author: Jones, J.

text:
    Bumiller v. Walker. Kahn v. Long et al.

      Lessor and lessee — Hold-over tenancy — Presumption as to yearly term — Parties may prove intention — Parol contract for monthly tenancy — Effect of continuous possession by tenant — What constitutes acquiescence by landlord,

    1. The presumption that a tenant holding over after the expiration of a yearly term is a tenant from year to year is rebuttable; and to rebut this legal presumption the parties are permitted to prove what their true intention was, where the tenant remained in possession after the expiration of his former term, under a parol contract for a monthly tenancy, and the landlord acquiesced therein.
    2. A landlord and tenant in possession under an existing lease may make a parol agreement, prior to the expiration of such lease, for a monthly tenancy in futuro from and after the original term, provided the tenant continues his occupancy and the landlord assents and acquiesces therein solely in pursuance of such, oral agreement. (Moore v. Harter, 67 Ohio St., 260, approved and followed.)
    3. Under such circumstances, where the landlord permits the tenant to remain in possession, it is equivalent to an acquiescence in an implied reentry and a presumptive waiver of the requirement that the tenant must vacate and establish an actual reentry.
    4. The continuous possession and intention of the tenant alone are not sufficient to overcome the legal presumption of his holding over. It must be proven not only that the landlord agreed to the changed terms but that, at the expiration of his tenant’s term, he acquiesced in the continued possession of the tenant in pursuance of an oral contract entered into between the parties.
    5. An acceptance by the landlord of the key to the premises, his advertising for a new tenant and renting the premises to another upon its vacation by the| old tenant, under the fact's stated, are not sufficient to constitute a surrender.
    (Nos. 15314 and 15301
    Decided February 13, 1917.)

      Error to the Court of Appeals of Hamilton county.
    The petition in the Bumiller case alleged that on April 29, 1910, Walker executed his written lease of premises to Bumiller for the term of one year from May 10, 1910, at a yearly rental of $480, payable in monthly installments of $40, in advance, on the 10th day of each month; that Bumiller entered into possession and occupied the premises for the prescribed term; that on May 10, 1911, Bumiller paid his thirteenth monthly-rent installment of $40 and continued to remain in possession; and that on June 6, 1911, he, Bumiller, abandoned the premises and refused to pay further rent. Walker then rented the premises for the remaining eleven months for a lower, though the best available, rent, and at the end of the year brought suit for the amount claimed to be due for the remainder of the annual term, less the amount received for rent during that period. The allegations are substantially admitted by Bumiller in his answer, but he pleads in avoidance that on April 9, 1911, and prior to the termination of his written lease, he and Walker entered into an oral agreement whereby he was to occupy the premises from month to month, from and after May 10, 1911, at the same rent, and payable at the same time as agreed upon in the written lease, which tenancy was to be terminated at will by either party upon reasonable notice; that he continued in possession as tenant after May 10, 1911, in pursuance of that agreement; and, further, that on June 6, 1911, he vacated the premises and terminated the tenancy after notice thereof duly given.
    He further answers that he, on the last-named date, surrendered possession to Walker, who accepted such surrender and entered into possession. On the trial, testimony was received on behalf of Bumiller tending to support the oral hold-over agreement claimed to have been made in April, 1911, while in possession under his written lease. Consistently with his holding in the admission of that testimony, the trial court charged the jury that if they found that an oral agreement was made on the 9th of April, 1911, between plaintiff and defendant, providing that the latter could remain as tenant from month to month, from and after the May 10th following, and that possession was taken and yielded under such oral agreement, then defendant would be a tenant from month to month.
    The jury returned a general verdict for the defendant. The court of appeals reversed the judgment because the trial court admitted the testimony showing an oral agreement for a monthly tenancy while in possession under the written lease and’ because of the charge of the court in that connection. The case was ordered certified for hearing by this court.
    A similar question arises in the Kahn case. In that case a judgment was taken by default against the tenant. The tenant filed his motion to set aside the default judgment, and supported it by affidavit. In connection therewith he tendered an answer setting forth his defense, that while in possession as tenant for the term of three years under a written lease an oral agreement was made with the landlord for a tenancy from month to month, which was to begin at the expiration of the three-year term; and that he remained in possession under this agreement for five months and then gave notice and surrendered possession. The suit was for the remaining seven months of the year. The superior court held that the answer did not present a defense, but, added, that if it did, the default judgment should have been set aside. The court of appeals affirmed that judgment.

      Messrs. Dempsey & Nieberding, for plaintiff in error, Herman Bumiller.

      Mr. E. H. Brink and Mr. Charles B. Wilby, for defendant in error, William S. Walker.

      Messrs. Cohen, Mack & Hurtig, for plaintiff in error, Louis W. Kahn.

      Mr. Charles B. Wilby and Mr. Clark Wilby, for defendants in error, Elizabeth T. Long et al.
   Jones, J.

Can a lessor and lessee, while the latter is in possession under an existing written lease, make a binding parol agreement before the expiration of such lease for a monthly tenancy that' is to continue from and after the original term? Upon this question, in the two foregoing cases, the nisi prius courts were not in accord. The court of appeals held that the continued possession of the tenant was referable only to the original contract of lease. In these cases the question arose in different form. In the Bumiller case, if such oral agreement was valid, the testimony offered was competent and the charge to the jury was properly given. In the Kahn case it appears from the journal entry that the default judgment would have been set aside and the tenant’s defense admitted if the court had adjudged the defense to be valid.

The Ohio statute of frauds requires that such agreements as are in controversy here must be in writing in order, to be enforceable; but a parol agreement for the period claimed by the defendants in error would be valid if accompanied by a delivery of possession under such an agreement. (Moore v. Beasley, 3 Ohio, 294, and Grant v. Ramsey, 7 Ohio St., 158.) The divergence of legal view arises from the conception of the character and legal effect of continuous possession by a tenant under a parol contract made by him while in possession under his written lease. The court of appeals held that if there was an oral agreement for a monthly tenancy entered into between the lessor and lessee, while the latter was still in possession under his demise, the continuity of his possession was in law referable to the original contract, if nothing were proven further than the retention of possession’ and the payment of rent. No exactly similar question has been determined by the supreme court of this state in any reported case. However, counsel on both sides confidently claim that former decisions of this court, by analogy, support their several contentions.

It is well settled that in the absence of any agreement a yearly tenant, who holds over and continues to pay rent as formerly under his previous term, becomes a tenant for another year under the same terms as in his original demise, and that the landlord, in the absence of such agreement, at the expiration of such term, may elect to treat him either as a trespasser or as a tenant for another year; and, as particularly germane to the principle here involved, it has been held by this court that a landlord, during the tenancy of his lessee, may enter into a valid oral arrangement providing for an increased rental for the ensuing year, and that, except as to such rental increase, the terms and conditions of the original lease will subsist. Moore v. Harter, 67 Ohio St., 250.

In the absence of any agreement, if a yearly tenant holds over his term, the law implies a contractual proposal on his part to hold over for another year upon the same terms and conditions as stipulated in his former term, and in such case the continuity of his possession is referable only to his former contract. It can be referable to no other, for no other exists. For that reason the principle has been established that the continuous possession of the tenant in such case is referable only to his former demise. It has been repeatedly held by this court that it is competent to show that the possession may be referable to such an oral agreement. And what could be more potent for that purpose than to show that the landlord and tenant agreed specifically for a monthly tenancy, which should begin at the termination of the existing term, and that the tenant remained in possession and the landlord yielded it at its expiration in pursuance of such arrangement ? It is true that the statute requiring these contracts to be in writing was passed to prevent fraud. But to permit a lessor, who has allowed his tenant to continue in possession under an oral agreement for a monthly tenancy, to repudiate the transaction would permit the statute to legalize the fraud it was intended to suppress, and “under such circumstances, to enforce the statute, and .leave the party who has been put into possession, by virtue of an agreement, to be treated as a wrongdoer, would not only be repugnant to justice, but would make the statute a shield and protection for injustice.” Wilber v. Paine, 1 Ohio, 256, and Grant v. Ramsey, supra.

Either party may repudiate his own agreement before the same has been validated by possession taken thereunder. It is conceded that the oral agreement would not fall within the operation of the statute if the tenant actually moved out and then moved in again. This is a refinement of legal technicality that seems fatuous when viewed in the light of its 'common-sense application. In the case of either Bumiller or Kahn, at the moment when the prior lease expired, the lessor had the right of possession, with the option to treat the lessee either as a wrongdoer or as a tenant for another year. Permitting the tenant to remain in possession under an oral agreement is equivalent to an acquiescence in an implied reentry, and is a presumptive waiver of the technical requirement that the tenant must vacate and establish an actual reentry.

The presumption, that a tenant holding over after the expiration of a yearly term is a tenant from year to year, is rebuttable; and to rebut this legal presumption the parties are permitted to show what their true intention was, where the tenant remained in possession at the expiration of his former term under a parol contract for a monthly tenancy and the landlord acquiesced therein.

In the case of Clinton Cloth Co. v. Gardner et al., 99 Ill., 152, the court, while holding that a tenant without a new arrangement with his landlord may be held for a presumptive renewal for the,ensuing year irrespective of the intention of the tenant alone, sustained a charge to the effect that the presumption might be rebutted if the jury found that the tenant remained in possession after the termination of the lease under an agreement with the landlord that such holding over should not operate as a renewal of the lease.

