article II of the Constitution, then Section 5137 et seq., General Code, are unconstitutional and void.

Article IV of the Constitution relates to the judicial power of the state, and so far as that power is concerned the several provisions of Article IV of the Constitution are controlling. If the authority to hear and determine an election contest were a judicial and not a political power, that would be the end of this controversy, for in that event Section 21 of Article II would be in direct conflict with Section 1 of Article IV, which vests all judicial power in the court. Section 21 of Article II does not require the general assembly to confer this authority upon the courts, but it may provide for contests of election in various ways and before various authorities other than the courts of this state. The power \ to hear and determine election contests, however,^ being political and not judicial, the provision off Section 21 of Article II is not in conflict with Sec4 tion 1 of Article IV, for the reason that it authorizes the general assembly to confer such powers upon) other authorities than the courts of this state. If it is in conflict at all, it is in conflict because, under its provisions, the general assembly may confer such power upon the courts.

The provision of Section 1 of Article IV as amended September 3, 1912, does not differ in any respect that would affect this question from the provision of Section 1 of Article IV of the Constitution of 1851. Section 21 of Article II of the Constitution of 1851 is not affected in any way by the amendments adopted September 3, 1912. For over half a century these two sections have each been an integral part of the organic law of this state, and each has accomplished its own proper purposes without aid or hindrance from the other. There is nothing in the amended constitution that could in any way affect the former holdings of this court that they are not in conflict with each other. In the case of The State, ex rel., v. Marlow, 15 Ohio St., 114,. it was held that the general assembly not only had the power to provide by law before what authority and in what manner the trial of contested elections should be conducted, but that it was a duty imposed upon the legislature by the constitution of the state. In the discussion of this question, Scott, J., in the opinion in that case, said: “In fulfillment of the solemn obligation thus imposed, we find upon the statute book, in the election laws of the state, jurisdiction specially conferred upon various tribunals to hear and determine contests in regard to the election of the different public officers, and the mode prescribed in which such contests shall be conducted. The courts of common pleas in the several counties are specially designated as the ‘authority’ before which elections of sheriffs, and the various other county officers shall be contested and by which such contests shall be heard and determined. The senate of the state is, by the same laws, invested with full jurisdiction to hear and determine any contest in regard to the election of governor, lieutenant-governor, judge of this court, or of the court of common pleas, and other state officers.”

In the case of The State, ex rel., v. Harmon, supra, White, J., said: “Under this provision, the selection of the authority for the trial of contested elections rests in the discretion of the general assembly; and the exercise of this discretion is not limited to a selection to be made from the courts established under the constitution. And although it is true the question now made did not arise in the case of The State ex rel. v. Marlow, yet we fully concur with what is said in the opinion in that case, by Scott, J., on the subject. 15 Ohio St., 134.”

This question was also considered by this court in the cases of The State, ex rel. Ingerson, v. Berry, 14 Ohio St., 315, and Peck v. Weddell, 17 Ohio St., 271, and in both of these cases it was held that the general assembly had the authority, under the provisions of Section 21 of Article II, to determine by law before what authority and in what manner the trial of contested elections shall be conducted, and that the mode and method provided by the statute for such contest is exclusive.

It is true that the question as to the authority of the general assembly to confer upon the courts the power to hear contested election cases was not specifically presented in either of the cases above cited; on the contrary, the questions were:

1st. Has the general assembly power to confer upon any tribunals, other than the courts, authority to hear and determine election contests ?

2d. If the legislature has such authority, are the courts of the state still open to the aggrieved parties, or is the remedy provided by statute exclusive ?

Answering these questions, this court held, in the cases cited, that the general assembly, in the exercise of the power conferred upon it by Section 21 of Article II, was not limited to a selection to be made from the courts established under the constitution, and that where the general assembly provided by statute a method for contest of elections, that method was exclusive; The statutes then conferred upon various tribunals, including the courts of this state, authority to hear and determine election contests. If there was then no conflict between Sections 21 of Article II and Section 1 of Article IV, there is none now, for Section 21 of Article II then authorized the general assembly to confer upon or withhold from the courts the power to hear and determine election contests, and Section 1 of Article IV then vested all judicial power in the courts.

The two provisions are readily reconcilable; they relate to entirely different subjects, one to judicial, the other to political, powers. One vests unconditionally and irrevocably, so far as the general assembly is concerned, all the judicial power of the state in the courts; the other provision confers upon the general assembly of Ohio the power to determine by law before what authority and in what ¡manner the trial of contested elections shall be con-i'ducted. That authority may or may not be the courts. The grant of power is general in its terms, absolutely unlimited and unqualified. The language is so plain and unambiguous that the framers of the constitution and the people of the state, when they adopted this provision, must have understood that that section would confer upon the general assembly j authority to select any of the courts of the state as the forum in which to try election contests, regardless of the fact that the courts were created by another provision of the constitution, solely and only for the purpose of administering the judicial power \of the state.

In this view of the case, it is not important whether this proceeding to contest election is in the nature of an appeal or an original action; in either j case the constitutional authority of the general j assembly to confer jurisdiction upon the courts of appeals to hear and determine this contest of election is found in Section 21 of Article II of the f Constitution.

Nor is it necessary to inquire whether this court acquires appellate jurisdiction under the provisions of Section 2 of Article IV of the Constitution, or under the section of the statutes providing for the prosecution of error in this court to the judgment of the court of appeals in contest of election cases, for if the general assembly has authority to confer original jurisdiction upon the courts of this state to hear and determine such cases, it follows that, under the same provision of the constitution, it has the power also to confer appellate jurisdiction.

The conclusions reached upon these questions require the reversal of the judgment of the court of appeals of Henry county, dismissing the petition in the case of Dittmer v. Prentiss, No. 14813.

The case of Thompson v. Redington et al., No. 14798, presents further questions necessary to be considered in the determination of that case. It is contended that the petition is defective for the reasons that it contains no averments that the irregularities and errors complained of changed the result of the election, and no averment that, but for such irregularities and errors, the canvass of the vote would have shown the election of the contestor. The statute requires that the petition shall set forth in brief and plain terms “upon what grounds the election is contested.” The petition in this case specifically sets forth several grounds of contest. It further avers that the contestor was duly and legally elected to this office. It necessarily follows, without further averment, that it is the claim of the contestor that these errors, mistakes and irregularities complained of, prevented a fair count of the ballots cast for him and his opponents, and that by reason thereof the wrong result was declared. Any further allegation in that respect would be unnecessary and redundant. It is doubtful if, under this statute, any averments are required, except the grounds upon which the election is contested, for this contest may be brought by any elector, as well as the person claiming to be elected to the office.

The judgment of the court of appeals in reference to the disputed ballots is fully sustained by the evidence before it. In Exhibit No. 1, the word “yes” is written in the space to the left of the name of Horace G. Redington. This of course is technically wrong, but there is no question as to the intention of the voter. Paragraph 9 of Section 5070, General Code, provides that no ballot shall be rejected for any technical error which does not make it impossible to determine the voter’s choice. .This statute requires that where the ballot is so marked that the intention of the voter is evident, the ballot' should be counted regardless of whether the mark indicating his intention is the mark the statute directs him to make or not.

On Exhibit No. 2, the cross mark is properly placed in the space to the left of the name of Horace G. Redington. Another cross mark was placed to the left of the blank space, below all the names of the candidates for judge of common pleas court. The cross before the blank space does not authorize this ballot to be counted for any person, and, therefore, does not prevent the counting of the ballot for the candidate before whose name a cross mark is properly placed.

While there might be some difference of opinion as to whether the mark placed before the name of Horace G. Redington on Exhibit No. 3 is in fact a cross mark, yet a finding by the court of appeals that it is such a mark and prevents the ballot being counted for either candidate, because two have been voted for when there is but one judge to elect, would not be reversed by this court as an error of law. The question is really one of fact and-not of law, for it is conceded by counsel that if this is a cross mark the ballot cannot be counted for either candidate.