Ordinarily this court does not regard its unreported cases as judicial authority, for the reason that it is generally impossible to ascertain the concrete legal propositions involved and decided; but where a single question was involved, and that succinctly stated and decided, it cannot be said that such unreported case is wholly without influence. Hafer v. Corbin et al., 6 N. P., N. S., 468, a case similar to this, was decided by the superior court of Cincinnati in general term, wherein that court denied the validity of an oral contract for a monthly tenancy made with a tenant in possession, which monthly tenancy was to begin at the expiration of an existing term. This court, (Corbin et al. v. Hafer, 72 Ohio St., 685) without opinion, reversed the judgment of the general term, on authority of Moore v. Harter, 67 Ohio St., 250. It remains, then, to determine whether the principle here involved has been decided, by analogy at least, in the case just cited; and it must be admitted that the dicta, and in one instance the syllabus, used in the earlier Ohio cases, have left the application of the legal principle in some confusion. In the case of Moore v. Harter, supra, upon an oral notification to the tenant while in possession under an existing term, the landlord was permitted to recover an increased rental to be paid during the ensuing year. The tenant neither agreed nor dissented. Had he agreed, the oral contract would have been invoked, as in this case. Not having dissented, the tenant was held to be bound for the new rental terms imposed, while the remaining terms and conditions of the original lease continued in force. Had the tenant expressed his assent, or had he himself proposed a change for the ensuing year which was acquiesced in by the landlord, or had the tenant, as in that case, merely refrained from specific assent to the changed terms, in each and every event the legal effect would be the same. The court held that the possession, beginning on April 1, 1895, at the expiration of the prior term, was referable to the oral stipulation made by the landlord. The principle in that case may be applied by analogy to this. There the landlord exercised the right to rebut the presumption that his tenant continued in possession under the conditions of his prior term. If the landlord has this right, it is difficult to perceive why a similar and reciprocal right can not be invoked by his tenant. If a lessor has the right under these circumstances to stipulate orally for an increased rental, it follows that the lessee in like manner may agree with his landlord for a decreased rental; and in either case, if possession follows’ solely under such an arrangement, the parol agreement does not fall within the operation of the statute. “The right of the landlord to rebut the presumption as against the tenant necessarily confers upon the tenant the reciprocal right to rebut the presumption of a tenancy from year to year as against the landlord seeking to recover rent from him upon the assumption that he is a tenant from year to year.” 1 Underhill on Landlord and Tenant, Sec. 98.

The case of Baltimore & Ohio Rd. Co. v. West, 57 Ohio St., 161, can have no application, for the manifest reason that there was no new mutual agreement made between the landlord and tenant, and, therefore, the latter was held for the ensuing year under the principle that by holding over without such agreement he held impliedly under the terms and conditions of his original lease.

The case of Gladwell v. Holcomb et al., 60 Ohio St., 427, was one wherein a tenant sought to enforce a parol agreement and lease for the period of ten years. The case was correctly decided, and the third proposition of the syllabus is sound when applied to the facts therein stated. Under the authority of Baltimore & Ohio Rd. Co. v. West, supra, Gladwell’s oral lease was unenforceable under the statute, and his tenancy became one merely from year to year, a term which Holcomb, the lessor, did not contest. Two early Ohio cases are frequently cited as apparently supporting the contention of the defendants in error in the instant cases. These are Armstrong v. Kattenhorn et al., 11 Ohio, 265, and Crawford & Murray v. Wick, 18 Ohio St., 190. In the latter case there was no agreement for any hold-over tenancy following an unexpired term, but an effort, was made orally to modify an existing lease by a change in its terms, effective during the life of the prior lease. It was not only a palpable case of attempting to circumvent the statute, but also a failure to take it out of the operation of the statute. The lessee being in present possession the title could not be dives,ted by parol. (Kelley et al. v. Stanbery et al., 13 Ohio, 408, and Barnett v. Barnes, 73 Ill., 216.) The lessor had no possession to yield under which his parol contract could be made effective.

In the instant case the landlord, at the expiration of the written term, did have the right of possession, with an election at that time either to treat his tenant as a trespasser or permit him to retain his possession in pursuance of their oral arrangement. In the case of Armstrong v. Kattenhorn et al., supra, it does not clearly appear whether the possession under the oral agreement was to be taken by the tenant while he occupied it under his former lease, or whether, it was so ambiguous as to be referable to either the old lease or to the new. The facts indicate that the case took the latter aspect; and that view seems to have been entertained by the j'udge delivering the opinion in the case of Moore v. Harter, supra, at page 254. The opinion closes with the following language: “The continuing in possession, after notice from the landlord to the tenant that he could not do so except under prescribed conditions, is presumed to be a possession under the named conditions.” Paraphrasing that language, and applying it to the instant cases, it may be said that the continuing 'in possession by the tenants Bumiller and Kahn, after agreements with their landlords that they could do so under the prescribed conditions of monthly tenancy, is presumed to be possession under the named conditions, and such possession could not be referable to the former leases without showing that the landlords had repudiated their contracts prior to the time the continued possession began. It was for the jury to say, if they found that such an oral contract was made, whether or not the possession taken by the tenant, and acquiesced in by the landlord at the expiration of the former term, was in pursuance of and referable to the oral contract, if any, made by the parties.

The defendant Bumiller further answered that on June 6, 1911, he surrendered and delivered possession of the premises to Walker, who accepted the surrender and took possession of the premises. As the verdict of the jury was a general one on all the issues, the judgment of the trial court should be sustained if substantive proof of such surrender was offered at the trial; but there is not a particle of testimony offered tending to sustain the claim of surrender. Evidence tending to show that Walker took the key, advertised for a new tenant, and rented premises to others, did not tend to sustain Bumiller’s defense of surrender. There is no evidence tending to show consent or acquiescence in the surrender upon the part of Walker. Walker could not have done otherwise than he did; his acceptance of the key, advertising for a tenant, and renting of the premises, became his legal duty.

In the Bumiller case, the judgment of the court of appeals is reversed and that of the common pleas affirmed.

In the Kahn case, the judgments of the court of appeals and of the superior court are reversed, and cause remanded with instructions to the latter court to sustain the motion of Kahn to set aside the default judgment.

Judgments reversed.

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

Johnson, J., dissents.


source: Caselaw Access Project

author: Newman, J.

license: Public Domain

text:
    The State, ex rel. Faber, Receiver, v. Jones et al., Judges.

      Writ of prohibition — Against judgment of court of appeals — Supreme court bound by record, when — Challenge of appeal— Section 6, Article IV, Constitution, 1912 — Appeal from insolvency court to court of appeals — Sale of receivership assets— Court procedure.

    1. In a proceeding invoking the original jurisdiction of this court to prohibit the enforcement of a judgment rendered by the court of appeals, upon the ground that that court had no jurisdiction of the cause, this court is concluded by the authenticated record of the court of appeals as to the date of the'.rendition of the decision or judgment by that cour't.
    2. The appealability of a cause can be challenged at any time in the court of appeals before the rendition of judgment.
    3. Under the provisions of Section 6, Article IV of the Constitution, an appeal will lie to the court of appeals from an order of the court of insolvency of Hamilton county overruling a motion for a reduction of the purchase price of the assets sold by a receiver in a receivership proceeding instituted in that court.
    4. A writ of prohibition will not be issued to prevent an inferior court from enforcing an erroneous judgment in a case which it had a right to adjudicate.
    (No. 15292
    Decided February 13, 1917.)
    In Prohibition.
    The relator in this case, invoking the original jurisdiction of this court in prohibition, is asking that an order issue restraining the judges of the court of appeals of the first appellate district from enforcing a certain judgment against him. The case was submitted upon the pleadings and the report of a master commissioner authorized by this court to take testimony and proofs pertinent to the issues raised by the pleadings.
    On Jánuary 16, 1912, the relator, as receiver, under an order of the court of insolvency of Hamilton county, sold to one Joseph Walser the assets of The Gibbs Mfg. Co. at their appraised value as shown by the inventory, which sale was confirmed January 23, 1912. A part of the purchase price was paid in cash, and the balance was evidenced by a note signed by the purchaser and indorsed by one George S. Hawke. Among the assets sold by the receiver was “Patent No. 1,013,762,” known as the Gibbs door-check, the appraised value of this patent, good will, and name, as shown by the inventory, being $400.
    On June 12, 1912, Walser, the purchaser, filed a motion in the court of insolvency, in cause No. 4242, being the cause in which the relator had been appointed receiver, in which he asked thgt the sale of January 16, 1912, in so far as it related to said patent, name, and good will, be set aside, and that the sum of $400 be returned to him by the receiver.' On October 4, 1912, another motion was filed by the purchaser, in which he represented that the material and machinery listed in the inventory was suitable only for the purpose of manufacturing the patented Gibbs door-check, and asked that the sale of machinery and material not airead}^ used by the purchaser be set aside. On October 15, 1912, these two motions were heard in the insolvency court and were overruled.
    Thereafter, the relator, as receiver of The Gibbs Mfg. Co., brought an action in the court of common pleas of Hamilton county against Walser, as maker, and George S. Hawke, as indorser, to recover on the note given for the balance of the purchase price of the property sold to Walser. Walser filed an answer alleging failure of consideration and fraud, and the receiver by reply set up the adjudication of October 15, 1912, by the court of insolvency, as a bar to the defense of failure of consideration and fraud. Judgment was rendered against the defendants by the court of common pleas and error was prosecuted to the court of appeals, where the judgment was affirmed on July 6, 1915. On August 6, 1915, Walser, the purchaser, filed another motion in the court of insolvency of Hamilton county, in said cause No. 4242, in which he again represented that there had been a partial failure of consideration in the assets purchased and moved the court for an order reducing the amount of the purchase money for the assets of The Gibbs Mfg. Co., in the sum of $400, being the amount named in the inventory as the value of the- good will and letters patent. This motion was heard on September 22, 1915, and was overruled, the journal entry in the insolvency court being as follows:
    “This cause coming on to be heard upon the motion of Joseph Walser for a reduction of four hundred ($400) dollars from the purchase price of the assets purchased, because of a partial failure of consideration, and the court having heard the arguments of counsel and being fully advised in the premises finds said motion is not well taken and does overrule the same to all of which ruling and judgment Joseph Walser by his counsel'"excepts.
    “And now comes Joseph Walser and gives notice of appeal herein and the Court fixes the amount of the appeal bond to be given by him at $250.00 providing that the fixing of the amount of the appeal shall not be considered as either approving the right or denial of any right of appeal that the statutes might or might not give to- the said Joseph Walser in that behalf.”
    An appeal bond was filed within thirty days, and on October 27, 1915, a transcript and the original papers from the court of insolvency were filed in the court of appeals. On April 17, 1916, a motion to dismiss the appeal, and on May 3, 1916, a petition for a rehearing, were filed in the court of appeals. On May 20, 1916, the motion to dismiss the appeal was overruled, and on the same day the court of appeals found that the motion for a reduction in the purchase price was well taken and should be granted and that a rebate of $400 on the purchase price of the assets of The Gibbs Mfg. Co. be allowed to the purchaser, Joseph Walser, and it appearing to the court that said sum of $400 had theretofore been paid it was ordered that the receiver repay the same to George S. Hawke, attorney for Walser. It was further ordered that a certified copy of the entry be sent to the court of insolvency to carry the judgment into effect. The relator is asking this court to restrain the court of appeals from enforcing this judgment.

      Messrs. Matthews & Matthews, for relator.

      Mr. George S. Hawke, for defendants.
   Newman, J.

The relator bases his right to a writ of prohibition upon the ground that the court . of appeals was without authority to render judgment against him in the proceeding on appeal from the court of insolvency. It is urged by defendants that no question was raised as to the jurisdiction of the court of appeals until after the decision of that court had been announced and the cause decided adversely to the relator, and that therefore the appealability of the cause from the court of insolvency cannot be challenged in this proceeding. They rely upon the rule announced in Drake et al., Trustees, v. Tucker et al., 83 Ohio St., 97, and followed in, Cadwell v. Cadwell, 93 Ohio St., 23. After the issues were made up in this court in the instant case, a master commissioner was appointed to take testimony and proofs. The several witnesses, including the judges of the court of appeals, testified as to what steps had been taken and what had been done in the hearing in that court prior to the rendition of the judgment which the relator insists should not be enforced. There was testimony to the effect that it was not until after the decision of the court of appeals had been announced that the relator made a motion to dismiss the appeal. We have before us a certified copy of the record of the court of appeals.

As has 'been said by this court, a record is made of a judicial proceeding for the purpose of preserving the evidence of what was transacted in the proceeding. What shall constitute the record is regulated by statute. Section 11604, General Code, provides that all judgments shall be entered on the journal of the court. It is to be presumed that they are entered on the day on which they are rendered. The word “decision” is defined by Spear, J., in The Buckeye Pipe Line Co. v. Fee, 62 Ohio St., 543, 555: “Is intended to embrace the last act of the court ; in other words the judgment.” It appears from the record before us that the judgment of the court of appeals was rendered May 20, 1916. If this did not conform to the facts, a method is provided for correcting it — by applying to the court where the record is made. But a reviewing court has no control of the matter, nor power to make a correction. It must take the record as it finds it and is bound by what is legitimately and properly there. This being true, the record before us is conclusive of the fact that the decision or judgment of the court was rendered on May 20, 1916, and of the further fact that the motion to dismiss the appeal was filed on April 17, 1916.

In Drake et al., Trustees, v. Tucker et al., supra, it was held that' the question of the appealability of a case could not be effectively made except by a motion to dismiss the appeal interposed in the circuit court before the trial in that court. In a later case, The State, ex rel. Lander, v. Prestien et al., 93 Ohio St., 423, Donahue, J., in referring to the word “trial,” as used in the syllabus of Drake v. Tucker, says, at page 427, that this word, when construed with reference to the facts presented by the record, in that case, is intended to include as a part of the trial not only the introduction of evidence and the argument of counsel, but also the judgment of the court upon the issues joined and submitted to it, It was held in the Prestien case that the rule announced in Drake v. Tucker did not apply where the motion to dismiss the appeal was interposed before judgment, and for the same reason it does not apply here. The relator is, therefore, not precluded from challenging the appealability of the order under consideration and questioning in this proceeding the jurisdiction of the court of appeals.

In his motion to dismiss the appeal, filed in the court of appeals, the relator called attention to the fact that the order from which the appeal was taken was made on October 15, 1912, and that no appeal bond was filed within thirty days as required by law. He insisted that the court of appeals, therefore, was without jurisdiction to hear the cause. There was no suggestion, however, that the case was not one in chancery and for that reason could not be appealed under the provisions of Section 6, Article IV of the Constitution, as amended September 3, 1912. However, this question presents itself and will be considered presently.

But in our view when Walser filed the proceeding in the court of appeals on October 27, 1915, he was not appealing from the order made by the court of insolvency on October 15, 1912, for it appears from the record that on August 6, 1915, he filed a motion in the court of insolvency, in which he represented that there had been a partial failure of consideration in the assets purchased by him, and moved the court for an order reducing the amount of the purchase money for the assets in the sum of $400. The court of insolvency took jurisdiction of this motion; heard it, found the same not well taken, and overruled it on September 22, 1915. The reason for this ruling is not disclosed by the record, but the court no doubt treated the issue or question presented as res adjudicata- — that the same question had been disposed of on the hearing of a similar motion in 1912. This certainly was a matter within the jurisdiction of the- court of insolvency. It had authority to pass upon the question, and for the purposes of this case we may assume that it was correct in its holding. But can it be said that the order made was final and conclusive? Had the order been adverse to the receiver and had he been required to rebate the sum of $400, could not the jurisdiction of the court of appeals have been invoked ? If an appeal or a proceeding in error was available to the one party, we do not see upon what theory it could be denied the other.

It remains, then, to be determined whether the order of September 22, 1915, was one from which an appeal could be had to the court of appeals under the provisions of Section 6, Article IV of the Constitution. If it were appealable, the court of appeals had the right to hear the question presented and to decide in the first instance whether or not it was res adjudicata, and, if it should hold that it was not, to determine then from the evidence whether the appellant was entitled to relief.

The order made by the court of insolvency on September 22, 1915, was made in the receivership proceeding instituted in that court under favor of Section 1637, General Code, by the provisions of which section that court is given jurisdiction concurrent with the court of common pleas under Section 11894, General Code, which relates to receiver-ships. The proceedings had in the court of insolvency were of an equitable nature, and made a chancery case. This was the holding in the recent case of Thompson et al. v. Denton, ante, 333.

The order made by the court of insolvency in the instant case affected the substantial right of the creditors represented by the receiver, and it was such an order as would be included in the term “trial,” as used in the constitutional provision relating to appeals to the court of appeals. The subject of the right to appeal from such an order is fully discussed in Thompson et al. v. Denton, supra, and the reasons given why the order under consideration in that case was appealable apply with equal force to the order under consideration here.

The court of appeals in the hearing of the appeal evidently did not entertain the same view as the court of insolvency on the question of res adjudicata. Its holding in that respect may have been erroneous. If it was, and it had further appeared to this court on application for an order of certification that the case was one of public or great, general interest, this court would have reviewed the judgment and would have reversed it. No application, however, was made for an order of certification. But it is argued that as the case was not of public or great general interest no ground for such an order existéd and that an application on the part of the relator would have availed him nothing. This may be true, and we then have a case where the judgment of the court of appeals, although erroneous, is nevertheless final and not subject to review. This condition is brought about by the constitutional provision which makes the judgments of the court of appeals final except in certain cases specifically pointed out by the constitution. If the relief asked for by the relator is grapted the effect would be to nullify, merely because erroneous, the judgment of the court of appeals in a case of which it had jurisdiction and in which its judgment was final. As was held in State, ex rel. Garrison, v. Brough et al., 94 Ohio St., 115, the writ of prohibition cannot be made to serve the purpose of a writ of error to correct mistakes of the lower court in deciding questions of law within its jurisdiction. For the reasons given in that case, such proceeding does not lie to prevent an inferior 'court from enforcing an erroneous judgment in a case which it has a right to adjudicate.

Writ refused.

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


author: Johnson, J.

text:
    The State, ex rel. Myers, v. The Board of Education of Rural School District of Spencer Township, Lucas County, Ohio.

      Statutory construction — “May” and "shall” — Permissive language regarded as peremptory, when — Board of education required to reestablish suspended rural or village school — Upon petition by voters, when — Section 7730, General Code (.106 O. L„ 398).