There remains, then, but the question of fact as to whether this is or is not a cross mark. In comparison with the strong, clear lines of the cross mark in front of the name of W. B. Thompson, there is a substantial difference, but, nevertheless, both lines of the cross mark are so plain on the original exhibit that if it were not for the plainer and heavier lines of the cross mark in front of the name of W. B. Thompson, no doubt whatever would arise.

The further claim is made by counsel for plaintiff in error that the ballot containing the cross mark in front of the vacant space and the ballot containing the word “yes,” instead of a cross mark in the space to the left of the name of Horace G. Redington, should not have been counted for that candidate, for the reason that these are distinguishing marks that invalidate each of these ballots.

Before this question could be considered by the court, it would be necessary to show by some evidence that the ballots were so marked for the fraudulent and corrupt purpose of distinguishing them. This evidence of course might appear upon the face of the ballots themselves, but that is not necessarily true of the ballots in question in this case. The provisions of paragraph 9 of Section 5070 clearly indicate the legislative intent that the voter’s choice may be evidenced in some other way than as directed by the statute. Any other mark than the cross mark would be sufficient to distinguish the ballot from those marked according to the statute, and even the statutory marks might be used for the same purpose. That would depend entirely upon the intention of the voter, regardless of whether the statutory marks or other marks were used to distinguish the ballot cast by him. There being no evidence in this record that these ballots were so marked for the purpose of distinguishing them from other ballots cast at this election, it is unnecessary for this court to consider that question further.

The judgment of the court of appeals in the case of W. B. Thompson v. Horace G. Redington et al., No. 14798, is affirmed.

The judgment of the court of appeals in the case of H. R. Dittmer v. P. C. Prentiss, No. 14813, is reversed, and the cause remanded to the court of appeals of Henry county for further proceedings according to law.

Judgments accordingly.

No. 14798. Nichols, C. J., Johnson, Newman, Jones and Matthias, JJ., concur. Wanamaker, J., not participating.

No. 14813. Johnson, Donahue, Wanamaicer, Jones and Matthias, JJ., concur.


text:
    The Steele, Hopkins & Meredith Co. v. Miller.

      Constitutional law — Bulk-sales law — Section 2, Article XIII, Constitution (1912), and bill of rights — Uniform operation and reasonable classification — Amended Section 1x102 et seq., General Code (X03 O. L., 462), constitutional.

    1. Section 2 of Article XIII of the Constitution, as amended in September, 1912, contains a specific grant of power to the legislature to provide by law for the regulation of the sale and conveyance of personal property, and is a qualification to that extent of the guaranties contained in the bill of rights.
    2. A statute is general and uniform, within the requirements of the constitution, if it operates equally upon every person and locality within the circumstances covered by the act, and when a classification has a reasonable basis it is not invalid merely because not made with exactness or because in practice it may result in some inequality.
    3. The act of April 18, 1913, to amend Section 11102 et seq., General Code, relating to the transfer of stocks of merchandise and fixtures other than in the .usual course of trade (103 O. L., 462), .is a valid enactment not repugnant to the state or federal constitutions.
    (No. 14706
    Decided May 4, 1915.)

      Error to the Court of Appeals of Clark county.
    The plaintiff in error, an Ohio corporation, being a creditor of Joseph W. Foley, who was engaged in business as a retail grocer and as such the owner of a stock of merchandise and fixtures pertaining to the business, brought suit in the common pleas of Clark county to set aside a sale of the whole of said stock and fixtures to the defendant in error.
    It is alleged in the petition that the sale was not made in the usual and ordinary course of trade, or in the regular and usual prosecution of the business of retail grocer conducted by Foley; that the purchaser, Miller, did not at the time of, or prior to, the sale, or at any subsequent time, demand or receive from Foley a written or other list of names and addresses of his creditors, with the amount of the indebtedness due to each, and certified by him under oath to be a full, accurate and complete list of such creditors and his indebtedness; nor did he demand or receive any list or description of the names and addresses of such creditors of any kind whatsoever; that the defendant, Miller, did not at any time prior or subsequent to taking possession of the stock or paying therefor notify, either personally or by registered mail, the plaintiff or any other creditor of Foley of the proposed sale and of the price, terms and conditions thereof, or either; that the defendant holds possession of the stock, of merchandise and fixtures, and that the plaintiff has requested and demanded of him a settlement or an accounting for said stock, which he has refused.