    1. The literal meaning of the words “may” and “shall” is not always conclusive in the construction of statutes in which they are employed; and one should be regarded as having the meaning of the other when that is required to give effect to other language found in the statute, or to carry out the purpose of the legislature as it may appear from a general view of the statute under consideration.
    2. Where power is granted by statute to public officers by permissive language, coupled with a provision for invoking the exercise of such power by a petition of voters, or of any part of the public, such language will be regarded as peremptory unless a contrary construction is manifestly required.
    3. Under the proviso contained in Section 7730, General Code, as ' amended May 27, 1915 (106 O. L., 398), the board of education of any rural or village school district, which has theretofore suspended any or all schools in such village or school district, is required to reestablish such suspended school on a petition therefor, signed by a majority of the voters of the suspended district, at any time the school enrollment of the said suspended district shows twelve or more pupils of lawful school age.
    (No. 15440
    Decided February 13, 1917.)
    In Mandamus.
    This is a proceeding brought in this court. The relator, John Myers, alleges in his petition that on May 30, 1914, Spencer township was one of the duly organized and existing townships of Lucas county and for the purpose of education constituted the township school district; that on said day the township was divided for school purposes into six subdistricts, each of which was bounded by definite lines, and in each of which there existed a schoolhouse in which the schools of the township were and for a long time had been conducted according to law; that the schoolhouses have continued to be maintained and are still maintained in said several subdistricts and that the county board of education has in no way changed the boundaries of said sub-districts as they existed on the day named; that schools were conducted in each of said schoolhouses until the close of the school year 1916; that on the 4th of April, 1916, the board of education of the rural school district of Spencer township duly passed a resolution to suspend the schools after the first day of June, 1916, by virtue of the provisions of Section 7730, General Code; and that on said April 4, 1916, the board passed a further resolution providing that from and after September 1, 1916, all of the schools of said rural district should be held in a school to be conducted at Sharpless Corners in said Spencer township.
    The relator alleges that he is a resident and voter in original subdistrict No. 1, as above described; ' that he lives in the district with his family and has two children of school age; that there are more than 12 pupils of lawful school age residing in said suspended subdistrict No. 1; tfiat the school enrollment of said suspended district shows more than 12 pupils of lawful school a,ge; that more than 12 pupils of lawful school age in said suspended sub-district attend the schools of said township and the school in said subdistrict No. 1; and that on the -day of August, 1916, a majority of the voters residing in said subdistrict No. 1 filed their petition in writing with and to the board of education of said rural district praying for the reestablishment of the school in said subdistrict No. 1, but that notwithstanding said fact the board has failed and neglected and refused to reestablish said school in subdistrict No. 1.
    The petition prays for a writ of mandamus commanding the board to reestablish the school in the subdistrict named.
    The defendant in its answer alleges that the schools of the rural district of Spencer township have been duly suspended in accordance with Section 7730, General Code; that notwithstanding a majority of the voters residing in subdistrict No. 1 filed their petition in writing with the defendant board, praying for the reestablishment of the school in said subdistrict No. 1, nevertheless it is within the discretion of said defendant board to reestablish or to refuse to reestablish said suspended district; that in the exercise of the sound discretion of a majority of the members of the board, it is the judgment of said board that the said subdistrict should not be reestablished; that in accordance with a resolution duly passed on the 4th of April, 1916, all of the schools in said rural school district are now being held in one school conducted in Sharp-less Corners in Spencer township; and that to reestablish said subdistrict, as in the petition asked for, would demoralize the school at Sharpless Corners and thus interfere with and hinder the proper education of the school children in the rural school district of Spencer township.
    The case is submitted on a demurrer by the relator to the answer.

      Messrs. Graves & Stahl, for relator.

      Mr. John C. D’Alton and Mr. Allen J. Seney, for defendant.
   Johnson, J.

The controversy in this case concerns the construction of the proviso contained in Section 7730, General Code, which was passed May 27, 1915 (106 O. L., 398). Pertinent parts of the section are as follows: “The board of education' of any rural or village school district may suspend any or all schools in such village or rural school district. * * * When the average daily attendance of any school for the preceding year has • been below ten, such school shall be suspended and the pupils transferred to another school or schools when directed to do so by the county board of education. No school of any rural district shall be suspended until ten days’ notice has been given by the board of education of such district * * * provided, however, that any suspended school as herein provided, may be reestablished by the suspending authority upon its own initiative, or upon a petition asking for reestablishment, signed by a majority of the voters of the suspended district, at any time the school enrollment of the said suspended district shows twelve or more pupils of lawful school age.”

The relator contends that upon the filing of the petition referred to, by a majority of the voters of the suspended district, the provision for reestablishment is mandatory, and that the word “may” should be construed to mean “shall.”

The school code now in operation was passed February 5, 1914 (104 O. L., 133). The sections of the General Code' which are therein amended do not appear in the act in their consecutive order, but Sections 4726 and 7730 are found on the same page (139). By the provisions of Section 4726 it is enacted that a rural board of education may submit the question of centralization, and, upon the petition of not less than one-fourth of the qualified electors of such rural district, or upon the order of the county board of education, must submit such question to the vote of the qualified electors of such rural district at a general election or a special election called for that purpose.

It is further provided in that section that if the proposition fails, the question shall not again be submitted to the electors of such rural district for a period of two years, except upon the petition' of at least forty per cent, of the electors of such district.

Section 7730, as there amended, did not contain the proviso involved in this case. At the succeeding session of the legislature the proviso was added to that section.

It will be observed that the only provisions for centralization are found in Section 4726, in which the method by which centralization can be had is specifically described. By those provisions the matter of centralization is required to be left to a vote of the people.

By the provisions of Section 7730 the board of education of any rural or village district may suspend any or all schools in the district, and in a village district may provide, and in rural districts shall provide, for the conveyance of pupils attending such schools, to a public school in the rural or village district, or to a public school in another district.

It will be observed that in this section there is no reference to centralization, nor to the abolition entirely of the suspended district. The use of the term “suspend” necessarily implies the possibility of a revivor or reestablishment, and the terms of the proviso indicate, of course, that the legislature contemplated the reopening of any “suspended school.”

Now, consider the terms of the proviso. It enacts that any suspended school “may be reestablished by the suspending authority upon its own initiative.” Here is an explicit and plenary grant of power to the board of education of the rural or village district to reestablish the school. The grant could not be more comprehensive. Then follows the language, “or upon a petition asking for a reestablishment, signed by a majority of the voters of the suspended district, at any time the school enrollment shows twelve or more pupils of lawful school age.”

There are some well-settled rules of construction which we think must be applied to the proviso in question, and which control. It must be construed as a whole and given such interpretation as will give effect to every word and clause in it. No part should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative.

Concerning the meaning to be given to the words “may” and “shall” this court in The State of Ohio v. Budd, 65 Ohio St., 1, at page 5, say: “The cases in which it is held that these words should be regarded as convertible are numerous, and they contain much learning. The sum of it, however, is that the natural meaning of these words is not always conclusive as to the construction of statutes in which they are employed, and that one should be regarded as having the usual meaning of the other when that is required to give effect to other language of the statute or to carry out the purpose of the legislature as that purpose may appear from a general view of the statute under construction.”

In Columbus, Springfield & Cincinnati Rd. Co. v. Mowatt, 35 Ohio St., 284, it is said, at page 287: “Where authority is conferred to perform an act which the public interest demands, may is generally regarded as imperative.”

It is generally recognized that the true rule is that the legislative intention in the enactment of a particular statute should be the chief guide of the court in its interpretation.

This rule is stated in 5 Words and Phrases, page 4421, and it is there also said: “The word ‘may’ in a statute will be construed to mean 'shall’ whenever the rights of the public or third persons depend on the exercise of the power or the performance of the duty to which it refers, and such is its meaning in all cases where the public interests and rights are concerned, or a duty is imposed on public officers, and the public or third persons have a claim de jure that the. power .shall be exercised.” Many authorities are there cited in support of the above proposition.

Mr. Justice Swayne, in Supervisors v. United States, ex relatione, 71 U. S., 435, says at page 446: “The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language — whenever the public interest or individual rights call for its exercise — the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his.”

Tested by these rules, what must be said as to the proviso in question? As already pointed out the' first clause confers upon- the board absolute authority to reestablish the suspended school on its own initiative. Unless the word “may” was used in a mandatory sense, the remaining part of the proviso is wholly meaningless and vain. By this last clause, it is provided that the district may be reestablished upon a petition signed by a majority of the voters of the district; but under the first clause the same board might reestablish the school on the petition of a small minority, or upon no petition at all. We cannot conceive, and we find nothing in the language to indicate, that the legislature enacted the additional clause without any purpose whatever in view.

We think it clear that the legislature intended that the word “may” when applied to the last clause in the proviso should be held to be mandatory. It intended to secure to the residents of the rural arid village school district, which has 12 or more pupils of lawful school age, the privileges of the residents of other similar districts, that have not been centralized by the affirmative vote of the people' pursuant to the statute hereinbefore referred to. The demurrer to the answer will be sustained, and, defendant not desiring to plead further, the peremptory writ will be allowed.

Writ allowed.

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


author: Nichols, C. J.

text:
    Hoffard et al. v. The Williams Shoe Co.

      Rights of dissatisfied stockholders — In sale of entire corporation property — Holders of common stock issued gratuitously — No right of recovery inter se, when — Defenses available to defendant corporation — Sections 8710 to 8718, General Code.

    1. In an action to recover the amount of an award made by arbitrators in favor of dissatisfied stockholders of a corporation, the assets of which have been sold as an entirety, such sale and award having been made under the provisions of Sections 8710 to 8718, inclusive, General Code, the defense of legal defect appearing on the face of .the award is available to the defendant corporation.
    2. Holders of common stock issued gratuitously to holders of preferred stock in a corporation have no right of recovery inter se by reason merely of the fact that the proportions of the holdings of the common stock thus donated by the corporation are unequal in amount.
    3. Such holders of bonus stock are in pari delicto, and, unless the existence of some special facts or circumstances tantamount to fraud be shown, there can be no recovery by stockholders whose ownership of such bonus stock is proportionately less against their fellow stockholders whose ownership is proportionately greater.
    (No. 15268
    Decided February 20, 1917.)
    Error to the Court of Appeals of Hamilton county.
    The facts are stated in the opinion.

      Messrs. Bentley & Mente, for plaintiffs in error.

      Messrs. Dempsey & Nieberding and Messrs. Creed & Creed, for defendant in error.
   Nichols, C. J.

The instant case involves a consideration and construction of Sections 8710 to 8718, inclusive, General Code, relative to the power and authority of the arbitrators selected in pursuance to the terms of these sections, and the effect of the award under such submission.

Sale of the property of. the defendant corporation, as an entirety, was had, the method strictly following the provisions of Sections 8710, 8711 and 8712, General Code.

Thereafter, the plaintiffs in error, stockholders in the corporation, proceeding under Section 8713, General Code, notified the company of their dissatisfaction with the terms of such sale and demanded in writing from the company payment for their stock.

No payment was made and arbitrators were selected to determine the value of the stock, such selection being had in accordance with the provisions of Section 8713.

An award was made by the arbitrators so selected, their finding being that the Hoffard stock was worth the sum of $1900, and the Keoler stock $2100.

The award not having been paid by defendant company, action at law was commenced to enforce its payment.

The supplemental petition filed recited the facts as above set forth, and attached thereto as an exhibit was the award so made. An intervening petition was filed by John Keoler covering his claim.

The arbitrators found that John Keoler, plaintiff in error, was the owner of twenty-eight shares of preferred stock in the company, of the par value of $100 each, and seven shares of its common stock of the par value of $100 each. They also found that Frank and Annie Hoffard, also plaintiffs in error, were the owners of twenty-five shares of such preferred stock and six shares of its common stock.

Further finding was made to the effect that preferred stock of such company to the amount of $202,000 had been issued and fully paid for, and that common stock to the amount of $382,000 had also, been issued and delivered to the several stockholders, none of which had been paid for, it being expressly set forth in the award that the common stock had been given by the company to the preferred stockholders as a bonus.

It was likewise found and determined by the arbitrators that the company was insolvent and that the stock of the plaintiffs in error would be entirely without value, unless the unpaid amount due on the common stock should be treated as assets in the hands of the company.

They thereupon proceeded to import value to the preferred stock by finding that the common stock was assessable to the extent of its full face value, thereby presumptively placing in the treasury of the defunct corporation the sum of $382,000.

Proceeding with this as a basis they found that the value of the Keoler holdings was $2,100, being the $2,800 par value less $700 which would be due on the assessment on his holding of the seven shares of common stock. By a like mathematical calculation they determined the value of the Hoffard stock to be $1,900.

It was also affirmatively found in the award that all of the indebtedness of the company had been assumed by the purchaser of its assets.

To this supplemental petition the defendant answered, setting up' several defenses, of which the court will take note of but three; namely, the second, third and fourth.

The second defense was to the effect that the award was null and void, and that, as appears on its face, it was contrary to law.

The third defense was to the effect that the award was null and void and also contrary to law for the reason that upon its face it appears that the complaining stockholders knowingly accepted the common stock as a bonus at the time they purchased their preferred stock, and that at the time of such purchase they likewise knew that all common stock previously issued was" acquired by the preferred stockholders in the selfsame manner.

The fourth defense was to the effect that the arbitrators exceeded their authority under the terms of the submission in attempting to assess or in assessing common stockholders of the corporation.

This answer was in legal effect a demurrer to the petition.

The first defense, with which, in view of the judgment hereinafter to be rendered, we are not concerned, admitted the appointment of the arbitrators, the fact that a meeting was had and testimony taken, and denied all the other allegations of the petition; it being in effect a general denial.

Upon the filing of the answer, the complaining stockholders filed motion for judgment on the pleadings, and, the motion having been granted and judgment so entered, error was prosecuted to the court of appeals. Here the judgment of the superior court was reversed and the cause remanded for further proceedings according to law.

On motion to certify record the plaintiffs in error secured submission of the cause to the supreme court for review, the case being, in the opinion of this court, one of great general interest.

As is apparent from the above statement of the history of the case, it concerns the rights of holders of bonus or so-called “sweetened” stock, inter se. No rights of creditors are at all involved, as the claims of all such have been fully satisfied.

No rights as between participating and nonparticipating holders of such bonus stock are involved, as all are in the same position, except as to the degree of their participation, or, rather, as to the proportion of their holdings of the purely gratuitous stock.

Of course, were there not this inequality of holding, there could be no lawsuit; for if each holder of preferred stock had received the same or an equal amount of common stock there would be no advantage in the assessment, it simply being a case of paying in and then drawing out.

The fact that the plaintiffs in error received but one share of common for every four shares of preferred, while other and larger holders of the preferred received one share of common for each share of preferred, made the action worth while.

It has been the almost universal holding of the courts of both the United States and England, that, as to subsequent creditors, the holders of common stock thus donated are liable for an accounting, the rule established being that the amount of the unpaid stock is to be deemed assets of the corporation for the benefit of creditors; although there are notable exceptions to this rule, the state of New York being the most conspicuous in this respect.

With somewhat like unanimity it has been held that a nonparticipating stockholder, who has not by his knowledge or acquiescence consented to the issuing of the bonus stock, may have his action to see that the face value of the unpaid stock is covered into the treasury of the corporation.

On the other hand, it has been pretty generally held that as to participating holders of such bonus stock there is no cause of action inter se, although no direct authority has been submitted where the participation, as in the instant case, was not on equal terms; this, on the well-settled principle of law that a party to an illegal contract cannot come into court of law and ask to have his illegal objects brought to fruition. The law, as it has been aptly epitomized, “leaves the parties where it finds them.” Neither the hard and fast rules of a court of law nor the more flexible customs of a court of equity can ordinarily be invoked for relief.

There are, however, exceptions to this rule, and the only one conceivable that could have application here is the rule that where parties are not in pari delicto relief may be given. It might be urged that since there is a variation in the degree of participation in the illegal issue of common stock, there is likewise a variation in the degree of guilt; that since Hoffard and Keoler received one share only of illegal stock for every four shares of preferred, they do not stand in equal fault with those stockholders who received share for share. This theory would measure fault by the narrow rule of quantity of possession or extent of participation.

It is the well-established rule that parties to a contract, equal in wrong, can have no cause of action inter se, and when not equal in fault, before recovery can be had, there must generally be some showing of fraud. However, neither in the pleadings nor in the award is there the slightest suggestion of fraud, either active or constructive. There is no claim of duress, misrepresentation,' overreaching, or concealment of fact, the award having been made on the simple rule of the holding§ of the parties. When the plaintiffs in error took the common stock as a bonus, there is every reason to suppose they must have understood that the practice of adding a proportion of common to each purchase of preferred stock was the established custom of the company,' and their acceptance of it undér the circumstances implies knowledge of such a custom and is equivalent to an acquiescence on their part.

Therefore, unless there be some peculiar circumstances, none of which, however, are plead, they must be denied recovery from their fellows, on the principle of estoppel. The fact that their participation in the wrong was not equal in degree to that of other stockholders is not in itself sufficient to warrant recovery against those who more largely participated in the wrongful issue.

The further claim is made by the plaintiffs in error that the award of the arbitrators is final, conclusive and unimpeachable.

Their position is that no defense whatever is maintainable, since the statute under which the award is made provides that in default of payment of the amount awarded suit may be entered against the company to recover such amount.

We feel that it is sufficient to say that the special arbitration proceedings under which the parties acted in this case specifically provide that the arbitration shall be conducted as provided by the law regulating arbitrations. See Section 8713, General Code.

Reference to the general arbitration statutes will disclose that if legal defects appear in the award the same may be set aside. See Section 12158, General Code. We clearly have here a case where legal defects appear on the face of the award.

Regardless of statute, any award where on its face manifest mistake of law is apparent is subject to be set aside by the courts.

Because it is unnecessary, we forego to pass on the question as to the power of the arbitrators to cut across corners and assess stockholders in the manner done under this submission.

It is the opinion of the court that under the facts disclosed by the pleadings and the award there is no right of recovery on the part of plaintiffs in error.

The judgment of reversal of the court of appeals is therefore affirmed and the cause is remanded to the superior court with direction to dismiss the supplemental petition of Frank and Annie Hoffard and the intervening petition of John Keoler.

Judgment affirmed.

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


text:
    Lingafelter et al. v. Moore.

      Challenge of juror — Result of overruling by trial court — Where bias of juror is manifest — Exhaustion of peremptory challenges— Section 11438, General Code — Conduct of trial.

    1. The right of trial by jury guaranteed by the constitution carries with it by necessary implication the right to a trial by a jury composed of unbiased and unprejudiced jurors.
    2. Under the provisions of Section 11438, General Code, a challenge to a juror must be sustained if the trial court has any doubt as to the juror being unbiased. Where the facts as to bias are uncontradicted and the only conclusion that can be legally drawn is that the juror is biased, the overruling of a challenge by a trial court is a manifest abuse of discretion and warrants a reversal of the judgment, where the challenge is made by a party after his peremptory challenges have been exhausted.
    3. Testimony of a juror on his voir dire that he was a depositor ■ in the bank of one of the defendants, that he had a feeling against him, that he would have a feeling against him whether or not the case in which he was called as a juror had anything to do with the failure of the bank and, further, that in starting in the trial of the case he could not get that- feeling out of his mind, shows the existence of a state of mind evincing a bias against that defendant, and in admitting such juror after his peremptory challenges have been exhausted the defendant is denied his constitutional right to an impartial jury.
    (No. 15278
    Decided February 20, 1917.)
    Error to the Court of Appeals of Licking county.
    This case originated in the court of common pleas of Licking county. According to the allegations of the petition, the defendant in error paid plaintiffs in error money on account of the purchase price of a tract of real estate which they had sold to her and which they had agreed to convey by deed of general warranty. They refused to carry out their part of the agreement and she sought to recover the amount of money paid to them on account of the purchase price of the real estate. The case was tried to a jury upon the pleadings and the evidence, and resulted in a verdict for defendant in error in the amount claimed in the petition.
    After the peremptory challenges of plaintiffs in error had been exhausted, S. S. Cooperrider, Henry 'Pfeifer and Wales C. Collins were accepted as jurors over the objection of plaintiffs in error. The examination of Cooperrider on his voir dire, as shown by the record, is as follows:
    Q. Mr. Cooperrider, were you a depositor in the Homestead Building & Savings Company, or in the Newark Savings Bank? A. In the Bank.
    Q. Have you some feeling against Mr. Lingafelter on that subject? A. I certainly have.