      The prayer of the petition is that the sale may be set aside and for further appropriate relief.
    Defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action and that Section 11102, General Code (103 O. L., 462), known as the bulk-sales law, which relates to the transfer of stocks of merchandise and fixtures other than in the usual course of trade, upon which the action was based, is unconstitutional and void. That section is as follows: “The sale, transfer or assignment, in bulk, of any part or the whole of a stock of merchandise, or merchandise and the fixtures pertaining to the conducting of said business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the business of the sellers, transferrer or assignor, shall be void as against the creditors of the seller, transferrer, assignor, unless the purchaser, transferee or assignee demands and receives from the seller, transferrer or assignor a written list of names and addresses of the creditors of the seller, transferrer and assignor, with the amount of the indebtedness due or owing to each and certified by the seller, transferrer and assignor, under oath, to be a full, accurate and complete list of his creditors, and of his indebtedness; and unless the purchaser, transferee or assignee shall, at least five (5) days before taking possession of such merchandise, or merchandise and fixtures, or paying therefor, notify personally, or by registered mail, every creditor whose name and address appears in said list, or of which he has knowledge, of the proposed sale and of the price, terms and conditions thereof.”
    The common pleas court sustained the demurrer. Judgment was entered for the defendant and this judgment was affirmed by the court of appeals.

      Mr. Floyd A. Johnston; Mr. Roscoe C. Lorentz; Messrs. Watson, Stouffer, Davis & Gear he art and Mr. George B. Okey, for plaintiff in error.

      Mr. C. S. 0linger, for defendant in error.
   Johnson, J.

The constitutionality of the statute referred to is the sole question involved in the case. The courts below entertained the view that the question was determined by the cases of Miller et al. v. Crawford et al., 70 Ohio St., 207, and The Williams & Thomas Co. v. Preslo, 84 Ohio St., 328, notwithstanding the subsequent amendment to Section 2 of Article XIII of the Constitution. In those cases it was held that previous acts of the legislature, similar to that in question here, were unconstitutional. In the former case it was decided that the act of April 4, 1902 (95 O. L., 96), to prevent fraud in the purchase, disposition or sale of merchandise, was repugnant to the first article of the constitution, because it placed an unwarrantable restriction upon the right of the individual to acquire and possess property, and because it contained a forbidden discrimination in favor of a limited class of creditors. The court in the opinion points out a number of onerous and restrictive features of the statute, and its analysis is concluded with the statement that “This act, under the guise of preventing fraud in such sales, prohibits them altogether, and thus places upon the enjoyment of property an important restriction which no public interest requires and which the constitution therefore forbids.”

In The Williams & Thomas Co. v. Preslo, supra, it was held that the act of April 30, 1908 (99 O. L., 241), to render presumptively fraudulent sales in bulk of stocks of merchandise, unless the seller should, not less than seven days before the transfer, file with the recorder of the county a notice of his intention to make such sale, was repugnant to the first article of the constitution.

The provisions of the statute which is attacked here are less burdensome than the act of 1902, the things now required with respect to the sale of an entire stock of merchandise, other than in the ordinary course of trade, being that the purchaser shall demand and the seller furnish, under oath, a complete and accurate list of his creditors and of the amounts owing to each, and that the buyer shall, at least five days before the completion of the sale, notify each of the creditors and any others of whom he may have knowledge, personally or by registered mail, of the proposed sale and of the price, terms and conditions thereof.

While it is pointed out by counsel that the act in question here is free from many of the objectionable features which were included in the original act, it is conceded that the application of the rules declared in the two cases above referred to, if unmodified by constitutional amendment or by this court, would require the affirmance of the judgments below in this case.