      Q. And if you would start in to try this case, you would start in with that feeling against him, wouldn’t you? A. It would depend upon whether this case had anything to do with that.
    Q. Well, you say you have a feeling against Lingafelter. A. I have, yes.
    Q. And whether this case has anything to do with the bank failure or not, you still have a feeling against Lingafelter ? A. I have, yes sir.
    Q. And you would start into this case with that feeling in your mind? A. I couldn’t get that out of my mind very well, no, sir.
    By S. L. James: I challenge him for cause.
    The Court: Q. Where do you live? A. In Bowling Green township.
    Q. That is several miles from this city? A. Yes, sir, about fifteen miles.
    By L. C. Russell: This case has no connection with that matter.
    By S. L. James: We do not claim that it has.
    The Court: The Court wishes to know whether you could hear the' evidence that will be submitted to you in this case and, under the charge of the court, and, after the charge of the court, render a fair and impartial verdict ? A. I would do that’ after I took an oath to that effect, yes, sir.
    Q. Could you do that? A. Yes, sir, I could do that.
    Q. You could lay aside any prejudice you might have against Mr. Lingafelter and render your verdict upon the evidence and upon the evidence alone ? A. Yes, sir.
    The Court: I will overrule the challenge.

      By Mr. James: Note an exception.
    A motion for new trial was overruled and judgment was rendered on the verdict. This judgment was affirmed by the court of appeals and upon application of plaintiffs in error the court of appeals was directed to certify its record to this court.

      Mr. S. L. James and Mr. J. F. Lingafelter, for plaintiffs in error.

      Mr. C. W. Miller; Mr. B. G. Smythe and Mr. L. C. Russell, for defendant in error.
   Newman, J.

The claim of plaintiffs in error is that the trial court prevented them from having an impartial jury in admitting the three jures who were challenged for cause, particularly Cooper-rider, whose examination on his voir dire is set out in full in the statement of the case. In view of the conclusion we have reached it is not necessary to consider the competency of the jurors other than Cooperrider.

It is beyond question that the. right of trial by jury guaranteed by the. constitution carries with it by necessary implication the right to a trial by a jury composed of unbiased and unprejudiced jurors. This right being guaranteed, all courts are charged with the imperative duty of affording every litigant the opportunity of having his cause tried by an impartial jury. What was said by McIlvaine, J., in Palmer v. State, 42 Ohio St., 596, at page 604, applies with equal force to juries in civil cases: “It must, however, be affirmed, that neither legislative discretion nór a discretion conferred by the legislature upon the court, can be allowed to detract one jot or tittle from the guarantee of the constitution that the accused shall be tried by an impartial jury.”

To safeguard this right and to define in a measure what shall constitute an impartial jury in the trial of civil cases, the general assembly has enacted Sections 11437 and 11438, General Code. In the former section are enumerated a number ofi what are termed good causes for challenge to any person called as a juror for the trial of any cause, and these causes are further referred to in the section as principal causes of challenge. Section 11438, General Code, under favor of which the challenges in the instant case were made, is as follows: “Any petit juror may be challenged also on suspicion of prejudice against, or partiality for either party, or for want of a competent knowledge of the English language, or other cause that may render him at the time an unsuitable juror. The validity of such challenge shall be determined by the court, and be sustained if the court has any doubt as to the juror’s being entirely unbiased.”

This section as originally enacted provided for a challenge on suspicion of prejudice against or partiality for either party, for want of competent knowledge of the English language, or any other cause that might render him at the time an unsuitable juror, and the validity of the challenge was to be determined by the court. On April 29, 1902 (95 O. L., 308), the section was amended, and there was added this language, “and shall be sustained if the court has any doubt as to the juror being entirely unbiased.”

In Dew v. McDivitt, 31 Ohio St., 139, the section, as it read prior to the amendment to which we have referred, was before the court for consideration. It was there held: “On the trial of the validity of a challenge alleged against a juror, other than a principal cause of challenge, a sound discretion is allowed to the court.” Notwithstanding the amendment to the section under consideration, the rule above stated should be adhered to and great latitude of discretion, allowed to the trial court as to the validity of the challenge, and a judgment should not be reversed because of the failure of the court to sustain a challenge to a juror upon the ground of prejudice or bias, unless it appear that there has been abuse of discretion and that the litigant has been denied his constitutional right to an impartial jury.

The bias complained of in this case should not be confused with bias or prejudice which disqualifies a juror and is usually sought for by the question: “Have you formed or expressed an opinion in the case ?” In the cases cited by counsel for defendant in error it appears that the juror had formed or expressed an opinion as to the merits of the case, and the trial court having examined him as to the ground of his opinion, and he having stated that he could render an impartial verdict notwithstanding his opinion, he was admitted as a juror. Such cases are not decisive of the question involved here, for it is not and cannot be claimed that the bias of the juror, Cooperrider, related to any opinion which he had formed or expressed as to the merits of the cause which was being tried. On his voir dire he stated that he was a depositor in a certain bank and had a feeling on the subject against Lingafelter, one of the plaintiffs in error, and that whether the case being tried, had anything to do with the bank failure or not he would still have a feeling against him; and, further, that in starting into the trial of the case he could not get that feeling out of his mind.

This testimony unquestionably showed the existence of a state of mind evincing a bias against Lingafelter. There was a leaning against him and the juror’s mind was certainly not indifferent. It was a feeling against Lingafelter personally; an actual bias. The statement that he could lay aside the prejudice and impartialy try the case is nothing more than the expression of an opinion. It could not affect the showing of actual bias made, or remove or overcome the ground of challenge. It is different from a case where the juror has formed or expressed an opinion on the merits of the case. As has been said, the forming or expressing such opinion is strong evidence of prejudice which is inconsistent with impartiality; but that it is equivalent to partiality and renders the juror incompetent is not true. But actual bias against a litigant personally is wholly inconsistent with impartiality.

We are of the opinion that but one conclusion could have been legally drawn from the undisputed facts, and that is that Cooperrider was a biased juror. Under the provisions of Section 11438 it is mandatory upon the court to sustain a challenge if it has any doubt as to the juror being entirely unbiased. For the trial court to hold that there was no doubt as to Cooperrider being entirely unbiased, after he had admitted that he was, was a manifest abuse of discretion; and to overrule the challenge of plaintiffs in error after their peremptory challenges had been exhaustéd, thereby denying them their constitutional right to an impartial jury, warrants a reversal of the judgment below.

Judgment reversed.

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


text:
    Brittain et al. v. The Industrial Commission of Ohio.

      Court of appeals no authority — To reverse inferior court — For insufficient evidence — Unless all judges concur.

      A court of appeals is without authority to reverse a judgment of an inferior court on the ground that such judgment is not sustained by sufficient evidence, ■ unless the judgment of reversal is concurred in by all of the judges of the court.
    (No. 15388.
    Decided February 20, 1917.)
    Error to the Court of Appeals of Marion county.
    The facts are stated in the opinion.

      Mr. Harry Kohn, for plaintiff in error.

      Mr. .Edward C. Turner, attorney general; Mr. Eugene Carlin; Mr. John G. Price; Mr. Homer E. Johnson, prosecuting attorney, and Mr. Charles H. Conley, assistant prosecuting attorney, for defendant in error.
   Nichols, C. J.

The plaintiffs in error are dependents of John H. Brittain, who, it is alleged in the original petition in this case, while engaged in the performance of certain duties as an employe of The G. R. Hopkins Co., of Marion, Ohio, was so injured that he died.

Application for compensation was made in due form to the state industrial commission. The claim was denied, the reason assigned being that the death of said John H. Brittain did not occur while he was in the pursuit' or in the course of his regular employment.

The dependents thereupon appealed to the court of common pleas of Marion county. The commission defended, its defense being that the deceased met his death by drowning, or from some other cause unknown, and not from any accident or injury sustained by him while acting in the course of his employment.

The case was tried, resulting in a verdict in favor of the dependents in the sum of $3,825. The trial judge overruled motion for a new trial and entered judgment on the verdict.

Error was prosecuted to the court of appeals of Marion county, where, upon hearing, the judgment of the court of common pleas was reversed for the sole and only reason that the verdict of the jury was not sustained by sufficient evidence.

The journal entry in the court of appeals shows affirmatively that such judgment of reversal was concurred in by two judges of the court and dissented from by one judge thereof.

Error proceedings were thereupon commenced in the supreme court, the dependents coming as a matter of right, since the proceedings had in the court of appeals clearly constituted the case one in which a question arising under the constitution of Ohio was involved.

We have but the one question before the court, and it is here squarely for decision. Some other cases involving indirectly the same question have been brought to the court since the adoption of the new judicial amendment, but other errors have been so associated with the main question that until the instant case was reached the court has lacked the opportunity of passing upon this most important question.

The question is: What power, if any, has the court of appeals to reverse a judgment of the court of common pleas on the sole and only ground that the verdict of the jury on which the judgment was founded was not sustained by sufficient evidence, unless the judgment of reversal is concurred in by all the judges of such court ?