The contention of the plaintiff in error is that such a modification has been intentionally and deliberately provided in the amendment to Section 2 of Article XIII of the Constitution as adopted in September, 1912. That amendment reads as follows : “Corporations may be formed under general laws; but all such laws may, from time to time, be altered or repealed. Corporations may be classified and there may be conferred upon proper boards, commissions or officers, such supervisory and regulatory powers over their organization, business and issue and sale of stocks and securities, and over the business and sale of the stocks and securities of foreign corporations and joint stock companies in this state, as may be prescribed by law. Laws may be passed regulating the sale and conveyance of other personal property, whether owned by a corporation, joint stock company or individual.”

The courts below held that this amendment did not enlarge the power of the legislature in the respects claimed for it. In the consideration of it, it is the sole duty of the court to ascertain and give effect to the intention of the people in adopting it, and in the effort to promote the object of the people, rules which are purely technical should not be permitted to thwart the attainment of that object.

An amendment should be viewed in connection with the previously existing constitution and the evils and conditions which led to the change.

Moreover, effect should be given to every part of the instrument as amended, and in the absence of a clear reason to the contrary no portion of a written constitution should be regarded as superfluous. The addition or change should be considered as having been made for some purpose. This is especially true where the amendment includes a granted power.

This amendment was adopted in the year following that in which the latter of the two above-•named cases was decided.

It is a matter of common knowledge that the' business of retail merchandising is conducted largely upon credit. This system has come about as a natural outgrowth of the vast increase in the facilities of transportation and communication in modern times. It was not surprising that a system, so built up and conducted, should be attended with abuses, for it furnished an opportunity for the commission of frauds upon creditors not usual in other forms of business. There was a temptation to sell stocks in bulk without providing for the payment of creditors from whom they were bought. It was natural and inevitable that such an important subject should be called to the attention of the legislatures and courts. Almost every state in the Union now has a statute similar to the one involved in this case. There has been the same desire for substantial uniformity that has been shown with reference to the legislation in the different states on all the different branches and phases of commercial law — negotiable instruments, bills of sale, bills of lading, etc. The fact that there has been this general and concerted action is no reflection against the wisdom or validity of the legislation itself.

In the light of these suggestions, and guided by the fundamental principles above referred to, what must be said as to the intention of the framers of the amendment in question and.of the people in adopting it? Was it merely declaratory of powers already possessed by the legislature or was it intended to meet new conditions ?

Counsel for plaintiff in error call attention to the proceedings of the constitutional convention which framed the amendment involved here in support of their view as to its purpose and effect.

The debates of a convention cannot have conclusive effect in the construction of the provisions of a constitution. Yet they are not without importance where they tend to support a construction indicated by the language of an amendment; and they may show what was the mischief which was intended to be prevented under the new order by the adoption of the amendment. 6 Rul. Cas. L., 68; The State, ex rel., v. Foraker, 46 Ohio St., 677, 690. Cooley Constitutional Limitations (7 ed.), p. 101.

As stated by Judge Thurman in Cass v. Dillon, 2 Ohio St., 607, 621: “Although the debates of the convention can never overthrow a plain, unambiguous provision of the constitution * * * yet they certainly may fortify us in following the natural import of its language, and legitimately aid in removing doubts.”

It is said in 11 Modern American Law, p. 77: “If the proceedings of the convention clearly indicate the purpose of a particular provision great weight may properly be attached to them.”

A reading of the Constitutional Debates, Vol. 2, p. 1205 et seq., discloses that this amendment was discussed by able members of the convention. Its purpose was fully and clearly explained. Reference was made to the previous statutes which forbade one who was conducting an ordinary mercantile business from selling out in bulk without notice to creditors, as well as to the decisions of this court touching the subject. It was generally understood that the proposed amendment, in the words of a leading member, “has met that condition which the supreme court of Ohio has declared to exist and unfetters the legislature so that it can proceed to pass this needed legislation.” The record of the proceedings shows that the only question made related to the article of the constitution in which the amendment should be included.