The constitution by its plain terms expressly denies the right of the court of appeals to reverse a judgment of a lower court on the weight of the evidence, except by the concurrence of all of the judges of the court.

Is there any essential difference between the terms “weight of evidence” and “sufficient evidence ?” Unless there is, then the court in the instant case has attempted to exercise a power expressly denied it by the constitution.

It is claimed by the plaintiffs in error that these terms are identical in legal meaning and that their employment has always been interchangeable.

Sufficient is defined as “adequate,” “enough,” “as much as may be necessary.” When used in connection with evidence, it certainly implies some evidence. If we speak of one as lacking sufficient clothing to protect him from cold, it is not our meaning that he is entirely destitute of clothing, but rather that he needs more clothing.

• There is no possible sense in which the term “sufficient,” as associated with the word “evidence,” may be used so as to imply that there is an entire lack of evidence. It may be slight and unsatisfactory, or it may only be a little short of the amount required. In either case it may be insufficient, but still it is some.

In a given case if some evidence, however slight, is introduced by a plaintiff in support of his cause of action and tending to prove each and every material element necessary to be proven, then the case must under the state of our law go to the jury.

On the other hand, if there be say four essential and material elements necessary to enable the party to establish his case, and some competent evidence be introduced tending to prove three of these four material elements, but no competent evidence at all tending to prove the fourth of this series of elements, then he has failed at the threshold, and it is then within the power of the court to direct a verdict of the jury against him. .

To illustrate, and using for illustration the instant case, the plaintiffs in error, before recovery could be had, must show:

1. That the employe was injured in the course of his employment.

2. That the injury was not self-inflicted.

3. That the injury resulted in death within the period of two years.

4. That they were dependents of the deceased at the time of his death.

5. That- the employer was a contributor to- the workmen’s compensation fund.

Now let us assume that second, third, fourth and fifth of these material facts were proven by uncontradicted testimony, but that no evidence at all had been offered proving or tending to prove the first essential fact; that is, that the employe was injured in the course of his employment.

If a record in such a state were submitted to the court of appeals, that court, only two judges concurring, could under the constitution reverse such judgment, if one had been rendered in favor, of claimants, not on the ground that the evidence was not sufficient, but for the reason that there was no evidence. In short, if the claimant fails to offer some proof in support of any one of many material elements that must concur to entitle him to recover, he fails, because there is no evidence, no matter how adequately he may support by legal evidence all of the other material elements in the case.

It should not be overlooked that our statutes do not in just so many words empower a trial court to set aside the verdict of a jury, or the court’s own judgment for that matter, for the reason that the verdict or judgment is against the weight of the evidence. Paragraph 6 of Section 11576, General Code, provides that such verdict, or judgment, may be set aside if it is not sustained by sufficient evi- . dence. However, these terms have been used interchangeably both by bench and bar, and for many, many years have been given the same general meaning.

The attorney that files his motion to set aside the verdict or judgment generally follows the wording of the statute, and as a ground for new trial asserts that the verdict or judgment is not sustained ■ by sufficient evidence. When, however, he appears before the trial judge and argues his point, he ignores the question of sufficiency and proceeds to weigh the evidence. He will take up witness by witness, oppose the testimony of the one by the testimony of the other, and in his argument will dwell on the weight of the evidence. Then the trial judge in passing on the motion will do precisely the same thing. He will employ the term “weight of evidence” ten times to where he uses the term “sufficiency of evidence” once. Reference to reported decisions of trial courts will bear abundant proof of this statement. The circuit court in its review of judgments during the full period of its life of twenty-six years at no time attempted to discriminate between these expressions, and the supreme court, prior to the adoption of the new judicial amendment, made absolutely no discrimination in the employment of these terms.

The case of Minnear v. Holloway, 56 Ohio St., 148, is illustrative. The first proposition of the syllabus is: “When a higher court reverses the judgment of a lower court upon the ground that the verdict or judgment is not sustained by sufficient evidence, or is against the weight of the evidence, the cause must be remanded to the lower court for a new trial.” Burket, C. J., in his opinion in that case, says, page 151, “upon a reversal of the judgment upon the ground that the judgment is not sustained by sufficient evidence, or is against the weight of the evidence, which is the same thing, the higher court may proceed,” etc.

In the case of Weaver v. C., S. & H. V. Ry. Co., 55 Ohio St., 495, Bradbury, J., says: “A Verdict, report or decision,’ however, should be regarded as against the weight of the evidence whenever the evidence is not sufficient to sustain it.”

Since the constitution was last amended this court in at least two cases has through its opinion employed these terms as if they had one and the same meaning.

The first case is that of The Mahoning Valley Ry. Co. v. Santoro, 93 Ohio St., 53, where in the opinion, page 58, Wanamaker, J., says: “One of the grounds therein specified for granting of a new trial is That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law,’ which in effect is a verdict against the weight of the evidence, as it is sometimes paraphrased.”

In a later case reported in 93 Ohio St., 396, Toledo Railways & Light Co. v. Paulin, Matthias, J., employs the terms as though they were synonymous.

Reference of this character from our own and foreign jurisdiction could be multiplied indefinitely without serving any useful purpose.

In view of the fact that the two phrases “against the weight of the evidence” and “not sufficient evidence” have so long been given the same meaning in our procedure, the framers of the amendment to Section 6, Article IV of the Constitution, will be presumed to have had that fact in mind and to. have intended that a court of appeals should not have authority to reverse a judgment of an inferior court on the ground that it is “against the weight of the evidence,” or that it is not sustained by “sufficient evidence,” unless the judgment of reversal is concurred in by all of the judges of the court.

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

Judgment reversed.

Wan am aker, Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


author: By the Court.

text:
    The State, ex rel. Turner, Atty. Gen., v. Hildebrant, Secretary of State, Etc.

      Presidential electors — Form of ballot — Method of marking — Separate ballot — Amendment of statutes — Sections 5017 and 5021, General Code.

    (No. 15413
    Decided September 27, 1916.)
    In Mandamus.

      Mr. Edward C. Turner, attorney general, for relator.

      Mr. A. O. Dickey, for defendant.
   By the Court.

This cause coming on to be heard upon the general demurrer to the petition filed herein, was argued by counsel; on consideration whereof the court finds that in the legislative scheme adopted by the general assembly on February 12, 1913, it was thereby provided by Section 5017, General Code (103 O. L., 59), for a separate ballot for presidential electors, and that by Section 5021, General Code (103 O. L., 22), it was provided “that on the ticket for presidential electors blank enclosed spaces shall not be provided on the left and before the names of the presidential electors. A cross mark in the large blank circular space above the name of the party at the head of said ticket shall constitute a vote and be counted as such for each of the presidential electors thereon.”

By an act passed May 20, 1915 (106 O. L., 346), Section 5017, General Code, was amended by striking out the provisions for a separate ballot arid restoring the provisions upon that subject substantially as they existed prior to February 12,1913. The latter portion of Section 5021, General Code, above quoted thereby became inoperative and void.

It is therefore considered and adjudged by the court that the demurrer to the petition be overruled, and the defendant not desiring to plead further, the court finds in favor of the plaintiff and decrees that a writ of mandamus be awarded as prayed for.

Demurrer overruled, and writ allowed.

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


text:
    The Epoch Producing Corporation v. The Industrial Commission of Ohio et al.

      Motion picture films —Powers of board of censors — Lack of matter in record — Presented for review by supreme court.

      (No. 15254
    Decided October 24, 1916.)

    Error to the Industrial Commission of Ohio.

      Mr. J. W. Heintzman and Mr. J. Sagmeister, for plaintiff in error. .

      Mr. Edward C. Turner, attorney general, and Mr. Henry S. Ballard, assistant attorney general, for defendants in error.
   By the Court.

(On rehearing.) This cause came on to be heard by the court upon the petition, the joint answer of the Industrial Commission of Ohio and the Board of Censors of Motion Picture Films of Ohio, 'and the transcript of the record of the proceedings had before said Board of Censors, and the same was argued by counsel and submitted to the court. And the court being fully advised in the premises find that the transcript of the record of the proceedings before the Board of Censors of Motion Picture Films for the State of Ohio does not contain all the matters and things heard and exhibited to said Board of Censors and this court cannot determine from the record presented whether said order is or is not unreasonable or unlawful, and for this reason the petition of plaintiff is dismissed.

Petition dismissed.

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


text:
    The City of Delaware et al. v. The State, ex rel. Wolfley, Marnell, Williams & Co.

      Supreme court — Affirmances — Incomplete record for review.

    (No. 15291
    Decided December 5, 1916.)
    Error to the Court of Appeals of Delaware county.

      Mr. George E-. Caylor, city solicitor, and Mr. George Coyner, for plaintiffs in error.

      Messrs. Marriott, Freshwater & Wickham, for defendant in error.
   By the Court.

The court finds from the entry of the final judgment of the court of appeals, as shown by the record herein, the cause was submitted to that court upon the statement and admissions of counsel for respondents in the statement of the case and upon the motion of the relators for a judgment upon the pleadings and the statement and admissions of counsel, and the court further finds that there is not contained in the record of the cause any bill of exceptions showing what the statements and admissions of counsel for respondents in the statement of the case were, and there ■ is not included in the entry of the judgment such statement and admissions of counsel for the respondents in the statement of the case.

It is, therefore, ordered and adjudged by this court that the judgment of said court of appeals be, and the same is hereby, affirmed. ■

Judgment affirmed.

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


text:
    The Hocking Valley Railway Co. v. The Public Utilities Commission et al.

      Continuation of railzvay service — Objection to order of utilities commission — Time of operation not sufficient for determination of court.