It was finally added to the amendment to Section 2, Article XIII, which had been agreed on.

It will be observed that the first part of the amendment to that article authorizes the classification of corporations and the regulation of their organization, business, and issue and sale of stocks, and of the “business and sale of the stocks and securities of foreign corporations and joint stock companies in this state.” Then follows the second part, the additional clause: “Laws may be passed regulating the sale and conveyance of other personal property, whether owned by a corporation, joint stock company or individual.”

When construed in connection with the guaranties of the bill of rights, it is clear that it was intended by this amendment to confer power on the legislature to modify those guaranties, in so far as the right of contract for the sale of personal property is concerned, by the passage of the regulating laws authorized by it.

But it is contended that even if this be true there still remains the other objection, that this statute discriminates in favor of a limited class of creditors and offends the constitutional requirements of uniformity.

As to this, it must be noted that the amendment deals with, and its dominant note is, classification of the various forms of personal property and the regulation of the sale thereof.

Having concluded that the bill of rights and this amendment must be construed together, and that by the general terms of the latter authority has been conferred to qualify and regulate the exercise of the rights guaranteed by the former, so far as the right to contract for the sale of personal property is concerned, the considerations suggested later on as the objection that the statute attacked violates the Fourteenth Amendment to the Federal Constitution are equally applicable to the objections as to classification and lack of uniformity which are based on the Ohio constitution.

We do not think that the act in question violates the Fourteenth Amendment to the Federal Constitution. That amendment provides that “No state shall * * * deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The right to contract is part of the liberty of the citizen. It is within the protection of this amendment and cannot be arbitrarily interfered with, yet nothing is more firmly settled than that the right to contract is not absolute and unyielding, but is subject to limitation and restraint in’ the interests of the public health, safety and welfare,, and these limitations may be fixed by the legislature.

In Frisbie v. United States, 157 U. S., 160, it is said: “While it may be conceded that, generally speaking, among the inalienable rights of the citizen is that of the liberty of contract, yet such liberty is not absolute and universal. It is within the undoubted power of the government to restrain some individuals from all contracts, as well as all individuals from some contracts.”

And in the very recent case of Erie Rd. Co. v. Williams, 233 U. S., 685, it was declared: “But liberty of making contracts is subject to conditions in the interest of the public welfare, and which shall prevail — principle or condition — cannot be defined by any precise and universal formula. Each instance of asserted conflict must be determined by itself, and it has been said many times that each act of legislation has the support of the presumption that it is an exercise in the interest of the public. The burden is on him who attacks the legislation, and it is not sustained by declaring a liberty of contract. * * * The legislature is, in the first instance, the judge of what is necessary for the public welfare, and a judicial review of its judgment is limited. The earnest conflict of serious opinion does not suffice to bring it within the range of judicial cognizance.”

An eminent authority, everywhere respected, says: “They [the courts] must assume that legislative discretion has been properly exercised. If evidence was required, it must be supposed that it was before the legislature when the act was passed; and if any special finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to such finding.” Cooley Constitutional Limitations (7 ed.), 257.

The guaranties of Sections 1, 2 and 19 of the Bill of Rights in the Constitution of Ohio are similar to those contained in the amendment to the federal constitution referred to.

In the construction of these provisions this court has been in harmony with the principles above announced. In The State, ex rel. Monnett, v. The Buckeye Pipe Line Co., 61 Ohio St., 520, which involved the constitutionality of the Ohio antitrust law, Judge Shauck said, in announcing the opinion of the court: “The definite proposition of counsel upon this point is that although the act is an exercise of legislative power, it transcends the provisions of the state and federal constitutions which render inviolable the rights of liberty and property, which include the right to make contracts. It would be difficult to place too high an estimate ppon these guaranties, and they include the right to make contracts. But it is settled that these guaranties are themselves limited by the public welfare or the exercise of the police power.”