    (No. 15256
    Decided December 12, 1916.)
    Error to the Public Utilities Commission.

      Messrs. Wilson & Rector, for plaintiff in error.

      Mr. Edward C. Turner, attorney general; Mr. Freeman T. Eagleson and Mr. E. E. Eubanks, for defendants in error.
   By the Court.

It is ordered and adjudged by this court, that the order of the said public utilities commission be, and the same is hereby, affirmed; for the reason the court finds that it is disclosed by the record that sufficient time had not elapsed after the former order of this court to sufficiently inform the court touching the different claims of the parties in the premises. And this court does not pass upon the other questions involved nor preclude itself from passing on any state of facts which might be shown concerning the disputed matters covering' a longer and sufficient period of time.

Order affirmed.

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


text:
    In re Marie M. Ackerman.

      Habeas corpus — Unlawful detention m state hospital.

    (No. 15467
    Decided December 18, 1916.)
    Application for Writ of Habeas Corpus.

      Messrs. Belcher & Connor, for petitioner, Gustav A. Ackerman.

      Mr. Edward C. Turner, attorney general, and Mr. John G. Price, for respondent.
   By the Court.

Now came the sheriff of the said county of Franklin and made return of the writ of habeas corpus heretofore issued in this case. And upon the hearing of the case the court find that the said Marie M. Ackerman is unlawfully detained by the said William H. Pritchard, superintendent of the Columbus State Hospital.

It is therefore ordered that the said Marie M. Ackerman be forthwith discharged from her said detention.

Order of discharge to issue.

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

Johnson, J., not participating. '


text:
    The State, ex rel. Scott, v. Ryan.

      Election to county board of education- — Unlawful holding of office.

    (No. 15359
    Decided January 9, 1917.)
    In Quo Warranto.

      Mr. George B. Okey and Messrs. Shively & Vance, for relator.

      Messrs. Blair & Kimble, for defendant.
   By the Court.

This cause coming on for hearing upon the demurrer of the defendant to the petition of plaintiff was argued by counsel. On consideration whereof the court finds said demurrer not well taken and overrules the same, and defendant not desiring to plead further the court finds the allegations of the petition to be true and that the relator was on the 3d day of April, 1916, duly elected a member of the county board of education of Adams county, to serve until the 3d Saturday of January, 1921, and that he thereupon took the oath of office required by law and duly qualified to fill said office and perform the duties thereof.

The court further finds that the defendant has usurped and unlawfully holds and exercises the duties of said office to the exclusion and against the rights of the relator thereto.

It is therefore ordered and adjudged that said defendant be and hé hereby is ousted from said office and is excluded from performing the duties thereof and that relator be inducted into said office.

Demurrer overruled, and judgment of ouster.

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


text:
    Yee Ling v. Emerick, Superintendent of the Asylum for the Feeble-Minded.

      Habeas corpus — ■Wrongful detention in asylum for feeble-minded.

    (No. 15476
    Decided January 23, 1917.)
    Application for a Writ of Habeas Corpus.

      Messrs. Marvin & Marvin, for petitioner.

      Mr. E. C. Turner and Mr. Joseph McGhee, attorneys general; Mr. John G. Price and Mr. R. M. Knepper, for defendant.
   By the Court.

This day this cause came on to be heard upon the pleadings and evidence, and was argued by counsel and submitted to the court. On consideration whereof, the court finds that said Mary Kosmider Ling held by E. J. Emerick, superintendent at the institution referred to in the petition, is not rightfully or lawfully there held, and that she is entitled to be discharged.

It is, therefore, ordered and adjudged that the said Mary Kosmider Ling be discharged from said institution.

Judgment for plaintiff.

Nichols,. C. J., Jones, Johnson and Donahue, JJ., concur.


text:
    Owens, a Taxpayer, v. The Board of Education of the City School District of the City of Cleveland et al.

      Supreme court — Dismissals —Moot questions.

    (No. 14964
    Decided November 21, 1916.)
    Error to the Court of Appeals of Cuyahoga county.

      Mr. John A. Cline and Mr. James E. Mathews, for plaintiff in error.

      Mr. John N. Stockwell and Mr. W. S. FitzGerald, directors of law; Mr. Arthur F. Young and Mr. Ben B. Wickham, assistant directors of law, and Mr. D. C. Westenhaver, for defendants in error.
   Petition in error dismissed on authority of Miner v. Witt, 82 Ohio St., 237.

Petition dismissed.

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


text:
    Honhorst, Exrx., v. Honhorst.

      Contracts — Compensation for services by member of family — ■Measure of proof.

    (No. 15191
    Decided November 28, 1916.)
    Error to the Court of Appeals of Hamilton county.

      Mr. Clyde P. Johnson; Mr. Phineas S. Phillips and Messrs. Johnson & Levy, for plaintiff in error.

      Messrs. Bettinger, Schmitt & Kreis, for defendant in error.
   Judgment reversed on authority of Hinkle et al., Exrs., v. Sage, 67 Ohio St., 256, and Merrick v. Ditzler, 91 Ohio St., 256.

Judgment reversed.

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

Wanamaker, J., not participating.


text:
    Wogoman v. The Board of Education of the Rural School District of Perry Township et al.

      Schools — Transfer of township district — Political status of county school board members — Constitutionality of Section 4679 et seq., General Code (104 O. L., 133).

    (No. 15334
    Decided December 12, 1916.)
    Error to the Court of Appeals of Montgomery county.

      Messrs. Summers & Beard, for plaintiff in error.

      Messrs. Carr, Allaman & Reiter; Mr. D. B. Van Pelt and Mr. Robert C. Patterson, for defendants in error.

   Judgment affirmed on authority of Cline v. Martin et al., 94 Ohio St., 420.

Judgment affirmed.

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


text:
    H. J. Heinz Co. v. Benham, Treasurer.

      Taxation — Foreign corporations — Book-account credits at local branch — Deduction of debts of'parent company.

    (No. 15240
    Decided December 12, 1916.)
    Error to the Court of Appeals of Franklin county.

      Messrs. Vorys, Sater, Seymour & Pease and Mr. Lawrence Maxwell, for plaintiff in error.

      Mr. Robert P. Duncan, prosecuting attorney, and Mr. William J. Ford, assistant prosecuting attorney, for defendant in error.
   Judgment affirmed on authority of Hubbard, Treas., v. Brush, 61 Ohio St., 252.

Judgment affirmed.

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


text:
    In re Josephine L. Tailford, a Minor.

      Habeas corpus — Proper custodianship of child.

    (No. 15443
    Decided January 9, 1917.)
    Application for Writ of Habeas Corpus.

      Mr. Ben W. Johnson and Mr. James Nye, for petitioner, Rillia Tailford.

      Messrs. Friedman, Foster & Dixon, for respondents, Herman and Henrietta Weil.
   Petition and intervening petition both dismissed on authority of Cincinnati House of Refuge v. Ryan, 37 Ohio St., 197.

Petitions dismissed.

Wanamaker, Newman, Jones and Matthias, JJ„ concur.

Nichols, C. J, Johnson and Donahue, JJ, dissent.


text:
    Staley, Auditor, v. The State, ex rel. Hunt et al.

      Taxation — Emergency levy for road repairs.

    (No. 15327
    Decided January 30, 1917.)
    Error to the Court of Appeals of Miami county.

      Mr. Edward C. Turner and Mr. Joseph McGhee, attorneys general; Mr. H. C. Sherman and Mr. Charles Follett, for plaintiff in error.

      Mr. R. A. Kerr and Mr. F. C. Goodrich, prosecuting attorneys, for defendant in error.
   Judgment reversed on authority of State, ex rel. Menning, v. Zangerle, Auditor, ante, 1.

Judgment reversed.

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


text:
    McClelland, Exr., et al. v. The City of Zanesville et al.

      Assessments — Foot front — Street improvement — Comer and interior lots — Change in judicial construction.

    (No. 15270
    Decided February 13, 1917.)
    Error to the Court of Appeals of Muskingum county.

      Mr. Harry C. Shepherd, for plaintiffs in error.

      Mr. J. Ernest Harkness, for defendants in error.
   Judgment’ of the court of appeals reversed and that of the common pleas court affirmed on authority of City of Sidney et al. v. Cummins, 93 Ohio St., 328.

Judgment reversed.

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

Donahue, J., not participating.


text:
    Bemis v. Unida Gold Mining Co.

      Supreme court — Dismissals—Constitutional question not involved.

    (No. 15358
    Decided February 13, 1917.)
    Error to the Court of Appeals of Cuyahoga county.

      Messrs. A. A. & A. H. Bemis, for plaintiff in error.

      Messrs. Hart & Hart and Mr. T. L. Strimple, for defendant in error
   Petition dismissed qn the ground that no con-, stitutional question is involved.

Petition dismissed.

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


text:
    No. 15290.
    Smitt v. The Aultman-Taylor Co. et al.
    Decided December 5, 1916.
    Error to the Court of Appeals of Richland county.

      Messrs. Brucker, Voegele & Henkel, for plaintiff in error.

      Messrs. Pomerene, Ambler & Pomerene; Mr. H. W. Harter and Messrs. McBride & Wolfe, for defendants in error.
   Judgment affirmed.

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


text:
    No. 15274.
    The Auglaize Box Board Co. et al. v. Miller, Etc.
    Decided December 12, 1916.
    Error to the Court of Appeals of Auglaize county.

      Mr. Anthony Culliton and Messrs. Gottschall & Turner, for plaintiffs in error.

      Messrs. Goeke & Anderson and Mr. L. C. Hirsch, for defendant in error.
   Judgment affirmed.

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