In Bloomfield v. State, 86 Ohio St., 253, 264, it is said: “The state is' necessarily invested with that which is called the police power, which will be, and should be, put forth as an expression of the popular conception of the necessities of social and economic conditions. Under it may be done, and should be done, that which will, best secure the peace, morals, health and safety of' the community. * * * The fourteenth amendment was not designed to prevent all exercise of judgment by a state legislature, of what the interests of the state require, nor to compel it to run all of its laws in the channels of general legislation. Bachtel v. Wilson, 204 U. S., 36; St. John v. New York, 201 U. S., 633.”

The authorities agree that a statute is general and uniform if it operates equally upon every person and locality within the circumstances covered by the act, and when a classification has a reasonable basis it is not invalid merely because not made with exactness or because in practice it may result in some inequality. Lindsley v. Natural Carbonic Gas Co., 220 U. S., 61; Porter et al., Trustees, v. Hopkins, Treas., 91 Ohio St., 83.

We think it clear that • there are substantial reasons for the classification made by this statute. It applies equally to all merchants having a stock of merchandise for sale in the usual course of trade, who have creditors. It operates upon such class when there is contemplated a bulk sale of the stock otherwise than in the ordinary course of trade. It relates to all purchasers. It affects all within the class of creditors of such merchants. The necessary results of its operation would be in the interest of honest merchants and of the public welfare, for these are concerned in the prevention of frauds and in the protection of public morals.

No reason has been suggested for the extension of the requirements included in the statute under consideration to the owners and purchasers of all personal property. To do so would unnecessarily and unreasonably hinder many transactions which are free from the inherent dangers and mischief intended to be corrected.

We are the more firmly convinced of the soundness of the conclusion which we have indicated by the fact that the constitutionality of legislation in all essentials similar has been expressly upheld by the supreme court of the United States and in many of the states, among which are Connecticut, Georgia, Indiana, Illinois, Massachusetts, Michigan, Minnesota, Oklahoma, Pennsylvania and Washington. In many other states similar statutes have been construed and enforced, and their validity thus indirectly sustained.

In Kidd, Dater & Price Co. v. Musselman Grocer Co., 217 U. S., 461, it was held: “It is within the police power of the state to require tradesmen making sales in bulk of their stock in trade to give notice to their creditors and also to prescribe how such notice shall be given, and unless the provisions as to such notice are unreasonable and arbitrary a statute to that effect does not amount to deprivation of property, abridge liberty of contract or deny equal protection of the law within the meaning of the Fourteenth Amendment; nor is the requirement in the Michigan sales-in-bulk act of 1905 that such notice be either personal or by registered mail unreasonable or arbitrary.” The Ohio statute involved in this litigation is substantially a copy of the Michigan law under consideration in that case.

In Young, Trustee, v. Lemieux, 79 Conn., 434, it is said: “Insolvent and fraudulent vendors are those who will be chiefly affected by the act, and it is for the protection of creditors against sales by them of their entire stock at a single transaction and not in the regular course of business, that its provisions are aimed. It is of course possible that an honest and solvent retail dealer might, in consequence of the required notice before the sale, lose an opportunity of selling his business, or suffer some loss from the delay of a sale occasioned by the giving of such notice. But a ‘possible application to extreme cases’ is not the test of the reasonableness of public rules and regulations. Commonwealth v. Plaisted, 148 Mass., 375, 382.”

These holdings are in harmony with the view that our constitutions were made in the contemplation that new necessities would arise with changing conditions of society.

We are convinced that it was in this spirit and in the light of the experiences in the business world which we have pointed out that the amendment to Section 2 of Article XIII was framed and adopted; that the effect of the amendment was to clothe the legislature with a larger power to deal with the subject referred to, and that the act here involved does not conflict with any of the. provisions of the constitution.

The judgment will be reversed and the cause remanded to the court of common pleas for further proceedings according to law.

Judgment reversed.

Nichols, C. J.; Donai-iue and Wanamaker, JJ., concur.

Newman, Jones and Matthias, JJ., dissent.